Volume 19 — EQUALITY BEFORE THE LAW PROTECTED BY NATIONAL STATUTE.

Speeches in the Senate, on his Supplementary Civil Rights Bill, as an Amendment to the Amnesty Bill, January 15, 17, 31, February 5, and May 21, 1872.

I was fully convinced, that, whatever difference there is between the Negro and European in the conformation of the nose and the color of the skin, there is none in the genuine sympathies and characteristic feelings of our common nature.—Mungo Park, Travels in the Interior Districts of Africa, (London, 1816,) Vol. I. p. 80, Ch. 6.

The word Man is thought to carry somewhat of dignity in its sound; and we commonly make use of this, as the last and the most prevailing argument against a rude insulter, “I am not a beast, a dog, but I am a Man as well as yourself.” Since, then, human nature agrees equally to all persons, and since no one can live a sociable life with another who does not own and respect him as a Man, it follows, as a command of the Law of Nature, that every man esteem and treat another as one who is naturally his equal, or who is a Man as well as he.—Pufendorf, Law of Nature and Nations, tr. Kennett, Book III., Ch. 2, § 1.

Carrying his solicitude still farther, Charlemagne recommended to the bishops and abbots, that, in their schools, “they should take care to make no difference between the sons of serfs and of freemen, so that they might come and sit on the same benches to study grammar, music, and arithmetic.”—Guizot, History of France, tr. Black, (London, 1872,) Vol. I. p. 239.

INTRODUCTION.

May 13, 1870, Mr. Sumner asked, and by unanimous consent obtained, leave to bring in a bill “Supplementary to an Act entitled ‘An Act to protect all persons in the United States in their civil rights, and furnish the means of their vindication,’ passed April 9, 1866,” which was read the first and second times by unanimous consent, referred to the Committee on the Judiciary, and ordered to be printed.

July 7th, only a few days before the close of the session, Mr. Trumbull, Chairman of the Committee on the Judiciary, reported a bundle of bills, including that above mentioned, adversely, and all, on his motion, were postponed indefinitely.

January 20, 1871, Mr. Sumner again introduced the same bill, which was once more referred to the Committee on the Judiciary.

February 15th, Mr. Trumbull, from the Committee, again reported the bill adversely; but, at the suggestion of Mr. Sumner, it was allowed to go on the Calendar. Owing to the pressure of business in the latter days of the session, he was not able to have it considered, and the bill dropped with the session.

At the opening of the next Congress, March 9, 1871, Mr. Sumner again brought forward the same bill, which was read the first and second times, by unanimous consent, and on his motion ordered to lie on the table and be printed. In making this motion he said that the bill had been reported adversely twice by the Committee on the Judiciary; that, therefore, he did not think it advisable to ask its reference again; that nothing more important could be submitted to the Senate, and that it should be acted on before any adjournment of Congress. In reply to an inquiry from Mr. Hamlin, of Maine, Mr. Sumner proceeded to explain the bill, which he insisted was in conformity with the Declaration of Independence, and with the National Constitution, neither of which knows anything of the word “white.” Then, announcing that he should do what he could to press the bill to a vote, he said: “Senators may vote it down. They may take that responsibility; but I shall take mine, God willing.”

At this session a resolution was adopted limiting legislation to certain enumerated subjects, among which the Supplementary Civil Rights bill was not named. March 17th, while the resolution was under discussion, Mr. Sumner warmly protested against it, and insisted that nothing should be done to prevent the consideration of his bill, which he explained at length. In reply to the objection that the session was to be short, and that there was no time, he said: “Make the time, then; extend the session; do not limit it so as to prevent action on a measure of such vast importance.” An amendment moved by Mr. Sumner to add this bill to the enumerated subjects was rejected. The session closed without action upon it.

At the opening of the next session, Mr. Sumner renewed his efforts.

December 7, 1871, in presenting a petition from colored citizens of Albany, he remarked: “It seems to me the Senate cannot do better than proceed at once to the consideration of the supplementary bill now on our Calendar, to carry out the prayer of these petitioners”; and he wished Congress might be inspired to “make a Christmas present to their colored fellow-citizens of the rights secured by that bill.”

December 20th, the Senate having under consideration a bill, which had already passed the House, “for the removal of the legal and political disabilities imposed by the third section of the Fourteenth Article of Amendment to the Constitution of the United States,” Mr. Sumner, insisting upon justice before generosity, moved his Supplementary Civil Rights Bill as an amendment. A colloquy took place between himself and Mr. Hill, of Georgia, in which the latter opposed the amendment.

Mr. Sumner. I should like to bring home to the Senator that nearly one half of the people of Georgia are now excluded from the equal rights which my amendment proposes to secure; and yet I understand that the Senator disregards their condition, sets aside their desires, and proposes to vote down my proposition. The Senator assumes that the former Rebels are the only people of Georgia. Sir, I see the colored race in Georgia. I see that race once enslaved, for a long time deprived of all rights, and now under existing usage and practice despoiled of rights which the Senator himself is in the full enjoyment of.

