Chapter III: Front Matter (3)

Next came the Constitution of June, 1793, announcing, in its second article, that the natural and imprescriptible rights of men are "_Equality_, liberty, security, property." In the next article we learn precisely what is meant by Equality, when it says, "All men are equal by nature _and before the law_."[22] So just and captivating was this definition, which we encounter here for the first time, that it held its place through all the political vicissitudes of France, under the Directory, the Consulate, the Empire, the Restoration, and the Constitutional Government of Louis Philippe. It was a conquest which, when achieved, was never abandoned. Every Charter and Constitution certified to it. The Charter of Louis Philippe testifies as follows: "Frenchmen are _equal before the law_, whatever may be their titles and ranks."[23] Nor was its use confined to France. It passed into other constitutions, and Napoleon, who so often trampled on the rights of Equality, dictated to the Poles the declaration, that _all persons are equal before the law_. Thus the phrase is not only French, but Continental, although never English.

While recognizing this particular form of speech as more specific and satisfactory than the statement that all men are born equal, it is impossible not to be reminded that it finds a prototype in the ancient Greek language, where, according to Herodotus, "the government of the many has the most beautiful name of all, [Greek: isonomia], _isonomy_" which may be defined _Equality before the Law_.[24] Thus, in an age when _Equality before the Law_ was practically unknown, this remarkable language, by its comprehensiveness and flexibility, supplied a single word, not found in modern tongues, to express an idea practically recognized only in modern times. Such a word in our own language, as the substitute for Equality, might have superseded criticism to which this declaration is exposed.

[22] Moniteur, 1793, No. 178.

[23] Annuaire Historique Universel pour 1830, Appendice, p. 48.

[24] Book III. § 80. The same idea prevailed with Demosthenes,
who, in his First Oration against Aristogiton, pictured the laws as
desiring "the just and the beautiful and the useful," which, when
found, is set forth in a general ordinance, "equal and alike to
all."--_Orat. I. contra Aristogit._, § 5.

* * * * *

EQUALITY UNDER CONSTITUTION OF MASSACHUSETTS AND DECLARATION OF
INDEPENDENCE.

The way is now prepared to consider the nature of Equality, as secured by the Constitution of Massachusetts. The Declaration of Independence, which followed the French Encyclopedia and the political writings of Rousseau, announces among self-evident truths, "_that all men are created equal_; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness." The Constitution of Massachusetts repeats the same truth in a different form, saying, in its first article: "_All men are born free and equal_, and have certain natural essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties." Another article explains what is meant by Equality, saying: "No man, nor corporation or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man being born a magistrate, lawgiver, or judge is absurd and unnatural." This language, in its natural signification, condemns every form of inequality in civil and political institutions.

These declarations, though in point of time before the ampler declarations of France, may be construed in the light of the latter. Evidently, they seek to declare the same principle. They are declarations of _Rights_; and the language employed, though general in character, is obviously limited to those matters within the design of a declaration of _Rights_. And permit me to say, it is a childish sophism to adduce any physical or mental inequality in argument against Equality of Rights.

Obviously, men are not born equal in physical strength or in mental capacity, in beauty of form or health of body. Diversity or inequality in these respects is the law of creation. From this difference springs divine harmony. But this inequality is in no particular inconsistent with complete civil and political equality.

The equality declared by our fathers in 1776, and made the fundamental law of Massachusetts in 1780, was _Equality before the Law_. Its object was to efface all political or civil distinctions, and to abolish all institutions founded upon _birth_. "All men are _created_ equal," says the Declaration of Independence. "All men are _born_ free and equal," says the Massachusetts Bill of Rights. These are not vain words. Within the sphere of their influence, no person can be _created_, no person can be _born_, with civil or political privileges not enjoyed equally by all his fellow-citizens; nor can any institution be established, recognizing distinction of birth. Here is the Great Charter of every human being drawing vital breath upon this soil, whatever may be his condition, and whoever may be his parents. He may be poor, weak, humble, or black,--he may be of Caucasian, Jewish, Indian, or Ethiopian race,--he may be of French, German, English, or Irish extraction; but before the Constitution of Massachusetts all these distinctions disappear. He is not poor, weak, humble, or black; nor is he Caucasian, Jew, Indian, or Ethiopian; nor is he French, German, English, or Irish; he is a MAN, the equal of all his fellow-men. He is one of the children of the State, which, like an impartial parent, regards all its offspring with an equal care. To some it may justly allot higher duties, according to higher capacities; but it welcomes all to its equal hospitable board. The State, imitating the divine justice, is no respecter of persons.

Here nobility cannot exist, because it is a privilege from birth. But the same anathema which smites and banishes nobility must also smite and banish every form of discrimination founded on birth,--

"Quamvis ille niger, quamvis tu candidus esses."[25]

[25] Virgil, Eclog. II. 16.

* * * * *

EQUALITY BY LEGISLATION OF MASSACHUSETTS.

The Legislature of Massachusetts, in entire harmony with the Constitution, has made no discrimination of race or color in the establishment of Common Schools.

Any such discrimination by the Laws would be unconstitutional and void. But the Legislature has been too just and generous, too mindful of the Bill of Rights, to establish any such privilege of _birth_. The language of the statutes is general, and applies equally to all children, of whatever race or color.

