Part 17

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

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

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

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

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

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

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

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

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

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

PUBLIC HOTELS.

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

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

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

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

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

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

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

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

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

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

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

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

And the Encyclopædia adds:--

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

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

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

PUBLIC CONVEYANCES.

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

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

Professor Parsons states the rule strongly:--

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

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

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

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

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

PLACES OF PUBLIC AMUSEMENT.

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

COMMON SCHOOLS.

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

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

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

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

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

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

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

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

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

OTHER PUBLIC INSTITUTIONS.

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

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

And Chaucer even denies the distinction in life:--

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

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

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

PREJUDICE OF COLOR.

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

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

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