Part 5

Of Equality I shall speak, not only as a sentiment, but as a principle embodied in the Constitution of Massachusetts, and obligatory upon court and citizen. It will be my duty to show that this principle, after finding its way into our State Constitution, was recognized in legislation and judicial decisions. Considering next the circumstances of this case, it will be easy to show how completely they violate Constitution, legislation, and judicial proceedings,--_first_, by subjecting colored children to inconvenience inconsistent with the requirements of Equality, and, _secondly_, by establishing a system of Caste odious as that of the Hindoos,--leading to the conclusion that the School Committee have no such power as they have exercised, and that it is the duty of the Court to set aside their unjust by-law. In the course of this discussion I shall exhibit the true idea of our Common Schools, and the fallacy of the pretension that any exclusion or discrimination founded on race or color can be consistent with Equal Rights.

In opening this argument, I begin naturally with the fundamental proposition which, when once established, renders the conclusion irresistible. According to the Constitution of Massachusetts, _all men, without distinction of race or color, are equal before the law_. In the statement of this proposition I use language which, though new in our country, has the advantage of precision.

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EQUALITY BEFORE THE LAW: ITS MEANING.

I might, perhaps, leave this proposition without one word of comment. The equality of men will not be directly denied on this occasion; and yet it is so often assailed of late, that I shall not seem to occupy your time superfluously, I trust, while endeavoring to show what is understood by this term, when used in laws, constitutions, or other political instruments. Here I encounter a prevailing misapprehension. Lord Brougham, in his recent work on Political Philosophy, announces, with something of pungency, that "the notion of Equality, or anything approaching to Equality, among the different members of any community, is altogether wild and fantastic."[13] Mr. Calhoun, in the Senate of the United States, assails both the principle and the form of its statement. He does not hesitate to say that the claim in the Declaration of Independence is "the most false and dangerous of all political errors,"--that it "has done more to retard the cause of liberty and civilization, and is doing more at present, than all other causes combined,"--that "for a long time it lay dormant, but in the process of time it began to germinate and produce its poisonous fruits."[14] Had these two distinguished authorities chosen to comprehend the extent and application of the term thus employed, something, if not all, of their objection would have disappeared. That we may better appreciate its meaning and limitation, I am induced to exhibit the origin and growth of the sentiment, which, finally ripening into a formula of civil and political right, was embodied in the Constitution of Massachusetts.

[13] Part II. ch. 4, p. 23.

[14] Speech on the Oregon Bill, June 27, 1848: Works, Vol. IV. pp. 507, 511, 512; Congressional Globe, 30th Cong. 1st Sess., Vol. XVIII. p. 876. These extravagances found an echo afterwards. Mr. Pettit, a Senator of the United States from Indiana, after quoting the words, "We hold these truths to be self-evident, that all men are created equal," proceeded to say: "I hold it to be a self-evident lie. There is no such thing. Sir, tell me that the imbecile, the deformed, the weak, the blurred intellect in man is my equal, physically, mentally, or morally, and you tell me a lie. Tell me, Sir, that the slave in the South, who is born a slave, and with but little over one half the volume of brain that attaches to the Northern European race, is his equal, and you tell what is physically a falsehood. There is no truth in it at all." (Speech in the Senate of the United States, February 20, 1854: Congressional Globe, 33d Cong. 1st Sess., Appendix, Vol. XXIX. p. 214.) Mr. Choate, without descending into the same particularity, seems to have reached the same conclusion, when, in addressing political associates, he characterized the Declaration of Independence as "that passionate and eloquent manifesto of a revolutionary war," and then again spoke of its self-evident truths as "the glittering and sounding generalities of natural right." (Letter to the Maine Whig State Central Committee, August 9, 1856: Works, Vol. I. pp. 214, 215.) This great question was a hinge in the famous debate between Mr. Douglas and Mr. Lincoln in the contest for the senatorship of Illinois, when the former said, in various forms of speech, that "the Declaration of Independence only included the white people of the United States," and the latter replied, that "the entire records of the world, from the date of the Declaration of Independence up to within three years ago, may be searched in vain for one single affirmation, from one single man, that the negro was not included in the Declaration." (Political Debates between Hon. Abraham Lincoln and Hon. Stephen A. Douglas in the Campaign of 1858 in Illinois: see speech of Douglas at Springfield, July 17, and of Lincoln at Galesburgh, October 7; and _passim_.) Andrew Johnson, speaking in the Senate, showed the side to which he belonged, when he said, after quoting the great words of the Declaration: "Is there an intelligent man throughout the whole country, is there a Senator, when he has stripped himself of all party prejudice, who will come forward and say that he believes that Mr. Jefferson, when he penned that paragraph of the Declaration of Independence, intended it to embrace the African population? Is there a gentleman in the Senate who believes any such thing?... There is not a man of respectable intelligence who will hazard his reputation upon such an assertion." (Congressional Globe, 36th Cong. 1st Sess., December 12, 1859, p. 100.)

