Part 2

ON the 22d of October, 1883, a vast number of citizens met at Lincoln Hall, Washington, D. C., to give expression to their views concerning the decision of the Supreme Court of the United States, in which it is held that the Civil Rights Act is unconstitutional.

Col. Robert G. Ingersoll was one of the speakers.

The Hon. Frederick Douglass introduced him as follows:

Abou Ben Adhem--(may his tribe increase!) Awoke one night from a deep dream of peace, And saw within the moonlight of his room, Making it rich and like a lily in bloom, An angel writing in a book of gold: Exceeding peace had made Ben Adhem bold; And to the presence in the room he said, "What writest thou?" The vision raised its head, And, with a look made all of sweet accord, Answered, "The names of those who love the Lord." "And is mine one?" asked Abou. "Nay, not so," Replied the angel. Abou spoke more low, But cheerily still; and said, "I pray thee, then, Write me as one that loves his fellow-men." The angel wrote, and vanished. The next night It came again, with a great wakening light, And showed the names whom love of God had blest; And, lo! Ben Adhem's name led all the rest.

I have the honor to introduce Robert G. Ingersoll.

MR. INGERSOLL'S SPEECH.

Ladies and Gentlemen:

We have met for the purpose of saying a few words about the recent decision of the Supreme Court, in which that tribunal has held the first and second sections of the Civil Rights Act to be unconstitutional; and so held in spite of the fact that for years the people of the North and South have, with singular unanimity, supposed the Act to be constitutional--supposed that it was upheld by the 13th and 14th Amendments,--and so supposed because they knew with certainty the intention of the framers of the amendments. They knew this intention, because they knew what the enemies of the amendments and the enemies of the Civil Rights Act claimed was the intention. And they also knew what the friends of the amendments and the law admitted the intention to be. The prejudices born of ignorance and of slavery had died or fallen asleep, and even the enemies of the amendments and the law had accepted the situation.

But I shall speak of the decision as I feel, and in the same manner as I should speak even in the presence of the Court. You must remember that I am not attacking persons, but opinions--not motives, but reasons--not judges, but decisions.

The Supreme Court has decided:

1. That the first and second sections of the Civil Rights Act of March 1, 1875, are unconstitutional, as applied to the States--not being authorized by the 13th and 14th Amendments.

2. That the 14th Amendment is prohibitory upon the States only, and the legislation forbidden to be adopted by Congress for enforcing it, is not "direct" legislation, but "corrective,"--such as may be necessary or proper for counteracting and restraining the effect of laws or acts passed or done by the several States.

3. That the 13th Amendment relates only to slavery and involuntary servitude, which it abolishes.

4. That the 13th Amendment establishes universal freedom in the United States.

5. That Congress may probably pass laws directly enforcing its provisions.

6. That such legislative power in Congress extends only to the subject of slavery, and its incidents.

7. That the denial of equal accommodations in inns, public conveyances and places of public amusement, imposes no badge of slavery or involuntary servitude upon the party, but at most infringes rights which are protected from State aggression by the 14th Amendment.

8. The Court is uncertain whether the accommodations and privileges sought to be protected by the first and second sections of the Civil Rights Act are or are not rights constitutionally demandable,--and if they are, in what form they are to be protected.

9. Neither does the Court decide whether the law, as it stands, is operative in the Territories and the District of Columbia.

10. Neither does the Court decide whether Congress, under the commercial power, may or may not pass a law securing to all persons equal accommodations on lines of public conveyance between two or more States.

11. The Court also holds, in the present case, that until some State law has been passed, or some State action through its officers or agents has been taken adverse to the rights of citizens sought to be protected by the 14th Amendment, no legislation of the United States under said amendment, or any proceeding under such legislation, can be called into activity, for the reason that the prohibitions of the amendment are against State laws and acts done under State authority. The essence of said decision being, that the managers and owners of inns, railways, and all public conveyances, of theatres and all places of public amusement, may discriminate on account of race, color, or previous condition of servitude, and that the citizen so discriminated against, is without redress.

This decision takes from seven millions of people the shield of the Constitution. It leaves the best of the colored race at the mercy of the meanest of the white. It feeds fat the ancient grudge that vicious ignorance bears toward race and color. It will be approved and quoted by hundreds of thousands of unjust men. The masked wretches who, in the darkness of night, drag the poor negro from his cabin, and lacerate with whip and thong his quivering flesh, will, with bloody hands, applaud the Supreme Court. The men who, by mob violence, prevent the negro from depositing his ballot--who with gun and revolver drive him from the polls, and those who insult with vile and vulgar words the inoffensive colored girl, will welcome this decision with hyena joy. The basest will rejoice--the noblest will mourn.

