{
  "schema": "tga.work.v1",
  "identifier": "dresden:vol-11:address-on-the-civil-rights-act",
  "slug": "address-on-the-civil-rights-act",
  "title": "Address on the Civil Rights Act",
  "subtitle": "Lincoln Hall, Washington, October 22, 1883.",
  "excerpt": "An address — introduced by Frederick Douglass — on the Supreme Court's 1883 ruling that the Civil Rights Act was unconstitutional, and on what the 13th, 14th, and 15th Amendments actually required of the States.",
  "year": 1883,
  "volume": 11,
  "category": "Address",
  "author": {
    "name": "Robert G. Ingersoll",
    "wikidata": "Q360326",
    "viaf": "44331023"
  },
  "isPartOf": {
    "title": "The Works of Robert G. Ingersoll",
    "edition": "Dresden Edition",
    "publisher": "C. P. Farrell",
    "year": 1900
  },
  "license": "https://creativecommons.org/publicdomain/mark/1.0/",
  "url": "https://thegreatagnostic.com/works/address-on-the-civil-rights-act/",
  "wordCount": 16960,
  "body": "ON the 22d of October, 1883, a vast number of citizens met at Lincoln\nHall, Washington, D. C., to give expression to their views concerning\nthe decision of the Supreme Court of the United States, in which it is\nheld that the Civil Rights Act is unconstitutional.\n\nCol. Robert G. Ingersoll was one of the speakers.\n\nThe Hon. Frederick Douglass introduced him as follows:\n    Abou Ben Adhem—(may his tribe increase!)\n    Awoke one night from a deep dream of peace,\n    And saw within the moonlight of his room,\n    Making it rich and like a lily in bloom,\n    An angel writing in a book of gold:\n    Exceeding peace had made Ben Adhem bold;\n    And to the presence in the room he said,\n    \"What writest thou?\" The vision raised its head,\n    And, with a look made all of sweet accord,\n    Answered, \"The names of those who love the Lord.\"\n    \"And is mine one?\" asked Abou. \"Nay, not so,\"\n    Replied the angel. Abou spoke more low,\n    But cheerily still; and said, \"I pray thee, then,\n    Write me as one that loves his fellow-men.\"\n    The angel wrote, and vanished. The next night\n    It came again, with a great wakening light,\n    And showed the names whom love of God had blest;\n    And, lo! Ben Adhem's name led all the rest.\n\nI have the honor to introduce Robert G. Ingersoll.\n\nMr. Ingersoll's Speech\n\nLadies and Gentlemen:\n\nWe have met for the purpose of saying a few words about the recent\ndecision of the Supreme Court, in which that tribunal has held the first\nand second sections of the Civil Rights Act to be unconstitutional; and\nso held in spite of the fact that for years the people of the North\nand South have, with singular unanimity, supposed the Act to be\nconstitutional—supposed that it was upheld by the 13th and 14th\nAmendments,—and so supposed because they knew with certainty the\nintention of the framers of the amendments. They knew this intention,\nbecause they knew what the enemies of the amendments and the enemies of\nthe Civil Rights Act claimed was the intention. And they also knew what\nthe friends of the amendments and the law admitted the intention to\nbe. The prejudices born of ignorance and of slavery had died or fallen\nasleep, and even the enemies of the amendments and the law had accepted\nthe situation.\n\nBut I shall speak of the decision as I feel, and in the same manner as I\nshould speak even in the presence of the Court. You must remember that\nI am not attacking persons, but opinions—not motives, but reasons—not\njudges, but decisions.\n\nThe Supreme Court has decided:\n\n1. That the first and second sections of the Civil Rights Act of March\n1, 1875, are unconstitutional, as applied to the States—not being\nauthorized by the 13th and 14th Amendments.\n\n2. That the 14th Amendment is prohibitory upon the States only, and the\nlegislation forbidden to be adopted by Congress for enforcing it, is\nnot \"direct\" legislation, but \"corrective,\"—such as may be necessary\nor proper for counteracting and restraining the effect of laws or acts\npassed or done by the several States.\n\n3. That the 13th Amendment relates only to slavery and involuntary\nservitude, which it abolishes.\n\n4. That the 13th Amendment establishes universal freedom in the United\nStates.\n\n5. That Congress may probably pass laws directly enforcing its\nprovisions.\n\n6. That such legislative power in Congress extends only to the subject\nof slavery, and its incidents.\n\n7. That the denial of equal accommodations in inns, public conveyances\nand places of public amusement, imposes no badge of slavery or\ninvoluntary servitude upon the party, but at most infringes rights which\nare protected from State aggression by the 14th Amendment.\n\n8. The Court is uncertain whether the accommodations and privileges\nsought to be protected by the first and second sections of the Civil\nRights Act are or are not rights constitutionally demandable,—and if\nthey are, in what form they are to be protected.\n\n9. Neither does the Court decide whether the law, as it stands, is\noperative in the Territories and the District of Columbia.\n\n10. Neither does the Court decide whether Congress, under the commercial\npower, may or may not pass a law securing to all persons equal\naccommodations on lines of public conveyance between two or more States.\n\n11. The Court also holds, in the present case, that until some State law\nhas been passed, or some State action through its officers or agents has\nbeen taken adverse to the rights of citizens sought to be protected\nby the 14th Amendment, no legislation of the United States under said\namendment, or any proceeding under such legislation, can be called into\nactivity, for the reason that the prohibitions of the amendment are\nagainst State laws and acts done under State authority. The essence of\nsaid decision being, that the managers and owners of inns, railways, and\nall public conveyances, of theatres and all places of public amusement,\nmay discriminate on account of race, color, or previous condition of\nservitude, and that the citizen so discriminated against, is without\nredress.\n\nThis decision takes from seven millions of people the shield of the\nConstitution. It leaves the best of the colored race at the mercy of\nthe meanest of the white. It feeds fat the ancient grudge that vicious\nignorance bears toward race and color. It will be approved and quoted\nby hundreds of thousands of unjust men. The masked wretches who, in the\ndarkness of night, drag the poor negro from his cabin, and lacerate with\nwhip and thong his quivering flesh, will, with bloody hands, applaud\nthe Supreme Court. The men who, by mob violence, prevent the negro from\ndepositing his ballot—who with gun and revolver drive him from the\npolls, and those who insult with vile and vulgar words the inoffensive\ncolored girl, will welcome this decision with hyena joy. The basest will\nrejoice—the noblest will mourn.\n\nBut even in the presence of this decision, we must remember that it is\none of the necessities of government that there should be a court of\nlast resort; and while all courts will more or less fail to do justice,\nstill, the wit of man has, as yet, devised no better way. Even after\nreading this decision, we must take it for granted that the judges\nof the Supreme Court arrived at their conclusions honestly and in\naccordance with the best light they had. While they had the right to\nrender the decision, every citizen has the right to give his opinion as\nto whether that decision is good or bad. Knowing that they are liable\nto be mistaken, and honestly mistaken, we should always be charitable\nenough to admit that others may be mistaken; and we may also take\nanother step, and admit that we may be mistaken about their being\nmistaken. We must remember, too, that we have to make judges out of men,\nand that by being made judges their prejudices are not diminished and\ntheir intelligence is not increased. No matter whether a man wears a\ncrown or a robe or a rag. Under the emblem of power and the emblem\nof poverty, the man alike resides. The real thing is the man—the\ndistinction often exists only in the clothes. Take away the crown—there\nis only a man. Remove the robe—there remains a man. Take away the rag,\nand we find at least a man.\n\nThere was a time in this country when all bowed to a decision of the\nSupreme Court. It was unquestioned. It was regarded as \"a voice from\non high.\" The people heard and they obeyed. The Dred Scott decision\ndestroyed that illusion forever. From that day to this the people have\nclaimed the privilege of putting the decisions of the Supreme Court in\nthe crucible of reason. These decisions are no longer exempt from honest\ncriticism. While the decision remains, it is the law. No matter how\nabsurd, no matter how erroneous, no matter how contrary to reason and\njustice, it remains the law. It must be overturned either by the Court\nitself (and the Court has overturned hundreds of its own decisions), or\nby legislative action, or by an amendment to the Constitution. We do not\nappeal to armed revolution. Our Government is so framed that it provides\nfor what may be called perpetual peaceful revolution. For the redress\nof any grievance, for the purpose of righting any wrong, there is the\nperpetual remedy of an appeal to the people.\n\nWe must remember, too, that judges keep their backs to the dawn. They\nfind what has been, what is, but not what ought to be. They are tied and\nshackled by precedent, fettered by old decisions, and by the desire to\nbe consistent, even in mistakes. They pass upon the acts and words of\nothers, and like other people, they are liable to make mistakes. In\nthe olden time we took what the doctors gave us, we believed what the\npreachers said; and accepted, without question, the judgments of the\nhighest court. Now it is different. We ask the doctor what the medicine\nis, and what effect he expects it to produce. We cross-examine the\nminister, and we criticise the decision of the Chief-Justice. We do\nthis, because we have found that some doctors do not kill, that some\nministers are quite reasonable, and that some judges know something\nabout law. In this country, the people are the sovereigns. All\nofficers—including judges—are simply their servants, and the sovereign\nhas always the right to give his opinion as to the action of his agent.\nThe sovereignty of the people is the rock upon which rests the right of\nspeech and the freedom of the press.\n\nUnfortunately for us, our fathers adopted the common law of England—a\nlaw poisoned by kingly prerogative—by every form of oppression, by the\nspirit of caste, and permeated, saturated, with the political heresy\nthat the people received their rights, privileges and immunities from\nthe crown. The thirteen original colonies received their laws, their\nforms, their ideas of justice, from the old world. All the judicial,\nlegislative, and executive springs and sources had been touched and\ntainted.\n\nIn the struggle with England, our fathers justified their rebellion\nby declaring that Nature had clothed all men with the right to life,\nliberty, and the pursuit of happiness. The moment success crowned their\nefforts, they changed their noble declaration of equal rights for all,\nand basely interpolated the word \"white.\" They adopted a Constitution\nthat denied the Declaration of Independence—a Constitution that\nrecognized and upheld slavery, protected the slave-trade, legalized\npiracy upon the high seas—that demoralized, degraded, and debauched\nthe nation, and that at last reddened with brave blood the fields of the\nRepublic.\n\nOur fathers planted the seeds of injustice, and we gathered the harvest.\nIn the blood and flame of civil war, we retraced our fathers' steps. In\nthe stress of war, we implored the aid of Liberty, and asked once more\nfor the protection of Justice. We civilized the Constitution of our\nfathers. We adopted three Amendments—the 13th, 14th and 15th—the\nTrinity of Liberty.\n\nLet us examine these amendments:\n\n\"Neither slavery, nor involuntary servitude, except as a punishment\nfor crime whereof the party shall have been duly convicted, shall exist\nwithin the United States or any place subject to their jurisdiction.\n\n\"Congress shall have power to enforce this article by appropriate\nlegislation.\"\n\nBefore the adoption of this amendment, the Constitution had always been\nconstrued to be the perfect shield of slavery. In order that slavery\nmight be protected, the slave States were considered as sovereign.