Chapter VIII: Part 8

Here, then, are two Constitutional Amendments, each a fountain of power: the first, to enforce the Abolition of Slavery; and the second, to assure the privileges and immunities of citizens, and also the equal protection of the laws. If the Supplementary Civil Rights Bill, moved by me, is not within these accumulated powers, I am at a loss to know what is within those powers.

In considering these Constitutional provisions, I insist upon that interpretation which shall give them the most generous expansion, so that they shall be truly efficacious for human rights. Once Slavery was the animating principle in determining the meaning of the National Constitution: happily, it is so no longer. Another principle is now supreme, breathing into the whole the breath of a new life, and filling it in every part with one pervading, controlling sentiment,--being that great principle of Equality which triumphed at last on the battle-field, and, bearing the watchword of the Republic, now supplies the rule by which every word of the Constitution and all its parts must be interpreted, as much as if written in its text.

There is also an original provision of the National Constitution, not to be forgotten:--

“The citizens of each State shall be entitled to all privileges
and immunities of citizens in the several States.”

Once a sterile letter, this is now a fruitful safeguard, to be interpreted, like all else, so that human rights shall most prevail. The term “privileges and immunities” was at an early day authoritatively defined by Judge Washington, who announced that they embraced “protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and _to pursue and obtain happiness and safety_, … the right of a citizen of one State to pass through or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise.”[184] But these “privileges and immunities” are protected by the present measure.

No doubt the Supplementary Law must operate, not only in National jurisdiction, but also in the States, precisely as the Civil Rights Law; otherwise it will be of little value. Its sphere must be coextensive with the Republic, making the rights of the citizen uniform everywhere. But this can be only by one uniform safeguard sustained by the Nation. Citizenship is universal, and the same everywhere. It cannot be more or less in one State than in another.

But legislation is not enough. An enlightened public opinion must be invoked. Nor will this be wanting. The country will rally in aid of the law, more especially since it is a measure of justice and humanity. The law is needed now as a help to public opinion. It is needed by the very people whose present conduct makes occasion for it. Prompted by the law, leaning on the law, they will recognize the equal rights of all; nor do I despair of a public opinion which shall stamp the denial of these rights as an outrage not unlike Slavery itself. Custom and patronage will then be sought in obeying the law. People generally are little better than actors, for whom it was once said:--

“Ah, let not Censure term our fate our choice:
The stage but echoes back the public voice;
The drama’s laws the drama’s patrons give;
For we that live to please must please to live.”[185]

In the absence of the law people please too often by inhumanity, but with the law teaching the lesson of duty they will please by humanity. Thus will the law be an instrument of improvement, necessary in precise proportion to existing prejudice. Because people still please by inhumanity, therefore must there be a counteracting force. This precise exigency was foreseen by Rousseau, remarkable as writer and thinker, in a work which startled the world, when he said:--

“It is precisely because the force of things tends always to
destroy equality that the force of legislation should always
tend to maintain it.”[186]

Never was a truer proposition; and now let us look at the cases for its application.

PUBLIC HOTELS.

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

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

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

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

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

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

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

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

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

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

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

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

And the Encyclopædia adds:--

“As some compensation for this _compulsory hospitality_, the
innkeeper is allowed certain privileges.”[193]

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

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

PUBLIC CONVEYANCES.

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

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

Professor Parsons states the rule strongly:--

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

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

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

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

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

PLACES OF PUBLIC AMUSEMENT.

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

COMMON SCHOOLS.

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

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

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

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

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

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

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

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

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

OTHER PUBLIC INSTITUTIONS.

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

“For in charnel at chirche
Cherles ben yvel to knowe,
Or a knyght from a knave there.”[199]

And Chaucer even denies the distinction in life:--

“But understond in thine entent
That this is not mine entendement,
To clepe no wight in no ages
Onely gentle for his linages:
Though he be not gentle borne,
Than maiest well seine this in sooth,
That he is gentle because he doth
As longeth to a gentleman.”[200]

This beautiful testimony, to which the honest heart responds, is from an age when humanity was less regarded than now. Plainly it shows how conduct and character are realities, while other things are but accidents.