The provisions of the Law are entitled, _Of the Public Schools_,[26] meaning our Common Schools. To these we must look to ascertain what constitutes a Public School. Only those established in conformity with the Law can be legally such. They may, in fact, be more or less public; yet, if they do not come within the terms of the Law, they do not form part of the beautiful system of our Public Schools,--they are not Public Schools, or, as I prefer to call them, Common Schools. The two terms are used as identical; but the latter is that by which they were earliest known, while it is most suggestive of their comprehensive character. A "common" in law is defined to be "_open ground equally used_ by many persons"; and the same word, when used as an adjective, is defined by lexicographers as "belonging equally to many or to the public," thus asserting Equality.

[26] Revised Statutes, Ch. 23.

If we examine the text of this statute, we shall find nothing to sustain the rule of exclusion which has been set up. The first section provides, that "in every town, containing fifty families or householders, there shall be kept in each year, at the charge of the town, by a teacher or teachers of competent ability and good morals, _one school_ for the instruction of _children_ in Orthography, Reading, Writing, English Grammar, Geography, Arithmetic, and Good Behavior, for the term of six months, or two or more such schools, for terms of time that shall together be equivalent to six months." The second, third, and fourth sections provide for the number of such schools in towns having respectively one hundred, one hundred and fifty, and five hundred families or householders. There is no language recognizing any discrimination of race or color. Thus, in every town, the schools, whether one or more, are "for the instruction of _children_" generally,--not children of any particular class or race or color, but children,--meaning the children of the town where the schools are.

The fifth and sixth sections provide a school, in certain cases, where additional studies are to be pursued, which "shall be kept _for the benefit of all the inhabitants_ of the town." The language here recognizes no discrimination among the children, but seems directly to exclude it.

In conformity with these sections is the peculiar phraseology of the memorable Colonial law of 1647, founding Common Schools, "to the end that learning may not be buried in the graves of our forefathers." This law obliged townships having fifty householders to "forthwith appoint one within their towns to teach _all such children as shall resort to him_ to write and read."[27] Here again there is no discrimination among the children. _All_ are to be taught.

[27] Charters and General Laws of the Colony and Province of
Massachusetts Bay, p. 186.

On this legislation the Common Schools of Massachusetts have been reared. The section of the Revised Statutes,[28] and the statute of 1838,[29] appropriating small sums, in the nature of a contribution, from the School Fund, for the support of Common Schools among the Indians, do not interfere with this system. These have the anomalous character of all the legislation concerning the Indians. It does not appear, however, that separate schools are established by law among the Indians, nor that the Indians are in any way excluded from the Common Schools in their neighborhood.

[28] Chap. 23, sec. 68.

[29] Chap. 154.

I conclude, on this head, that there is but one Public School in Massachusetts. This is the Common School, equally free to all the inhabitants. There is nothing establishing an exclusive or separate school for any particular class, rich or poor, Catholic or Protestant, white or black. In the eye of the law there is but _one class_, where all interests, opinions, conditions, and colors commingle in harmony,--excluding none, therefore comprehending all.

* * * * *

EQUALITY UNDER JUDICIAL DECISIONS.

The Courts of Massachusetts, in harmony with the Constitution and the Laws, have never recognized any discrimination founded on race or color, in the administration of the Common Schools, but have constantly declared the equal rights of all the inhabitants.

There are only a few decisions bearing on this subject, but they breathe one spirit. The sentiment of Equality animates them all. In the case of _The Commonwealth_ v. _Dedham_, (16 Mass. R., 146,) while declaring the equal rights of all the inhabitants, in both Grammar and District Schools, the Court said:--

"The schools required by the statute are to be maintained for the
benefit of the whole town, _as it is the wise policy of the law
to give all the inhabitants equal privileges for the education of
their children in the Public Schools_. Nor is it in the power of
the majority to deprive the minority of this _privilege_.... Every
inhabitant of the town has a right to participate in the benefits
of both descriptions of schools; and it is not competent for a town
to establish a grammar school for the benefit of one part of the
town to the exclusion of the other, although the money raised for
the support of schools may be in other respects fairly apportioned."

Here is Equality from beginning to end.

In the case of _Withington_ v. _Eveleth_, (7 Pick. R., 106,) the Court say they "are all satisfied that the power given to towns to determine and define the limits of school districts can be executed only by a geographical division of the town for that purpose." A limitation of the district merely _personal_ was held invalid. This same principle was again recognized in _Perry_ v. _Dover_, (12 Pick. R., 213,) where the Court say, "Towns, in executing the power to form school districts, are bound so to do it as to include _every inhabitant_ in some of the districts. They cannot lawfully omit any, and thus deprive them of _the benefits of our invaluable system of free schools_." Thus at every point the Court has guarded the Equal Rights of all.

* * * * *

The Constitution, the Legislation, and the Judicial Decisions of Massachusetts have now been passed in review. We have seen what is contemplated by the Equality secured by the Constitution,--also what is contemplated by the system of Common Schools, as established by the laws of the Commonwealth and illustrated by decisions of the Supreme Court. The way is now prepared to consider the peculiarities in the present case, and to apply the principle thus recognized in Constitution, Laws, and Judicial Decisions.

* * * * *

SEPARATE SCHOOLS INCONSISTENT WITH EQUALITY.