Mr. Hill. … I never can agree in the proposition that, if there be a hotel for the entertainment of travellers, and two classes stop at it, and there is one dining-room for one class and one for another, served alike in all respects, with the same accommodations, the same attention to the guests, there is anything offensive, or anything that denies the civil rights of one more than the other. Nor do I hold, that, if you have public schools, and you give all the advantages of education to one class as you do to another, but keep them separate and apart, there is any denial of a civil right in that. I also contend, that, even upon the railways of the country, if cars of equal comfort, convenience, and security be provided for different classes of persons, no one has a right to complain, if it be a regulation of the companies to separate them.…

Mr. Sumner. Mr. President, we have a vindication on this floor of inequality as a principle and as a political rule.

Mr. Hill. On which race, I would inquire, does the inequality to which the Senator refers operate?

Mr. Sumner. On both. Why, the Senator would not allow a white man in the same car with a colored man.

Mr. Hill. Not unless he was invited, perhaps. [Laughter.]

Mr. Sumner. The Senator mistakes a substitute for equality. Equality is where all are alike. A substitute can never take the place of equality. It is impossible; it is absurd. I must remind the Senator that it is very unjust,—it is terribly unjust. We have received in this Chamber a colored Senator from Mississippi; but according to the rule of the Senator from Georgia we should have put him apart by himself; he should not have sat with his brother Senators. Do I understand the Senator as favoring such a rule?

Mr. Hill. No, Sir.

Mr. Sumner. The Senator does not.

Mr. Hill. I do not, Sir, for this reason: it is under the institutions of the country that he becomes entitled by law to his seat here; we have no right to deny it to him.

Mr. Sumner. Very well; and I intend, to the best of my ability, to see that under the institutions of the country he is equal everywhere. The Senator says he is equal in this Chamber. I say he should be equal in rights everywhere; and why not, I ask the Senator from Georgia?

Mr. Hill. … I am one of those who have believed, that, when it pleased the Creator of heaven and earth to make different races of men, it was His purpose to keep them distinct and separate. I think so now.…

Mr. Sumner. The Senator admits that in the highest council-chamber there is, and should be, perfect equality before the law; but descend into the hotel, on the railroad, within the common school, and there can be no equality before the law. The Senator does not complain because all are equal in this Chamber. I should like to ask him, if he will allow me, whether, in his judgment, the colored Representatives from Georgia and South Carolina in the other Chamber ought not on railroads and at hotels to have like rights with himself? I ask that precise question.

Mr. Hill. I will answer that question in this manner: I myself am subject in hotels and upon railroads to the regulations provided by the hotel proprietors for their guests, and by the railroad companies for their passengers. I am entitled, and so is the colored man, to all the security and comfort that either presents to the most favored guest or passenger; but I maintain that proximity to a colored man does not increase my comfort or security, nor does proximity to me on his part increase his, and therefore it is not a denial of any right in either case.

Mr. Sumner. May I ask the Senator if he is excluded from any right on account of his color? The Senator says he is sometimes excluded from something at hotels or on railroads. I ask whether any exclusion on account of color bears on him?

Mr. Hill. I answer the Senator. I have been excluded from ladies’ cars on railroads. I do not know on what account precisely; I do not know whether it was on account of my color; but I think it more likely that it was on account of my sex. [Laughter.]

Mr. Sumner. But the Senator, as I understand, insists that it is proper on account of color. That is his conclusion.

Mr. Hill. No; I insist that it is no denial of a right, provided all the comfort and security be furnished to passengers alike.

Mr. Sumner. The Senator does not seem to see that any rule excluding a man on account of color is an indignity, an insult, and a wrong; and he makes himself on this floor the representative of indignity, of insult, and of wrong to the colored race. Why, Sir, his State has a large colored population, and he denies their rights.

Mr. Hill. If the Senator will allow me, I will say to him that it will take him and others, if there should be any others who so believe, a good while to convince the colored people of the State of Georgia, who know me, that I would deprive them of any right to which they are entitled, though it were only technical; but in matters of pure taste I cannot get away from the idea that I do them no injustice, if I separate them on some occasions from the other race.…

Mr. Sumner. The Senator makes a mistake which has been made for a generation in this Chamber, confounding what belongs to society with what belongs to rights. There is no question of society. The Senator may choose his associates as he pleases. They may be white or black, or between the two. That is simply a social question, and nobody would interfere with it. The taste which the Senator announces he will have free liberty to exercise, selecting always his companions; but when it comes to rights, there the Senator must obey the law, and I insist that by the law of the land all persons without distinction of color shall be equal in rights. Show me, therefore, a legal institution, anything created or regulated by law, and I show you what must be opened equally to all without distinction of color. Notoriously, the hotel is a legal institution, originally established by the Common Law, subject to minute provisions and regulations; notoriously, public conveyances are common carriers subject to a law of their own; notoriously, schools are public institutions created and maintained by law; and now I simply insist that in the enjoyment of these institutions there shall be no exclusion on account of color.

…

Mr. Hill. I must confess, Sir, that I cannot see the magnitude of this subject. I object to this great Government descending to the business of regulating the hotels and the common taverns of this country, and the street railroads, stage-coaches, and everything of that sort. It looks to me to be a petty business.…

Mr. Sumner. I would not have my country descend, but ascend. It must rise to the heights of the Declaration of Independence. Then and there did we pledge ourselves to the great truth that all men are equal in rights. And now a Senator from Georgia rises on this floor and denies it. He denies it by a subtilty. While pretending to admit it, he would overthrow it. He would adopt a substitute for equality.