Among the Romans degradation ended with life. Slaves were admitted to honorable sepulture, and sometimes slept the last sleep with their masters. The slaves of Augustus and Livia were buried on the famous Appian Way, where their tombs with historic inscriptions have survived the centuries.[201] “Bury him with his niggers,” was the rude order of the Rebel officer, as he flung the precious remains of our admirable Colonel Shaw into the common trench at Fort Wagner, where he fell, mounting the parapets at the head of colored troops. And so was he buried, lovely in death as in life. The intended insult became an honor. In that common trench the young hero rests, symbolizing the great Equality for which he died. No Roman monument, with its _Siste, viator_, to the passing traveller, no “labor of an age in pilèd stones,” can match in grandeur that simple burial.

PREJUDICE OF COLOR.

MR. PRESIDENT, against these conclusions there is but one argument, which, when considered, is nothing but a prejudice, as little rational as what Shylock first calls his “humor” and then “a lodged hate and a certain loathing,” making him seek the pound of flesh nearest the merchant’s heart. The prejudice of color pursues its victim in the long pilgrimage from the cradle to the grave, barring the hotel, excluding from the public conveyance, insulting at the theatre, closing the school, shutting the gates of science, and playing its fantastic tricks even in the church where he kneels and the grave where his dust mingles with the surrounding earth. The God-given color of the African is a constant offence to the disdainful white, who, like the pretentious lord, asking Hotspur for prisoners, can bear nothing so unhandsome “betwixt the wind and his nobility.” This is the whole case. And shall those Equal Rights promised by the great Declaration be sacrificed to a prejudice? Shall that Equality before the Law, which is the best part of citizenship, be denied to those who do not happen to be white? Is this a white man’s government or is it a government of “all men,” as declared by our fathers? Is it a Republic of Equal Laws, or an Oligarchy of the Skin? This is the question now presented.

Once Slavery was justified by color, as now the denial of Equal Rights is justified; and the reason is as little respectable in one case as in the other. The old pretension is curiously illustrated by an incident in the inimitable Autobiography of Franklin. An Ante-revolutionary Governor of Pennsylvania remarked gayly, “that he much admired the idea of Sancho Panza, who, when it was proposed to give him a government, requested it might be a government of _blacks_, as then, if he could not agree with his people, he might sell them”; on which a friend said, “Franklin, why do you continue to side with those damned Quakers? Had you not better sell them?” Franklin answered, “The Governor has not yet _blacked_ them enough.” The Autobiography proceeds to record, that the Governor “labored hard to _blacken_ the Assembly in all his Messages, but they wiped off his coloring as fast as he laid it on, and placed it in return thick upon his own face, so that, finding he was likely to be _negrofied_ himself, he grew tired of the contest and quitted the Government.”[202] To negrofy a man was to degrade him.

Thus in the ambition of Sancho Panza, and in the story of the British governor, was color the badge of Slavery. “Then I can sell them,” said Sancho Panza; and the British governor repeated the saying. This is changed now; but not entirely. At present nobody dares say, “I can sell them”; but the inn, the common conveyance, the theatre, the school, the scientific institute, the church, and the cemetery deny them the equal rights of Freedom.

Color has its curiosities in history. For generations the Roman circus was convulsed by factions known from their liveries as _white_ and _red_; new factions adopted _green_ and _blue_; and these latter colors raged with redoubled fury in the hippodrome of Constantinople.[203] Then came _blacks_ and _whites_, Neri and Bianchi, in the political contentions of Italy,[204] where the designation was from the accident of a name. In England the most beautiful of flowers, in two of its colors, became the badge of hostile armies, and the white rose fought against the red. But it has been reserved for our Republic, dedicated to the rights of human nature, to adopt the color of the skin as the sign of separation, and to organize it in law.

Color in the animal kingdom is according to the Law of Nature. The ox of the Roman Campagna is gray. The herds on the banks of the Xanthus were yellow; on the banks of the Clitumnus they were white. In Corsica animals are spotted. The various colors of the human family belong to the same mystery. There are white, yellow, red, and black, with intermediate shades; but no matter what their hue, they are always MEN, gifted with a common manhood and entitled to common rights. Dr. Johnson made short work with the famous paradox of Berkeley, denying the existence of matter. Striking his foot with mighty force against a large stone, till he rebounded from it, “I refute it _thus_,” he exclaimed.[205] And so, in reply to every pretension against the equal rights of all, to every assertion of right founded on the skin, to every denial of right because a man is something else than white, I point to that common manhood which knows no distinction of color, and thus do I refute the whole inhuman, unchristian paradox.

THE WORD “WHITE.”