But even in the presence of this decision, we must remember that it is one of the necessities of government that there should be a court of last resort; and while all courts will more or less fail to do justice, still, the wit of man has, as yet, devised no better way. Even after reading this decision, we must take it for granted that the judges of the Supreme Court arrived at their conclusions honestly and in accordance with the best light they had. While they had the right to render the decision, every citizen has the right to give his opinion as to whether that decision is good or bad. Knowing that they are liable to be mistaken, and honestly mistaken, we should always be charitable enough to admit that others may be mistaken; and we may also take another step, and admit that we may be mistaken about their being mistaken. We must remember, too, that we have to make judges out of men, and that by being made judges their prejudices are not diminished and their intelligence is not increased. No matter whether a man wears a crown or a robe or a rag. Under the emblem of power and the emblem of poverty, the man alike resides. The real thing is the man--the distinction often exists only in the clothes. Take away the crown--there is only a man. Remove the robe--there remains a man. Take away the rag, and we find at least a man.

There was a time in this country when all bowed to a decision of the Supreme Court. It was unquestioned. It was regarded as "a voice from on high." The people heard and they obeyed. The Dred Scott decision destroyed that illusion forever. From that day to this the people have claimed the privilege of putting the decisions of the Supreme Court in the crucible of reason. These decisions are no longer exempt from honest criticism. While the decision remains, it is the law. No matter how absurd, no matter how erroneous, no matter how contrary to reason and justice, it remains the law. It must be overturned either by the Court itself (and the Court has overturned hundreds of its own decisions), or by legislative action, or by an amendment to the Constitution. We do not appeal to armed revolution. Our Government is so framed that it provides for what may be called perpetual peaceful revolution. For the redress of any grievance, for the purpose of righting any wrong, there is the perpetual remedy of an appeal to the people.

We must remember, too, that judges keep their backs to the dawn. They find what has been, what is, but not what ought to be. They are tied and shackled by precedent, fettered by old decisions, and by the desire to be consistent, even in mistakes. They pass upon the acts and words of others, and like other people, they are liable to make mistakes. In the olden time we took what the doctors gave us, we believed what the preachers said; and accepted, without question, the judgments of the highest court. Now it is different. We ask the doctor what the medicine is, and what effect he expects it to produce. We cross-examine the minister, and we criticise the decision of the Chief-Justice. We do this, because we have found that some doctors do not kill, that some ministers are quite reasonable, and that some judges know something about law. In this country, the people are the sovereigns. All officers--including judges--are simply their servants, and the sovereign has always the right to give his opinion as to the action of his agent. The sovereignty of the people is the rock upon which rests the right of speech and the freedom of the press.

Unfortunately for us, our fathers adopted the common law of England--a law poisoned by kingly prerogative--by every form of oppression, by the spirit of caste, and permeated, saturated, with the political heresy that the people received their rights, privileges and immunities from the crown. The thirteen original colonies received their laws, their forms, their ideas of justice, from the old world. All the judicial, legislative, and executive springs and sources had been touched and tainted.

In the struggle with England, our fathers justified their rebellion by declaring that Nature had clothed all men with the right to life, liberty, and the pursuit of happiness. The moment success crowned their efforts, they changed their noble declaration of equal rights for all, and basely interpolated the word "white." They adopted a Constitution that denied the Declaration of Independence--a Constitution that recognized and upheld slavery, protected the slave-trade, legalized piracy upon the high seas--that demoralized, degraded, and debauched the nation, and that at last reddened with brave blood the fields of the Republic.

Our fathers planted the seeds of injustice, and we gathered the harvest. In the blood and flame of civil war, we retraced our fathers' steps. In the stress of war, we implored the aid of Liberty, and asked once more for the protection of Justice. We civilized the Constitution of our fathers. We adopted three Amendments--the 13th, 14th and 15th--the Trinity of Liberty.

Let us examine these amendments:

"Neither slavery, nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

"Congress shall have power to enforce this article by appropriate legislation."