\nFreedom was regarded as a local prejudice, slavery as the ward of the\nNation, the jewel of the Constitution. For three-quarters of a century,\nthe Supreme Court of the United States exhausted judicial ingenuity in\nguarding, protecting and fostering that infamous institution. For the\npurpose of preserving that infinite outrage, words and phrases were\nwarped, and stretched, and tortured, and thumbscrewed, and racked.\nSlavery was the one sacred thing, and the Supreme Court was its\nconstitutional guardian.\n\nTo show the faithfulness of that tribunal, I call your attention to the\n3d clause of the 2d section of the 4th article of the Constitution:\n\n\"No person held to service or labor in any State under the laws thereof,\nescaping to another, shall, in consequence of any law or regulation\ntherein, be discharged from such service or labor, but shall be\ndelivered up on the claim of the party to whom such service or labor may\nbe due.\"\n\nThe framers of the Constitution were ashamed to use the word \"slave,\"\nand thereupon they said \"person.\" They were ashamed to use the word\n\"slavery,\" and they evaded it by saying, \"held to service or labor.\"\nThey were ashamed to put in the word \"master,\" so they called him \"the\nparty to whom service or labor may be due.\"\n\nHow can a slave owe service? How can a slave owe labor? How could a\nslave make a contract? How could the master have a legal claim against\na slave? And yet, the Supreme Court of the United States found no\ndifficulty in upholding the Fugitive Slave Law by virtue of that clause.\nThere were hundreds of decisions declaring that Congress had power to\npass laws to carry that clause into effect, and it was carried into\neffect.\n\nYou will observe the wording of this clause:\n\n\"No person held to service or labor in any State under the laws thereof,\nescaping into another, shall, in consequence of any law or regulation\ntherein, be discharged from such service or labor, but shall be\ndelivered up on the claim of the party to whom such service or labor may\nbe due.\"\n\nTo whom was this clause directed? To individuals or to States? It\nexpressly provides that the \"person\" held to service or labor shall not\nbe discharged from such service or labor in consequence of any law or\nregulation in the \"State\" to which he has fled. Did that law apply to\nStates, or to individuals?\n\nThe Supreme Court held that it applied to individuals as well as to\nStates. Any \"person,\" in any State, interfering with the master who\nwas endeavoring to steal the person he called his slave, was liable\nto indictment, and hundreds and thousands were indicted, and hundreds\nlanguished in prisons because they were noble enough to hold in infinite\ncontempt such infamous laws and such infamous decisions. The best men in\nthe United States—the noblest spirits under the flag—were imprisoned\nbecause they were charitable, because they were just, because they\nshowed the hunted slave the path to freedom, and taught him where to\nfind amid the glittering host of heaven the blessed Northern Star.\n\nEvery fugitive slave carried that clause with him when he entered a free\nState; carried it into every hiding place; and every Northern man was\nbound, by virtue of that clause, to act as the spy and hound of slavery.\nThe Supreme Court, with infinite ease, made a club of that clause with\nwhich to strike down the liberty of the fugitive and the manhood of the\nNorth.\n\nIn the Dred Scott decision it was solemnly decided that a man of African\ndescent, whether a slave or not, was not, and could not be, a citizen\nof a State or of the United States. The Supreme Court held on the even\ntenor of its way, and in the Rebellion that tribunal was about the last\nfort to surrender.\n\nThe moment the 13th Amendment was adopted, the slaves became freemen.\nThe distinction between \"white\" and \"colored\" vanished. The negroes\nbecame as though they had never been slaves—as though they had always\nbeen free—as though they had been white. They became citizens—they\nbecame a part of \"the people,\" and \"the people\" constituted the\nState, and it was the State thus constituted that was entitled to the\nconstitutional guarantee of a republican government.\n\nThese freed men became citizens—became a part of the State in which\nthey lived.\n\nThe highest and noblest definition of a State, in our Reports, was given\nby Justice Wilson, in the case of Chisholm, &c., vs. Georgia;\n\n\"By a State, I mean a complete body of free persons, united for their\ncommon benefit, to enjoy peaceably what is their own, and to do justice\nto others.\"\n\nChief Justice Chase declared that:\n\n\"The people, in whatever territory dwelling, whether temporarily or\npermanently, or whether organized under regular government, or united by\nless definite relations, constitute the State.\"\n\nNow, if the people, the moment the 13th Amendment was adopted were\nall free, and if these people constituted the State; if, under\nthe Constitution of the United States, every State is guaranteed a\nrepublican government, then it is the duty of the General Government to\nsee to it that every State has such a government. If distinctions are\nmade between free men on account of race or color, the government is not\nrepublican. The manner in which this guarantee of a republican form of\ngovernment is to be enforced or made good, must be left to the wisdom\nand discretion of Congress.\n\nThe 13th Amendment not only destroyed, but it built. It destroyed the\nslave-pen, and on its site erected the temple of Liberty. It did not\nsimply free slaves—it made citizens. It repealed every statute that\nupheld slavery. It erased from every Report every decision against\nfreedom. It took the word \"white\" from every law, and blotted from the\nConstitution all clauses acknowledging property in man.\n\nIf, then, all the people in each State, were, by virtue of the 13th\nAmendment, free, what right had a majority to enslave a minority? What\nright had a majority to make any distinctions between free men? What\nright had a majority to take from a minority any privilege, or any\nimmunity, to which they were entitled as free men? What right had the\nmajority to make that unequal which the Constitution made equal?\n\nNot satisfied with saying that slavery should not exist, we find in the\namendment the words \"nor involuntary servitude.\" This was intended to\ndestroy every mark and badge of legal inferiority.\n\nJustice Field upon this very question, says:\n\n\"It is, however, clear that the words 'involuntary servitude' include\nsomething more than slavery, in the strict sense of the term. They\ninclude also serfage, vassalage, villanage, peonage, and all other forms\nof compulsory service for the mere benefit or pleasure of others. Nor\nis this the full import of the term. The abolition of slavery and\ninvoluntary servitude was intended to make every one born in this\ncountry a free man, and as such to give him the right to pursue the\nordinary avocations of life without other restraint than such as affects\nall others, and to enjoy equally with them the fruits of his labor.\nA person allowed to pursue only one trade or calling, and only in one\nlocality of the country, would not be, in the strict sense of the term,\nin a condition of slavery, but probably no one would deny that he would\nbe in a condition of servitude. He certainly would not possess the\nliberties, or enjoy the privileges of a freeman.\"\n\nJustice Field also quotes with approval the language of the counsel for\nthe plaintiffs in the case:\n\n\"Whenever a law of a State, or a law of the United States, makes a\ndiscrimination between classes of persons which deprives the one class\nof their freedom or their property, or which makes a caste of them, to\nsubserve the power, pride, avarice, vanity or vengeance of others—there\ninvoluntary servitude exists within the meaning of the 13th Amendment.\"\n\nTo show that the framers of the 13th Amendment intended to blot out\nevery form of slavery and servitude, I call attention to the Civil\nRights Act, approved April 9, 1866, which provided, among other things,\nthat:\n\n\"All persons born in the United States, and not subject to any foreign\npower—excluding Indians not taxed—are citizens of the United States;\nand such citizens, of every race and color, without regard to any\nprevious condition of slavery or involuntary servitude, are entitled to\nthe full and equal benefit of all laws and proceedings for the security\nof person and property enjoyed by white citizens, and shall be subject\nto like punishments, pains and penalties—and to none other—any\nlaw, statute, ordinance, regulation or custom to the contrary\nnotwithstanding; and they shall have the same rights in every State and\nTerritory of the United States as white persons.\"\n\nThe Supreme Court, in The Slaughter-House Cases, (16 Wallace, 69) has\nsaid that the word servitude has a larger meaning than the word slavery.\n\"The word 'servitude' implies subjection to the will of another contrary\nto the common right.\" A man is in a state of involuntary servitude when\nhe is forced to do, or prevented from doing, a thing, not by the law of\nthe State, but by the simple will of another. He who enjoys less than\nthe common rights of a citizen, he who can be forced from the public\nhighway at the will of another, who can be denied entrance to the cars\nof a common carrier, is in a state of servitude.\n\nThe 13th Amendment did away with slavery not only, and with involuntary\nservitude, but with every badge and brand and stain and mark of slavery.\nIt abolished forever distinctions on account of race and color.\n\nIn the language of the Supreme Court:\n\n\"It was the obvious purpose of the 13th Amendment to forbid all shades\nand conditions of African slavery.\"\n\nAnd to that I add, it was the obvious purpose of that amendment to\nforbid all shades and conditions of slavery, no matter of what sort or\nkind—all marks of legal inferiority. Each citizen was to be absolutely\nfree. All his rights complete, whole, unmaimed and unabridged.\n\nFrom the moment of the adoption of that amendment, the law became\ncolor-blind. All distinctions on account of complexion vanished. It took\nthe whip from the hand of the white man, and put the nation's flag above\nthe negro's hut. It gave horizon, scope and dome to the lowest life. It\nstretched a sky studded with stars of hope above the humblest head.\n\nThe Supreme Court has admitted, in the very case we are now discussing,\nthat:\n\n\"Under the 13th Amendment the legislation meaning the legislation of\nCongress—so far as necessary or proper to eradicate all forms and\nincidents of slavery and involuntary servitude, may be direct and\nprimary, operating upon the acts of individuals, whether sanctioned by\nState legislation or not.\"\n\nHere we have the authority for dealing with individuals.\n\nThe only question then remaining is, whether an individual, being the\nkeeper of a public inn, or the agent of a railway corporation,\ncreated by a State, can be held responsible in a Federal Court for\ndiscriminating against a citizen of the United States on account of\nrace, color, or previous condition of servitude. If such discrimination\nis a badge of slavery, or places the party discriminated against in a\ncondition of involuntary servitude, then the Civil Rights Act may be\nupheld by the 13th Amendment.\n\nIn The United Slates vs. Harris, 106 U. S., 640, the Supreme Court says:\n\n\"It is clear that the 13th Amendment, besides abolishing forever slavery\nand involuntary servitude within the United States, gives power to\nCongress to protect all citizens from being in any way subjected to\nslavery or involuntary servitude, except for the punishment of crime,\nand in the enjoyment of that freedom which it was the object of the\namendment to secure.\"\n\nThis declaration covers the entire case.\n\nI agree with Justice Field:\n\n\"The 13th Amendment is not confined to African slavery. It is general\nand universal in its application—prohibiting the slavery of white men\nas well as black men, and not prohibiting mere slavery in the strict\nsense of the term, but involuntary servitude in every form.\" 16 Wallace,\n90.\n\nThe 13th Amendment declares that neither slavery nor involuntary\nservitude shall exist. Who must see to it that this declaration is\ncarried out? There can be but one answer. It is the duty of Congress.\n\nAt last the question narrows itself to this: Is a citizen of the United\nStates, when denied admission to public inns, railway cars and\ntheatres, on account of his race or color, in a condition of involuntary\nservitude? If he is, then he is under the immediate protection of the\nGeneral Government, by virtue of the 13th Amendment; and the Civil\nRights Act is clearly constitutional.