Observe, if you please, how little the word “white” is authorized to play the great part it performs, and how much of an intruder it is in all its appearances. In those two title-deeds, the Declaration of Independence and the Constitution, there are no words of color, whether white, yellow, red, or black; but here is the fountain out of which all is derived. The Declaration speaks of “all men,” and not of “all _white_ men”; and the Constitution says, “We the people,” and not “We the _white_ people.” Where, then, is authority for any such discrimination, whether by the nation or any component part? There is no fountain or word for it. The fountain failing, and the word non-existent, the whole pretension is a disgusting usurpation, which is more utterly irrational when it is considered that authority for such an outrage can be found only in positive words, plain and unambiguous in meaning. This was the rule with regard to Slavery, solemnly declared by Lord Mansfield in the famous Somerset case; and it must be the same with regard to this pretension. It cannot be invented, imagined, or implied; it must be found in the very text: and this I assert according to fixed principles of jurisprudence. In its absence, Equality is “the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”[206]

This conclusion is reinforced by the several Constitutional Amendments; but I prefer to dwell on the original text of the Constitution, in presence of which you might as well undertake to make a king as to degrade a fellow-citizen on account of his skin.

There is also, antedating and interpreting the Constitution, the original Common Law, which knew no distinction of color. One of the greatest judges that ever sat in Westminster Hall, Lord Chief-Justice Holt, declared, in sententious judgment, worthy of perpetual memory, “The Common Law takes no notice of Negroes being different from other men.”[207] This was in 1706, seventy years before the Declaration of Independence; so that it was well known to our fathers as part of that Common Law, to which, according to the Continental Congress, the several States were entitled.[208] Had these remarkable words been uttered by any other judge in Westminster Hall, they would have been important; but they are enhanced by the character of their illustrious author, to whom belongs the kindred honor of first declaring from the bench that a slave cannot breathe in England.[209]

Among the ornaments of English law none has a purer fame than Holt, who was emphatically a great judge,--being an example of learning and firmness, of impartiality and mildness, with a constant instinct for justice, and a rare capacity in upholding it. His eminent merits compelled the admiration of his biographer, Lord Campbell, who does not hesitate to say, that, “of all the judges in our annals, Holt has gained the highest reputation, merely by the exercise of judicial functions,”--and then again, in striking words, that “he may be considered as having a genius for magistracy, as much as our Milton had for poetry or our Wilkie for painting.”[210] And this rarest magistrate tells us judicially, that “the Common Law takes no notice of Negroes being different from other men,”--in other words, it makes no discrimination on account of color. This judgment is a torch to illumine the Constitution, while it shows how naturally our fathers in the great Declaration said, “All men,” and not “All _white_ men,” and in the Constitution said, “We the people,” and not “We the _white_ people.”

In melancholy contrast with the monumental judgment of the English Chief-Justice are judicial decisions in our own country, especially that masterpiece of elaborate inhumanity, the judgment of our late Chief-Justice in the Dred Scott case. But it is in the States that the word “white” has been made prominent. Such learned debate on the rights of man dependent on complexion would excite a smile, if it did not awaken indignation. There is Ohio, a much-honored State, rejoicing in prosperity, intelligence, and constant liberty; but even this eminent civilization has not saved its Supreme Court from the subtilties of refinement on different shades of human color. In the case of _Lake_ v. _Baker et al._,[211] this learned tribunal decided that a child of Negro, Indian, and white blood, but of more than one-half white, was entitled to the benefits of the common-school fund; yet in a later case the same court decided that “children of three-eighths African and five-eighths white blood, but who are distinctly colored, and generally treated and regarded as colored children by the community where they reside, are not, _as of right_, entitled to admission into the common schools set apart for the instruction of white youths.”[212] Unhappy children! Even five-eighths white blood could not save them, if in their neighborhood they were known as “colored.” But this magic of color showed itself yet more in the precedent of _Polly Gray_ v. _The State of Ohio_,--a case of robbery, in the Court of Common Pleas, where the prisoner appearing on inspection “to be of a shade of color between the mulatto and white,” a Negro was admitted to testify against her, and she was convicted; but on grave consideration by the Supreme Court, on appeal, it was decided that the witness was wrongly admitted, and the judgment was reversed; and the decision stands on these words: “A Negro is not an admissible witness against a quadroon on trial charged with a crime”![213] Into this absurdity of injustice was an eminent tribunal conducted by the _ignis-fatuus_ of color.

