! ! I i i JUSTICE AND JURISPRUDENCE: AN Inquiry concerning the Constitutional Limitations of the Thirteenth, Fourteenth, and Fifteenth Amendments. PHILADELPHIA: LIPPINCOTT COMPANY. 1889. Copyright, 1889, by J. B. Lippincott Company. PREFACE. An inquiry concerning the constitutional provisions of the Thirteenth, Fourteenth, and Fifteenth Amendments seemed to the Brotherhood of Liberty the primal step to be taken by an Order instituted for the advancement of the African race in America. Their Dedicatory Address and Epistles make a full reveal- ment of the objective points of this Christian, constitutional, sociological, and political treatise. The author has contributed a fitting introductory accompaniment to his work, in a cold and critical, but lucid, vigorous, and trenchant dissertation upon the peril of juristic innovation upon the Constitution. As a generalization, this work may be said to consist of two parts. The first concerns the Positive Law of the Fourteenth Amendment, by which the whole power of the American state is pledged to maintain the equality of civil rights of every American citizen by Due Process of Law. The second discloses the transparent veils of legal fiction under cover of which the civil rights of all races are being slowly undermined. It shows how judicial construction has so impaired the lex aeripta that, although the letter may remain, yet the heart has been eaten out. Mature reflection and a close observation of the course of' events have led the Brotherhood to the conclusion that, if the complex constitutional questions, and the perplexing social prob¬ lems involved in the much-mooted race-question could be ex¬ amined, and their deep, broad, ethical and political significance demonstrated by an interesting discussion, free as possible from dry abstraction, sectionalism, and partisanship, public opinion might become disentangled from the many knotty disputes by which it is now obscured, chiefly through the chicanery of a narrow system of vicious politics. Thev believe that no more important service can be per- £ ' li PREFACE. formed than the publication of an accessible treatise which points out the unconstitutional drift of the courts and public sentiment away from the Fourteenth Amendment. They entertain no sus¬ picion that, in the opinion of considerate, thoughtful men, the value of such a work could be diminished by the consideration that the evidence of this unconstitutional trend was discovered in the course of a patient investigation of civil rights. Justice and Jurisprudence opens with a colloquy of absorbing interest between the Chief Justice of the Supreme Court and a foreign jurist "void of the intellectual and social bias generated bv slavery." The character of the foreign stu¬ dent's subsequent interview with an eminent representative of the American Press is an original conceit, executed with consum¬ mate skill, and the striking narrative which ensues is constructed with no apparent labor or art: it is interwoven with law and history—with philosophy and politics. There are no digressions, unnecessary descriptions, or long speeches; grace, incisive wit, sometimes bitter but never malignant sarcasm, distinguish the fanciful allegories of the journalist, as well as the more sober reflections of the Chief Justice. The characters in this dialogue are shrewd, observant, dispassionate men of the world, philoso¬ phers with large faculties harmoniously balanced. They seem fully to comprehend the elements of human nature and the laws of their combination, and display extensive knowledge of American politics. The intercourse of the Chief Justice with the student is char¬ acterized by manly grace and dignity. In his presentation of the jurist to Mr. Blaine the Chief Justice is natural, graceful, and polite. His eulogy of Mr. Blaine, in wrapped in the enco¬ mium upon his work, is fraught with delicacy and elegance. There is » marvellous picturing power displayed in the imagery <>l the .-tudent's dream, a noble extravagance in the sudden conjuring up and representation of the spirits of Fame, Ambi¬ tion, and Destiny, so weird and yet so majestic do tliev appear as (hey approach Mr. Blaine with thoughts intent upon his doom. The augury of his future, by the ministers of the fates, is a masterpiece. The work abounds with important definitions, lofty aspira- PREFACE. iii tions, political, religious, and philosophic truths. Copiousness of quotation from the great storehouses of literature is a novel feature of the book. These citations point with warmth and quickness to the subjects of discourse; like heralds, they proclaim the advent; as couriers, they precede the main body of themes. The preliminary Address and Letters are inlaid with an infinite variety of precious literary gems. Every chapter is crowned with a fitting diadem of thought, often reflecting the wisdom of by-gone ages; and their glittering light is no more dimmed by time than is that of the starry heavens. But this collection, gathered through unwearied industry, is