It is easy to see that the exclusion of colored children from the Public Schools is a constant inconvenience to them and their parents, which white children and white parents are not obliged to bear. Here the facts are plain and unanswerable, showing a palpable violation of Equality. _The black and white are not equal before the law._ I am at a loss to understand how anybody can assert that they are.

Among the regulations of the Primary School Committee is one to this effect. "Scholars to go to the school nearest their residences. Applicants for admission to our schools (with the exception and provision referred to in the preceding rule) are especially entitled to enter the schools nearest to their places of residence." The exception here is "of those for whom special provision has been made" in separate schools,--that is, colored children.

In this rule--without the unfortunate exception--is part of the beauty so conspicuous in our Common Schools. It is the boast of England, that, through the multitude of courts, justice is brought to every man's door. It may also be the boast of our Common Schools, that, through the multitude of schools, education in Boston is brought to every _white_ man's door. But it is not brought to every _black_ man's door. He is obliged to go for it, to travel for it, to walk for it,--often a great distance. The facts in the present case are not so strong as those of other cases within my knowledge. But here the little child, only five years old, is compelled, if attending the nearest African School, to go a distance of two thousand one hundred feet from her home, while the nearest Primary School is only nine hundred feet, and, in doing this, she passes by no less than five different Primary Schools, forming part of our Common Schools, and open to white children, all of which are closed to her. Surely this is not _Equality before the Law_.

Such a fact is sufficient to determine this case. If it be met by the suggestion, that the inconvenience is trivial, and such as the law will not notice, I reply, that it is precisely such as to reveal an existing inequality, and therefore the law cannot fail to notice it. There is a maxim of the illustrious civilian, Dumoulin, a great jurist of France, which teaches that even a trivial fact may give occasion to an important application of the law: "_Modica enim circumstantia facti inducit magnam juris diversitatem._" Also from the best examples of our history we learn that the insignificance of a fact cannot obscure the grandeur of the principle at stake. It was a paltry tax on tea, laid by a Parliament where they were not represented, that aroused our fathers to the struggles of the Revolution. They did not feel the inconvenience of the tax, but they felt its oppression. They went to war for a principle. Let it not be said, then, that in the present case the inconvenience is too slight to justify the appeal I make in behalf of colored children for _Equality before the Law_.

Looking beyond the facts of this case, it is apparent that the inconvenience from the exclusion of colored children is such as to affect seriously the comfort and condition of the African race in Boston. The two Primary Schools open to them are in Belknap Street and Sun Court. I need not add that the whole city is dotted with schools open to white children. Colored parents, anxious for the education of their children, are compelled to live in the neighborhood of the schools, to gather about them,--as in Eastern countries people gather near a fountain or a well. The liberty which belongs to the white man, of choosing his home, is not theirs. Inclination or business or economy may call them to another part of the city; but they are restrained for their children's sake. There is no such restraint upon the white man; for he knows, that, wherever in the city inclination or business or economy may call him, there will be a school open to his children near his door. Surely this is not _Equality before the Law_.

If a colored person, yielding to the necessities of position, removes to a distant part of the city, his children may be compelled daily, at an inconvenience which will not be called trivial, to walk a long distance for the advantages of the school. In our severe winters this cannot be disregarded, in the case of children so tender in years as those of the Primary Schools. There is a peculiar instance of hardship which has come to my knowledge. A respectable colored parent became some time since a resident of East Boston, separated from the mainland by water. Of course there are Common Schools at East Boston, but none open to colored children. This parent was obliged to send his children, three in number, daily across the ferry to the distant African School. The tolls amounted to a sum which formed a severe tax upon a poor man, while the long way to travel was a daily tax upon the time and strength of his children. Every toll paid by this parent, as every step taken by the children, testifies to that inequality which I now arraign.

This is the conduct of a colored parent. He is well deserving of honor for his generous efforts to secure the education of his children. As they grow in knowledge they will rise and call him blessed; but at the same time they will brand as accursed that arbitrary discrimination of color in the Common Schools of Boston which rendered it necessary for their father, out of small means, to make such sacrifices for their education.

Here is a grievance which, independent of any stigma from color, calls for redress. It is an inequality which the Constitution and the Laws of Massachusetts repudiate. But it is not on the ground of inconvenience only that it is odious. And this brings me to the next head.

* * * * *

SEPARATE SCHOOLS ARE IN THE NATURE OF CASTE.

The separation of children in the Schools, on account of race or color, is in the nature of _Caste_, and, on this account, a violation of Equality. The case shows expressly that the child was excluded from the school nearest to her dwelling--the number in the school at the time warranting her admission--"on the sole ground of color." The first Majority Report presented to the School Committee, and mentioned in the statement of facts, presents the grounds of this discrimination with more fulness, saying, "It is one of _races_, not of _colors_ merely. The distinction is one which the All-wise Creator has seen fit to establish; and it is founded deep in the physical, mental, and moral natures of the two races. No legislation, no social customs, can efface this distinction."[30] Words cannot be chosen more apt than these to describe the heathenish relation of Caste.

[30] Report to the Primary School Committee, June 15, 1846, on the
Petition of Sundry Colored Persons for the Abolition of the Schools
for Colored Children, p. 7.