\n\nIf excluded from one inn, he may be from all; if from one car, why not\nfrom all? The man who depends for the preservation of his privileges\nupon a conductor, instead of the Constitution, is in a condition of\ninvoluntary servitude. He who depends for his rights—not upon the\nlaws of the land, but upon a landlord, is in a condition of involuntary\nservitude.\n\nThe framers of the 13th Amendment knew that the negro would be\npersecuted on account of his race and color—knew that many of the\nStates could not be trusted to protect the rights of the colored man;\nand for that reason, the General Government was clothed with power to\nprotect the colored people from all forms of slavery and involuntary\nservitude.\n\nOf what use are the declarations in the Constitution that slavery and\ninvoluntary servitude shall not exist, and that all persons born or\nnaturalized in the United States shall be citizens—not only of the\nUnited States, but of the States in which they reside—if, behind\nthese declarations, there is no power to act—no duty for the General\nGovernment to discharge?\n\nNotwithstanding the 13th Amendment had been adopted—notwithstanding\nslavery and involuntary servitude had been legally destroyed—it was\nfound that the negro was still the helpless victim of the white man.\nAnother amendment was needed; and all the Justices of the Supreme Court\nhave told us why the 14th Amendment was adopted.\n\nJustice Miller, speaking for the entire court, tells us that:\n\n\"In the struggle of the civil war, slavery perished, and perished as a\nnecessity of the bitterness and force of the conflict.\"\n\nThat:\n\n\"When the armies of freedom found themselves on the soil of slavery,\nthey could do nothing else than free the victims whose enforced\nservitude was the foundation of the war.\"\n\nHe also admits that:\n\n\"When hard pressed in the contest, the colored men (for they proved\nthemselves men in that terrible crisis) offered their services, and were\naccepted, by thousands, to aid in suppressing the unlawful rebellion.\"\n\nHe also informs us that:\n\n\"Notwithstanding the fact that the Southern States had formerly\nrecognized the abolition of slavery, the condition of the slave, without\nfurther protection of the Federal Government, was almost as bad as it\nhad been before.\"\n\nAnd he declares that:\n\n\"The Southern States imposed upon the colored race onerous disabilities\nand burdens—curtailed their rights in the pursuit of liberty and\nproperty, to such an extent that their freedom was of little value,\nwhile the colored people had lost the protection which they had received\nfrom their former owners from motives of interest.\"\n\nAnd that:\n\n\"The colored people in some States were forbidden to appear in the towns\nin any other character than that of menial servants—that they were\nrequired to reside on the soil without the right to purchase or\nown it—that they were excluded from many occupations of gain and\nprofit—that they were not permitted to give testimony in the courts\nwhere white men were on trial—and it was said that their lives were\nat the mercy of bad men, either because laws for their protection were\ninsufficient, or were not enforced.\"\n\nWe are informed by the Supreme Court that, \"under these circumstances,\"\nthe proposition for the 14th Amendment was passed through Congress, and\nthat Congress declined to treat as restored to full participation in\nthe Government of the Union, the States which had been in insurrection,\nuntil they ratified that article by a formal vote of their legislative\nbodies.\n\nThus it will be seen that the rebel States were restored to the Union\nby adopting the 14th Amendment. In order to become equal members of the\nFederal Union, these States solemnly agreed to carry out the provisions\nof that amendment.\n\nThe 14th Amendment provides that:\n\n\"All persons born or naturalized in the United States, and subject to\nthe jurisdiction thereof, are citizens of the United States, and of the\nState wherein they reside.\"\n\nThat is affirmative in its character. That affirmation imposes\nthe obligation upon the General Government to protect its citizens\neverywhere. That affirmation clothes the Federal Government with power\nto protect its citizens. Under that clause, the Federal arm can reach to\nthe boundary of the Republic, for the purpose of protecting the weakest\ncitizen from the tyranny of citizens or States. That clause is a\ncontract between the Government and every man—a contract wherein the\ncitizen promises allegiance, and the nation promises protection.\n\nBy this clause, the Federal Government adopted all the citizens of all\nthe States and Territories, including the District of Columbia, and\nplaced them under the shield of the Constitution—made each one a ward\nof the Republic.\n\nUnder this contract, the Government is under direct obligation to the\ncitizen. The Government cannot shirk its responsibility by leaving\na citizen to be protected in his rights, as a citizen of the United\nStates, by a State. The obligation of protection is direct. The\nobligation on the part of the citizen to the Government is direct. The\ncitizen cannot be untrue to the Government because his State is, The\naction of the State under the 14th Amendment is no excuse for the\ncitizen. He must be true to the Government. In war, the Government has a\nright to his service. In peace, he has the right to be protected.\n\nIf the citizen must depend upon the State, then he owes the first\nallegiance to that government or power that is under obligation to\nprotect him. Then, if a State secedes from the Union, the citizen should\ngo with the State—should go with the power that protects.\n\nThat is not my doctrine. My doctrine is this: The first duty of the\nGeneral Government is to protect each citizen. The first duty of each\ncitizen is to be true—not to his State, but to the Republic.\n\nThis clause of the 14th Amendment made us all citizens of the United\nStates—all children of the Republic. Under this decision, the Republic\nrefuses to acknowledge her children. Under this decision of the Supreme\nCourt, they are left upon the doorsteps of the States. Citizens are\nchanged to foundlings.\n\nIf the 14th Amendment created citizens of the United States, the power\nthat created must define the rights of the citizens thus created, and\nmust provide a remedy where such rights are infringed. The Federal\nGovernment speaks through its representatives—through Congress;\nand Congress, by the Civil Rights Act, defined some of the rights,\nprivileges and immunities of a citizen of the United States—and\nCongress provided a remedy when such rights and privileges were invaded,\nand gave jurisdiction to the Federal courts.\n\nNo State, or the department of any State, can authoritatively define\nthe rights, privileges and immunities of a citizen of the United States.\nThese rights and immunities must be defined by the United States, and\nwhen so defined, they cannot be abridged by State authority.\n\nIn the case of Bartemeyer vs. Iowa, 18 Wall., p. 140, Justice Field, in\na concurring opinion, speaking of the 14th Amendment, says:\n\n\"It grew out of the feeling that a nation which had been maintained by\nsuch costly sacrifices was, after all, worthless, if a citizen could not\nbe protected in all his fundamental rights, everywhere—North and South,\nEast and West—throughout the limits of the Republic. The amendment\nwas not, as held in the opinion of the majority, primarily intended to\nconfer citizenship on the negro race. It had a much broader purpose.\nIt was intended to justify legislation extending the protection of the\nNational Government over the common rights of all citizens of the United\nStates, and thus obviate objection to the legislation adopted for the\nprotection of the emancipated race. It was intended to make it possible\nfor all persons—which necessarily included those of every race and\ncolor—to live in peace and security wherever the jurisdiction of\nthe nation reached. It therefore recognized, if it did not create,\na national citizenship. This national citizenship is primary and not\nsecondary.\".\n\nI cannot refrain from calling attention to the splendor and nobility of\nthe truths expressed by Justice Field in this opinion.\n\nSo, Justice Field, in his dissenting opinion in what are known as _The\nSlaughter-House Cases_, found in 16 Wallace, p. 95, still speaking of\nthe 14th Amendment, says:\n\n\"It recognizes in express terms—if it does not create—citizens of the\nUnited States, and it makes their citizenship dependent upon the\nplace of their birth or the fact of their adoption, and not upon the\nconstitution or laws of any State, or the condition of their ancestry.\n\n\"A citizen of a State is now only a citizen of the United States residing\nin that State. The fundamental rights, privileges and immunities which\nbelong to him as a free man and a free citizen of the United States, are\nnot dependent upon the citizenship of any State.   *\n\n\"They do not derive their existence from its legislation, and cannot be\ndestroyed by its power.\"\n\nWhat are \"the fundamental rights, privileges and immunities\" which\nbelong to a free man? Certainly the rights of all citizens of the United\nStates are equal. Their immunities and privileges must be the same.\nHe who makes a discrimination between citizens on account of color,\nviolates the Constitution of the United States.\n\nHave all citizens the same right to travel on the highways of the\ncountry? Have they all the same right to ride upon the railways created\nby State authority? A railway is an improved highway. It was only by\nholding that it was an improved highway that counties and States aided\nin their construction. It has been decided, over and over again, that a\nrailway is an improved highway. A railway corporation is the creation\nof a State—an agent of the State. It is under the control of the\nState—and upon what principle can a citizen be prevented from using the\nhighways of a State on an equality with all other citizens?\n\nThese are all rights and immunities guaranteed by the Constitution of\nthe United States.\n\nNow, the question is—and it is the only question—can these rights\nand immunities, thus guaranteed and thus confirmed, be protected by the\nGeneral Government?\n\nIn the case of The U. S. vs. Reese, et al., 92 U. S., p. 207,\nthe Supreme Court decided, the opinion having been delivered by\nChief-Justice Waite, as follows:\n\n\"Rights and immunities created by, and dependent upon, the Constitution\nof the United States can be protected by Congress. The form and the\nmanner of the protection may be such as Congress in the legitimate\nexercise of its legislative discretion shall provide. This may be varied\nto meet the necessities of the particular right to be protected.\"\n\nThis decision was acquiesced in by Justices Strong, Bradley, Swayne,\nDavis, Miller and Field. Dissenting opinions were filed by Justices\nClifford and Hunt, but neither dissented from the proposition that:\n\n\"Rights and immunities created by or dependent upon the Constitution of\nthe United States can be protected by Congress,\" and that \"the form and\nmanner of the protection may be such as Congress in the exercise of its\nlegitimate discretion shall provide.\"\n\nSo, in the same case, I find this language:\n\n\"It follows that the Amendment\"—meaning the 15th—\"has invested the\ncitizens of the United States with a new constitutional right, which\nis within the protecting power of Congress. This, under the express\nprovisions of the second section of the Amendment, Congress may enforce\nby appropriate legislation.\"\n\nIf the 15th Amendment invested the citizens of the United States with\na new constitutional right—that is, the right to vote—and if for that\nreason that right is within the protecting power of Congress, then I\nask, if the 14th Amendment made certain persons citizens of the United\nStates, did such citizenship become a constitutional right? And is such\ncitizenship within the protecting power of Congress? Does citizenship\nmean anything except certain \"rights, privileges and immunities\"?\n\nIs it not an invasion of citizenship to invade the immunities or\nprivileges or rights belonging to a citizen? Are not, then, all the\nimmunities and privileges and rights under the protecting power of\nCongress?\n\nThe 13th Amendment found the negro a slave, and made him a free man.\nThat gave to him a new constitutional right, and according to the\nSupreme Court, that right is within the protecting power of Congress.\n\nWhat rights are within the protecting power of Congress? All the rights\nbelonging to a free man.\n\nThe 14th Amendment made the negro a citizen. What then is under the\nprotecting power of Congress? All the rights, privileges and immunities\nbelonging to him as a citizen.