Part 3

At last the question narrows itself to this: Is a citizen of the United States, when denied admission to public inns, railway cars and theatres, on account of his race or color, in a condition of involuntary servitude? If he is, then he is under the immediate protection of the General Government, by virtue of the 13th Amendment; and the Civil Rights Act is clearly constitutional.

If excluded from one inn, he may be from all; if from one car, why not from all? The man who depends for the preservation of his privileges upon a conductor, instead of the Constitution, is in a condition of involuntary servitude. He who depends for his rights--not upon the laws of the land, but upon a landlord, is in a condition of involuntary servitude.

The framers of the 13th Amendment knew that the negro would be persecuted on account of his race and color--knew that many of the States could not be trusted to protect the rights of the colored man; and for that reason, the General Government was clothed with power to protect the colored people from all forms of slavery and involuntary servitude.

Of what use are the declarations in the Constitution that slavery and involuntary servitude shall not exist, and that all persons born or naturalized in the United States shall be citizens--not only of the United States, but of the States in which they reside--if, behind these declarations, there is no power to act--no duty for the General Government to discharge?

Notwithstanding the 13th Amendment had been adopted--notwithstanding slavery and involuntary servitude had been legally destroyed--it was found that the negro was still the helpless victim of the white man. Another amendment was needed; and all the Justices of the Supreme Court have told us why the 14th Amendment was adopted.

Justice Miller, speaking for the entire court, tells us that:

"In the struggle of the civil war, slavery perished, and perished as a necessity of the bitterness and force of the conflict."

That:

"When the armies of freedom found themselves on the soil of slavery, they could do nothing else than free the victims whose enforced servitude was the foundation of the war."

He also admits that:

"When hard pressed in the contest, the colored men (for they proved themselves men in that terrible crisis) offered their services, and were accepted, by thousands, to aid in suppressing the unlawful rebellion."

He also informs us that:

"Notwithstanding the fact that the Southern States had formerly recognized the abolition of slavery, the condition of the slave, without further protection of the Federal Government, was almost as bad as it had been before."

And he declares that:

"The Southern States imposed upon the colored race onerous disabilities and burdens--curtailed their rights in the pursuit of liberty and property, to such an extent that their freedom was of little value, while the colored people had lost the protection which they had received from their former owners from motives of interest."

And that:

"The colored people in some States were forbidden to appear in the towns in any other character than that of menial servants--that they were required to reside on the soil without the right to purchase or own it--that they were excluded from many occupations of gain and profit--that they were not permitted to give testimony in the courts where white men were on trial--and it was said that their lives were at the mercy of bad men, either because laws for their protection were insufficient, or were not enforced."

We are informed by the Supreme Court that, "under these circumstances," the proposition for the 14th Amendment was passed through Congress, and that Congress declined to treat as restored to full participation in the Government of the Union, the States which had been in insurrection, until they ratified that article by a formal vote of their legislative bodies.

Thus it will be seen that the rebel States were restored to the Union by adopting the 14th Amendment. In order to become equal members of the Federal Union, these States solemnly agreed to carry out the provisions of that amendment.

The 14th Amendment provides that:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside."

That is affirmative in its character. That affirmation imposes the obligation upon the General Government to protect its citizens everywhere. That affirmation clothes the Federal Government with power to protect its citizens. Under that clause, the Federal arm can reach to the boundary of the Republic, for the purpose of protecting the weakest citizen from the tyranny of citizens or States. That clause is a contract between the Government and every man--a contract wherein the citizen promises allegiance, and the nation promises protection.

By this clause, the Federal Government adopted all the citizens of all the States and Territories, including the District of Columbia, and placed them under the shield of the Constitution--made each one a ward of the Republic.

Under this contract, the Government is under direct obligation to the citizen. The Government cannot shirk its responsibility by leaving a citizen to be protected in his rights, as a citizen of the United States, by a State. The obligation of protection is direct. The obligation on the part of the citizen to the Government is direct. The citizen cannot be untrue to the Government because his State is, The action of the State under the 14th Amendment is no excuse for the citizen. He must be true to the Government. In war, the Government has a right to his service. In peace, he has the right to be protected.

If the citizen must depend upon the State, then he owes the first allegiance to that government or power that is under obligation to protect him. Then, if a State secedes from the Union, the citizen should go with the State--should go with the power that protects.

That is not my doctrine. My doctrine is this: The first duty of the General Government is to protect each citizen. The first duty of each citizen is to be true--not to his State, but to the Republic.

