Part 4

How is "the contrary to appear"? Suppose a person denied equal privileges upon the railway on account of race and color, brings suit and is defeated? And suppose the highest tribunal of the State holds that the question is of a "social" character--what then? If, to use the language of the Supreme Court, it is "an ordinary civil injury, imposing no badge of slavery or servitude," then, no Federal question is involved.

Why did not the Supreme Court tell us what may be done when "the contrary appears"? Nothing is clearer than the intention of the Supreme Court in this case--and that is, to decide that denying to a man equal accommodations at public inns on account of race or color, is not an abridgment of a privilege or immunity of a citizen of the United States, and that such person, so denied, is not in a condition of involuntary servitude, or denied the equal protection of the laws. In other words--that it is a "social question."

I have been told by one who heard the decision when it was read from the bench, that the following phrase was in the opinion:

"_There are certain physiological differences of race that cannot be ignored_."

That phrase is a lamp, in the light of which the whole decision should be read.

Suppose that in one of the Southern States, the negroes being in a decided majority and having entire control, had drawn the color line, had insisted that:

"There were certain physiological differences between the races that could not be ignored," and had refused to allow white people to enter their hotels, to ride in the best cars, or to occupy the aristocratic portion of a theatre; and suppose that a white man, thrust from the hotels, denied the entrance to cars, had brought his suit in the Federal Court. Does any one believe that the Supreme Court would have intimated to that man that "there is only a social question involved,--a question with which the Constitution and laws have nothing to do, and that he must depend for his remedy upon the authors of the injury"? Would a white man, under such circumstances, feel that he was in a condition of involuntary servitude? Would he feel that he was treated like an underling, like a menial, like a serf? Would he feel that he was under the protection of the laws, shielded like other men by the Constitution? Of course, the argument of color is just as strong on one side as on the other. The white man says to the black, "You are not my equal because you are black;" and the black man can with the same propriety, reply, "You are not my equal because you are white." The difference is just as great in the one case as in the other. The pretext that this question involves, in the remotest degree, a social question, is cruel, shallow, and absurd.

The Supreme Court, some time ago, held that the 4th Section of the Civil Rights Act was constitutional. That section declares that:

"No citizen possessing all other qualifications which are or maybe prescribed by law, shall be disqualified for service as grand or petit juror in any court of the United States or of any State, on account of color or previous condition of servitude."

It also provides that:

"If any officer or other person charged with any duty in the selection or summoning of jurors, shall exclude, or fail to summon, any citizen in the case aforesaid, he shall, on conviction, be guilty of misdemeanor and be fined not more than five hundred dollars."

In the case known as _Ex-parte vs. Virginia_--found in 100 U. S. 339--it was held that an indictment against a State officer, under this section, for excluding persons of color from the jury, could be sustained. Now, let it be remembered, there was no law of the State of Virginia, by virtue of which a man was disqualified from sitting on the jury by reason of race or color. The officer did exclude, and did fail to summon, a citizen on account of race or color or previous condition of servitude. And the Supreme Court held:

"That whether the Statute-book of the State actually laid down any such rule of disqualification or not, the State, through its officer, enforced such rule; and that it was against such State action, through its officers and agents, that the last clause of the section was directed."

The Court further held that:

"This aspect of the law was deemed sufficient to divest it of any unconstitutional character."

In other words, the Supreme Court held that the officer was an agent of the State, although acting contrary to the statute of the State; and that, consequently, such officer, acting outside of law, was amenable to the Civil Rights Act, under the 14th Amendment, that referred only to States. The question arises: Is a State responsible for the action of its agent when acting contrary to law? In other words: Is the principal bound by the acts of his agent, that act not being within the scope of his authority? Is a State liable--or is the Government liable--for the act of any officer, that act not being authorized by law?

It has been decided a thousand times, that a State is not liable for the torts and trespasses of its officers. How then can the agent, acting outside of his authority, be prosecuted under a law deriving its entire validity from a constitutional amendment applying only to States? Does an officer, by acting contrary to State law, become so like a State that the word State, used in the Constitution, includes him?

So it was held in the case of _Neal vs. Delaware_,--103 U. S., 307,--that an officer acting contrary to the laws of the State--in defiance of those laws--would be amenable to the Civil Rights Act, passed under an amendment to the Constitution now held applicable only to States.