…

Mr. Hill. With the permission of the Senator, I will ask him if this proposition does not involve on the part of this Government an inhibition upon railroad companies of first, second, and third class cars?

Mr. Sumner. Not at all. That is simply a matter of price. My bill is an inhibition upon inequality founded upon color. I had thought that all those inequalities were buried under the tree at Appomattox, but the Senator digs them up and brings them into this Chamber. There never can be an end to this discussion until all men are assured in equal rights.…

Mr. Hill. … I do not know, that, among the guests that the Senator entertains of the colored race, he is visited so often by the humble as I myself am. I think those who call upon him are gentlemen of title and of some distinction; they may be Lieutenant-Governors, members of the two Houses here, members of State Legislatures, &c. My associations have been more with the lower strata of the colored people than with the upper.

Mr. Sumner. Mr. President, there is no personal question between the Senator and myself—

Mr. Hill. None whatever.

Mr. Sumner. He proclaims his relations with the colored race. I say nothing of mine; I leave that to others. But the Senator still insists upon his dogma of inequality. Senators have heard him again and again, how he comes round by a vicious circle to the same point, that an equivalent is equality; and when I mention the case of Governor Dunn travelling from New Orleans to Washington on public business, I understand the Senator to say that on the cars he should enjoy a different treatment from the Governor.

Mr. Hill. No, Sir; I have distinctly disclaimed that. When he pays his money, he is entitled to as much comfort and as much convenience as I am.

Mr. Sumner. Let me ask the Senator whether in this world personal respect is not an element of comfort. If a person is treated with indignity, can he be comfortable?

Mr. Hill. I will answer the Senator, that no one can condemn more strongly than I do any indignity visited upon a person merely because of color.

Mr. Sumner. But when you exclude persons from the comforts of travel simply on account of color, do you not offer them an indignity?

Mr. Hill. I say it is the fault of the railroad companies, if they do not provide comforts for all their passengers, and make them equal where they pay equal fare.

Mr. Sumner. The Senator says it is the fault of the railroad company. I propose to make it impossible for the railroad company to offer an indignity to a colored man more than to the Senator from Georgia.

Mr. Hill. Right there the Senator and I divide upon this question.… I confess to having a little penchant for the white race; and if I were going on a long journey, and desired a companion, I should prefer to select him from my own race.

Mr. Sumner. The Senator comes round again to his taste. It is not according to his taste; and therefore he offers an indignity to the colored man.

Mr. Hill. No, Sir.

Mr. Sumner. It is not according to his taste; that is all. How often shall I say that this is no question of taste,—it is no question of society,—it is a stern, austere, hard question of rights? And that is the way that I present it to the Senate.

…

In old days, when Slavery was arraigned, the constant inquiry of those who represented this wrong was, “Are you willing to associate with colored persons? Will you take these slaves, as equals, into your families?” Sir, was there ever a more illogical inquiry? What has that to do with the question? A claim of rights cannot be encountered by any social point. I may have whom I please as friend, acquaintance, associate, and so may the Senator; but I cannot deny any human being, the humblest, any right of equality. He must be equal with me before the law, or the promises of the Declaration of Independence are not yet fulfilled.

And now, Sir, I pledge myself, so long as strength remains in me, to press this question to a successful end. I will not see the colored race of this Republic treated with indignity on the grounds assigned by the Senator. I am their defender. The Senator may deride me, and may represent me as giving too much time to what he calls a very small question. Sir, no question of human rights is small. Every question by which the equal rights of all are affected is transcendent. It cannot be magnified. But here are the rights of a whole people, not merely the rights of an individual, of two or three or four, but the rights of a race, recognized as citizens, voting, helping to place the Senator here in this Chamber, and he turns upon them and denies them.

Mr. Hill. The Senator is not aware of one fact, … that every colored member of the Legislature of my State, even though some of them had made voluntary pledges to me, voted against my election to this body. I was not sent here receiving a single vote from that class of men in the Legislature.

Mr. Sumner. I am afraid that they understood the Senator. [Laughter.]

Mr. Hill. That may be, Sir. I would not be surprised, if they had some distrust. [Laughter.]

Mr. Sumner. And now, Mr. President, that we may understand precisely where we are, that the Senate need not be confused by the question of taste or the question of society presented by the Senator from Georgia, I desire to have my amendment read.

The Supplementary Civil Rights Bill was then read at length, as follows:—

Sec.—That all citizens of the United States, without distinction of race, color, or previous condition of servitude, are entitled to the equal and impartial enjoyment of any accommodation, advantage, facility, or privilege furnished by common carriers, whether on land or water; by innkeepers; by licensed owners, managers, or lessees of theatres or other places of public amusement; by trustees, commissioners, superintendents, teachers, or other officers of common schools and other public institutions of learning, the same being supported or authorized by law; by trustees or officers of church organizations, cemetery associations, and benevolent institutions incorporated by National or State authority: and this right shall not be denied or abridged on any pretence of race, color, or previous condition of servitude.