This clause of the 14th Amendment made us all citizens of the United States--all children of the Republic. Under this decision, the Republic refuses to acknowledge her children. Under this decision of the Supreme Court, they are left upon the doorsteps of the States. Citizens are changed to foundlings.

If the 14th Amendment created citizens of the United States, the power that created must define the rights of the citizens thus created, and must provide a remedy where such rights are infringed. The Federal Government speaks through its representatives--through Congress; and Congress, by the Civil Rights Act, defined some of the rights, privileges and immunities of a citizen of the United States--and Congress provided a remedy when such rights and privileges were invaded, and gave jurisdiction to the Federal courts.

No State, or the department of any State, can authoritatively define the rights, privileges and immunities of a citizen of the United States. These rights and immunities must be defined by the United States, and when so defined, they cannot be abridged by State authority.

In the case of Bartemeyer vs. Iowa, 18 Wall., p. 140, Justice Field, in a concurring opinion, speaking of the 14th Amendment, says:

"It grew out of the feeling that a nation which had been maintained by such costly sacrifices was, after all, worthless, if a citizen could not be protected in all his fundamental rights, everywhere--North and South, East and West--throughout the limits of the Republic. The amendment was not, as held in the opinion of the majority, primarily intended to confer citizenship on the negro race. It had a much broader purpose. It was intended to justify legislation extending the protection of the National Government over the common rights of all citizens of the United States, and thus obviate objection to the legislation adopted for the protection of the emancipated race. It was intended to make it possible for all persons--which necessarily included those of every race and color--to live in peace and security wherever the jurisdiction of the nation reached. It therefore recognized, if it did not create, a national citizenship. This national citizenship is primary and not secondary.".

I cannot refrain from calling attention to the splendor and nobility of the truths expressed by Justice Field in this opinion.

So, Justice Field, in his dissenting opinion in what are known as _The Slaughter-House Cases_, found in 16 Wallace, p. 95, still speaking of the 14th Amendment, says:

"It recognizes in express terms--if it does not create--citizens of the United States, and it makes their citizenship dependent upon the place of their birth or the fact of their adoption, and not upon the constitution or laws of any State, or the condition of their ancestry.

"A citizen of a State is now only a citizen of the United States residing in that State. The fundamental rights, privileges and immunities which belong to him as a free man and a free citizen of the United States, are not dependent upon the citizenship of any State. * * *

"They do not derive their existence from its legislation, and cannot be destroyed by its power."

What are "the fundamental rights, privileges and immunities" which belong to a free man? Certainly the rights of all citizens of the United States are equal. Their immunities and privileges must be the same. He who makes a discrimination between citizens on account of color, violates the Constitution of the United States.

Have all citizens the same right to travel on the highways of the country? Have they all the same right to ride upon the railways created by State authority? A railway is an improved highway. It was only by holding that it was an improved highway that counties and States aided in their construction. It has been decided, over and over again, that a railway is an improved highway. A railway corporation is the creation of a State--an agent of the State. It is under the control of the State--and upon what principle can a citizen be prevented from using the highways of a State on an equality with all other citizens?

These are all rights and immunities guaranteed by the Constitution of the United States.

Now, the question is--and it is the only question--can these rights and immunities, thus guaranteed and thus confirmed, be protected by the General Government?

In the case of _The U. S. vs. Reese, et al._, 92 U. S., p. 207, the Supreme Court decided, the opinion having been delivered by Chief-Justice Waite, as follows:

"Rights and immunities created by, and dependent upon, the Constitution of the United States can be protected by Congress. The form and the manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide. This may be varied to meet the necessities of the particular right to be protected."

This decision was acquiesced in by Justices Strong, Bradley, Swayne, Davis, Miller and Field. Dissenting opinions were filed by Justices Clifford and Hunt, but neither dissented from the proposition that:

"Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress," and that "the form and manner of the protection may be such as Congress in the exercise of its legitimate discretion shall provide."

So, in the same case, I find this language:

"It follows that the Amendment"--meaning the 15th--"has invested the citizens of the United States with a new constitutional right, which is within the protecting power of Congress. This, under the express provisions of the second section of the Amendment, Congress may enforce by appropriate legislation."

If the 15th Amendment invested the citizens of the United States with a new constitutional right--that is, the right to vote--and if for that reason that right is within the protecting power of Congress, then I ask, if the 14th Amendment made certain persons citizens of the United States, did such citizenship become a constitutional right? And is such citizenship within the protecting power of Congress? Does citizenship mean anything except certain "rights, privileges and immunities"?