It is admitted, and expressly decided in the case of _The U. S. vs. Reese et al._, (already quoted) that when the wrongful refusal at an election is because of race, color, or previous condition of servitude, Congress can interfere and provide for the punishment of any individual guilty of such refusal, no matter whether such individual acted under or against the authority of the State.

With this statement I most heartily agree. I agree that:

"When the wrongful refusal is because of race, color, or previous condition of servitude, Congress can interfere and provide for the punishment of any individual guilty of such refusal."

That is the key that unlocks the whole question. Congress has power--full, complete, and ample,--to protect all citizens from unjust discrimination, and from being deprived of equal privileges on account of race, color, or previous condition of servitude. And this language is just as applicable to the 13th and 14th, as to the 15th Amendment. If a citizen is denied the accommodations of a public inn, or a seat in a railway car, on account of race or color, or deprived of liberty on account of race or color, the Constitution has been violated, and the citizen thus discriminated against or thus deprived of liberty, is entitled to redress in a Federal Court.

It is held by the Supreme Court that the word "State" does not apply to the "people" of the State--that it applies only to the agents of the people of the State. And yet, the word "State," as used in the Constitution, has been held to include not only the persons in office, but the people who elected them--not only the agents, but the principals. In the Constitution it is provided that "no State shall coin money; and no State shall emit bills of credit." According to this decision, any person in any State, unless prevented by State authority, has the right to coin money and to emit bills of credit, and Congress has no power to legislate upon the subject--provided he does not counterfeit any of the coins or current money of the United States. Congress would have to deal--not with the individuals, but with the State; and unless the State had passed some act allowing persons to coin money, or emit bills of credit, Congress could do nothing. Yet, long ago, Congress passed a statute preventing any person in any State from coining money. No matter if a citizen should coin it of pure gold, of the requisite fineness and weight, and not in the likeness of United States coins, he would be a criminal. We have a silver dollar, coined by the Government, worth eighty-five cents; and yet, if any person, in any State, should coin what he called a dollar, not like our money, but with a dollar's worth of silver in it, he would be guilty of a crime.

It may be said that the Constitution provides that Congress shall have power to coin money, and provide for the punishment of counterfeiting the securities and current coin of the United States; in other words, that the Constitution gives power to Congress to coin money and denies it to the States, not only, but gives Congress the power to legislate against counterfeiting. So, in the 13th, 14th, and 15th Amendments, power is given to Congress, and power is denied to the States, not only, but Congress is expressly authorized to enforce the amendments by appropriate legislation. Certainly the power is as broad in the one case as in the other; and in both cases, individuals can be reached as well as States.

So the Constitution provides that:

"Congress shall have power to regulate commerce among the several States."

Under this clause Congress deals directly with individuals. The States are not engaged in commerce, but the people are; and Congress makes rules and regulations for the government of the people so engaged.

The Constitution also provides that:

"Congress shall have power to regulate commerce with the Indian tribes."

It was held in the case of _The United States vs. Holliday_, 3 Wall., 407, that:

"Commerce with the Indian tribes means commerce with the individuals composing those tribes."

And under this clause it has been further decided that Congress has the power to regulate commerce not only between white people and Indian tribes, but between Indian tribes; and not only that, but between individual Indians. _Worcester vs. The State, 6 Pet., 575; The United States vs. 4.3 Gallons, 93 U. S., 188; The United States vs. Shawmux, 2 Saw., 304._

Now, if the word "tribe" includes individual Indians, may not the word "State" include citizens?

In this decision it is admitted by the Supreme Court that where a subject is submitted to the general legislative power of Congress, then Congress has plenary powers of legislation over the whole subject. Let us apply these words to the 13th Amendment. In this very decision I find that the 13th Amendment:

"By its own unaided force and effect, abolished slavery and established universal freedom."

The Court admits that:

"Legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit."

The Court further admits:

"And such legislation may be primary and direct in its character."

And then gives the reason:

"For the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States."

I now ask, has that subject--that is to say, Liberty,--been submitted to the general legislative power of Congress? The 13th Amendment provides that Congress shall have power to enforce that amendment by appropriate legislation.