Equality as a sentiment was early cherished by generous souls. It showed itself in dreams of ancient philosophy, and was declared by Seneca, when, in a letter of consolation on death, he said, _Prima enim pars Æquitatis est Æqualitas_: "The chief part of Equity is Equality."[15] But not till the truths of the Christian Religion was it enunciated with persuasive force. Here we learn that God is no respecter of persons,--that he is the Father of all,--and that we are all his children, and brethren to each other. When the Saviour gave us the Lord's Prayer, he taught the sublime doctrine of Human Brotherhood, enfolding the equality of men.

[15] Epist. XXX.

Slowly did this sentiment enter the State. The whole constitution of government was inconsistent with it. An hereditary monarchy, an order of nobility, and the complex ranks of superior and inferior, established by the feudal system, all declare, not the equality, but the inequality of men, and all conspire to perpetuate this inequality. Every infant of royal blood, every noble, every vassal, is a present example, that, whatever may be the injunctions of religion or the sentiment of the heart, men under these institutions are not born equal.

The boldest political reformers of early times did not venture to proclaim this truth, nor did they truly perceive it. Cromwell beheaded his king, but secured the supreme power in hereditary succession to his eldest son. It was left to his loftier contemporary, John Milton, in poetic vision to be entranced

"With fair Equality, fraternal state."[16]

Sidney, who perished a martyr to the liberal cause, drew his inspiration from classic, and not from Christian fountains. The examples of Greece and Rome fed his soul. The English Revolution of 1688, partly by force and partly by the popular voice, changed the succession to the crown, and, if we may credit loyal Englishmen, secured the establishment of Freedom throughout the land. But the Bill of Rights did not declare, nor did the genius of Somers or Maynard conceive the political axiom, that all men are born equal. It may find acceptance from Englishmen in our day, but it is disowned by English institutions.

[16] Paradise Lost, Book XII. 26.

I would not forget the early testimony of the "judicious" Hooker, who in his "Ecclesiastical Polity," that masterly work, dwells on the equality of men by nature, or the subsequent testimony of Locke, in his "Two Treatises of Government," who, quoting Hooker, asserts for himself that "creatures of the same species and rank, promiscuously born to all the same advantages of nature and the use of the same faculties, should also be _equal_ one amongst another, without subordination or subjection."[17] Hooker and Locke saw the equality of men in a state of Nature; but their utterances found more acceptance across the Channel than in England.

It is to France that we must pass for the earliest development of this idea, its amplest illustration, and its most complete, accurate, and logical expression. In the middle of the last century appeared the renowned _Encyclopédie_, edited by Diderot and D'Alembert. This remarkable production, where science, religion, and government are discussed with revolutionary freedom, contains an article on Equality, first published in 1755. Here we find the boldest expression of this sentiment down to that time. "Natural Equality," says this authority, "is that which exists between all men by the constitution of their nature only. This Equality is the principle and the foundation of Liberty. Natural or moral equality is, then, founded upon the constitution of human nature common to all men, who are born, grow, subsist, and die in the same manner. Since human nature finds itself the same in all men, it is clear, that, according to Nature's law, each ought to esteem and treat the others as beings who are naturally equal to himself,--that is to say, who are men as well as himself." It is then remarked, that political and civil slavery is in violation of this Equality; and yet the inequalities of nobility in the state are allowed to pass without condemnation. Alluding to these, it is simply said that "they who are elevated above others ought to treat their inferiors as naturally their equals, shunning all outrage, exacting nothing beyond what is their due, and exacting with humanity what is incontestably their due."[18]

[17] Locke on Government, Book II. ch. 2, § 4. Hooker, Ecclesiastical Polity, Book I.

[18] Encyclopédie, art. _Égalité Naturelle_, Tom. V. p. 415.

Considering the period at which this article was written, we are astonished less by its vagueness and incompleteness than by its bravery and generosity. The dissolute despotism of Louis the Fifteenth poisoned France. The antechambers of the King were thronged by selfish nobles and fawning courtiers. The councils of Government were controlled by royal mistresses. The King, only a few years before, in defiance of Equality,--but in entire harmony with the conduct of the School Committee in Boston,--founded a military school _for nobles only_, carrying into education the distinction of Caste. At such a period the Encyclopedia did well in uttering important and effective truth. The _sentiment_ of Equality was fully declared. Nor should we be disappointed, that, at this early day, even the boldest philosophers did not adequately perceive, or, if they perceived, did not dare to utter, our axiom of liberty.