This term, which has its prototype in Spanish and French, finds its way into English from the Portuguese _casta_, which signifies family, breed, race, and is generally used to designate any hereditary distinction, particularly of race. It is most often employed in India, and it is there that we must go to understand its full force. A recent English writer says, that it is "not only a distinction by birth, but is founded on the doctrine of an essentially distinct origin of the different races, which are thus unalterably separated."[31] This is the very ground of the Boston School Committee.

[31] Roberts on Caste, p. 134.

This word is not now for the first time applied to the distinction between the white and black races. Alexander von Humboldt, speaking of the negroes in Mexico, characterizes them as a caste.[32] Following him, a recent political and juridical writer of France uses the same term to denote not only the distinctions in India, but those of our own country, especially referring to the exclusion of colored children from the Common Schools as among "the humiliating and brutal distinctions" by which their caste is characterized.[33] It is, then, on authority and reason alike that we apply this term to the hereditary distinction on account of color now established in the schools of Boston.

[32] Essai Politique sur le Royaume de la Nouvelle-Espagne, Liv.
II. ch. 6.

[33] Charles Comte, Traité de Legislation, Tom. IV. pp. 129, 445.

Boston is set on a hill, and her schools have long been the subject of observation, even in this respect. As far back as the last century, the French Consul here made a report on our "separate" school;[34] and De Tocqueville, in his masterly work, testifies, with evident pain, that the same schools do not receive the children of the African and European.[35] All this is only a reproduction of the Cagots in France, who for generations were put under the ban,--relegated to a corner of the church, as in a "negro pew," and even in the last resting-place, where all are equal, these wretched people were separated by a line of demarcation from the rest.[36] The Cagots are called an "accursed race," and this language may be applied to the African under our laws. Strange that here, under a State Constitution declaring the Equality of all men, we should follow the worst precedents and establish among us a Caste. Seeing the discrimination in this light, we learn to appreciate its true character. In India, Brahmins and Sudras, from generation to generation, were kept apart. If a Sudra presumed to sit upon a Brahmin's carpet, his punishment was banishment. With similar inhumanity here, the black child who goes to sit on the same benches with the white is banished, not indeed from the country, but from the school. In both cases it is the triumph of Caste. But the offence is greater with us, because, unlike the Hindoos, we acknowledge that men are born equal.

[34] Grégoire, De la Littérature des Nègres, p. 177.

[35] Democracy in America, Vol. I. p. 461, Ch. XVIII. § 2.

[36] Michel, Histoire des Races Maudites, Tom. I. p. 3.

So strong is my desire that the Court should feel the enormity of this system, thus legalized, not by the Legislature, but by an inferior local board, that I shall introduce an array of witnesses all testifying to the unchristian character of Caste, as it appears in India, where it is most studied and discussed. As you join in detestation of this foul institution, you will learn to condemn its establishment among our children.

I take these authorities from the work of Mr. Roberts to which I have already referred, "Caste opposed to Christianity," published in London in 1847. Time will not allow me to make comments. I can only quote the testimony and then pass on.

The eminent Bishop Heber, of Calcutta, characterizes Caste in these forcible terms:--

"_It is a system which tends, more than any else the Devil has yet
invented, to destroy the feelings of general benevolence, and to
make nine tenths of mankind the hopeless slaves of the remainder._"

But this is the very system now in question here. Bishop Wilson, also of Calcutta, the successor of Heber, says:--

"The Gospel recognizes no such distinction as those of Castes,
imposed by a heathen usage, bearing in some respects a supposed
religious obligation, condemning those in the lower ranks to
perpetual abasement, placing an immovable barrier against all
general advance and improvement in society, cutting asunder the
bonds of human fellowship on the one hand, and preventing those of
Christian love on the other. Such distinctions, I say, the Gospel
does not recognize. On the contrary, it teaches us that God 'hath
made of one blood all the nations of men.'"

The same sentiment is echoed by Bishop Corrie, of Madras:--

"Thus Caste sets itself up as a judge of our Saviour himself. His
command is, 'Condescend to men of low estate. Esteem others better
than yourself.' 'No,' says Caste, 'do not commune with low men:
consider yourself of high estimation. Touch not, taste not, handle
not.' Thus Caste condemns the Saviour."

Here is the testimony of Rev. Mr. Rhenius, a zealous and successful missionary:--

"I have found Caste, both in theory and practice, to be
diametrically opposed to the Gospel, which inculcates love,
humility, and union; whereas Caste teaches the contrary. It is a
fact, in those entire congregations where Caste is allowed the
spirit of the Gospel does not enter; whereas in those from which it
is excluded we see the fruits of the Gospel spirit."

Another missionary, Rev. C. Mault, follows in similar strain:--

"Caste must be entirely renounced; for it is a noxious plant, by
the side of which the graces cannot grow; for facts demonstrate,
that, where it has been allowed, Christianity has never flourished."

So also does the Rev. John McKenny, a Wesleyan missionary:--

"I have been upward of twelve years in India, and have directed
much of my attention to the subject of Caste, and am fully of
opinion that it is altogether contrary to the nature and principles
of the Gospel of Christ, and therefore ought not to be admitted
into the Christian Church."

