Part 16

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.