These are specimens only. To what meanness of inquiry has not the judicial mind descended in the enforcement of an odious prejudice? Such decisions are a discredit to Republican Government; and so also is the existing practice of public institutions harmonizing with them. The words of the Gospel are fulfilled, and the Great Republic, “conceived in Liberty, and dedicated to the proposition that all men are created equal,”[214] becomes “like unto _whited_ sepulchres, which indeed appear beautiful outward, but are within full of dead men’s bones and of all uncleanness.”[215] Are not such decisions worse than dead men’s bones or any uncleanness? All this seems the more irrational, when we recall the Divine example, and the admonition addressed to the Prophet: “But the Lord said unto Samuel, _Look not on his countenance_, … for the Lord seeth not as man seeth; for man looketh on the outward appearance, _but the Lord looketh on the heart_.”[216] To the pretension of looking at the skin and measuring its various pigments in the determination of rights, I reply, that the heart, and not the countenance, must be our guide. Not on the skin can we look, though “white” as the coward heart of Macbeth, according to the reproach of his wife,--but on that within, constituting character, which showed itself supremely in Toussaint L’Ouverture, making him, though black as night, a luminous example, and is now manifest in a virtuous and patriotic people asking for their rights. Where justice prevails, all depends on character. Nor can any shade of color be an apology for interference with that consideration to which character is justly entitled.

Thus it stands. The word “white” found no place in the original Common Law; nor did it find any place afterward in our two title-deeds of Constitutional Liberty, each interpreting the other, and being the fountain out of which are derived the rights and duties of the American citizen. Nor, again, did it find place in the Constitutional Amendment expressly defining a “citizen.” How, then, can it become a limitation upon the citizen? By what title can any one say, “I am a white lord”? Every statute and all legislation, whether National or State, must be in complete conformity with the two title-deeds. To these must they be brought as to an unerring touchstone; and it is the same with the State as with the Nation. Strange indeed, if an odious discrimination, without support in the original Common Law or the Constitution, and openly condemned by the Declaration of Independence, can escape judgment by skulking within State lines! Wherever it shows itself, whatever form it takes, it is the same barefaced and insufferable imposture, a mere relic of Slavery, to be treated always with indignant contempt, and trampled out as an unmitigated “humbug.” The word may not be juridical; I should not use it if it were unparliamentary; but I know no term which expresses so well the little foundation for this pretension.

CITIZENSHIP.

That this should continue to flaunt, now that Slavery is condemned, increases the inconsistency. By the decree against that wrong all semblance of apology was removed. Ceasing to be a slave, the former victim has become not only a man, but a Citizen, admitted alike within the pale of humanity and within the pale of citizenship. As man he is entitled to all the rights of man, and as citizen he becomes a member of our common household, with Equality as the prevailing law. No longer an African, he is an American; no longer a slave, he is a common part of the Republic, owing to it patriotic allegiance in return for the protection of equal laws. By incorporation with the body-politic he becomes a partner in that transcendent unity, so that there can be no injury to him without injury to all. Insult to him is insult to an American citizen. Dishonor to him is dishonor to the Republic itself. Whatever he may have been, he is now the same as ourselves. Our rights are his rights; our equality is his equality; our privileges and immunities are his great freehold. To enjoy his citizenship, people from afar, various in race and complexion, seek our shores, losing here all distinctions of birth,--as into the ocean all rivers flow, losing all trace of origin or color, and there is but one uniform expanse of water, where each particle is like every other particle, and all are subject to the same law. In this citizenship the African is now absorbed.

Not only is he Citizen. There is no office in the Republic, from lowest to highest, executive, judicial, or representative, which is closed against him. The doors of this Chamber swing open, and he sits here the coëqual of any Senator. The doors of the other Chamber also swing open. Nay, Sir, he may be Vice-President, he may be President; but he cannot enter a hotel or public conveyance, or offer his child at the common school, without insult on account of color. Nothing can make this terrible inconsistency more conspicuous. An American citizen, with every office wide open to his honorable ambition, in whom are all the great possibilities of our Republic, who may be anything according to merit, is exposed to a scourge which descends upon the soul as the scourge of Slavery descended upon the flesh.

In ancient times the cry, “I am a Roman citizen,” stayed the scourge of the Lictor; and this cry, with its lesson of immunity, has resounded through the ages, testifying to Roman greatness. Once it was on the lips of Paul, as appears in the familiar narrative:--

“And as they bound him with thongs, Paul said unto the
centurion that stood by, Is it lawful for you to scourge a man
that is a Roman, and uncondemned?