So also the Rev. R.S. Hardy, a Wesleyan missionary, and author of "Notices of the Holy Land":--

"The principle of Caste I consider so much at variance with the
spirit of the Gospel as to render impossible, where its authority
is acknowledged, the exercise of many of the most beautiful virtues
of our holy religion."

So also the Rev. D.J. Gorgerly, of the same Society:--

"I regard the distinction of Caste, both in its principles
and operations, as directly opposed to vital godliness, and
consequently inadmissible into the Church of Christ."

So also the Rev. W. Bridgnall, of the same Society:--

"I perfectly agree with a writer of respectable authority, in
considering the institution of Caste as the most formidable engine
that was ever invented for perpetuating the subjugation of men: so
that, as a friend of humanity only, I should feel myself bound to
protest against and oppose it; but in particular as a Christian,
I deem it my obvious and imperative duty wholly to discountenance
it, conceiving it to be utterly repugnant to all the principles and
the whole spirit of Christianity. He who is prepared to support the
system of Caste is, in my judgment, neither a true friend of man
nor a consistent follower of Christ."

So also the Rev. S. Allens, of the same Society:--

"During a residence of more than nine years in Ceylon I have had
many opportunities of witnessing the influence of Caste on the
minds of the natives, and I firmly believe it is altogether opposed
to the spirit of Christianity; and it appears to me that its utter
and speedy extinction cannot but be desired by every minister of
Christ."

So also the Rev. R. Stoup, of the same Society:--

"From my own personal observation, during a four years' residence
in Ceylon, I am decidedly of opinion that Caste is directly opposed
to the spirit of Christianity, and consequently ought to be
discouraged in every possible way."

I conclude these European authorities with the confirmation of Rev. Joseph Roberts, author of the work on Caste:--

"_We must in every place witness against it, and show that even
Government itself is nurturing a tremendous evil, that through its
heathen managers it is beguiled into a course which obstructs the
progress of civilization_, which keeps in repulsion our kindlier
feelings, which creates and nurses distinctions the most alien to
all the cordialities of life, and which, more than any other thing,
makes the distance so immense betwixt the governed and governors."

There is also the testimony of native Hindoos converted to Christianity, who denounce Caste as Jefferson denounced the despotism of Slavery. Listen to the voice of a Hindoo:--

"Caste is the stronghold of that principle of pride which makes
a man think of himself more highly than he ought to think. Caste
infuses itself into and forms the very essence of pride itself."

Another Hindoo testifies as follows:--

"I therefore regard Caste as opposed to the main scope, principles,
and doctrines of Christianity; for either Caste must be admitted
to be true and of divine authority, or Christianity must be
so admitted. If you admit Caste to be true, the whole fabric of
Christianity must come down; for the nature of Caste and its
associations destroy the first principles of Christianity. Caste
makes distinctions among creatures where God has made none."

Another native expresses himself thus:--

"When God made man, his intention was, not that they should be
divided, and hate one another, and show contempt, and think more
highly of themselves than others. Caste makes a man think that he
is holier than another, and that he has some inherent virtue which
another has not. It makes him despise all those that are lower than
himself in regard to Caste, which is not the design of God."

Still another native uses this strong language:--

"Yes, we regard Caste as part and parcel of idolatry, and of all
heathen abominations, because it is in many ways contrary to God's
Word, and directly contrary to God himself."

I hope that I have not occupied too much time with this testimony, which is strictly in point. There is not a word which is not plainly applicable to the present case. The witnesses are competent, and in their evidence, as in a mirror, may be seen the true character of the discrimination which I bring to judgment before this Court.

It will be vain to say that this distinction, though seeming to be founded on color, is in reality founded on natural and physical peculiarities independent of color. Whatever they may be, they are peculiarities of race; and any discrimination on this account constitutes the relation of Caste, in the most restricted sense of this term. Disguise it as you will, it is nothing but this hateful, irreligious institution. But the words Caste and Equality are contradictory. They mutually exclude each other. Where Caste is, there cannot be Equality; where Equality is, there cannot be Caste.

Unquestionably there is a distinction between the Ethiopian and the Caucasian. Each received from the hand of God certain characteristics of color and form. The two may not readily intermingle, although we are told by Homer that Jupiter did not

"disdain to grace
The feasts of Ethiopia's blameless race."

One may be uninteresting or offensive to the other, precisely as individuals of the same race and color may be uninteresting or offensive to each other. But this distinction can furnish no ground for any discrimination before the law.

We abjure nobility of all kinds; but here is a nobility of the skin. We abjure all hereditary distinctions; but here is an hereditary distinction, founded, not on the merit of the ancestor, but on his color. We abjure all privileges of birth; but here is a privilege which depends solely on the accident whether an ancestor is black or white. We abjure all inequality before the law; but here is an inequality which touches not an individual, but a race. We revolt at the relation of Caste; but here is a Caste which is established under a Constitution declaring that all men are born equal.

Condemning Caste and inequality before the law, the way is prepared to consider more particularly the powers of the School Committee. Here it will be necessary to enter into details.

* * * * *

SCHOOL COMMITTEE HAVE NO POWER TO DISCRIMINATE ON ACCOUNT OF COLOR.

The Committee charged with the superintendence of the Common Schools of Boston have no _power_ to make any discrimination on account of race or color.