Is it not an invasion of citizenship to invade the immunities or privileges or rights belonging to a citizen? Are not, then, all the immunities and privileges and rights under the protecting power of Congress?

The 13th Amendment found the negro a slave, and made him a free man. That gave to him a new constitutional right, and according to the Supreme Court, that right is within the protecting power of Congress.

What rights are within the protecting power of Congress? All the rights belonging to a free man.

The 14th Amendment made the negro a citizen. What then is under the protecting power of Congress? All the rights, privileges and immunities belonging to him as a citizen.

So, in the case of _Tennessee vs, Davis_, 100 U, S,, 263, the Supreme Court, held that:

"The United States is a government whose authority extends over the whole territory of the Union, acting upon all the States, and upon all the people of all the States.

"No State can exclude the Federal Government from the exercise of any authority conferred upon it by the Constitution, or withhold from it for a moment the cognizance of any subject which the Constitution has committed to it."

This opinion was given by Justice Strong, and acquiesced in by Chief-Justice Waite, Justices Miller, Swayne, Bradley and Harlan.

So in the case of _Pensacola Tel. Co. vs. Western Union Tel. Co_., 96 U. S., p. 10, the opinion having been delivered by Chief-Justice Waite, I find this:

"The Government of the United States, within the scope of its power, operates upon every foot of territory under its jurisdiction. It legislates for the whole Nation, and is not embarrassed by State lines."

This was acquiesced in by Justices Clifford, Strong, Bradley, Swayne and Miller.

So we are told by the entire Supreme Court in the case of _Tiernan vs. Rynker_, 102 U. S., 126, that:

"When the subject to which the power applies is national in its character, or of such a nature as to admit of uniformity of regulation, the power is exclusive of State authority."

Surely the question of citizenship is "national in its character." Surely the question as to what are the rights, privileges and immunities of a citizen of the United States is "national in its character."

Unless the declarations and definitions, the patriotic paragraphs, and the legal principles made, given, uttered and defined by the Supreme Court are but a judicial jugglery of words, the Civil Rights Act is upheld by the intent, spirit and language of the 14th Amendment.

It was found that the 13th Amendment did not protect the negro. Then the 14th was adopted. Still the colored citizen was trodden under foot. Then the 15th was adopted. The 13th made him free, and, in my judgment, made him a citizen, and clothed him with all the rights of a citizen. That was denied, and then the 14th declared that he was a citizen. In my judgment, that gave him the right to vote. But that was denied--then the 15th was adopted, declaring that his right to vote should never be denied.

The 13th Amendment made all free. It broke the chains, pulled up the whipping-posts, overturned the auction-blocks, gave the colored mother her child, put the shield of the Constitution over the cradle, destroyed all forms of involuntary servitude, and in the azure heaven of our flag it put the Northern Star.

The 14th Amendment made us all citizens. It is a contract between the Republic and each individual--a contract by which the Nation agrees to protect the citizen, and the citizen agrees to defend the Nation. This amendment placed the crown of sovereignty on every brow.

The 15th Amendment secured the citizen in his right to vote, in his right to make and execute the laws, and put these rights above the power of any State. This amendment placed the ballot--the sceptre of authority--in every sovereign hand.

We are told by the Supreme Court, in the case under discussion, that:

"We must not forget that the province and scope of the 13th and 14th Amendments are different;" that the 13th Amendment "simply abolished slavery," and that the 14th Amendment "prohibited the States from abridging the privileges and immunities of citizens of the United States; from depriving them of life, liberty or property, without due process of law; and from denying to any the equal protection of the laws."

We are told that:

"The amendments are different, and the powers of Congress under them are different. What Congress has power to do under one it may not have power to do under the other." That "under the 13th Amendment it has only to do with slavery and its incidents;" but that "under the 14th Amendment it has power to counteract and render nugatory all State laws or proceedings which have the effect to abridge any of the privileges or immunities of the citizens of the United States, or to deprive them of life, liberty or property, without due process of law, or to deny to any of them the equal protection of the laws."