Sec.—That any person violating the foregoing provision, or aiding in its violation, or inciting thereto, shall for every such offence forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered in an action on the case, with full costs and such allowance for counsel fees as the court shall deem just, and shall also for every such offence be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than $500 nor more than $1,000, and shall be imprisoned not less than thirty days nor more than one year; and any corporation, association, or individual holding a charter or license under National or State authority, violating the aforesaid provision, shall, upon conviction thereof, forfeit such charter or license; and any person assuming to use or continuing to act under such charter or license thus forfeited, or aiding in the same, or inciting thereto, shall, upon conviction thereof, be deemed guilty of a misdemeanor, and shall be fined not less than $1,000 nor more than $5,000, and shall be imprisoned not less than three nor more than seven years; and both the corporate and joint property of such corporation or association, and the private property of the several individuals composing the same, shall be held liable for the forfeitures, fines, and penalties incurred by any violation of the —— section of this Act.

Sec.—That the same jurisdiction and powers are hereby conferred and the same duties enjoined upon the courts and officers of the United States, in the execution of this Act, as are conferred and enjoined upon such courts and officers in sections three, four, five, seven, and ten of an Act entitled “An Act to protect all persons in the United States in their civil rights, and furnish the means of their vindication,” passed April 9, 1866, and these sections are hereby made a part of this Act; and any of the aforesaid officers failing to institute and prosecute such proceedings herein required shall for every such offence forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered by an action on the case, with full costs and such allowance for counsel fees as the court shall deem just, and shall on conviction thereof be deemed guilty of a misdemeanor, and be fined not less than $1,000 nor more than $5,000.

Sec.—That no person shall be disqualified for service as juror in any court, National or State, by reason of race, color, or previous condition of servitude: Provided, That such person possesses all other qualifications which are by law prescribed; and any officer or other persons charged with any duty in the selection or summoning of jurors, who shall exclude or fail to summon any person for the reason above named, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not less than $1,000 nor more than $5,000.

Sec.—That every law, statute, ordinance, regulation, or custom, whether National or State, inconsistent with this Act, or making any discriminations against any person on account of color, by the use of the word “white,” is hereby repealed and annulled.

Sec.—That it shall be the duty of the judges of the several courts upon which jurisdiction is hereby conferred to give this Act in charge to the grand jury of their respective courts at the commencement of each term thereof.

Objection was at once raised to the admission of any amendment whatever, as imperilling the pending bill,—Mr. Alcorn, of Mississippi, while pressing this, objected further, urging the hazard to the measure embraced in the proposed amendment from attachment to a bill requiring for its passage a two-thirds’ vote instead of the usual simple majority.

December 21st, Mr. Thurman, of Ohio, objected to the amendment of Mr. Sumner, on the ground suggested by Mr. Alcorn,—raising the point of order, that, “being a measure which, if it stood by itself, could be passed by a majority vote of the Senate, it cannot be offered as an amendment to a bill that requires two-thirds of the Senate.” The objection being overruled, and Mr. Thurman appealing from the decision of the Chair, a debate ensued on the question of order,—Mr. Thurman, Mr. Bayard of Delaware, Mr. Trumbull of Illinois, Mr. Davis of Kentucky, and Mr. Sawyer of South Carolina sustaining the objection, and Mr. Conkling of New York, Mr. Carpenter of Wisconsin, Mr. Edmunds of Vermont, and Mr. Sumner opposing it. In the course of his speech Mr. Sumner remarked:—

Does not the Act before us in its body propose a measure of reconciliation? Clemency and amnesty it proposes; and these, in my judgment, constitute a measure of reconciliation. And now I add justice to the colored race. Is not that germane? Do not the two go together? Are they not naturally associated? Sir, can they be separated?

Instead of raising a question of order, I think the friends of amnesty would be much better employed if they devoted their strength to secure the passage of my amendment. Who that is truly in favor of amnesty will vote against this measure of reconciliation?

Sir, most anxiously do I seek reconciliation; but I know too much of history, too much of my own country, and I remember too well the fires over which we have walked in these latter days, not to know that reconciliation is impossible except on the recognition of Equal Rights. Vain is the effort of the Senator from Mississippi [Mr. Alcorn]; he cannot succeed; he must fail, and he ought to fail. It is not enough to be generous; he must learn to be just. It is not enough to stand by those who have fought against us; he must also stand by those who for generations have borne the ban of wrong. I listened with sadness to the Senator; he spoke earnestly and sincerely,—but, to my mind, it is much to be regretted, that, coming into this Chamber the representative of colored men, he should turn against them. I know that he will say, “Pass the Amnesty Bill first, and then take care of the other.” I say, Better pass the two together; or if either is lost, let it be the first. Justice in this world is foremost.

The Senator thinks that the cause of the colored race is hazarded because my amendment is moved on the Act for Amnesty. In my judgment, it is advanced. He says that the Act of Amnesty can pass only by a two-thirds vote. Well, Sir, I insist that every one of that two-thirds should record his name for my measure of reconciliation. If he does not, he is inconsistent with himself. How, Sir, will an Act of Amnesty be received when accompanied with denial of justice to the colored race? With what countenance can it be presented to this country? How will it look to the civilized world? Sad page! The Recording Angel will have tears, but not enough to blot it out.