It has been seen already that this power is inconsistent with the Declaration of Independence, with the Constitution and Laws of Massachusetts, and with adjudications of the Supreme Court. The stream cannot rise higher than the fountain-head; and if there be nothing in these elevated sources from which this power can spring, it must be considered a nullity. Having seen that there is nothing, I might here stop; but I wish to show the shallow origin of this pretension.

Its advocates, unable to find it among express powers conferred upon the School Committee, and forgetful of the Constitution, where "either it must live or bear no life," place it among implied or incidental powers. The Revised Statutes provide for a School Committee "who shall have _the general charge and superintendence_ of all the Public Schools" in their respective towns.[37] Another section provides that "the School Committee shall determine the number and qualifications of the scholars to be admitted into the school kept for the use of the whole town."[38] These are all the clauses conferring powers on the Committee.

[37] Chap. 23, sec. 10.

[38] Chap. 23, sec. 15.

From them no person will imply a power to defeat a cardinal principle of the Constitution. It is absurd to suppose that the Committee in general charge and superintendence of schools, and in determining the number and qualifications of scholars, may engraft upon the schools a principle of inequality, not only unknown to the Constitution and Laws, but in defiance of their letter and spirit. In the exercise of these powers they cannot put colored children to personal inconvenience greater than that of white children. Still further, they cannot brand a whole race with the stigma of inferiority and degradation, constituting them a Caste. They cannot in any way violate that fundamental right of all citizens, Equality before the Law. To suppose that they can do this would place the Committee above the Constitution. It would enable them, in the exercise of a brief and local authority, to draw a fatal circle, within which the Constitution cannot enter,--nay, where the very Bill of Rights becomes a dead letter.

In entire harmony with the Constitution, the law says expressly what the Committee shall do. Besides the general charge and superintendence, they shall "determine the _number_ and _qualifications_ of the scholars to be admitted into the school,"--thus, according to a familiar rule of interpretation, excluding other powers: _Mentio unius est exclusio alterius._ The power to determine the "number" is easily executed, and admits of no question. The power to determine the "qualifications," though less simple, must be restricted to age, sex, and fitness, moral and intellectual. The fact that a child is black, or that he is white, cannot of itself be a qualification or a disqualification. Not to the skin can we look for the criterion of fitness.

It is sometimes pretended, that the Committee, in the exercise of their power, are intrusted with a discretion, under which they may distribute, assign, and classify all children belonging to the schools _according to their best judgment_, making, if they think proper, a discrimination of race or color. Without questioning that they are intrusted with a discretion, it is outrageous to suppose that their discretion can go to this extent. The Committee can have no discretion which is not in harmony with the Constitution and Laws. Surely they cannot, in any mere discretion, nullify a sacred and dear-bought principle of Human Plights expressly guarantied by the Constitution.

* * * * *

REGULATIONS OF COMMITTEE MUST BE REASONABLE.

Still further,--and here I approach a more technical view of the subject,--it is an admitted principle, that the regulations and by-laws of municipal corporations must be _reasonable_, or they are inoperative and void. This has been recognized by the Supreme Court in two different cases,--_Commonwealth_ v. _Worcester_, (3 Pick. R., 462,) and in Vandine's case (6 Pick. R., 187). In another case, _City of Boston_ v. _Shaw_, (1 Met. R., 130,) it was decided that a by-law of Boston, prescribing a particular form of contribution toward the expenses of making the common sewers, was void for inequality and unreasonableness.

Assuming that this principle is applicable to the School Committee, their regulations and by-laws must be _reasonable_. Their discretion must be exercised in a reasonable manner. And this is not what the Committee or any other body of men think reasonable, but what is reasonable in the eye of the Law. It must be _legally reasonable_. It must be approved by the _reason_ of the Law.

Here we are brought once more, in another form, to the question of the discrimination on account of color. Is this _legally reasonable_? Is it reasonable, in the exercise of a just discretion, to separate descendants of the African race from white children merely in consequence of descent? Passing over those principles of the Constitution and those provisions of Law which of themselves decide the question, constituting as they do _the highest reason_, but which have been already amply considered, look for a moment at the educational system of Massachusetts, and it will be seen that practically no discrimination of color is made by Law in any part of it. A descendant of the African race may be Governor of the Commonwealth, and as such, with the advice and consent of the Council, may select the Board of Education. As Lieutenant-Governor, he may be _ex officio_ a member of the Board. He may be Secretary of the Board, with the duty imposed on him by law of seeing "that _all_ children in this Commonwealth, who depend upon Common Schools for instruction, may have the best education which those schools can be made to impart."[39] He may be member of any School Committee, or teacher in any Common School of the State. As legal voter, he can vote in the selection of any School Committee.

[39] General Laws of Massachusetts, 1837, Ch. 241, sec. 2.

Thus, in every department connected with our Common Schools, throughout the whole hierarchy of their government, from the very head of the system down to the humblest usher in the humblest Primary School, and to the humblest voter, there is no distinction of color known to the law. It is when we reach the last stage of all, the children themselves, that the beautiful character of the system is changed to the deformity of Caste, as, in the picture of the ancient poet, what above was a lovely woman terminated below in a vile, unsightly fish. And all this is done by the School Committee, with more than necromantic power, in the exercise of a mere discretion.