not merely for the pur¬ pose of artificial ornamentation : all this multiform treasure of intellect, derived from separate ages, different hemispheres, and every class of genius, demonstrates that among patriots of the noblest and most extended views, and statesmen of the most vigorous understanding, there is a wondrous harmony in regard to the truths with which the animated discussion abounds. The satiric reprehension, the tart irony of some of these selections may appear too bold and uncharitable, and others may exhibit human infirmities in a somewhat humorous light, but these weapons have been used only on the side of truth. The hus¬ bandman has scattered broadcast these seeds of knowledge, and it is humbly hoped that they may effectually contribute to the im¬ provement of the rising generation, by affording the opportunity of becoming familiar with the axioms and sentiments of renowned Christians, patriots, statesmen, philosophers, historians, and poets. Justice and Jurisprudence is intended to be a history, a liand-bftok, a primer to teach all races to uphold and perpetuate the reign of constitutional law. It is stored with sound prin¬ ciples, through which all classes may comprehend the true grounds of the authority of the Fourteenth Amendment, and of their obligation of obedience to its commandments. It teaches that the marvellous advancement of civilization over barbarism is owing to the conquest of the sottish prejudice, the ridiculous vanity, and the rude ignorance of mankind; that by enlargement of their reason and enlightenment of their conscience men come at last to discover that their own customs, manners and opinions, are not always the standards of right or wrong, of true or false; iv PREFACE. that it is training, discipline, the efficacious art of instruction, which disinter the soul and fetch out its inherent beauties, regard¬ less of the body which envelops it; that the education of an American citizen, to be worthy of the time, ought to include, in its wide compass, some knowledge of the true foundations upon which rests constitutional liberty. Public instruction touching the principle of equality of rights by Due Process of Law, the significance of which ever demands to be anew inquired into and anew made manifest, is the great subsidiary purpose of the Brotherhood. The work admonishes those statesmen and jurists whose bent of mind is dogmatic rather than philosophic, that, instead of cultivating the growth of noxious herbs, they must be uprooted; that only when they begin to wither will nobler plants shoot up in their place. The author has ventured to suggest, that, unless the American tree of Jurisprudence be too matured to receive the scion engrafted by the Fourteenth Amendment, all its branches, if there be any affinity between the graft and the stock, will shortly bring forth noble fruit. He has also reminded their rulers that, as the American people stand upon the summit of a structure in the evolution of which centuries have been employed, they should be the possessors of the political wealth of all ages. The foreign jurist, in the course of his inquiry concerning the limitations of the amendments, explores and exposes all the hid¬ den, recesses of the race-question. The intellectual acumen and the philosophic discrimination of the calm seeker after truth are nowhere displayed to so great advantage as in the following deductions and conclusions : That every race owes something to the race beneath it; that the principle of equality of right, so congenial to the atmosphere of the Constitution, opens an ample highway for universal prog¬ ress ; that lhe educational advantages, since the readjustment of American society, which have wrought such a wondrous im¬ provement in the colored man within twentv-five vears, are the heralds «>{ an incoming era in which the race-problem will be solved m a way not inconsistent, with a republican form of <*ov- ernnient,; that, should fomenters of a war of races hereafter'ap- pear, and should they pour forth their blood to dise»franch i< - PREFACE. V this race even more freely than did a half-million of their fore¬ fathers to emancipate it, the problem would still remain unset¬ tled, and could be determined only by law; that the repeal of the Fifteenth Amendment, and the placing of eight millions under the tutelage again of the general government, would destroy the material interests of the country, the industrial edu¬ cation of these producers, impede the moral development of both races, and, leading inevitably to the nullification of the amendments, and perhaps to the disintegration of the Constitu¬ tion itself, would prove as threatening to the unity and happi¬ ness of the American people, as did the revolt of the Southern States against the government. That in this age neither social abhorrence of the colored population, nor unintelligent, retro¬ gressive, pro-slavery heresies, obsolete views of a day that is dead, nor myopic, pride-begotten prejudices, can be substituted for the widening