The decision of the Chair was sustained by the vote of the Senate,—Yeas 28, Nays 26,—and the amendment was declared in order. On the question of its adoption it was lost,—Yeas 29, Nays 30.

Later in the day, the Amnesty Bill having been reported to the Senate, Mr. Sumner renewed his amendment. In the debate that ensued he declared his desire to vote for amnesty; but he insisted that this measure did not deserve success, unless with it was justice to the colored race. In reply to Mr. Thurman, he urged that all regulations of public institutions should be in conformity with the Declaration of Independence. “The Senator may smile, but I commend that to his thoughts during our vacation. Let him consider the binding character of the Declaration in its fundamental principles. The Senator does not believe it. There are others who do, and my bill is simply a practical application of it.”

Without taking any vote the Senate adjourned for the holiday recess, leaving the Amnesty Bill and the pending amendment as unfinished business.

January 15, 1872, the subject was resumed, when Mr. Sumner made the following speech.

SPEECH.

MR. PRESIDENT,—In opening this question, one of the greatest ever presented to the Senate, I have had but one hesitation, and that was merely with regard to the order of treatment. There is a mass of important testimony from all parts of the country, from Massachusetts as well as Georgia, showing the absolute necessity of Congressional legislation for the protection of Equal Rights, which I think ought to be laid before the Senate. It was my purpose to begin with this testimony; but I have changed my mind, and shall devote the day to a statement of the question, relying upon the indulgence of the Senate for another opportunity to introduce the evidence. I ask that the pending amendment be read.

The Chief Clerk read the amendment, which was to append to the Amnesty Bill, as additional sections, the Supplementary Civil Rights Bill.

Mr. Sumner resumed:—

Mr. President, Slavery, in its foremost pretensions, reappears in the present debate. Again the barbarous tyranny stalks into this Chamber, denying to a whole race the Equal Rights promised by a just citizenship. Some have thought Slavery dead. This is a mistake. If not in body, at least in spirit, or as a ghost making the country hideous, the ancient criminal yet lingers among us, insisting upon the continued degradation of a race.

Property in man has ceased to exist. The human auction-block has departed. No human being can call himself master, with impious power to separate husband and wife, to sell child from parent, to shut out the opportunities of religion, to close the gates of knowledge, and to rob another of his labor and all its fruits. These guilty prerogatives are ended. To this extent the slave is free. No longer a chattel, he is a man,—justly entitled to all that is accorded by law to any other man.

Such is the irresistible logic of his emancipation. Ceasing to be a slave, he became a man, whose foremost right is Equality of Rights. And yet Slavery has been strong enough to postpone his entry into the great possession. Cruelly, he was not permitted to testify in court; most unjustly, he was not allowed to vote. More than four millions of people, whose only offence was a skin once the badge of Slavery, were shut out from the court-room, and also from the ballot-box, in open defiance of the great Declaration of our fathers, that all men are equal in rights, and that just government stands only on the consent of the governed. Such was the impudent behest of Slavery, prolonged after it was reported dead. At last these crying wrongs are overturned. The slave testifies; the slave votes. To this extent his equality is recognized.

EQUALITY BEFORE THE LAW.

But this is not enough. Much as it may seem, compared with the past, when all was denied, it is too little, because all is not yet recognized. The denial of any right is a wrong darkening the enjoyment of all the rest. Besides the right to testify and the right to vote, there are other rights without which Equality does not exist. The precise rule is Equality before the Law, nor more nor less; that is, that condition before the law in which all are alike,—being entitled, without discrimination, to the equal enjoyment of all institutions, privileges, advantages, and conveniences created or regulated by law, among which are the right to testify and the right to vote. But this plain requirement is not satisfied, logically or reasonably, by these two concessions, so that when they are recognized all others are trifles. The court-house and the ballot-box are not the only places for the rule. These two are not the only institutions for its operation. The rule is general; how, then, restrict it to two cases? It is, All are equal before the law,—not merely before the law in two cases, but before the law in all cases, without limitation or exception. Important as it is to testify and to vote, life is not all contained even in these possessions.

The new-made citizen is called to travel for business, for health, or for pleasure; but here his trials begin. His money, whether gold or paper, is the same as the white man’s; but the doors of the public hotel, which from the earliest days of jurisprudence have always opened hospitably to the stranger, close against him, and the public conveyances, which the Common Law declares equally free to all alike, have no such freedom for him. He longs, perhaps, for respite and relaxation at some place of public amusement, duly licensed by law; and here also the same adverse discrimination is made. With the anxieties of a parent, seeking the welfare of his child, he strives to bestow upon him the inestimable blessings of education, and takes him affectionately to the common school, created by law, and supported by the taxation to which he has contributed; but these doors slam rudely in the face of the child where is garnered up the parent’s heart. “Suffer little children, and forbid them not, to come unto me”: such were the words of the Divine Master. But among us little children are turned away and forbidden at the door of the common school, because of the skin. And the same insulting ostracism shows itself in other institutions of science and learning, also in the church, and in the last resting-place on earth.

Two instances occur, which have been mentioned already on this floor; but their eminence in illustration of an unquestionable grievance justifies the repetition.