“When the centurion heard that, he went and told the chief
captain, saying, Take heed what thou doest; for this man is a
Roman.

…

“And the chief captain also was afraid, after he knew that he
was a Roman, and because he had bound him.”[217]

Will not our “Chief Captain,” will not Senators, take heed what they do, that the scourge may not continue to fall upon a whole race, each one of whom is an American and uncondemned? Is our citizenship a feebler safeguard than that of Rome? Shall the cry, “I am an American citizen,” be raised in vain against perpetual outrage?

In speaking of the citizen as of our household, I adopt a distinction employed by a great teacher in Antiquity. Aristotle, in counsels to his former pupil, Alexander, before his career of Asiatic conquest, enjoined a broad distinction between Greeks and Barbarians. The former he was to treat as friends, and of the household; the latter he was to treat as brutes and plants.[218] This is the very distinction between Citizenship and Slavery. The Citizen is of the national household; the Slave is no better than brute or plant. But our brutes and plants are all changed into men; our Barbarians are transformed into Greeks. There is no person among us now, whatever his birth or complexion, who may not claim the great name of Citizen, to be protected not less at home than abroad,--but always, whether at home or abroad, by the National Government, which is the natural guardian of the citizen.

EQUAL RIGHTS AND AMNESTY.

MR. PRESIDENT, asking you to unite now in an act of justice to a much-oppressed race, which is no payment of that heavy debt accumulated by generations of wrong, I am encouraged by the pending measure of Amnesty, which has the advantage of being recommended in the President’s Annual Message. I regretted, at the time, that the President signalized by his favor the removal of disabilities imposed upon a few thousand Rebels who had struck at the life of the Republic, while he said nothing of cruel disabilities inflicted upon millions of colored fellow-citizens, who had been a main-stay to the national cause. But I took courage when I thought that the generosity proposed could not fail to quicken that sentiment of justice which I now invoke.

Toward those who assailed the Republic in war I have never entertained any sentiment of personal hostility. Never have I sought the punishment of any one; and I rejoice to know that our bloody Rebellion closed without the sacrifice of a single human life by the civil power. But this has not surprised me. Early in the war I predicted it in this Chamber.[219] And yet, while willing to be gentle with former enemies, while anxious not to fail in any lenity or generosity, and while always watching for the moment when all could be restored to our common household with Equality as the prevailing law, there was with me a constant duty, which I could never forget, to fellow-citizens, white and black, who had stood by the Republic; and especially to those large numbers, counted by the million, still suffering under disabilities having their origin in no crime, and more keenly felt than any imposed upon Rebels. Believing that duty to these millions is foremost, and that until they are secured in equal rights we cannot expect the tranquillity which all desire,--nay, Sir, we cannot expect the blessing of Almighty God upon our labors,--I bring forward this measure of justice to the colored race. Such a measure can never be out of order or out of season, being of urgent necessity and unquestionable charity.

There are strong reasons why it should be united with amnesty, especially since the latter is pressed. Each is the removal of disabilities, and each is to operate largely in the same region of country. Nobody sincerely favoring generosity to Rebels should hesitate in justice to the colored race. According to the maxim in Chancery, “Whoso would have equity must do equity.” Therefore Rebels seeking amnesty must be just to colored fellow-citizens seeking equal rights. Doing this equity, they may expect equity.

Another reason is controlling. Each is a measure of reconciliation, intended to close the issues of the war; but these issues are not closed, unless each is adopted. Their adoption together is better for each, and therefore better for the country, than any separate adoption. Kindred in object, they should be joined together and never put asunder. It is wrong to separate them. Hereafter the Rebels should remember that their restoration was associated with the equal rights of all, contained in the same great statute.

Clearly, between the two the preëminence must be accorded to that for the equal rights of all, as among the virtues justice is above generosity. And this is the more evident, when it is considered, that, according to Abraham Lincoln, the great issue of the war was Human Equality.