\n\nSo, in the case of Tennessee vs, Davis, 100 U, S,, 263, the Supreme\nCourt, held that:\n\n\"The United States is a government whose authority extends over the\nwhole territory of the Union, acting upon all the States, and upon all\nthe people of all the States.\n\n\"No State can exclude the Federal Government from the exercise of any\nauthority conferred upon it by the Constitution, or withhold from it\nfor a moment the cognizance of any subject which the Constitution has\ncommitted to it.\"\n\nThis opinion was given by Justice Strong, and acquiesced in by\nChief-Justice Waite, Justices Miller, Swayne, Bradley and Harlan.\n\nSo in the case of Pensacola Tel. Co. vs. Western Union Tel. Co., 96 U.\nS., p. 10, the opinion having been delivered by Chief-Justice Waite, I\nfind this:\n\n\"The Government of the United States, within the scope of its power,\noperates upon every foot of territory under its jurisdiction. It\nlegislates for the whole Nation, and is not embarrassed by State lines.\"\n\nThis was acquiesced in by Justices Clifford, Strong, Bradley, Swayne and\nMiller.\n\nSo we are told by the entire Supreme Court in the case of _Tiernan vs.\nRynker_, 102 U. S., 126, that:\n\n\"When the subject to which the power applies is national in its\ncharacter, or of such a nature as to admit of uniformity of regulation,\nthe power is exclusive of State authority.\"\n\nSurely the question of citizenship is \"national in its character.\"\nSurely the question as to what are the rights, privileges and immunities\nof a citizen of the United States is \"national in its character.\"\n\nUnless the declarations and definitions, the patriotic paragraphs, and\nthe legal principles made, given, uttered and defined by the Supreme\nCourt are but a judicial jugglery of words, the Civil Rights Act is\nupheld by the intent, spirit and language of the 14th Amendment.\n\nIt was found that the 13th Amendment did not protect the negro. Then the\n14th was adopted. Still the colored citizen was trodden under foot. Then\nthe 15th was adopted. The 13th made him free, and, in my judgment, made\nhim a citizen, and clothed him with all the rights of a citizen. That\nwas denied, and then the 14th declared that he was a citizen. In my\njudgment, that gave him the right to vote. But that was denied—then\nthe 15th was adopted, declaring that his right to vote should never be\ndenied.\n\nThe 13th Amendment made all free. It broke the chains, pulled up the\nwhipping-posts, overturned the auction-blocks, gave the colored mother\nher child, put the shield of the Constitution over the cradle, destroyed\nall forms of involuntary servitude, and in the azure heaven of our flag\nit put the Northern Star.\n\nThe 14th Amendment made us all citizens. It is a contract between the\nRepublic and each individual—a contract by which the Nation agrees to\nprotect the citizen, and the citizen agrees to defend the Nation. This\namendment placed the crown of sovereignty on every brow.\n\nThe 15th Amendment secured the citizen in his right to vote, in his\nright to make and execute the laws, and put these rights above the\npower of any State. This amendment placed the ballot—the sceptre of\nauthority—in every sovereign hand.\n\nWe are told by the Supreme Court, in the case under discussion, that:\n\n\"We must not forget that the province and scope of the 13th and 14th\nAmendments are different;\" that the 13th Amendment \"simply abolished\nslavery,\" and that the 14th Amendment \"prohibited the States from\nabridging the privileges and immunities of citizens of the United\nStates; from depriving them of life, liberty or property, without due\nprocess of law; and from denying to any the equal protection of the\nlaws.\"\n\nWe are told that:\n\n\"The amendments are different, and the powers of Congress under them are\ndifferent. What Congress has power to do under one it may not have power\nto do under the other.\" That \"under the 13th Amendment it has only to do\nwith slavery and its incidents;\" but that \"under the 14th Amendment\nit has power to counteract and render nugatory all State laws or\nproceedings which have the effect to abridge any of the privileges or\nimmunities of the citizens of the United States, or to deprive them of\nlife, liberty or property, without due process of law, or to deny to any\nof them the equal protection of the laws.\"\n\nDid not Congress have that power under the 13th Amendment? Could the\nStates, in spite of the 13th Amendment, deprive free men of life or\nproperty without due process of law? Does the Supreme Court wish to be\nunderstood, that until the 14th Amendment was adopted the States had\nthe right to rob and kill free men? Yet, in its effort to narrow and\nbelittle the 13th Amendment, it has been driven to this absurdity. Did\nnot Congress, under the 13th Amendment, have power to destroy slavery\nand involuntary servitude? Did not Congress, under that amendment, have\nthe power to protect the lives, liberty and property of free men? And\ndid not Congress have the power \"to render nugatory all State laws and\nproceedings under which free men were to be deprived of life, liberty or\nproperty, without due process of law\"?\n\nIf Congress was not clothed with such power by the 13th Amendment, what\nwas the object of that amendment? Was that amendment a mere opinion, or\na prophecy, or the expression of a hope?\n\nThe 14th Amendment provides that:\n\n\"No State shall make or enforce any law which shall abridge the\nprivileges or immunities of citizens of the United States. Nor shall\nany State deprive any person of life, liberty, or property without due\nprocess of law; nor deny to any person within its jurisdiction the equal\nprotection of its laws.\"\n\nWe are told by the Supreme Court that Congress has no right to enforce\nthe 14th Amendment by direct legislation, but that the legislation under\nthat amendment can only be of a \"corrective\" character—such as may\nbe necessary or proper for counteracting and redressing the effect\nof unconstitutional laws passed by the States. In other words, that\nCongress has no duty to perform, except to counteract the effect of\nunconstitutional laws by corrective legislation.\n\nThe Supreme Court has also decided, in the present case, that Congress\nhas no right to legislate for the purpose of enforcing these clauses\nuntil the States shall have taken action. What action can the State\ntake? If a State passes laws contrary to these provisions or clauses,\nthey are void. If a State passes laws in conformity to these\nprovisions, certainly Congress is not called on to legislate. Under\nwhat circumstances, then, can Congress be called upon to act by way\nof \"corrective\" legislation, as to these particular clauses? What can\nCongress do? Suppose the State passes no law upon the subject, but\nallows citizens of the State—managers of railways, and keepers of\npublic inns, to discriminate between their passengers and guests on\naccount of race or color—what then?\n\nAgain, what is the difference between a State that has no law on the\nsubject, and a State that has passed an unconstitutional law? In other\nwords, what is the difference between no law and a void law? If the\n\"corrective\" legislation of Congress is not needed where the State has\npassed an unconstitutional law, is it needed where the State has passed\nno law? What is there in either case to correct? Surely it requires no\nparticular legislation on the part of Congress to kill a law that never\nhad life.\n\nThe States are prohibited by the Constitution from making any\nregulations of foreign commerce. Consequently, all regulations made by\nthe States are null and void, no matter what the motive of the States\nmay have been, and it requires no law of Congress to annul such laws or\nregulations. This was decided by the Supreme Court of the United States,\nlong ago, in what are known as The License Cases. The opinion may be\nfound in the 5th of Howard, 583.\n\n\"The nullity of any act inconsistent with the Constitution, is produced\nby the declaration that the Constitution is supreme.\"\n\nThis was decided by the Supreme Court, the opinion having been delivered\nby Chief Justice Marshall, in the case of Gibbons vs. Ogden, 9 Wheat,\n210.\n\nThe same doctrine was held in the case of _Henderson et al., vs. Mayor\nof New York, et al._, 92 U. S. 272—the opinion of the Court being\ndelivered by Justice Miller.\n\nSo it was held in the case of The Board of Liquidation vs. McComb—2\nOtto, 541.\n\n\"That an unconstitutional law will be treated by the courts as null and\nvoid\"—citing Osborn vs. The Bank of the United States, 9 Wheaton,\n859, and Davis vs. Gray, 16 Wallace, 220.\n\nNow, if the legislation of Congress must be \"corrective,\" then I ask,\ncorrective of what? Certainly not of unconstitutional and void laws.\nThat which is void, cannot be corrected. That which is unconstitutional\nis not the subject of correction. Congress either has the right to\nlegislate directly, or not at all; because indirect or corrective\nlegislation can apply only, according to the Supreme Court, to\nunconstitutional and void laws that have been passed by a Stale; and\nas such laws cannot be \"corrected,\" the doctrine of \"corrective\nlegislation\" dies an extremely natural death.\n\nA State can do one of three things: 1. It can pass an unconstitutional\nlaw; 2. It can pass a constitutional law; 3. It can fail to pass any\nlaw. The unconstitutional law, being void, cannot be corrected. The\nconstitutional law does not need correction. And where no law has been\npassed, correction is impossible.\n\nThe Supreme Court insists that Congress can not take action until the\nState does. A State that fails to pass any law on the subject, has not\ntaken action. This leaves the person whose immunities and privileges\nhave been invaded, with no redress except such as he may find in the\nState Courts in a suit at law; and if the State Court takes the\nsame view that is apparently taken by the Supreme Court in this\ncase,—namely, that it is a \"social question,\" one not to be regulated\nby law, and not covered in any way by the Constitution—then,\ndiscrimination can be made against citizens by landlords and railway\nconductors, and they are left absolutely without remedy.\n\nThe Supreme Court asks, in this decision,\n\n\"Can the act of a mere individual—the owner of the inn, or public\nconveyance, or place of amusement, refusing the accommodation, be\njustly regarded as imposing any badge of slavery or servitude upon\nthe applicant, or only as inflicting an ordinary civil injury properly\ncognizable by the laws of the State, and presumably subject to redress\nby those laws, until the contrary appears?\"\n\nHow is \"the contrary to appear\"? Suppose a person denied equal\nprivileges upon the railway on account of race and color, brings suit\nand is defeated? And suppose the highest tribunal of the State holds\nthat the question is of a \"social\" character—what then? If, to use the\nlanguage of the Supreme Court, it is \"an ordinary civil injury,\nimposing no badge of slavery or servitude,\" then, no Federal question is\ninvolved.\n\nWhy did not the Supreme Court tell us what may be done when \"the\ncontrary appears\"? Nothing is clearer than the intention of the Supreme\nCourt in this case—and that is, to decide that denying to a man equal\naccommodations at public inns on account of race or color, is not an\nabridgment of a privilege or immunity of a citizen of the United States,\nand that such person, so denied, is not in a condition of involuntary\nservitude, or denied the equal protection of the laws. In other\nwords—that it is a \"social question.\"\n\nI have been told by one who heard the decision when it was read from the\nbench, that the following phrase was in the opinion:\n\n\"_There are certain physiological differences of race that cannot be\nignored_.\"\n\nThat phrase is a lamp, in the light of which the whole decision should\nbe read.\n\nSuppose that in one of the Southern States, the negroes being in a\ndecided majority and having entire control, had drawn the color line,\nhad insisted that:\n\n\"There were certain physiological differences between the races that\ncould not be ignored,\" and had refused to allow white people to enter\ntheir hotels, to ride in the best cars, or to occupy the aristocratic\nportion of a theatre; and suppose that a white man, thrust from the\nhotels, denied the entrance to cars, had brought his suit in the Federal\nCourt. Does any one believe that the Supreme Court would have intimated\nto that man that \"there is only a social question involved,—a question\nwith which the Constitution and laws have nothing to do, and that he\nmust depend for his remedy upon the authors of the injury\"? Would a\nwhite man, under such circumstances, feel that he was in a condition of\ninvoluntary servitude? Would he feel that he was treated like an\nunderling, like a menial, like a serf? Would he feel that he was under\nthe protection of the laws, shielded like other men by the Constitution?