In construing the 13th and 14th Amendments and the Civil Rights Act, it seems to me that the Supreme Court has forgotten the principle of construction that has been laid down so often by courts, and that is this: that in construing statutes, courts may look to the history and condition of the country as circumstances from which to gather the intention of the Legislature. So it seems to me that the Court failed to remember the rule laid down by Story in the case of _Prigg vs. The Commonwealth of Pennsylvania,_ 16 Pet., 611, a rule laid down in the interest of slavery--laid down for the purpose of depriving human beings of their liberty:

"Perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties and rights with all the lights and aids of contemporary history, and to give to the words of each just such operation and force consistent with their legitimate meaning, as may fairly secure and attain the ends proposed."

It must be admitted that certain rights were conferred by the 13th Amendment. Surely certain rights were conferred by the 14th Amendment; and these rights should be protected and upheld by the Federal Government. And it was held in the case last cited, that:

"If by one mode of interpretation the right must become shadowy and unsubstantial, and without any remedial power adequate to the end, and by another mode it will attain its just end and secure its manifest purpose--it would seem, upon principles of reasoning absolutely irresistable, that the latter ought to prevail. No court of justice can be authorized so as to construe any clauses of the Constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them."

In the present case, the Supreme Court holds, that Congress can not legislate upon this subject until the State has passed some law contrary to the Constitution.

I call attention in reply to this, to the case of _Hall vs. De Cuir,_ 95 U. S., 486. The State of Louisiana, in 1869, acting in the spirit of these amendments to the Constitution, passed a law requiring that all persons engaged within that State in the business of common carriers of passengers, should make no discrimination on account of race, color, or previous condition of servitude. Under this law, Mrs. De Cuir, a colored woman, took passage on a steamer, buying a ticket from New Orleans to Hermitage--the entire trip being within the limits of the State. The captain of the boat refused to give her equal accommodations with other passengers--the refusal being on the ground of her color. She commenced suit against the captain in the State Court of Louisiana, and recovered judgment for one thousand dollars. The defendant appealed to the Supreme Court of that State, and the judgment of the lower court was sustained. Thereupon, the captain died, and the case was taken to the Supreme Court of the United States by his administrator, on the ground that a Federal question was involved.

You will see that this was a case where the State had acted, and had acted exactly in accordance with the constitutional amendments, and had by law provided that the privileges and immunities of the citizen of the United States--residing in the State of Louisiana--should not be abridged, and that no distinction should be made on account of race or color. But in that case the Supreme Court of the United States solemnly decided that the legislation of the State was void--that the State of Louisiana had no right to interfere--no right, by law, to protect a citizen of the United States from being discriminated against under such circumstances.

You will remember that the plaintiff, Mrs. De Cuir, was to be carried from New Orleans to Hermitage, and that both places were within the State of Louisiana. Notwithstanding this, the Supreme Court held:

"That if the public good required such legislation, it must come from Congress and not from the State."

What reason do you suppose was given? It was this: The Constitution gives to Congress power to regulate commerce between the States; and it appeared from the evidence given in that case, that the boat plied between the ports of New Orleans and Vicksburg. Consequently, it was engaged in interstate commerce. Therefore, it was under the protection of Congress; and being under the protection of Congress, the State had no authority to protect its citizens by a law in perfect harmony with the Constitution of the United States, while such citizens were within the limits of Louisiana. The Supreme Court scorns the protection of a State!

In the case recently decided, and about which we are talking to-night, the Supreme Court decides exactly the other way. It decides that if the public good requires such legislation, it must come from the States, and not from Congress; that Congress cannot act until the State has acted, and until the State has acted wrong, and that Congress can then only act for the purpose of "correcting" such State action. The decision in _Hall vs. De Cuir_ was rendered in 1877. The Civil Rights Act was then in force, and applied to all persons within the jurisdiction of the United States, and provided expressly that:

"All persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, privileges, and facilities of inns, public conveyances on land or water, theatres, and other places of public amusement, without regard to race or color."

And yet the Supreme Court said:

"No carrier of passengers can conduct his business with satisfaction to himself, or comfort to those employing him, if on one side of a State line his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other to be kept separate."