CASE OF FREDERICK DOUGLASS.

One is the well-known case of Frederick Douglass, who, returning home after earnest service of weeks as Secretary of the Commission to report on the people of San Domingo and the expediency of incorporating them with the United States, was rudely excluded from the table, where his brother commissioners were already seated, on board the mail-steamer of the Potomac, just before reaching the President, whose commission he bore. This case, if not aggravated, is made conspicuous by peculiar circumstances. Mr. Douglass is a gentleman of unquestioned ability and character, remarkable as an orator, refined in manners, and personally agreeable. He was returning, charged with the mission of bringing under our institutions a considerable population of colored foreigners, whose prospective treatment among us was foreshadowed on board that mail-steamer. The Dominican Baez could not expect more than our fellow-citizen. And yet, with this mission, and with the personal recommendation he so justly enjoys, this returning Secretary could not be saved from outrage even in sight of the Executive Mansion.

CASE OF LIEUTENANT-GOVERNOR DUNN.

There also was Oscar James Dunn, late Lieutenant-Governor of Louisiana. It was my privilege to open the door of the Senate Chamber and introduce him upon this floor. Then, in reply to my inquiry, he recounted the hardships to which he had been exposed in the long journey from Louisiana,—especially how he was denied the ordinary accommodations for comfort and repose supplied to those of another skin. This denial is memorable, not only from the rank, but the character of the victim. Of blameless life, he was an example of integrity. He was poor, but could not be bought or bribed. Duty with him was more than riches. A fortune was offered for his signature; but he spurned the temptation.

And yet this model character, high in the confidence of his fellow-citizens, and in the full enjoyment of political power, was doomed to suffer the blasting influence which still finds support in this Chamber. He is dead at last, and buried with official pomp. The people, counted by tens of thousands, thronged the streets while his obsequies proceeded. An odious discrimination was for the time suspended. In life rejected by the conductor of a railway because of his skin, he was borne to his last resting-place with all the honors an afflicted community could bestow. Only in his coffin was the ban of color lifted, and the dead statesman admitted to that equality which is the right of all.

REQUIREMENT OF REPUBLICAN INSTITUTIONS.

These are marked instances; but they are types. If Frederick Douglass and Oscar James Dunn could be made to suffer, how much must others be called to endure! All alike, the feeble, the invalid, the educated, the refined, women as well as men, are shut out from the ordinary privileges of the steamboat or rail-car, and driven into a vulgar sty with smokers and rude persons, where the conversation is as offensive as the scene, and then again at the roadside inn are denied that shelter and nourishment without which travel is impossible. Do you doubt this constant, wide-spread outrage, extending in uncounted ramifications throughout the whole land? With sorrow be it said, it reaches everywhere, even into Massachusetts. Not a State which does not need the benign correction. The evidence is on your table in numerous petitions. And there is other evidence, already presented by me, showing how individuals have suffered from this plain denial of equal rights. Who that has a heart can listen to the story without indignation and shame? Who with a spark of justice to illumine his soul can hesitate to denounce the wrong? Who that rejoices in republican institutions will not help to overthrow the tyranny by which they are degraded?

I do not use too strong language, when I expose this tyranny as a degradation to republican institutions,—ay, Sir, in their fundamental principle. Why is the Declaration of Independence our Magna Charta? Not because it declares separation from a distant kingly power; but because it announces the lofty truth that all are equal in rights, and, as a natural consequence, that just government stands only on the consent of the governed,—all of which is held to be self-evident. Such is the soul of republican institutions, without which the Republic is a failure, a name and nothing more. Call it a Republic, if you will, but it is in reality a soulless mockery.

Equality in rights is not only the first of rights, it is an axiom of political truth. But an axiom, whether of science or philosophy, is universal, and without exception or limitation; and this is according to the very law of its nature. Therefore it is not stating an axiom to announce grandly that only white men are equal in rights; nor is it stating an axiom to announce with the same grandeur that all persons are equal in rights, but that colored persons have no rights except to testify and vote. Nor is it a self-evident truth, as declared; for no truth is self-evident which is not universal. The asserted limitation destroys the original Declaration, making it a ridiculous sham, instead of that sublime Magna Charta before which kings, nobles, and all inequalities of birth must disappear as ghosts of night at the dawn.

REAL ISSUE OF THE WAR.

All this has additional force, when it is known that this very axiom or self-evident truth declared by our fathers was the real issue of the war, and was so publicly announced by the leaders on both sides. Behind the embattled armies were ideas, and the idea on our side was Equality in Rights, which on the other side was denied. The Nation insisted that all men are created equal; the Rebellion insisted that all men are created unequal. Here the evidence is explicit.

The inequality of men was an original postulate of Mr. Calhoun,[174] which found final expression in the open denunciation of the self-evident truth as “a self-evident lie.”[175] Echoing this denunciation, Jefferson Davis, on leaving the Senate, January 21, 1861, in that farewell speech which some among you heard, but which all may read in the “Globe,” made the issue in these words:—

“It has been a belief that we are to be deprived in the Union of the rights which our fathers bequeathed to us, which has brought Mississippi into her present decision. She has heard proclaimed the theory that all men are created free and equal, and this made the basis of an attack upon her social institutions; and the sacred Declaration of Independence has been invoked to maintain the position of the equality of the races.”[176]

The issue thus made by the chief Rebel was promptly joined. Abraham Lincoln, the elected President, stopping at Independence Hall, February 22d, on his way to assume his duties at the National capital, in unpremeditated words thus interpreted the Declaration:—

“It was that which gave promise that in due time the weight should be lifted from the shoulders of all men, and that all should have an equal chance.”