It is clear that the Committee may classify scholars according to age and sex, for the obvious reasons that these distinctions are inoffensive, and that they are especially recognized as _legal_ in the law relating to schools.[40] They may also classify scholars according to moral and intellectual qualifications, because such a power is necessary to the government of schools. But the Committee cannot assume, _a priori_, and without individual examination, that all of an _entire race_ are so deficient in proper moral and intellectual qualifications as to justify their universal degradation to a class by themselves. Such an exercise of discretion must be unreasonable, and therefore illegal.

[40] Revised Statutes, Ch. 23, sec. 63.

* * * * *

SEPARATE SCHOOL NOT AN EQUIVALENT FOR COMMON SCHOOL.

But it is said that the School Committee, in thus classifying the children, have not violated any principle of Equality, inasmuch as they provide a school with competent instructors for colored children, where they have advantages equal to those provided for white children. It is argued, that, in excluding colored children from Common Schools open to white children, the Committee furnish an _equivalent_.

Here there are several answers. I shall touch them briefly, as they are included in what has been already said.

1. The separate school for colored children is not one of the schools established by the law relating to Public Schools.[41] It is not a Common School. As such it has no legal existence, and therefore cannot be a _legal equivalent_. In addition to what has been already said, bearing on this head, I call attention to one other aspect. It has been decided that a town can execute its power to form School Districts only by geographical divisions of its territory, that there cannot be what I would call a _personal_ limitation of a district, and that _certain individuals_ cannot be selected and set off by _themselves_ into a district.[42] The admitted effect of this decision is to render a separate school for colored children illegal and impossible in towns divided into districts. They are so regarded in Salem, Nantucket, New Bedford, and in other towns of this Commonwealth. The careful opinion of a learned member of this Court, who is not sitting in this case, given while at the bar,[43] and extensively published, is considered as practically settling this point.

[41] Revised Statutes, Ch. 23.

[42] Perry _v._ Dover, 12 Pick. R., 213.

[43] Hon. Richard Fletcher.

But there cannot be one law for the country and another for Boston. It is true that Boston is not divided strictly into geographical districts. In this respect its position is anomalous. But if separate colored schools are illegal and impossible in the country, they must be illegal and impossible in Boston. It is absurd to suppose that this city, failing to establish School Districts, and treating all its territory as a single district, should be able to legalize a Caste school, which otherwise it could not do. Boston cannot do indirectly what other towns cannot do directly. This is the first answer to the allegation of equivalents.

2. The second is that in point of fact the separate school is not an equivalent. We have already seen that it is the occasion of inconvenience to colored children, which would not arise, if they had access to the nearest Common School, besides compelling parents to pay an additional tax, and inflicting upon child and parent the stigma of Caste. Still further,--and this consideration cannot be neglected,--the matters taught in the two schools may be precisely the same, but a school exclusively devoted to one class must differ essentially in spirit and character from that Common School known to the law, where all classes meet together in Equality. It is a mockery to call it an equivalent.

3. But there is yet another answer. Admitting that it is an equivalent, still the colored children cannot be compelled to take it. Their rights are found in Equality before the Law; nor can they be called to renounce one jot of this. They have an equal right with white children to the Common Schools. A separate school, though well endowed, would not secure to them that precise Equality which they would enjoy in the Common Schools. The Jews in Rome are confined to a particular district called the Ghetto, and in Frankfort to a district known as the Jewish Quarter. It is possible that their accommodations are as good as they would be able to occupy, if left free to choose throughout Rome and Frankfort; but this compulsory segregation from the mass of citizens is of itself an _inequality_ which we condemn. It is a vestige of ancient intolerance directed against a despised people. It is of the same character with the separate schools in Boston.

Thus much for the doctrine of Equivalents as a substitute for Equality.

* * * * *

DISASTROUS CONSEQUENCES OF POWER TO MAKE SEPARATE SCHOOLS.

In determining that the School Committee have no _power_ to make this discrimination we are strengthened by another consideration. If the power exists in the present case, it cannot be restricted to this. The Committee may distribute all the children into classes, according to mere discretion. They may establish a separate school for Irish or Germans, where each may nurse an exclusive nationality alien to our institutions. They may separate Catholics from Protestants, or, pursuing their discretion still further, may separate different sects of Protestants, and establish one school for Unitarians, another for Presbyterians, another for Baptists, and another for Methodists. They may establish a separate school for the rich, that the delicate taste of this favored class may not be offended by the humble garments of the poor. They may exclude the children of mechanics, and send them to separate schools. All this, and much more, can be done in the exercise of that high-handed power which makes a discrimination on account of race or color. The grand fabric of our Common Schools, the pride of Massachusetts,--where, at the feet of the teacher, innocent childhood should come, unconscious of all distinctions of birth,--where the Equality of the Constitution and of Christianity should be inculcated by constant precept and example,--will be converted into a heathen system of proscription and Caste. We shall then have many different schools, representatives of as many different classes, opinions, and prejudices; but we shall look in vain for the true Common School of Massachusetts. Let it not be said that there is little danger that any Committee will exercise a discretion to this extent. They must not be intrusted with the power. Here is the only safety worthy of a free people.

* * * * *

BY-LAW VOID.

The Court will declare the by-law of the School Committee unconstitutional and illegal, although there are no express words of prohibition in the Constitution and Laws.