character and the growing force of American thought, the sublime mission of which is to restore peace and order to human hearts and human society, by the establishment of the fundamental principle of the civic equality of all Amer¬ ican citizens; that, in the Atlantic States south of the thirty-sixth parallel of latitude, the relations of the races are interdependent; that eight millions of Afro-Americans can neither be annihilated nor transported. The Brotherhood respectfully submit, that if the polity of Catholicism and the spirit of Catholicity, with a governmental control extending over the peoples of every nation of the earth, lias preserved the unity of its flock, in spite of the vicissitudes of almost twenty centuries, surely the chosen guardians of the American republic may hope for all time to perpetuate and com¬ bine in perfect unity its diverse popular elements, by preserving inviolate the sanctity of that principle which has been rigidly enforced for centuries by the Roman hierarchy,—the catholic doctrine of liberty regulated by law, which is the essence of the spirit of equality of right by due process of law, which the Fourteenth Amendment proclaims; that the freedom of the whole American people is now imperilled by judicial interpre¬ tation rendering this beneficent maxim inoperative as to the immunities of the colored race; that juristic impairment of this vi PREFACE. organic law, emboldens those kites of commerce, whose despotic aggressions are destructive alike of national and individual values, and who are themselves a standing menace to the Amer¬ ican doctrine of equality of right in every department of commer¬ cial enterprise; that compassing the defeat of the national polity in favor of their people has invited, stimulated, and popularized, the lawlessness of race-antagonism, which is not less systematized by the industrial element North and East, than it is legitimated by popular opinion South and West. The Brotherhood do not affect to suppress their anxiety lest their people should remain stationary in the midst of a rapidly advancing nation. They believe that for the African just emerging from con¬ ditions which the barbarities of two centuries of slavery had established, and not yet lifted above the vices incident to that system ; whose every step of progress has been antagonized and retarded; who is forever exposed to the malign influence of the intrigue and imposture of spoil-hunting political adventurers, the heavenly light of education, which teaches liini to become an upright, valuable member of society, happy in himself and useful to others, is a Christian instrumentality which will prove in the end the most effective policy to fit him for a radically changed order of things, and for the true functions of American C" O ' citizenship. The Brotherhood insist that all the sectional evils attendant upon the change of the status of this race are owing to its state of transition, and that these drawbacks are but temporary and of far less magnitude than the sociological disabilities which slavery entailed upon the whole body politic. They invite attention to what such Southern authors as Thomas Xelson Page and Joel Chandler Harris have chronicled respecting the wonderful devotion and self-abnegation, the rare fidelity, the delicacy, the untaught chivalry, the noble virtues, of the old family servants who guarded the infancy and earlv youth of the Southron under the old ; and they insist, that what the descendants of those trusty servants require to fit them for the new conditions of their high place as American citizens, is that which the greatest law-givers, statesmen, and political philosophers and the most PREFACE. vii illustrious champions of freedom have always preached,—the education of their people. They humbly crave leave to remind the American people that the State should take charge of the education of the people; that the first admonition of Penn, addressed to the colony which he founded, was, " Educate the people;" the unceasing exhortation of Jefferson was, "Educate the people," and the dying legacy which Washington bequeathed to the nation he had saved was, " Educate the people" The Brotherhood of Liberty. CONTENTS. PAGES Preface jjj vij Dedicatory Address 1-22 The Brotherhood of Liberty to their Brethren the Citizens of the United States of African Descent . 23-39 Original Letter of the Brotherhood of Liberty to their Counsel 40-43 Answer of Counsel to Original Letter of Brotherhood . 