Mark, if you please, the simplicity of this utterance. All are to have “an equal chance”; and this, he said, “is the sentiment embodied in the Declaration of Independence.” Then, in reply to Jefferson Davis, he proceeded:—

“Now, my friends, can this country be saved upon that basis? If it can, I shall consider myself one of the happiest men in the world, if I can help to save it. If it cannot be saved upon that principle, it will be truly awful. But if this country cannot be saved without giving up that principle, I was about to say I would rather be assassinated on this spot than surrender it.”

Giving these words still further solemnity, he added:

“I have said nothing but what I am willing to live by, and, if it be the pleasure of Almighty God, to die by.”

And then, before raising the national banner over the historic Hall, he said:—

“It is on such an occasion as this that we can reason together, and reaffirm our devotion to the country and the principles of the Declaration of Independence.”[177]

Thus the gauntlet flung down by Jefferson Davis was taken up by Abraham Lincoln, who never forgot the issue.

The rejoinder was made by Alexander H. Stephens, Vice-President of the Rebellion, in a not-to-be forgotten speech at Savannah, March 21, 1861, when he did not hesitate to declare of the pretended Government, that—

“Its foundations are laid, its corner-stone rests, upon the great truth that the Negro is not equal to the white man.”

Then, glorying in this terrible shame, he added:—

“This, our new Government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.”

“This stone, which was rejected by the first builders, is become the chief stone of the corner.”[178]

To this unblushing avowal Abraham Lincoln replied in that marvellous, undying utterance at Gettysburg,—fit voice for the Republic, greater far than any victory:

“Fourscore and seven years ago our fathers brought forth on this continent a new Nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”

Thus, in precise conformity with the Declaration, was it announced that our Republic is dedicated to the Equal Rights of All; and then the prophet-President, soon to be a martyr, asked his countrymen to dedicate themselves to the great task remaining, highly resolving

“that this Nation, under God, shall have a new birth of Freedom; and that Government of the people, by the people, and for the people shall not perish from the earth.”[179]

The victory of the war is vain without the grander victory through which the Republic is dedicated to the axiomatic, self-evident truth declared by our fathers, and reasserted by Abraham Lincoln. With this mighty truth as a guiding principle, the National Constitution is elevated, and made more than ever a protection to the citizen.

All this is so plain that it is difficult to argue it. What is the Republic, if it fails in this loyalty? What is the National Government, coextensive with the Republic, if fellow-citizens, counted by the million, can be shut out from equal rights in travel, in recreation, in education, and in other things, all contributing to human necessities? Where is that great promise by which “the pursuit of happiness” is placed, with life and liberty, under the safeguard of axiomatic, self-evident truth? Where is justice, if this ban of color is not promptly removed? Where is humanity? Where is reason?

TWO EXCUSES.

The two excuses show how irrational and utterly groundless is this pretension. They are on a par with the pretension itself. One is, that the question is of society, and not of rights, which is clearly a misrepresentation; and the other is, that the separate arrangements provided for colored persons constitute a substitute for equality in the nature of an equivalent,—all of which is clearly a contrivance, if not a trick: as if there could be any equivalent for equality.

NO QUESTION OF SOCIETY.

Of the first excuse it is difficult to speak with patience. It is a simple misrepresentation, and wherever it shows itself must be treated as such. There is no colored person who does not resent the imputation that he is seeking to intrude himself socially anywhere. This is no question of society, no question of social life, no question of social equality, if anybody knows what this means. The object is simply Equality before the Law, a term which explains itself. Now, as the law does not presume to create or regulate social relations, these are in no respect affected by the pending measure. Each person, whether Senator or citizen, is always free to choose who shall be his friend, his associate, his guest. And does not the ancient proverb declare that “a man is known by the company he keeps”? But this assumes that he may choose for himself. His house is his “castle”; and this very designation, borrowed from the Common Law, shows his absolute independence within its walls; nor is there any difference, whether it be palace or hovel. But when he leaves his “castle” and goes abroad, this independence is at an end. He walks the streets, but always subject to the prevailing law of Equality; nor can he appropriate the sidewalk to his own exclusive use, driving into the gutter all whose skin is less white than his own. But nobody pretends that Equality in the highway, whether on pavement or sidewalk, is a question of society. And permit me to say that Equality in all institutions created or regulated by law is as little a question of society.

In the days of Slavery it was an oft-repeated charge, that Emancipation was a measure of social equality; and the same charge became a cry at the successive efforts for the right to testify and the right to vote. At each stage the cry was raised, and now it makes itself heard again, as you are called to assure this crowning safeguard.

EQUALITY NOT FOUND IN EQUIVALENTS.