Did not Congress have that power under the 13th Amendment? Could the States, in spite of the 13th Amendment, deprive free men of life or property without due process of law? Does the Supreme Court wish to be understood, that until the 14th Amendment was adopted the States had the right to rob and kill free men? Yet, in its effort to narrow and belittle the 13th Amendment, it has been driven to this absurdity. Did not Congress, under the 13th Amendment, have power to destroy slavery and involuntary servitude? Did not Congress, under that amendment, have the power to protect the lives, liberty and property of free men? And did not Congress have the power "to render nugatory all State laws and proceedings under which free men were to be deprived of life, liberty or property, without due process of law"?

If Congress was not clothed with such power by the 13th Amendment, what was the object of that amendment? Was that amendment a mere opinion, or a prophecy, or the expression of a hope?

The 14th Amendment provides that:

"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 its laws."

We are told by the Supreme Court that Congress has no right to enforce the 14th Amendment by direct legislation, but that the legislation under that amendment can only be of a "corrective" character--such as may be necessary or proper for counteracting and redressing the effect of unconstitutional laws passed by the States. In other words, that Congress has no duty to perform, except to counteract the effect of unconstitutional laws by corrective legislation.

The Supreme Court has also decided, in the present case, that Congress has no right to legislate for the purpose of enforcing these clauses until the States shall have taken action. What action can the State take? If a State passes laws contrary to these provisions or clauses, they are void. If a State passes laws in conformity to these provisions, certainly Congress is not called on to legislate. Under what circumstances, then, can Congress be called upon to act by way of "corrective" legislation, as to these particular clauses? What can Congress do? Suppose the State passes no law upon the subject, but allows citizens of the State--managers of railways, and keepers of public inns, to discriminate between their passengers and guests on account of race or color--what then?

Again, what is the difference between a State that has no law on the subject, and a State that has passed an unconstitutional law? In other words, what is the difference between no law and a void law? If the "corrective" legislation of Congress is not needed where the State has passed an unconstitutional law, is it needed where the State has passed no law? What is there in either case to correct? Surely it requires no particular legislation on the part of Congress to kill a law that never had life.

The States are prohibited by the Constitution from making any regulations of foreign commerce. Consequently, all regulations made by the States are null and void, no matter what the motive of the States may have been, and it requires no law of Congress to annul such laws or regulations. This was decided by the Supreme Court of the United States, long ago, in what are known as _The License Cases_. The opinion may be found in the 5th of Howard, 583.

"The nullity of any act inconsistent with the Constitution, is produced by the declaration that the Constitution is supreme."

This was decided by the Supreme Court, the opinion having been delivered by Chief Justice Marshall, in the case of _Gibbons vs. Ogden_, 9 Wheat, 210.

The same doctrine was held in the case of _Henderson et al., vs. Mayor of New York, et al._, 92 U. S. 272--the opinion of the Court being delivered by Justice Miller.

So it was held in the case of _The Board of Liquidation vs. McComb_--2 Otto, 541.

"That an unconstitutional law will be treated by the courts as null and void"--citing _Osborn vs. The Bank of the United States_, 9 Wheaton, 859, and _Davis vs. Gray_, 16 Wallace, 220.

Now, if the legislation of Congress must be "corrective," then I ask, corrective of what? Certainly not of unconstitutional and void laws. That which is void, cannot be corrected. That which is unconstitutional is not the subject of correction. Congress either has the right to legislate directly, or not at all; because indirect or corrective legislation can apply only, according to the Supreme Court, to unconstitutional and void laws that have been passed by a Stale; and as such laws cannot be "corrected," the doctrine of "corrective legislation" dies an extremely natural death.

A State can do one of three things: 1. It can pass an unconstitutional law; 2. It can pass a constitutional law; 3. It can fail to pass any law. The unconstitutional law, being void, cannot be corrected. The constitutional law does not need correction. And where no law has been passed, correction is impossible.

The Supreme Court insists that Congress can not take action until the State does. A State that fails to pass any law on the subject, has not taken action. This leaves the person whose immunities and privileges have been invaded, with no redress except such as he may find in the State Courts in a suit at law; and if the State Court takes the same view that is apparently taken by the Supreme Court in this case,--namely, that it is a "social question," one not to be regulated by law, and not covered in any way by the Constitution--then, discrimination can be made against citizens by landlords and railway conductors, and they are left absolutely without remedy.

The Supreme Court asks, in this decision,

"Can the act of a mere individual--the owner of the inn, or public conveyance, or place of amusement, refusing the accommodation, be justly regarded as imposing any badge of slavery or servitude upon the applicant, or only as inflicting an ordinary civil injury properly cognizable by the laws of the State, and presumably subject to redress by those laws, until the contrary appears?"