44-62 CHAPTER I. Opening statement: Privileges and immunities of African citizens of the United States, contrasted with those enjoyed by all other races, confessedly stand to-day in abeyance—Anomalous status of civil rights of these citizens—Views of an unbiassed foreign jurist as to the constitutional status of civil rights in America —Irrelevancy of question of race or color—Civil-rights cases always Black v. White—The pigment of the skin of a good citizen, a man of pure morals, and well educated, ought not to affect his civil rights—An unknown factor operating in the • dark to be brought to light—No one has the temerity to attempt its solution—Increased confusion of the supposed student upon learning that the judges were of the white race, and chosen by the ballots of both races on account of the imposing splendor of their learning 72-75 CHAPTER II. Civil rights viewed in the cold light of a dispassionate search after truth—Opening of a friendly, inartificial dialogue between the Chief Justice of the Supreme Court and the foreign student— The questions puzzle the greatest adepts in political science and jurisprudence—Mysterious impediments to the working of the Fourteenth Amendment—Civil rights not decided in accordance •with its provisions, but by the paramount authority over them of the public servants, who have repealed and repudiated them —Racial not civil rights the real issue—The student's inipres- • sions respecting the Chief Justice—The American the first government, from barbaric ages downward, in which by a is X CONTENTS. solemn Constitution slavery was maintained by all the power of the state—The Chief Justice's opinion of the Civil War, Eman¬ cipation Proclamation, and Constitutional Amendments—The Republican party rolled away the stone from the sepulchre of Freedom—The student thinks that a deeper, fuller conception of the spirit and meaning of the Fourteenth Amendment will modify the views of thoughtful men upon the subject of civil rights—The student's realization of the necessity of a moral earthquake, to do away with the customs which slavery has fast¬ ened upon the body politic—Color-caste philosophers cannot frustrate the supreme efforts of Providence for a down-trodden race 76-81 CHAPTER III. The character of the student—His inquiry respecting the intellect¬ ual breadth and influence of the money-kings in connection with the vulnus immedicabile of slavery—Individual nullifica¬ tion of national law—Its existence chiefly in the lower strata of society—The color-line and its Chinese wall—The Fourteenth Amendment, while inhibiting unfriendly legislation by the States, does not cover the wrongful acts of their individual citi¬ zens—The interposition of Congress necessary, in the view of the Chief Justice—Motives of the inferior class in depriving citizens of their privilege's—The invidious arrogance of the public servant exhibited with entire impunity towards a help¬ less fellow-citizen—The chartered libertines of the state—Their business injured if they cany out the provisions of constitu¬ tional law—The student's view of the attitude of public servants —A presumption without parallel in history—Attempt to over¬ throw the constitutional amendments—The Chief Justice ex¬ plains to the student when the Constitution affords the supreme rule of action—The student's reply—The Chief Justice's view of the true construction of the term " reasonable rules of the public servant" in view of the Fourteenth Amendment—He declares the constitutional principles immutable and indepen¬ dent of individual interests and prejudices, upon which it is as¬ sumed they work hardship—His view of those illustrious friends of mankind, the high-priests of the Republican party—The assertion of power to overthrow the Constitution rests not upon reason, but upon despair of the existence of reason 82-89 CHAPTER IV. The Chief Justice informs the student that the mighty dead of the Republican party committed the protection of this charter of freedom to the Supreme Court by virtue of the Constitution, and imposed upon Congress by apt words the obligation of CONTENTS. xi enforcing its provisions—The Constitution, and acts of Con¬ gress passed in pursuance thereof (not the common law), are the law of the United States government—No conflict between them—No man so low as not to be within the protection of the law in America—This doctrine the assertion of an eternal and immutable rule of right—The lofty ethics of civil rights— Public servants plead their privilege to disregard the Constitu¬ tion—The student asks the meaning of the terms " civil rights," " immunities," and " privileges"—Course of study necessary to understand these terms suggested by the Chief Justice .... 90-93 CHAPTER Y. " Liberty Enlightening the "World"—Distinction between " Civil Liberty" and " Civil Rights"—Other authors recommended by the Chief Justice in the student's preparation for the study of the legal status of civil rights—The Chief Justice's view of "Twenty Years of Congress" and of Mr. Blaine—He predicts, in the near future, the reversal of the Supreme Court decisions upon the subject of civil rights—Suggests a work upon the amendments which should contain the result of the student's inquiries 94-99 CHAPTER YI. Fascination of the subject for the student—His first view of the amendments—His review of the cases—Their vague, crude, su¬ perficial treatment, colored by the hues of sectional feeling—The " funeral departments of justice"—The student concludes, after the close of his study, to hold converse with the foremost thinkers