\nOf course, the argument of color is just as strong on one side as on the\nother. The white man says to the black, \"You are not my equal because\nyou are black;\" and the black man can with the same propriety, reply,\n\"You are not my equal because you are white.\" The difference is just as\ngreat in the one case as in the other. The pretext that this question\ninvolves, in the remotest degree, a social question, is cruel, shallow,\nand absurd.\n\nThe Supreme Court, some time ago, held that the 4th Section of the Civil\nRights Act was constitutional. That section declares that:\n\n\"No citizen possessing all other qualifications which are or maybe\nprescribed by law, shall be disqualified for service as grand or petit\njuror in any court of the United States or of any State, on account of\ncolor or previous condition of servitude.\"\n\nIt also provides that:\n\n\"If any officer or other person charged with any duty in the selection\nor summoning of jurors, shall exclude, or fail to summon, any citizen\nin the case aforesaid, he shall, on conviction, be guilty of misdemeanor\nand be fined not more than five hundred dollars.\"\n\nIn the case known as Ex-parte vs. Virginia—found in 100 U. S. 339—it\nwas held that an indictment against a State officer, under this section,\nfor excluding persons of color from the jury, could be sustained. Now,\nlet it be remembered, there was no law of the State of Virginia, by\nvirtue of which a man was disqualified from sitting on the jury by\nreason of race or color. The officer did exclude, and did fail to\nsummon, a citizen on account of race or color or previous condition of\nservitude. And the Supreme Court held:\n\n\"That whether the Statute-book of the State actually laid down any\nsuch rule of disqualification or not, the State, through its officer,\nenforced such rule; and that it was against such State action, through\nits officers and agents, that the last clause of the section was\ndirected.\"\n\nThe Court further held that:\n\n\"This aspect of the law was deemed sufficient to divest it of any\nunconstitutional character.\"\n\nIn other words, the Supreme Court held that the officer was an agent\nof the State, although acting contrary to the statute of the State; and\nthat, consequently, such officer, acting outside of law, was amenable\nto the Civil Rights Act, under the 14th Amendment, that referred only\nto States. The question arises: Is a State responsible for the action of\nits agent when acting contrary to law? In other words: Is the principal\nbound by the acts of his agent, that act not being within the scope of\nhis authority? Is a State liable—or is the Government liable—for the\nact of any officer, that act not being authorized by law?\n\nIt has been decided a thousand times, that a State is not liable for\nthe torts and trespasses of its officers. How then can the agent, acting\noutside of his authority, be prosecuted under a law deriving its entire\nvalidity from a constitutional amendment applying only to States? Does\nan officer, by acting contrary to State law, become so like a State that\nthe word State, used in the Constitution, includes him?\n\nSo it was held in the case of Neal vs. Delaware,—103 U. S.,\n307,—that an officer acting contrary to the laws of the State—in\ndefiance of those laws—would be amenable to the Civil Rights Act,\npassed under an amendment to the Constitution now held applicable only\nto States.\n\nIt is admitted, and expressly decided in the case of _The U. S. vs.\nReese et al._, (already quoted) that when the wrongful refusal at an\nelection is because of race, color, or previous condition of servitude,\nCongress can interfere and provide for the punishment of any individual\nguilty of such refusal, no matter whether such individual acted under or\nagainst the authority of the State.\n\nWith this statement I most heartily agree. I agree that:\n\n\"When the wrongful refusal is because of race, color, or previous\ncondition of servitude, Congress can interfere and provide for the\npunishment of any individual guilty of such refusal.\"\n\nThat is the key that unlocks the whole question. Congress has\npower—full, complete, and ample,—to protect all citizens from unjust\ndiscrimination, and from being deprived of equal privileges on account\nof race, color, or previous condition of servitude. And this language is\njust as applicable to the 13th and 14th, as to the 15th Amendment. If\na citizen is denied the accommodations of a public inn, or a seat in\na railway car, on account of race or color, or deprived of liberty on\naccount of race or color, the Constitution has been violated, and the\ncitizen thus discriminated against or thus deprived of liberty, is\nentitled to redress in a Federal Court.\n\nIt is held by the Supreme Court that the word \"State\" does not apply\nto the \"people\" of the State—that it applies only to the agents of\nthe people of the State. And yet, the word \"State,\" as used in the\nConstitution, has been held to include not only the persons in\noffice, but the people who elected them—not only the agents, but the\nprincipals. In the Constitution it is provided that \"no State shall\ncoin money; and no State shall emit bills of credit.\" According to this\ndecision, any person in any State, unless prevented by State authority,\nhas the right to coin money and to emit bills of credit, and Congress\nhas no power to legislate upon the subject—provided he does not\ncounterfeit any of the coins or current money of the United States.\nCongress would have to deal—not with the individuals, but with the\nState; and unless the State had passed some act allowing persons to coin\nmoney, or emit bills of credit, Congress could do nothing. Yet, long\nago, Congress passed a statute preventing any person in any State from\ncoining money. No matter if a citizen should coin it of pure gold, of\nthe requisite fineness and weight, and not in the likeness of United\nStates coins, he would be a criminal. We have a silver dollar, coined by\nthe Government, worth eighty-five cents; and yet, if any person, in any\nState, should coin what he called a dollar, not like our money, but with\na dollar's worth of silver in it, he would be guilty of a crime.\n\nIt may be said that the Constitution provides that Congress shall have\npower to coin money, and provide for the punishment of counterfeiting\nthe securities and current coin of the United States; in other words,\nthat the Constitution gives power to Congress to coin money and denies\nit to the States, not only, but gives Congress the power to legislate\nagainst counterfeiting. So, in the 13th, 14th, and 15th Amendments,\npower is given to Congress, and power is denied to the States, not\nonly, but Congress is expressly authorized to enforce the amendments by\nappropriate legislation. Certainly the power is as broad in the one case\nas in the other; and in both cases, individuals can be reached as well\nas States.\n\nSo the Constitution provides that:\n\n\"Congress shall have power to regulate commerce among the several\nStates.\"\n\nUnder this clause Congress deals directly with individuals. The States\nare not engaged in commerce, but the people are; and Congress makes\nrules and regulations for the government of the people so engaged.\n\nThe Constitution also provides that:\n\n\"Congress shall have power to regulate commerce with the Indian tribes.\"\n\nIt was held in the case of The United States vs. Holliday, 3 Wall.,\n407, that:\n\n\"Commerce with the Indian tribes means commerce with the individuals\ncomposing those tribes.\"\n\nAnd under this clause it has been further decided that Congress has\nthe power to regulate commerce not only between white people and Indian\ntribes, but between Indian tribes; and not only that, but between\nindividual Indians. _Worcester vs. The State, 6 Pet., 575; The United\nStates vs. 4.3 Gallons, 93 U. S., 188; The United States vs. Shawmux, 2\nSaw., 304._\n\nNow, if the word \"tribe\" includes individual Indians, may not the word\n\"State\" include citizens?\n\nIn this decision it is admitted by the Supreme Court that where a\nsubject is submitted to the general legislative power of Congress, then\nCongress has plenary powers of legislation over the whole subject. Let\nus apply these words to the 13th Amendment. In this very decision I find\nthat the 13th Amendment:\n\n\"By its own unaided force and effect, abolished slavery and established\nuniversal freedom.\"\n\nThe Court admits that:\n\n\"Legislation may be necessary and proper to meet all the various cases\nand circumstances to be affected by it, and to prescribe proper modes of\nredress for its violation in letter or spirit.\"\n\nThe Court further admits:\n\n\"And such legislation may be primary and direct in its character.\"\n\nAnd then gives the reason:\n\n\"For the amendment is not a mere prohibition of State laws establishing\nor upholding slavery, but an absolute declaration that slavery or\ninvoluntary servitude shall not exist in any part of the United States.\"\n\nI now ask, has that subject—that is to say, Liberty,—been submitted to\nthe general legislative power of Congress? The 13th Amendment provides\nthat Congress shall have power to enforce that amendment by appropriate\nlegislation.\n\nIn construing the 13th and 14th Amendments and the Civil Rights Act,\nit seems to me that the Supreme Court has forgotten the principle of\nconstruction that has been laid down so often by courts, and that is\nthis: that in construing statutes, courts may look to the history and\ncondition of the country as circumstances from which to gather the\nintention of the Legislature. So it seems to me that the Court failed\nto remember the rule laid down by Story in the case of _Prigg vs. The\nCommonwealth of Pennsylvania,_ 16 Pet., 611, a rule laid down in the\ninterest of slavery—laid down for the purpose of depriving human beings\nof their liberty:\n\n\"Perhaps the safest rule of interpretation, after all, will be found to\nbe to look to the nature and objects of the particular powers, duties\nand rights with all the lights and aids of contemporary history, and to\ngive to the words of each just such operation and force consistent\nwith their legitimate meaning, as may fairly secure and attain the ends\nproposed.\"\n\nIt must be admitted that certain rights were conferred by the 13th\nAmendment. Surely certain rights were conferred by the 14th Amendment;\nand these rights should be protected and upheld by the Federal\nGovernment. And it was held in the case last cited, that:\n\n\"If by one mode of interpretation the right must become shadowy and\nunsubstantial, and without any remedial power adequate to the end, and\nby another mode it will attain its just end and secure its manifest\npurpose—it would seem, upon principles of reasoning absolutely\nirresistable, that the latter ought to prevail. No court of justice can\nbe authorized so as to construe any clauses of the Constitution as to\ndefeat its obvious ends, when another construction, equally accordant\nwith the words and sense thereof, will enforce and protect them.\"\n\nIn the present case, the Supreme Court holds, that Congress can not\nlegislate upon this subject until the State has passed some law contrary\nto the Constitution.\n\nI call attention in reply to this, to the case of Hall vs. De Cuir,\n95 U. S., 486. The State of Louisiana, in 1869, acting in the spirit of\nthese amendments to the Constitution, passed a law requiring that all\npersons engaged within that State in the business of common carriers of\npassengers, should make no discrimination on account of race, color, or\nprevious condition of servitude. Under this law, Mrs. De Cuir, a colored\nwoman, took passage on a steamer, buying a ticket from New Orleans to\nHermitage—the entire trip being within the limits of the State. The\ncaptain of the boat refused to give her equal accommodations with other\npassengers—the refusal being on the ground of her color. She commenced\nsuit against the captain in the State Court of Louisiana, and recovered\njudgment for one thousand dollars. The defendant appealed to the Supreme\nCourt of that State, and the judgment of the lower court was sustained.\nThereupon, the captain died, and the case was taken to the Supreme Court\nof the United States by his administrator, on the ground that a Federal\nquestion was involved.