* * * * *

In making the motion by which these two measures are associated, I seize the first opportunity since the introduction of my bill, nearly two years ago, of obtaining for it the attention of the Senate. Beyond this is with me a sentiment of duty. In the uncertainties of life, I would not defer for a day the discharge of this immeasurable obligation to fellow-citizens insulted and oppressed; nor would I postpone that much-desired harmony which can be assured only through this act of justice. The opportunity is of infinite value, and I dare not neglect it. My chief regret is that I cannot do more to impress it upon the Senate. I wish I were stronger. I wish I were more able to exhibit the commanding duty. But I can try; and should the attempt fail, I am not without hope that it may be made in some other form, with increased advantage from this discussion. I trust it will not fail. Earnestly, confidently, I appeal to the Senate for its votes. Let the record be made at last, which shall be the cap-stone of the reconstructed Republic.

I make this appeal for the sake of the Senate, which will rejoice to be relieved from a painful discussion; for the sake of fellow-citizens whom I cannot forget; and for the sake of the Republic, now dishonored through a denial of justice. I make it in the name of the Great Declaration, and also of that Equality before the Law which is the supreme rule of conduct, to the end especially that fellow-citizens may be vindicated in “the pursuit of happiness,” according to the immortal promise, and that the angel Education may not be driven from their doors. I make it also for the sake of peace, so that at last there shall be an end of Slavery, and the rights of the citizen shall be everywhere under the equal safeguard of national law. There is beauty in art, in literature, in science, and in every triumph of intelligence, all of which I covet for my country; but there is a higher beauty still in relieving the poor, in elevating the down-trodden, and being a succor to the oppressed. There is true grandeur in an example of justice, making the rights of all the same as our own, and beating down prejudice, like Satan, under our feet. Humbly do I pray that the Republic may not lose this great prize, or postpone its enjoyment.

Mr. Vickers, of Maryland, on the same day, made an elaborate
effort on the position of the South and Amnesty, which he
opened by saying:--

“It is not my purpose to follow the Senator from
Massachusetts [Mr. SUMNER] in the remarks which he has
made, because his amendment is not only not germane to
the subject-matter properly before the Senate, but is so
palpably unconstitutional that I consider it unnecessary to
make any comment upon it.”

January 17th, Mr. Sumner spoke again at length, introducing
testimony, being letters, resolutions, and addresses from
various parts of the country, and especially from the South,
showing the necessity of Congressional action for the
protection of Equal Rights, and that such protection was
earnestly desired by colored fellow-citizens.

At the close he remarked on the importance of equality in the
school-room.

One of the most important aspects of the pending measure is its operation on the common school, making it what is implied in its name, a school open to all. The term “common” explains itself. Originally, in England, under the law, it designated outlying land near a village open to all the inhabitants; and the common school is an institution of education open to all. If you make it for a class, it is not a common school, but a separate school,--and, as I have said frequently to-day, and also before in addressing the Senate, a separate school never can be a _substitute_ for the common school. The common school has for its badge _Equality_. The separate school has for its badge _Inequality_. The one has open doors for all; the other has open doors only for those of a certain color. That is contrary to the spirit of our institutions, to the promises of the Declaration of Independence, and to all that is secured in the recent Constitutional Amendments. So long as it continues, the great question of the war remains still undecided; for, as I explained the other day, that transcendent issue, as stated by Jefferson Davis, and then again accepted by Abraham Lincoln, was Equality. Only by maintaining Equality will you maintain the great victory of the war.

Here in Washington this very question of separate schools has for some time agitated the community. The colored people have themselves acted. They speak for Equal Rights. I have in my hand a communication to the Senate from the Secretary of the Interior, under date of January 18, 1871, covering a report from the trustees of the colored schools of Washington and Georgetown, in which they make most important and excellent recommendations. How well at last the colored people speak! Who among us can speak better than they in the passages I am about to read?

After reading these passages,[220] which he pronounced
“unanswered and unanswerable,” Mr. Sumner proceeded:--

Sir, I bring this testimony to a close. I have adduced letters, resolutions, addresses from various States, showing the sentiments of the colored people. I have adduced them in answer to allegations on this floor that the pending measure of Equal Rights is not needed, that the pending measure is for social equality. Listening to these witnesses, you see how they all insist that it is needed, and that it is in no respect for social equality. It is a measure of strict legal right.

I adduce this testimony also in answer to the allegation, so loftily made in debate the other day, that the colored people are willing to see the former Rebels amnestied, trusting in some indefinite future to obtain their own rights. I said at the time that such an allegation was irrational. I now show you that it is repudiated by the colored people. They do not recognize the Senators who have undertaken to speak for them as their representatives. They insist upon their rights before you play the generous to Rebels. They insist that they shall be saved from indignity when they travel, and when they offer a child at the common school,--that they shall be secured against any such outrage before you remove the disabilities of men who struck at the life of this Republic.