Then comes the other excuse, which finds Equality in separation. Separate hotels, separate conveyances, separate theatres, separate schools and institutions of learning and science, separate churches, and separate cemeteries,—these are the artificial substitutes. And this is the contrivance by which a transcendent right, involving a transcendent duty, is evaded: for Equality is not only a right, but a duty.

How vain to argue that there is no denial of Equal Rights when this separation is enforced! The substitute is invariably an inferior article. Does any Senator deny it? Therefore, it is not Equality; at best it is an equivalent only. But no equivalent is Equality. Separation implies one thing for a white person and another thing for a colored person; but Equality is where all have the same alike. There can be no substitute for Equality,—nothing but itself. Even if accommodations are the same, as notoriously they are not, there is no Equality. In the process of substitution the vital elixir exhales and escapes: it is lost, and cannot be recovered; for Equality is found only in Equality. “Nought but itself can be its parallel”; but Senators undertake to find parallels in other things.

As well make weight in silver the equivalent for weight in diamonds, according to the illustration of Selden in his famous “Table-Talk.” “If,” remarked the learned interlocutor, “I said I owed you twenty pounds in silver, and you said I owed you twenty pounds of diamonds, which is a sum innumerable, ’tis impossible we should ever agree.”[180] But Equality is weight in diamonds, and a sum innumerable,—which is very different from weight in silver.

Assuming—what is most absurd to assume, and what is contradicted by all experience—that a substitute can be an equivalent, it is so in form only, and not in reality. Every such assumption is an indignity to the colored race, instinct with the spirit of Slavery; and this decides its character. It is Slavery in its last appearance. Are you ready to prolong the hateful tyranny? Religion and reason condemn Caste as impious and unchristian, making republican institutions and equal laws impossible; but here is Caste not unlike that which separates the Sudra from the Brahmin. Pray, Sir, who constitutes the white man a Brahmin? Whence his lordly title? Down to a recent period in Europe the Jews were driven to herd by themselves, separate from the Christians; but this discarded barbarism is revived among us in the ban of color. There are millions of fellow-citizens guilty of no offence except the dusky livery of the sun appointed by the Heavenly Father, whom you treat as others have treated the Jews, as the Brahmin treats the Sudra. But, pray, Sir, do not pretend that this is the great equality promised by our fathers.

In arraigning this attempt at separation as a Caste, I say nothing new. For years I have denounced it as such; and here I followed good authorities, as well as reason. Alexander von Humboldt, speaking of the negroes of New Mexico when Slavery prevailed, called them a Caste.[181] A recent political and juridical writer of France uses the same term to denote not only the discrimination in India, but that in 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.[182] The principle of separation on the ground of hereditary inferiority is the distinctive essence of Caste; but this is the outrage which flaunts in our country, crying out, “I am better than thou, because I am white. Get away!”

THE REMEDY.

Thus do I reject the two excuses. But I do not leave the cause here. I go further, and show how consistent is the pending measure with acknowledged principles, illustrated by undoubted law.

The bill for Equal Rights is simply supplementary to the existing Civil Rights Law, which is one of our great statutes of peace, and it stands on the same requirements of the National Constitution. If the Civil Rights Law is above question, as cannot be doubted, then also is this supplementary amendment; for it is only the complement of the other, and necessary to its completion. Without this amendment the original law is imperfect. It cannot be said, according to its title, that all persons are protected in their civil rights, so long as the outrages I expose continue to exist; nor is Slavery entirely dead.

Following reason and authority, the conclusion is easy. A Law Dictionary, of constant use as a repertory of established rules and principles, defines a “freeman” as “one in the possession of the civil rights enjoyed by the people generally.”[183] Happily, all are freemen now; but the colored people are still excluded from civil rights enjoyed by the people generally,—and this, too, in the face of our new Bill of Rights intended for their especial protection.

By the Constitutional Amendment abolishing Slavery Congress is empowered “to enforce this article by appropriate legislation”; and in pursuance thereof the Civil Rights Law was enacted. That measure was justly accepted as “appropriate legislation.” Without it Slavery would still exist in at least one of its most odious pretensions. By the Civil Rights Law colored persons were assured in the right to testify, which in most of the States was denied or abridged. So closely was this outrage connected with Slavery, that it was, indeed, part of this great wrong. Therefore its prohibition was “appropriate legislation” in the enforcement of the Constitutional Amendment. But the denial or abridgment of Equality on account of color is also part of Slavery. So long as it exists, Slavery is still present among us. Its prohibition is not only “appropriate,” but necessary, to enforce the Constitutional Amendment. Therefore is it strictly Constitutional, as if in the very text of the National Constitution.

The next Constitutional Amendment, known as the Fourteenth, contains two different provisions, which augment the power of Congress. The first furnishes the definition of “citizen,” which down to this time had been left to construction only:—

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the States wherever they reside.”

Here, you will remark, are no words of race or color. “All persons,” and not “all white persons,” born or naturalized in the United States, and subject to the jurisdiction thereof, are “citizens.” Such is the definition supplied by this Amendment. This is followed by another provision in aid of the definition:—

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

And Congress is empowered to enforce this definition of Citizenship and this guaranty, by “appropriate legislation.”

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:—

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:—

And Chaucer even denies the distinction in life:—

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.