of the press—The Napoleons of peace—The student flatteringly received by the representatives of the public press—No diversity between them—Views of one of the most profound of the jour¬ nalists—The duties of the press compared to those of a school¬ master—He explains that, in spite of the utmost caution, many great and small offences, executive, judicial, legislative, often need the rod of correction, but the wrong-doers make good their escape bv reason of the multiplicity of their offences—He avers, with respect to big scholars of the public-press school, that in exact proportion to their imposing exterior is the selfish little¬ ness of their interior—He describes the hospitals and wards of the sick-list of the press, and the necessity for caution in the diagnosis of their complicated diseases—Dissenting judicial doc¬ tors—The Legal-Tender sick man—The sage of Greystone—Dr. Zacli. Chandler, the regular family physician, and the fourteen others called in, styled Electoral Commission—The celebrated physicians, Doctors Clifford, Miller, Field, and Strong—Dr. Davis, a surgeon of national repute—The injection of a Repub- xii CONTENTS. lican concoction—The effect: Mr. Tilden expires in great agony on March 5, 1877—Theory of Tilden's death—Mortification from corruption—The poisonous prescription of the Republican party—The journalist's view of the hypodermic and hypnotic treatment of the nation 100-108 CHAPTER "VII. The student puzzled to understand the caustic levity of the great journalist—The civil-rights man a patient for the press—His treatment by both parties—The journalist concludes that neither party lacks devices to evade the Constitution—His belief that American reverence for law will .not always tolerate violations of the provisions of the Constitution establishing the civil rights of seven millions of citizens—The journalist predicts the future course of the Democratic party—Formulates a resolution which some future convention may adopt — He improvises a speech to be delivered hereafter upon the subject of civil rights by a Mugwump in a Republican convention — Prediction of the journalist respecting the part of American citizens of Afri¬ can descent in the coining political struggle—Introduction of new political elements—The fierce tempest which will follow —Old commanders and their mighty lieutenants—Their over¬ throw predicted—Other than color-caste enemies to the Consti¬ tution—Their aim to overthrow all civil rights—The dangers which confront the future in a country with a mixed popular vote—Part}' unions and combinations formed for one purpose under altered conditions becoming allied to others—The gravi¬ tating principle of political parties—The panorama of America not yet unfolded—Courts should not give any equivocal or un¬ guarded construction to these amendments in the face of a mul¬ titudinous array of formidable public enemies 109-113 CHAPTER YIII. The student's view of the course of Providence—The journalist's reply to the student's question, whether the duties of the Amer¬ ican press were usually of the grave character which his caustic wit had rendered amusing — The journalist respecting Mr. Blaine's defeat in 1884—Close of the interview—The journalist promises to consider the question, counsel with eminent fellow- journalists, and report the result to the student—The student's reflections—lie is unaware that the great historian whom the Chief Justice had so highly commended was the sick man of the journalist's levity — Mr. lSlaine in 1884 — The student's vision : reappearance of Mr. Blaine, and Ambition, Fame, and Destiny arrayed like inferior deities—Fame and Ambition sup¬ plicate Destiny not. to cut the thread of Mr. Blaine's life in CONTENTS. xiii PAOSS 1884—Destiny determines upon so doing—Prediction in 1884 respecting Mr. Blaine's future—The purpose of the Fates, which appeared a mutinous accident, would in the end prove service¬ able to Mr. Blaine's desires—Mr. Blaine's life has a " genninant, springing accomplissement"—It vanishes after the manner of the gods to rise again — The Fates commit it to the adjust¬ ment of Fame and Ambition—Their power begins in 1888— Their admonition—The student's reflections while awaiting the deliberations of the journalists—Colored voter in the evolution of parties a not insignificant factor—His reflections upon the subject of the millions of voters whom neither of the great par¬ ties could command—Although there may be a lull in social agitations to-day, the main questions will reappear in the future, with increasing strength and force—Their solution by the na¬ tion—The hydra-headed despot of the Grand Reform Organiza¬ tion—If not from motives of patriotism, the foreigner thought that the Republican or Democratic party should seize the golden opportunity which the abject condition of the race afforded of attracting the colored vote 119-130 CHAPTER IX. The gloomy forebodings of the student respecting the delay of the press vanish—The journalist reports the result of the interview with his