Now, Sir, will you not be just before you are generous? Or if you do not place the rights of the colored people foremost, will you not at least place them side by side with those of former Rebels? Put them both where I seek now to put them, in the same statute,--so that hereafter the Rebels shall know that generosity to them was associated with justice to their colored fellow-citizens,--that they all have a common interest,--that they are linked together in the community of a common citizenship, and in the enjoyment of those liberties promised by the Declaration of Independence and guarantied by the Constitution of the United States.

Mr. Frelinghuysen, of New Jersey, followed with remarks
chiefly in criticism of the form of the bill, and made several
suggestions of amendment. Mr. Sumner stated that his object was
“to get this measure in the best shape possible,” and that he
should welcome any amendment from any quarter; that he did not
feel as strongly as the Senator “the difference between his
language and the text,” but that he was anxious to harmonize
with him. Mr. Sumner afterwards modified his bill in pursuance
of Mr. Frelinghuysen’s suggestions.

The debate was continued on different days,--Mr. Sawyer, of
South Carolina, Mr. Thurman, of Ohio, Mr. Morrill, of Maine,
Mr. Saulsbury, of Delaware, Mr. Davis, of Kentucky, speaking
strongly against the bill of Mr. Sumner. Mr. Sawyer objected
to it as an amendment to the Amnesty Bill. Mr. Nye of Nevada,
and Mr. Flanagan of Texas spoke for the bill. The latter, after
saying that he had read the Constitution for himself, and was
“satisfied that the proposed amendment was constitutional,”
added other reasons:--

“One is, that I discover, that, if we should remain here,
as we certainly shall do, for a very considerable period,
petitions will come in to such a degree, requiring so much
paper, that really the price will be vastly enhanced, and
it will thereby become a considerable tax to the Government
of the United States; for the Senator is receiving, I might
almost say, volumes--I know not what the quantity is; it is
immense, however--from all parts of the nation.”

And then again:--

“Again I am reminded that it is best to try to get rid of
the imposing Senator [Mr. SUMNER] on that subject, just
as the lady answered her admirer. The suitor had been
importuning her time and again, and she had invariably
declined to accept the proposition. At length, however,
being very much annoyed, she concluded to say ‘yes,’
just to get rid of his importunity. I want to go with
the Senator to get rid of this matter, [_laughter_,]
because, really, Mr. President, we find his bill here as
a breakwater. A concurrent resolution was introduced here
for the adjournment of Congress at a particular day. Well,
you saw that bill thrust right on it. ‘Stop!’ says he, ‘you
must not adjourn until my bill is passed.’ There it was
again; here it is now; and we shall continue to have it;
and I am for making peace with it by a general surrender at
once. [_Laughter._] I stop not there, Mr. President; I go
further, and I indorse the Senator to the utmost degree in
his proposition.”[221]

Mr. Morrill, in an elaborate argument, denied point-blank the
constitutionality of the bill,--insisting, and repeating with
different forms of expression, that “the exercise of this power
on the part of Congress would be a palpable invasion of the
rights of the people of the States in their purely domestic
relations.… This Constitution has given us no such authority
and no such power.”[222]

January 31st, Mr. Sumner replied to Mr. Morrill.

REPLY TO MR. MORRILL.

MR. PRESIDENT, before this debate closes, it seems to me I shall be justified in a brief reply to the most extraordinary, almost eccentric, argument by my excellent friend, the Senator from Maine [Mr. MORRILL]. He argued against the constitutionality of the pending amendment,--you all remember with how much ingenuity and earnestness. I shall not follow him in the details of that speech. I shall deal with it somewhat in the general, and part of the time I shall allow others to speak for me.

But before I come upon that branch of the case, I feel that in justice to colored fellow-citizens I ought to see that they have a hearing. Senators whom they helped elect show no zeal for their rights. Sir, they have a title to be heard. They are able; they can speak for themselves; but they are not here to speak. Therefore they can be heard only through their communications. Here is one from a member of the Virginia House of Delegates. It came to my hands yesterday, and is dated “Richmond, January 29, 1872.” I wish the Senate would hear what this member of the Virginia House says on the pending amendment.

The letter, as read by Mr. Sumner, concluded as follows:--