It is hardly necessary to say anything in support of this proposition. Slavery was abolished in Massachusetts, under the Declaration of Rights in our Constitution, without any specific words of abolition in that instrument, or in any subsequent legislation.[44] The same words which are potent to destroy Slavery must be equally potent against any institution founded on Inequality or Caste. The case of _Boston_ v. _Shaw_ (1 Metcalf, 130), to which reference has been already made, where a by-law of the city was set aside as unequal and unreasonable, and therefore void, affords another example of the power which I here invoke. But authorities are not needed. The words of the Constitution are plain, and it will be the duty of the Court to see that they are applied to the discrimination now waiting for judgment.

[44] Commonwealth _v._ Aves, 18 Pick. R., 210.

The Court might justly feel delicacy, if called to revise an act of the Legislature. But it is simply the action of a local committee that they are to overrule. They may also be encouraged by the circumstance that it is only to the schools of Boston that their decision can be applicable. Already the other towns have voluntarily banished Caste. Banishing it from the schools of Boston, the Court will bring them into much-desired harmony with the schools of other towns, and with the whole system of Common Schools. I am unwilling to suppose that there can be any hesitation or doubt. If any should arise, there is a rule of interpretation which is plain. According to familiar practice, judicial interpretation is made always in favor of life or liberty. So here the Court should incline in favor of Equality, that sacred right which is the companion of those other rights. In proportion to the importance of this right will the Court be solicitous to vindicate and uphold it. And in proportion to the opposition which it encounters from prejudices of society will the Court brace themselves to this task. It has been pointedly remarked by Rousseau, that "it is precisely because the force of things tends always to destroy Equality that the force of legislation should always tend to maintain it."[45] In similar spirit, and for the same reason, the Court should always tend to maintain Equality.

[45] Contrat Social, Liv. II. ch. 11.

* * * * *

ORIGIN OF SEPARATE SCHOOLS.

In extenuation of the Boston system, it is sometimes said that the separation of white and black children was originally made at the request of colored parents. This is substantially true. It appears from the interesting letter of Dr. Belknap, in reply to Judge Tucker's queries respecting Slavery in Massachusetts, at the close of the last century, that no discrimination on account of color existed then in the Common Schools of Boston. "The same provision," he says, "is made by the public for the education of the children of the blacks as for those of the whites. In this town the Committee who superintend the free schools have given in charge to the schoolmasters to receive and instruct black children as well as white." Dr. Belknap had "not heard of more than three or four who had taken advantage of this privilege, though the number of blacks in Boston probably exceeded one thousand."[46] Much I fear that the inhuman bigotry of Caste--sad relic of the servitude from which they had just escaped--was at this time too strong to allow colored children kindly welcome in the free schools, and that, from timidity and ignorance, they hesitated to take a place on the same benches with the white children. Perhaps the prejudice was so inveterate that they could not venture to assert their rights. In 1800 a petition from sixty-six colored persons was presented to the School Committee, requesting the establishment of a school for their benefit. Some time later, private munificence came to the aid of this work, and the present system of separate schools was brought into being.

[46] Coll. Mass. Hist. Soc., Vol. IV. pp. 206, 207.

These are interesting incidents belonging to the history of the Boston schools, but they cannot in any way affect the rights of colored people or the powers of the School Committee. These rights and these powers stand on the Constitution and Laws. Without adopting the suggestion of Jefferson, that one generation cannot by legislation bind its successors, all must agree that the assent of a few to an unconstitutional and illegal course nearly half a century ago, when their rights were imperfectly understood, cannot alter the Constitution and the Laws so as to bind their descendants forever in the thrall of Caste. Nor can the Committee derive from this assent, or from any lapse of time, powers in derogation of the Constitution and the Rights of Man.

It is clear that the sentiments of the colored people have now changed. The present case, and the deep interest which they manifest in it, thronging the Court to watch this discussion, attest the change. With increasing knowledge they have learned to know their rights, and feel the degradation to which they are doomed. In them revives the spirit of Paul, even as when he demanded, "Is it lawful for you to scourge a man that is a Roman, and uncondemned?" Their present effort is the token of a manly character, which this Court will respect and cherish.

* * * * *

EVILS OF SEPARATE SCHOOLS.

But it is said that these separate schools are for the benefit of both colors, and of the Public Schools. In similar spirit Slavery is sometimes said to be for the benefit of master and slave, and of the country where it exists. There is a mistake in the one case as great as in the other. This is clear. Nothing unjust, nothing ungenerous, can be for the benefit of any person or any thing. From some seeming selfish superiority, or from the gratified vanity of class, short-sighted mortals may hope to draw permanent good; but even-handed justice rebukes these efforts and redresses the wrong. The whites themselves are injured by the separation. Who can doubt this? With the Law as their monitor, they are taught to regard a portion of the human family, children of God, created in his image, coequals in his love, as a separate and degraded class; they are taught practically to deny that grand revelation of Christianity, the Brotherhood of Man. Hearts, while yet tender with childhood, are hardened, and ever afterward testify to this legalized uncharitableness. Nursed in the sentiments of Caste, receiving it with the earliest food of knowledge, they are unable to eradicate it from their natures, and then weakly and impiously charge upon our Heavenly Father the prejudice derived from an unchristian school. Their characters are debased, and they become less fit for the duties of citizenship.