Thus it is with all moral and political ideas. First appearing as a sentiment, they awake a noble impulse, filling the soul with generous sympathy, and encouraging to congenial effort. Slowly recognized, they finally pass into a formula, to be acted upon, to be applied, to be defended in the concerns of life, as principles.

Almost contemporaneously with this article in the Encyclopedia our attention is arrested by a poor solitary, of humble extraction, born at Geneva, in Switzerland, of irregular education and life, a wanderer from his birthplace, enjoying a temporary home in France,--Jean Jacques Rousseau. Of audacious genius, setting at nought received opinions, he rushed into notoriety by an eccentric essay "On the Origin of the Inequality among Men," where he sustained the irrational paradox, that men are happier in a state of Nature than under the laws of Civilization. At a later day appeared his famous work on "The Social Contract." In both the sentiment of Equality is invoked against abuses of society, and language is employed tending far beyond Equality in Civil and Political Rights. The conspicuous position since awarded to the speculations of Rousseau, and their influence in diffusing this sentiment, would make this sketch imperfect without allusion to him; but he taught men to feel rather than to know, and his words have more of inspiration than of precision.

The French Revolution was at hand. That great outbreak for enfranchisement was the expression of this sentiment. Here it received distinct and authoritative enunciation. In the Constitutions of Government successively adopted, amid the throes of bloody struggle, the equality of men was constantly proclaimed. Kings, nobles, and all distinctions of birth, passed away before this mighty and triumphant truth.

These Constitutions show the grandeur of the principle, and how it was explained and illustrated. The Constitution of 1791, in its first article, declares that "Men are born and continue free and _equal in their rights_." This great declaration was explained in the sixth article: "The law is the expression of the general will.... It ought to be the same for all, whether it protect or punish. All citizens, being equal in its eyes, are equally admissible to all dignities, places, and public employments, according to their capacity, and without other distinction than their virtues and talents." At the close of the Declaration of Rights there is this further explanation: "The National Assembly, wishing to establish the French Constitution on the principles which it has just acknowledged and declared, abolishes irrevocably the institutions which bounded liberty and equality of rights. There is no longer nobility, or peerage, or hereditary distinctions, or distinction of orders, or feudal rule, or patrimonial jurisdictions, or any titles, denominations, or prerogatives thence derived, or any orders of chivalry, or any corporations or decorations for which proofs of nobility were required, or which supposed distinctions of birth, or any other superiority than that of public functionaries in the exercise of their functions.... _There is no longer, for any part of the nation, or for any individual, any privilege or exception to the common right of all Frenchmen._"[19] These diffuse articles all begin and end in the equality of men.

[19] Moniteur, 1791, No. 259.

In fitful mood, another Declaration of Rights was brought forward by Condorcet. February 15, 1793. Here are fresh inculcations of Equality. Article First places Equality among the natural, civil, and political rights of man. Article Seventh declares: "Equality consists in this, that each individual can enjoy the same rights." Article Eighth: "_The law ought to be equal for all_, whether it recompense or punish, whether it protect or repress." Article Ninth: "All citizens are admissible to all public places, employments, and functions. Free people know no other motives of preference in their choice than talents and virtues." Article Twenty-third: "Instruction is the need of all, and society owes it equally to all its members." Article Thirty-second: "There is oppression, when a law violates the natural, civil, and political rights which it ought to guaranty. There is oppression, when the law is violated by the public functionaries in its application to individual cases."[20] Here again is the same constant testimony, reinforced by the accompanying report explaining the Constitution, where it is said: "All hereditary political power is at the same time an evident violation of natural equality and an absurd institution, since it supposes the inheritance of qualities proper for the discharge of a public function. Every exception to the common law made in favor of an individual is a blow struck at the rights of all." And in another part of the same report, "the sovereignty of the people, _equality among men_, the unity of the Republic," are declared to have been "the guiding principles always present in the formation of the Constitution."[21]

[20] Moniteur, 1793, No. 49.

[21] Exposition des Principes et des Motifs du Plan de Constitution: Condorcet, OEuvres, Tom. XII. pp. 336, 413.

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

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

[22] Moniteur, 1793, No. 178.

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

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

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EQUALITY UNDER CONSTITUTION OF MASSACHUSETTS AND DECLARATION OF INDEPENDENCE.

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

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

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

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

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

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

[25] Virgil, Eclog. II. 16.

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EQUALITY BY LEGISLATION OF MASSACHUSETTS.

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

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