What right had the other State to pass a law that passengers should be kept separate, on account of race or color? How could such a law have been constitutional? The Civil Rights Act applied to all States, and to both sides of the lines between all States, and produced absolute uniformity--and did not put the captain to the trouble of dividing his passengers. The Court further said:

"Uniformity in the regulations by which the carrier is to be governed from one end to the other of his route, is a necessity in his business."

The uniformity had been guaranteed by the Civil Rights Act, and the statute of the State of Louisiana was in exact conformity with the 14th Amendment and the Civil Rights Act. The Court also said:

"And to secure uniformity, Congress, which is untrammeled by State lines, has been invested with the exclusive power of determining what such regulations shall be."

Yes. Congress has been invested with such power, and Congress has used it in passing the Civil Rights Act--and yet, under these circumstances, the Court proceeds to imagine the difficulty that a captain would have in dividing his passengers as he crosses a State line, keeping them apart until he reaches the line of another State, and then bringing them together, and so going on through the process of dispersing and huddling, to the end of his unfortunate route.

It is held by the Supreme Court, that uniformity of duties is essential to the carrier, and so essential, that Congress has control of the whole matter. If uniformity is so desirable for the carrier that Congress takes control, then uniformity as to the rights of passengers is equally desirable; and under the 13th and 14th Amendments, Congress has the exclusive power to state what the rights, privileges and immunities of passengers shall be. So that, in 1877, the Supreme Court decided that the _States could not_ legislate; and in 1883, that _Congress could not_, unless the State had. If Congress controls interstate commerce upon the navigable waters, it also controls interstate commerce upon the railways. And if Congress has exclusive jurisdiction in the one case, it has in the other. And if it has exclusive jurisdiction, it does not have to wait until States take action. If it does not have to wait until States take action, then the Civil Rights Act, in so far as it refers to the rights of passengers going from one State to another, must be constitutional.

It must be remembered, in this discussion, that the 8th Section of the Constitution conferred upon Congress the power:

"To make all laws that may be necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States."

So the 2nd Section of the 13th Article provides:

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

The same language is used in the 14th and 15th Amendments.

"This clause does not limit--it enlarges--the powers vested in the General Government. It is an additional power--not a restriction on those already granted. It does not impair the right of the Legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the Government. A sound construction of the Constitution must allow to the National Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate--let it be within the scope of the Constitution, and all means which are appropriate--which are plainly adapted to that end--are constitutional."

This is the language of Chief Justice Marshall, in the case of _M'Caulay, vs. The State_, 4 Wheaton, 316.

"Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution." U. S. vs. Fisher, 2 Cranch, 358.

Again:

"The power of Congress to pass laws to enforce rights conferred by the Constitution is not limited to the express powers of legislation enumerated in the Constitution. The powers which are necessary and proper as means to carry into effect rights expressly given and duties expressly enjoined, are always implied. The end being given, the means to accomplish it are given also." _Prigs vs. The Commonwealth_, 16 Peters, 539.

This decision was delivered by Justice Story, and is the same one already referred to, in which liberty was taken from a human being by judicial construction. It was held in that case that the 2nd Section of the 4th Article of the Constitution, to which I have already called attention, contained "a positive and unqualified recognition of the right" of the owner in a slave, unaffected by any State law or regulation. If this is so, then I assert that the 13th Amendment "contains a positive and unqualified recognition of the right" of every human being to liberty; that the 14th Amendment "contains a positive and unqualified recognition of the right" to citizenship; and that the 15th Amendment "contains a positive and unqualified recognition of the right" to vote.

Justice Story held in that case that:

"Under and by virtue of that section of the Constitution the owner of a slave was clothed with entire authority in every State in the nation to seize and recapture his slave."

He also held that:

"In that sense, and to that extent, that clause of the Constitution might properly be said to execute itself, and to require no aid from legislation--State or National."

"But," says Justice Story:

"The clause of the Constitution does not stop there, but says that he, the slave, shall be delivered up on claim of the party to whom such service or labor may be due."

And he holds that:

"Under that clause of the section Congress became clothed with the appropriate authority to legislate for its enforcement."

Now let us look at the 13th and 14th Amendments in the light of that decision.

First. Liberty and citizenship were given the colored people by this amendment. And Justice Story tells us that:

"The power of Congress to enforce rights conferred by the Constitution is not limited to the express powers of legislation enumerated in the Constitution, but the powers which are necessary to protect such rights are always implied."