Before the adoption of this amendment, the Constitution had always been construed to be the perfect shield of slavery. In order that slavery might be protected, the slave States were considered as sovereign. Freedom was regarded as a local prejudice, slavery as the ward of the Nation, the jewel of the Constitution. For three-quarters of a century, the Supreme Court of the United States exhausted judicial ingenuity in guarding, protecting and fostering that infamous institution. For the purpose of preserving that infinite outrage, words and phrases were warped, and stretched, and tortured, and thumbscrewed, and racked. Slavery was the one sacred thing, and the Supreme Court was its constitutional guardian.

To show the faithfulness of that tribunal, I call your attention to the 3d clause of the 2d section of the 4th article of the Constitution:

"No person held to service or labor in any State under the laws thereof, escaping to another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on the claim of the party to whom such service or labor may be due."

The framers of the Constitution were ashamed to use the word "slave," and thereupon they said "person." They were ashamed to use the word "slavery," and they evaded it by saying, "held to service or labor." They were ashamed to put in the word "master," so they called him "the party to whom service or labor may be due."

How can a slave owe service? How can a slave owe labor? How could a slave make a contract? How could the master have a legal claim against a slave? And yet, the Supreme Court of the United States found no difficulty in upholding the Fugitive Slave Law by virtue of that clause. There were hundreds of decisions declaring that Congress had power to pass laws to carry that clause into effect, and it was carried into effect.

You will observe the wording of this clause:

"No person held to service or labor in any State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on the claim of the party to whom such service or labor may be due."

To whom was this clause directed? To individuals or to States? It expressly provides that the "person" held to service or labor shall not be discharged from such service or labor in consequence of any law or regulation in the "State" to which he has fled. Did that law apply to States, or to individuals?

The Supreme Court held that it applied to individuals as well as to States. Any "person," in any State, interfering with the master who was endeavoring to steal the person he called his slave, was liable to indictment, and hundreds and thousands were indicted, and hundreds languished in prisons because they were noble enough to hold in infinite contempt such infamous laws and such infamous decisions. The best men in the United States--the noblest spirits under the flag--were imprisoned because they were charitable, because they were just, because they showed the hunted slave the path to freedom, and taught him where to find amid the glittering host of heaven the blessed Northern Star.

Every fugitive slave carried that clause with him when he entered a free State; carried it into every hiding place; and every Northern man was bound, by virtue of that clause, to act as the spy and hound of slavery. The Supreme Court, with infinite ease, made a club of that clause with which to strike down the liberty of the fugitive and the manhood of the North.

In the Dred Scott decision it was solemnly decided that a man of African descent, whether a slave or not, was not, and could not be, a citizen of a State or of the United States. The Supreme Court held on the even tenor of its way, and in the Rebellion that tribunal was about the last fort to surrender.

The moment the 13th Amendment was adopted, the slaves became freemen. The distinction between "white" and "colored" vanished. The negroes became as though they had never been slaves--as though they had always been free--as though they had been white. They became citizens--they became a part of "the people," and "the people" constituted the State, and it was the State thus constituted that was entitled to the constitutional guarantee of a republican government.

These freed men became citizens--became a part of the State in which they lived.

The highest and noblest definition of a State, in our Reports, was given by Justice Wilson, in the case of Chisholm, &c., vs. Georgia;

"By a State, I mean a complete body of free persons, united for their common benefit, to enjoy peaceably what is their own, and to do justice to others."

Chief Justice Chase declared that:

"The people, in whatever territory dwelling, whether temporarily or permanently, or whether organized under regular government, or united by less definite relations, constitute the State."

Now, if the people, the moment the 13th Amendment was adopted were all free, and if these people constituted the State; if, under the Constitution of the United States, every State is guaranteed a republican government, then it is the duty of the General Government to see to it that every State has such a government. If distinctions are made between free men on account of race or color, the government is not republican. The manner in which this guarantee of a republican form of government is to be enforced or made good, must be left to the wisdom and discretion of Congress.

The 13th Amendment not only destroyed, but it built. It destroyed the slave-pen, and on its site erected the temple of Liberty. It did not simply free slaves--it made citizens. It repealed every statute that upheld slavery. It erased from every Report every decision against freedom. It took the word "white" from every law, and blotted from the Constitution all clauses acknowledging property in man.

If, then, all the people in each State, were, by virtue of the 13th Amendment, free, what right had a majority to enslave a minority? What right had a majority to make any distinctions between free men? What right had a majority to take from a minority any privilege, or any immunity, to which they were entitled as free men? What right had the majority to make that unequal which the Constitution made equal?