\n\nYou will see that this was a case where the State had acted, and had\nacted exactly in accordance with the constitutional amendments, and had\nby law provided that the privileges and immunities of the citizen of\nthe United States—residing in the State of Louisiana—should not be\nabridged, and that no distinction should be made on account of race or\ncolor. But in that case the Supreme Court of the United States solemnly\ndecided that the legislation of the State was void—that the State of\nLouisiana had no right to interfere—no right, by law, to protect a\ncitizen of the United States from being discriminated against under such\ncircumstances.\n\nYou will remember that the plaintiff, Mrs. De Cuir, was to be carried\nfrom New Orleans to Hermitage, and that both places were within the\nState of Louisiana. Notwithstanding this, the Supreme Court held:\n\n\"That if the public good required such legislation, it must come from\nCongress and not from the State.\"\n\nWhat reason do you suppose was given? It was this: The Constitution\ngives to Congress power to regulate commerce between the States; and\nit appeared from the evidence given in that case, that the boat plied\nbetween the ports of New Orleans and Vicksburg. Consequently, it was\nengaged in interstate commerce. Therefore, it was under the protection\nof Congress; and being under the protection of Congress, the State had\nno authority to protect its citizens by a law in perfect harmony with\nthe Constitution of the United States, while such citizens were within\nthe limits of Louisiana. The Supreme Court scorns the protection of a\nState!\n\nIn the case recently decided, and about which we are talking to-night,\nthe Supreme Court decides exactly the other way. It decides that if the\npublic good requires such legislation, it must come from the States, and\nnot from Congress; that Congress cannot act until the State has acted,\nand until the State has acted wrong, and that Congress can then only act\nfor the purpose of \"correcting\" such State action. The decision in _Hall\nvs. De Cuir_ was rendered in 1877. The Civil Rights Act was then in\nforce, and applied to all persons within the jurisdiction of the United\nStates, and provided expressly that:\n\n\"All persons within the jurisdiction of the United States shall\nbe entitled to the full and equal enjoyment of the accommodations,\nprivileges, and facilities of inns, public conveyances on land or water,\ntheatres, and other places of public amusement, without regard to race\nor color.\"\n\nAnd yet the Supreme Court said:\n\n\"No carrier of passengers can conduct his business with satisfaction to\nhimself, or comfort to those employing him, if on one side of a State\nline his passengers, both white and colored, must be permitted to occupy\nthe same cabin, and on the other to be kept separate.\"\n\nWhat right had the other State to pass a law that passengers should be\nkept separate, on account of race or color? How could such a law have\nbeen constitutional? The Civil Rights Act applied to all States, and\nto both sides of the lines between all States, and produced absolute\nuniformity—and did not put the captain to the trouble of dividing his\npassengers. The Court further said:\n\n\"Uniformity in the regulations by which the carrier is to be governed\nfrom one end to the other of his route, is a necessity in his business.\"\n\nThe uniformity had been guaranteed by the Civil Rights Act, and the\nstatute of the State of Louisiana was in exact conformity with the 14th\nAmendment and the Civil Rights Act. The Court also said:\n\n\"And to secure uniformity, Congress, which is untrammeled by State\nlines, has been invested with the exclusive power of determining what\nsuch regulations shall be.\"\n\nYes. Congress has been invested with such power, and Congress has used\nit in passing the Civil Rights Act—and yet, under these circumstances,\nthe Court proceeds to imagine the difficulty that a captain would have\nin dividing his passengers as he crosses a State line, keeping them\napart until he reaches the line of another State, and then bringing\nthem together, and so going on through the process of dispersing and\nhuddling, to the end of his unfortunate route.\n\nIt is held by the Supreme Court, that uniformity of duties is essential\nto the carrier, and so essential, that Congress has control of the whole\nmatter. If uniformity is so desirable for the carrier that Congress\ntakes control, then uniformity as to the rights of passengers is equally\ndesirable; and under the 13th and 14th Amendments, Congress has the\nexclusive power to state what the rights, privileges and immunities of\npassengers shall be. So that, in 1877, the Supreme Court decided that\nthe States could not legislate; and in 1883, that _Congress could\nnot_, unless the State had. If Congress controls interstate commerce\nupon the navigable waters, it also controls interstate commerce upon the\nrailways. And if Congress has exclusive jurisdiction in the one case, it\nhas in the other. And if it has exclusive jurisdiction, it does not\nhave to wait until States take action. If it does not have to wait until\nStates take action, then the Civil Rights Act, in so far as it refers\nto the rights of passengers going from one State to another, must be\nconstitutional.\n\nIt must be remembered, in this discussion, that the 8th Section of the\nConstitution conferred upon Congress the power:\n\n\"To make all laws that may be necessary and proper for carrying into\nexecution the powers vested by the Constitution in the Government of the\nUnited States.\"\n\nSo the 2nd Section of the 13th Article provides:\n\n\"Congress shall have power to enforce this article by appropriate\nlegislation.\"\n\nThe same language is used in the 14th and 15th Amendments.\n\n\"This clause does not limit—it enlarges—the powers vested in the\nGeneral Government. It is an additional power—not a restriction on\nthose already granted. It does not impair the right of the Legislature\nto exercise its best judgment in the selection of measures to carry\ninto execution the constitutional powers of the Government. A sound\nconstruction of the Constitution must allow to the National Legislature\nthat discretion with respect to the means by which the powers it confers\nare to be carried into execution, which will enable that body to perform\nthe high duties assigned to it in the manner most beneficial to the\npeople. Let the end be legitimate—let it be within the scope of the\nConstitution, and all means which are appropriate—which are plainly\nadapted to that end—are constitutional.\"\n\nThis is the language of Chief Justice Marshall, in the case of\nM'Caulay, vs. The State, 4 Wheaton, 316.\n\n\"Congress must possess the choice of means, and must be empowered to use\nany means which are in fact conducive to the exercise of a power granted\nby the Constitution.\" U. S. vs. Fisher, 2 Cranch, 358.\n\nAgain:\n\n\"The power of Congress to pass laws to enforce rights conferred by\nthe Constitution is not limited to the express powers of legislation\nenumerated in the Constitution. The powers which are necessary and\nproper as means to carry into effect rights expressly given and duties\nexpressly enjoined, are always implied. The end being given, the means\nto accomplish it are given also.\" Prigs vs. The Commonwealth, 16\nPeters, 539.\n\nThis decision was delivered by Justice Story, and is the same one\nalready referred to, in which liberty was taken from a human being by\njudicial construction. It was held in that case that the 2nd Section\nof the 4th Article of the Constitution, to which I have already called\nattention, contained \"a positive and unqualified recognition of\nthe right\" of the owner in a slave, unaffected by any State law or\nregulation. If this is so, then I assert that the 13th Amendment\n\"contains a positive and unqualified recognition of the right\" of every\nhuman being to liberty; that the 14th Amendment \"contains a positive and\nunqualified recognition of the right\" to citizenship; and that the 15th\nAmendment \"contains a positive and unqualified recognition of the right\"\nto vote.\n\nJustice Story held in that case that:\n\n\"Under and by virtue of that section of the Constitution the owner of a\nslave was clothed with entire authority in every State in the nation to\nseize and recapture his slave.\"\n\nHe also held that:\n\n\"In that sense, and to that extent, that clause of the Constitution\nmight properly be said to execute itself, and to require no aid from\nlegislation—State or National.\"\n\n\"But,\" says Justice Story:\n\n\"The clause of the Constitution does not stop there, but says that he,\nthe slave, shall be delivered up on claim of the party to whom such\nservice or labor may be due.\"\n\nAnd he holds that:\n\n\"Under that clause of the section Congress became clothed with the\nappropriate authority to legislate for its enforcement.\"\n\nNow let us look at the 13th and 14th Amendments in the light of that\ndecision.\n\nFirst. Liberty and citizenship were given the colored people by this\namendment. And Justice Story tells us that:\n\n\"The power of Congress to enforce rights conferred by the Constitution\nis not limited to the express powers of legislation enumerated in the\nConstitution, but the powers which are necessary to protect such rights\nare always implied.\"\n\nLanguage cannot be stronger; words cannot be clearer. But now this\ndecision has been reversed by the Supreme Court, and Congress is left\npowerless to protect rights conferred by the Constitution. It has been\nshorn of implied powers. It has duties to perform, and no power to act.\nIt has rights to protect, but cannot choose the means. It is entangled\nin its own strength. It is a prisoner in the bastile of judicial\nconstruction.\n\nLet us go further. Justice Story tells us that:\n\n\"The words 'but shall be given up on the claim of the person to whom\nsuch labor or service may be due,' clothes Congress with the appropriate\nauthority to legislate for its enforcement.\"\n\nIn the light of this remark, let us look at the 14th Amendment:\n\n\"All persons bom or naturalized in the United States, and subject to the\njurisdiction thereof, are citizens of the United States and of the State\nwherein they reside.\"\n\nTo which are added these words:\n\n\"No State shall make or enforce any law which shall abridge the\nprivileges or immunities of citizens of the United States; nor shall\nany State deprive any person of life, liberty or property without due\nprocess of law; nor deny to any person within its jurisdiction the equal\nprotection of the laws.\"\n\nNow, if the words: \"But shall be delivered up on claim of the party to\nwhom such service or labor may be due,\" clothes Congress with power to\nlegislate upon the entire subject, then I ask if the words in the\n14th Amendment declaring that \"no law shall be made by any State, or\nenforced, which shall abridge the privileges or immunities of citizens\nof the United States; and that no State shall deprive any person of\nlife, liberty or property without due process of law; nor deny to any\nperson within its jurisdiction the equal protection of the laws,\" does\nnot clothe Congress with the power to legislate upon the entire subject?\n\nIn the two cases there is only this difference: The first decision was\nmade in the interest of human slavery—made to protect property in man;\nand the second decision ought to have been made for exactly the opposite\npurpose. Under the first decision, Congress had the right to select the\nmeans—but now that is denied. And yet it was decided in _M'Cauley vs.\nThe State_, 4 Wheaton, 316, that:\n\n\"When the Government has a right to do an act, and has imposed on it the\nduty of performing an act, then it must, according to the dictates of\nreason, be allowed to select the means.\"\n\nAgain:\n\n\"The Government has the right to employ freely every means not\nprohibited, for the fulfillment of its acknowledged duties.\"\n\nThe Legal Tender Cases—12 Wallace, 457.\n\nIt will thus be seen that Congress has the undoubted right to make all\nlaws necessary for the exercise of all the powers vested in it by the\nConstitution. When the Constitution imposes a duty upon Congress, it\ngrants the necessary means. Congress certainly, then, has the right to\npass all necessary laws for the enforcement of the 13th, 14th and 15th\nAmendments. Any legislation is \"appropriate\" that is calculated to\naccomplish the end sought and that is not repugnant to the Constitution.\nWithin these limits Congress has the sovereign power of choice. No\nbetter definition of \"appropriate legislation\" has been given than\nthat by the Supreme Court of California, in the case of The People vs.\nWashington, 38 California, 658:\n\n\"Legislation which practically tends to facilitate the securing to\nall, through the aid of the judicial and executive departments of the\nGovernment, the full enjoyment of personal freedom, is appropriate.\"\n\nThe Supreme Court despairingly asks:\n\n\"If this legislation is appropriate for enforcing the prohibitions of\nthe Amendment, it is difficult to see where it is to stop. Why may not\nCongress, with equal show of authority, enact a code of laws for\nthe enforcement and vindication of all rights of life, liberty and\nproperty?\"\n\nMy answer is: The legislation will stop when and where the\ndiscriminations on account of race, color or previous condition of\nservitude, stop. Whenever an immunity or privilege of a citizen of the\nUnited States is trodden down by the State, or by an individual, under\nthe circumstances mentioned in the Civil Rights Act—that is to say,\non account of race, color, or previous condition of servitude—then\nthe Federal Government must interfere. The Government must defend the\nimmunities and privileges of its citizens, not only from State invasion,\nbut from individual invaders, when that invasion is based upon the\ndistinction of race, color, or previous condition of servitude. The\nGovernment has taken upon itself that duty. This duty can be discharged\nby a law making a uniform rule, obligatory not only upon States, but\nupon individuals. All this will stop when the discriminations stop.\n\nAfter such examination of the authorities as I have been able to make, I\nlay down the following propositions, namely:\n\n1. The sovereignty of a State extends only to that which exists by its\nown authority.\n\n2. The powers of the General Government were not conferred by the people\nof a single State; they were given by the people of the United States;\nand the laws of the United States, in pursuance of the Constitution, are\nsupreme over the entire Republic.\n\n3. The Constitution of the United States is the supreme law of each\nState.\n\n4. The United States is a Government whose authority extends over the\nwhole territory of the Union, acting upon all the States and upon all\nthe people of all the States.\n\n5. No State can exclude the Federal Government from the exercise of any\nauthority conferred upon it by the Constitution, or withhold from it,\nfor a moment, the cognizance of any subject which that instrument has\ncommitted to it.\n\n6. It is the duty of Congress to enforce the Constitution, and it\nhas been clothed with power to make all laws necessary and proper for\ncarrying into execution all the powers vested by the Constitution in the\nGeneral Government.\n\n7. It is the duty of the Government to protect every citizen of the\nUnited States in all his rights, everywhere, without regard to race,\ncolor, or previous condition of servitude; and this the Government has\nthe right to do by direct legislation.\n\n8. Every citizen, when his privileges and immunities are invaded by the\nlegislature of a State, has the right of appeal from such. State to the\nSupreme Court of the nation.\n\n9. When a State fails to pass any law protecting a citizen from\ndiscrimination on account of race or color, and fails, in fact, to\nprotect such citizen, then such citizen has the right to find redress in\nthe Federal Courts.\n\n10. Whenever, in the Constitution, a State is prohibited from doing\nanything that in the nature of the thing can be done by any citizen of\nthat State, then the word \"State\" embraces and includes all the people\nof a State.\n\n11. The 13th Amendment declares that neither slavery nor involuntary\nservitude shall exist within the jurisdiction of the United States.\n\nThis is not a mere negation—it is a splendid affirmation. The duty is\nimposed upon the General Government by that amendment to see to it that\nneither slavery nor involuntary servitude shall exist.\n\nIt is a question absolutely within the power of the Federal Government,\nand the Federal Government is clothed with power to make all necessary\nlaws to enforce that amendment against States and persons.\n\n12. The 14th Amendment provides that all persons born or naturalized in\nthe United States and subject to the jurisdiction thereof, are citizens\nof the United States and of the States wherein they reside. This is also\nan affirmation. It is not a prohibition. The moment that amendment was\nadopted, it became the duty of the United States to protect the citizens\nrecognized or created by that amendment. We are no longer citizens\nof the United States because we are citizens of a State, but we are\ncitizens of the United States because we have been born or have been\nnaturalized within the jurisdiction of the United States. It therefore\nfollows, that it is not only the right, but it is the duty, of Congress,\nto pass all laws necessary for the protection of citizens of the United\nStates.\n\n13. Congress can not shirk this responsibility by leaving citizens of\nthe United States to the care and keeping of the several States.\n\nThe recent decision of the Supreme Court cuts, as with a sword, the tie\nthat binds the citizen to the nation. Under the old Constitution, it was\nnot certainly known who were citizens of the United States. There were\ncitizens of the States, and such citizens looked to their several States\nfor protection. The Federal Government had no citizens. Patriotism did\nnot rest on mutual obligation. Under the 14th Amendment, we are all\ncitizens of a common country; and our first duty, our first obligation,\nour highest allegiance, is not to the State in which we reside, but\nto the Federal Government. The 14th Amendment tends to destroy State\nprejudices and lays a foundation for national patriotism.\n\n14. All statutes—all amendments to the Constitution—in derogation of\nnatural rights, should be strictly construed.\n\n15. All statutes and amendments for the preservation of natural\nrights should be liberally construed. Every court should, by strict\nconstruction, narrow the scope of every law that infringes upon any\nnatural human right; and every court should, by construction, give the\nbroadest meaning to every statute or constitutional provision passed or\nadopted for the preservation of freedom.\n\n16. In construing the 13th, 14th and 15th Amendments, the Supreme Court\nneed not go back to decisions rendered in the days of slavery—when\nevery statute was construed in favor of the sovereignty of the State\nand the rights of the master. These amendments utterly obliterated such\ndecisions. The Supreme Court should begin with the amendments. It need\nnot look behind them. They are a part of the fundamental organic law of\nthe nation. They were adopted to destroy the old statutes, to obliterate\nthe infamous clauses in the Constitution, and to lay a new foundation\nfor a new nation.\n\n17. Congress has the power to eradicate all forms and incidents of\nslavery and involuntary servitude, by direct and primary legislation\nbinding upon States and individuals alike. And when citizens are denied\nthe exercise of common rights and privileges—when they are refused\nadmittance to public inns and railway cars, on an equality with white\npersons—and when such denial and refusal are based upon race and color,\nsuch citizens are in a condition of involuntary servitude.\n\nThe Supreme Court has failed to take into consideration the intention of\nthe framers of these amendments. It has failed to comprehend the spirit\nof the age. It has undervalued the accomplishment of the war. It has\nnot grasped in all their height and depth the great amendments to the\nConstitution and the real object of government. To preserve liberty is\nthe only use for government. There is no other excuse for legislatures,\nor presidents, or courts, for statutes or decisions. Liberty is not\nsimply a means—it is an end. Take from our history, our literature, our\nlaws, our hearts—that word, and we are naught but moulded clay. Liberty\nis the one priceless jewel. It includes and holds and is the weal and\nwealth of life. Liberty is the soil and light and rain—it is the plant\nand bud and flower and fruit—and in that sacred word lie all the seeds\nof progress, love and joy.\n\nThis decision, in my judgment, is not worthy of the Court by which\nit was delivered. It has given new life to the serpent of State\nSovereignty. It has breathed upon the dying embers of ignorant hate. It\nhas furnished food and drink, breath and blood, to prejudices that\nwere perishing of famine, and in the old case of _Civilization vs.\nBarbarism_, it has given the defendant a new trial.\n\nFrom this decision, John M. Harlan had the breadth of brain, the\ngoodness of heart, and the loyalty to logic, to dissent. By the fortress\nof Liberty, one sentinel remains at his post. For moral courage I have\nsupreme respect, and I admire that intellectual strength that breaks the\ncords and chains of prejudice and damned custom as though they were but\nthreads woven in a spider's loom. This judge has associated his name\nwith freedom, and he will be remembered as long as men are free.\n\nWe are told by the Supreme Court that:\n\n\"Slavery cannot exist without law, any more than property and lands and\ngoods can exist without law.\"\n\nI deny that property exists by virtue of law. I take exactly the\nopposite ground. It was the fact that man had property in lands and\ngoods, that produced laws for the protection of such property. The\nSupreme Court has mistaken an effect for a cause. Laws passed for the\nprotection of property, sprang from the possession and ownership of the\nthing to be protected. When one man enslaves another, it is a violation\nof all justice—a subversion of the foundation of all law. Statutes\npassed for the purpose of enabling man to enslave his fellow-man,\nresulted from a conspiracy entered into by the representatives of brute\nforce. Nothing can be more absurd than to call such a statute, born of\nsuch a conspiracy a law. According to the idea of the Supreme Court, man\nnever had property until he had passed a law upon the subject. The first\nman who gathered leaves upon which to sleep, did not own them, because\nno law had been passed on the leaf subject. The first man who gathered\nfruit—the first man who fashioned a club with which to defend himself\nfrom wild beasts, according to the Supreme Court, had no property\nin these things, because no laws had been passed, and no courts had\npublished their decisions.\n\nSo the defenders of monarchy have taken the ground that societies were\nformed by contract—as though at one time men all lived apart, and came\ntogether by agreement and formed a government. We might just as well\nsay that the trees got into groves by contract or conspiracy. Man is a\nsocial being. By living together there grow out of the relation, certain\nregulations, certain customs. These at last hardened into what we call\nlaw—into what we call forms of government—and people who wish to\ndefend the idea that we got everything from the king, say that our\nfathers made a contract. Nothing can be more absurd. Men did not agree\nupon a form of government and then come together; but being together,\nthey made rules for the regulation of conduct. Men did not make some\nlaws and then get some property to fit the laws, but having property\nthey made laws for its protection.\n\nIt is hinted by the Supreme Court that this is in some way a question of\nsocial equality. It is claimed that social equality cannot be enforced\nby law. Nobody thinks it can. This is not a question of social equality,\nbut of equal rights. A colored citizen has the same right to ride upon\nthe cars—to be fed and lodged at public inns, and to visit theatres,\nthat I have. Social equality is not involved.\n\nThe Federal soldiers who escaped from Libby and Andersonville, and who\nin swamps, in storm, and darkness, were rescued and fed by the slave,\nhad no scruples about eating with a negro. They were willing to sit\nbeneath the same tree and eat with him the food he brought. The white\nsoldier was then willing to find rest and slumber beneath the negro's\nroof. Charity has no color. It is neither white nor black. Justice and\nPatriotism are the same. Even the Confederate soldier was willing to\nleave his wife and children under the protection of a man whom he was\nfighting to enslave.\n\nDanger does not draw these nice distinctions as to race or color. Hunger\nis not proud. Famine is exceedingly democratic in the matter of food.\nIn the moment of peril, prejudices perish. The man fleeing for his life\ndoes not have the same ideas about social questions, as he who sits\nin the Capitol, wrapped in official robes. Position is apt to be\nsupercilious. Power is sometimes cruel. Prosperity is often heartless.