Not satisfied with saying that slavery should not exist, we find in the amendment the words "nor involuntary servitude." This was intended to destroy every mark and badge of legal inferiority.

Justice Field upon this very question, says:

"It is, however, clear that the words 'involuntary servitude' include something more than slavery, in the strict sense of the term. They include also serfage, vassalage, villanage, peonage, and all other forms of compulsory service for the mere benefit or pleasure of others. Nor is this the full import of the term. The abolition of slavery and involuntary servitude was intended to make every one born in this country a free man, and as such to give him the right to pursue the ordinary avocations of life without other restraint than such as affects all others, and to enjoy equally with them the fruits of his labor. A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term, in a condition of slavery, but probably no one would deny that he would be in a condition of servitude. He certainly would not possess the liberties, or enjoy the privileges of a freeman."

Justice Field also quotes with approval the language of the counsel for the plaintiffs in the case:

"Whenever a law of a State, or a law of the United States, makes a discrimination between classes of persons which deprives the one class of their freedom or their property, or which makes a caste of them, to subserve the power, pride, avarice, vanity or vengeance of others--there involuntary servitude exists within the meaning of the 13th Amendment."

To show that the framers of the 13th Amendment intended to blot out every form of slavery and servitude, I call attention to the Civil Rights Act, approved April 9, 1866, which provided, among other things, that:

"All persons born in the United States, and not subject to any foreign power--excluding Indians not taxed--are citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, are entitled to the full and equal benefit of all laws and proceedings for the security of person and property enjoyed by white citizens, and shall be subject to like punishments, pains and penalties--and to none other--any law, statute, ordinance, regulation or custom to the contrary notwithstanding; and they shall have the same rights in every State and Territory of the United States as white persons."

The Supreme Court, in _The Slaughter-House Cases,_ (16 Wallace, 69) has said that the word servitude has a larger meaning than the word slavery. "The word 'servitude' implies subjection to the will of another contrary to the common right." A man is in a state of involuntary servitude when he is forced to do, or prevented from doing, a thing, not by the law of the State, but by the simple will of another. He who enjoys less than the common rights of a citizen, he who can be forced from the public highway at the will of another, who can be denied entrance to the cars of a common carrier, is in a state of servitude.

The 13th Amendment did away with slavery not only, and with involuntary servitude, but with every badge and brand and stain and mark of slavery. It abolished forever distinctions on account of race and color.

In the language of the Supreme Court:

"It was the obvious purpose of the 13th Amendment to forbid all shades and conditions of African slavery."

And to that I add, it was the obvious purpose of that amendment to forbid all shades and conditions of slavery, no matter of what sort or kind--all marks of legal inferiority. Each citizen was to be absolutely free. All his rights complete, whole, unmaimed and unabridged.

From the moment of the adoption of that amendment, the law became color-blind. All distinctions on account of complexion vanished. It took the whip from the hand of the white man, and put the nation's flag above the negro's hut. It gave horizon, scope and dome to the lowest life. It stretched a sky studded with stars of hope above the humblest head.

The Supreme Court has admitted, in the very case we are now discussing, that:

"Under the 13th Amendment the legislation meaning the legislation of Congress--so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not."

Here we have the authority for dealing with individuals.

The only question then remaining is, whether an individual, being the keeper of a public inn, or the agent of a railway corporation, created by a State, can be held responsible in a Federal Court for discriminating against a citizen of the United States on account of race, color, or previous condition of servitude. If such discrimination is a badge of slavery, or places the party discriminated against in a condition of involuntary servitude, then the Civil Rights Act may be upheld by the 13th Amendment.

In The United Slates vs. Harris, 106 U. S., 640, the Supreme Court says:

"It is clear that the 13th Amendment, besides abolishing forever slavery and involuntary servitude within the United States, gives power to Congress to protect all citizens from being in any way subjected to slavery or involuntary servitude, except for the punishment of crime, and in the enjoyment of that freedom which it was the object of the amendment to secure."

This declaration covers the entire case.

I agree with Justice Field:

"The 13th Amendment is not confined to African slavery. It is general and universal in its application--prohibiting the slavery of white men as well as black men, and not prohibiting mere slavery in the strict sense of the term, but involuntary servitude in every form." 16 Wallace, 90.

The 13th Amendment declares that neither slavery nor involuntary servitude shall exist. Who must see to it that this declaration is carried out? There can be but one answer. It is the duty of Congress.