\n\nThis cry about social equality is born of the spirit of caste—the most\nfiendish of all things. It is worse than slavery. Slavery is at least\njustified by avarice—by a desire to get something for nothing—by a\ndesire to live in idleness upon the labor of others—but the spirit of\ncaste is the offspring of natural cruelty and meanness.\n\nSocial relations depend upon almost an infinite number of influences\nand considerations. We have our likes and dislikes. We choose our\ncompanions. This is a natural right. You cannot force into my house\npersons whom I do not want. But there is a difference between a public\nhouse and a private house. The one is for the public. The private house\nis for the family and those they may invite. The landlord invites the\nentire public, and he must serve those who come if they are fit to be\nreceived. A railway is public, not private. It derives its powers and\nits rights from the State. It takes private land for public purposes.\nIt is incorporated for the good of the public, and the public must be\nserved. The railway, the hotel, and the theatre, have a right to make\na distinction between people of good and bad manners—between the clean\nand the unclean. There are white people who have no right to be in\nany place except a bath-tub, and there are colored people in the same\ncondition. An unclean white man should not be allowed to force himself\ninto a hotel, or into a railway car—neither should the unclean colored.\nWhat I claim is, that in public places, no distinction should be made on\naccount of race or color. The bad black man should be treated like the\nbad white man, and the good black man like the good white man. Social\nequality is not contended for—neither between white and white, black\nand black, nor between white and black.\n\nIn all social relations we should have the utmost liberty—but public\nduties should be discharged and public rights should be recognized,\nwithout the slightest discrimination on account of race or color.\nRiding in the same cars, stopping at the same inns, sitting in the same\ntheatres, no more involve a social question, or social equality, than\nspeaking the same language, reading the same books, hearing the same\nmusic, traveling on the same highway, eating the same food, breathing\nthe same air, warming by the same sun, shivering in the same cold,\ndefending the same flag, loving the same country, or living in the same\nworld.\n\nAnd yet, thousands of people are in deadly fear about social equality.\nThey imagine that riding with colored people is dangerous—that the\nchance acquaintance may lead to marriage. They wish to be protected from\nsuch consequences by law. They dare not trust themselves. They appeal\nto the Supreme Court for assistance, and wish to be barricaded by a\nconstitutional amendment. They are willing that colored women shall\nprepare their food—that colored waiters shall bring it to them—willing\nto ride in the same cars with the porters and to be shown to their\nseats in theatres by colored ushers—willing to be nursed in sickness by\ncolored servants. They see nothing dangerous—nothing repugnant, in any\nof these relations,—but the idea of riding in the same car, stopping at\nthe same hotel, fills them with fear—fear for the future of our race.\nSuch people can be described only in the language of Walt Whitman. \"They\nare the immutable, granitic pudding-heads of the world.\".\n\nLiberty is not a social question. Civil equality is not social equality.\nWe are equal only in rights. No two persons are of equal weight,\nor height. There are no two leaves in all the forests of the earth\nalike—no two blades of grass—no two grains of sand—no two hairs. No\ntwo any-things in the physical world are precisely alike. Neither mental\nnor physical equality can be created by law, but law recognizes the fact\nthat all men have been clothed with equal rights by Nature, the mother\nof us all.\n\nThe man who hates the black man because he is black, has the same spirit\nas he who hates the poor man because he is poor. It is the spirit\nof caste. The proud useless despises the honest useful. The parasite\nidleness scorns the great oak of labor on which it feeds, and that lifts\nit to the light.\n\nI am the inferior of any man whose rights I trample under foot. Men\nare not superior by reason of the accidents of race or color. They are\nsuperior who have the best heart—the best brain. Superiority is born of\nhonesty, of virtue, of charity, and above all, of the love of liberty.\nThe superior man is the providence of the inferior. He is eyes for\nthe blind, strength for the weak, and a shield for the defenceless. He\nstands erect by bending above the fallen. He rises by lifting others.\n\nIn this country all rights must be preserved, all wrongs redressed,\nthrough the ballot. The colored man has in his possession in his care, a\npart of the sovereign power of the Republic. At the ballot-box he is\nthe equal of judges and senators, and presidents, and his vote, when\ncounted, is the equal of any other. He must use this sovereign power for\nhis own protection, and for the preservation of his children. The ballot\nis his sword and shield. It is his political providence. It is the rock\non which he stands, the column against which he leans. He should vote\nfor no man who dees not believe in equal rights for all—in the same\nprivileges and immunities for all citizens, irrespective of race or\ncolor.\n\nHe should not be misled by party cries, or by vague promises in\npolitical platforms. He should vote for the men, for the party, that\nwill protect him; for congressmen who believe in liberty, for judges who\nworship justice, whose brains are not tangled by technicalities, and whose\nhearts are not petrified by precedents; and for presidents who will\nprotect the blackest citizen from the tyranny of the whitest State. As\nyou cannot trust the word of some white people, and as some black people\ndo not always tell the truth, you must compel all candidates to put\ntheir principle' in black and white.\n\nOf one thing you can rest assured: The best white people are your\nfriends. The humane, the civilized, the just, the most intelligent, the\ngrandest, are on your side. The sympathies of the noblest are with\nyou. Your enemies are also the enemies of liberty, of progress and of\njustice. The white men who make the white race honorable believe in\nequal rights for you. The noblest living are, the noblest dead were,\nyour friends. I ask you to stand with your friends.\n\nDo not hold the Republican party responsible for this decision, unless\nthe Republican party endorses it. Had the question been submitted to\nthat party, it would have been decided exactly the other way—at least a\nhundred to one. That party gave you the 13th, 14th and 15th Amendments.\nThey were given in good faith. These amendments put you on a\nconstitutional and political equality with white men. That they have\nbeen narrowed in their application by the Supreme Court, is not the\nfault of the Republican party. Let us wait and see what the Republican\nparty will do. That party has a strange history, and in that history is\na mingling of cowardice and courage. The army of progress always becomes\nfearful after victory, and courageous after defeat. It has been the\ncustom for principle to apologize to prejudice. The Proclamation of\nEmancipation gave liberty only to slaves beyond our lines—those beneath\nour flag were left to wear their chains. We said to the Southern States:\n\"Lay down your arms, and you shall keep your slaves.\" We tried to buy\npeace at the expense of the negro.\n\nWe offered to sacrifice the manhood of the North, and the natural rights\nof the colored man, upon the altar of the Union. The rejection of that\noffer saved us from infamy. At one time we refused to allow the loyal\nblack man to come within our lines. We would meet him at the outposts,\nreceive his information, and drive him back to chain and lash. The\nGovernment publicly proclaimed that the war was waged to save the Union,\nwith slavery. We were afraid to claim that the negro was a man—afraid\nto admit that he was property—and so we called him \"contraband.\" We\nhesitated to allow the negro to fight for his own freedom—hesitated\nto let him wear the uniform of the nation while he battled for the\nsupremacy of its flag.\n\nThese are some of the inconsistencies of the past. In spite of them we\nadvanced. We were educated by events, and at last we clearly saw that\nslavery was rebellion; that the \"institution\" had borne its natural\nfruit—civil war; that the entire country was responsible for slavery,\nand that slavery was responsible for rebellion. We declared that slavery\nshould be extirpated from the Republic. The great armies led by\nthe greatest commander of the modern world, shattered, crushed and\ndemolished the Rebellion. The North grew grand. The people became\nsublime. The three sacred amendments were adopted. The Republic was\nfree.\n\nThen came a period of hesitation, apology and fear. The colored citizen\nwas left to his fate. For years the Federal arm, palsied by policy,\nwas powerless to protect; and this period of fear, of hesitation, of\napology, of lack of confidence in the right, has borne its natural\nfruit—this decision of the Supreme Court.\n\nBut it is not for me to give you advice. Your conduct has been above\nall praise. You have been as patient as the earth beneath, as the\nstars above. You have been law-abiding and industrious, You have not\noffensively asserted your rights, or offensively borne your wrongs. You\nhave been modest and forgiving. You have returned good for evil. When I\nremember that the ancestors of my race were in universities and colleges\nand common schools while you and your fathers were on the auction-block,\nin the slave-pen, or in the field beneath the cruel lash, in States\nwhere reading and writing were crimes, I am astonished at the progress\nyou have made.\n\nAll that I—all that any reasonable man—can ask is, that you continue\ndoing as you have done. Above all things—educate your children—strive\nto make yourselves independent—work for homes—work for yourselves—and\nwherever it is possible become the masters of yourselves.\n\nNothing gives me more pleasure than to see your little children with\nbooks under their arms, going and coming from school.\n\nIt is very easy to see why colored people should hate us, but why we\nshould hate them is beyond my comprehension. They never sold our wives.\nThey never robbed our cradles.. They never scarred our backs. They never\npursued us with bloodhounds. They never branded our flesh.\n\nIt has been said that it is hard to forgive a man to whom we have done\na great injury. I can conceive of no other reason why we should hate the\ncolored people. To us they are a standing reproach. Their history is our\nshame. Their virtues seem to enrage some white people—their patience\nto provoke, and their forgiveness to insult. Turn the tables—change\nplaces—and with what fierceness, with what ferocity, with what insane\nand passionate intensity we would hate them!\n\nThe colored people do not ask for revenge—they simply ask for\njustice. They are willing to forget the past—willing to hide their\nscars—anxious to bury the broken chains, and to forget the miseries and\nhardships, the tears and agonies, of two hundred years.\n\nThe old issues are again upon us. Is this a Nation? Have all citizens of\nthe United States equal rights, without regard to race or color? Is\nit the duty of the General Government to protect its citizens? Can the\nFederal arm be palsied by the action or non-action of a State?\n\nAnother opportunity is given for the people of this country to take\nsides. According to my belief, the supreme thing for every man to do is\nto be absolutely true to himself. All consequences—whether rewards or\npunishments, whether honor and power, or disgrace and poverty, are as\ndreams undreamt. I have made my choice. I have taken my stand. Where my\nbrain and heart go, there I will publicly and openly walk. Doing this,\nis my highest conception of duty. Being allowed to do this, is liberty.\n\nIf this is not now a free Government; if citizens cannot now be\nprotected, regardless of race or color; if the three sacred amendments\nhave been undermined by the Supreme Court—we must have another; and if\nthat fails, then another; and we must neither stop, nor pause, until\nthe Constitution shall become a perfect shield for every right, of every\nhuman being, beneath our flag.\n"
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