brethren—Proposes that the student submit to the press for its analysis a philosophic treatise upon the general status of civil rights—The student resolves to set about a work reviewing the legal status of civil rights 131-134 CHAPTER X. The proclamation of "Peace on earth, good will towards men"— The representative statesmen of America—Their grave delibera¬ tion—They follow the precedent of the great law-giver of the enslaved Israelites—The three amendments—The Civil-Rights Bill of 18(56—Enforcement Act of 1870—Civil-l»ights Bill of 1875—Civil-rights cases—Fourteenth Amendment determined to be defective in three great points,—the beginning, the middle, and the end—Provisions of the Civil-Rights Bill of 1875—The frainers of that bill the same members of Congress who were the authors of the Fourteenth Amendment—Their reputation as statesmen and lawyers—Rebuked by the Supreme Court for "running the slavery [civil-rights] argument into the ground" —The agitation of the court unwarranted and unusual—Dignity displayed to greater advantage by a frame of mind less emotional —The court departs from the record to read a lesson of humility to colored humanity—Institution of a comparison between ante¬ bellum civil rights and the civil rights of the Fourteenth 7 CONTENTS. PACES Amendment—Lincoln's declaration, that " it fits the niche of Dred-Scott decision to come in and declare the perfect freedom no freedom at all"—Extract from Dred-Scott decision . . • • 135—143 CHAPTER XI. Contrast between Scott v. Sandford's and Story's exposition of con¬ stitutional law—Story's quotation and commendation of Sum¬ ner and Everett's views—Civil-Rights Cases—Substance of the decision—Mr. Justice Harlan's dissenting opinion—Challenges comparison in the history of constitutional debate—The fearless¬ ness of its freedom—Exhibits the resources of the statesman and lawyer—Movements not hampered by official etiquette—Charges that the opinion of the majority of the court proceeded upon grounds entirely too narrow and artificial—Subtle and ingenious verbal criticism—The opinion of the majority of the court— The substance and spirit of the law, its sense and reason, its soul—Extract from dissenting opinion—If the object of the majority was to annihilate the justice of God by judicial subtle¬ ties, the mission of the dissentient would seem to be to re-estab¬ lish it by right reason—Further extract from dissenting opinion —Sumner and his associates—Civil-Rights Bill defeated in the Supreme Court 144-152 CHAPTER XII. The fate which overtook the Civil-Rights Bill prefigured—The vision of the sorrow-stricken colored rare—The luminous sign of the Cross—The words placed there by the nation—Substance of the decision—Extract from opinion—The Fourteenth Amend¬ ment confers absolute authority upon the judicial department of the government, independent of the action of Congress, to enforce its provisions—Analogous constructions of the Constitution— Repudiation of the supreme law—Disguisement—Statute of a State, its customs, common law. or customary usage prevailing in a State—Provisions of .Article IV., Section 2, of the Consti¬ tution—This construction has obtained since the first-"Wednes¬ day in March, 17S9, irrespective of the action of Congress to enforce by appropriate legislation the provisions of the Four¬ teenth Amendment—Substantial constitutional civil rights— Twelve definite postulates—The letter and spirit of the earlier civil-rights decisions 153-163 CHAPTER xnr. Equal protect ion of law a pledge of the protection of equal laws— Enthusiasm of the earlier decisions in civil-rights cases—Their high-sounding and lofty manifestoes—They recognize the sub¬ lime civic purpose of the amendments to introduce a new and CONTENTS. XV more beautiful form of civic life in America—They assert that the chief prerogative of man is in self-dominion, that all citizens are equals before the law, without words of limitation—The citizen (the man) older than states or nations—By the plan of natural, revealed, and civil law color no stigma ; if a brand, it is one which attaches to the " image of God cut in ebony"— The genial influence of civilization and intelligence are what the race require to fit it for higher places—These decisions de¬ clare exemption from invidious distinctions imperative—The work of force and bloodshed being over, America must no longer sin against light—Citizens should not live under the withering curse of civic contempt—The race sensitive, modest, inoffensive, good-hearted, simple, affectionate, and truly loyal — Connections by religion, language, and literature—Pitiful igno¬ rance of history—" Suns for lamps and eternity for background" —White, not black, skin formerly the badge of servitude—His¬ torical review of ancient slavery 164-172 CHAPTER XIY. The Sanhedrim of political race-propagandists—View of earlier civil-rights decisions—Partisan rhapsodies—Those decisions re¬ flect the radical changes which the Rebellion had wrought— Christian philanthropy arrayed in the awful garb of constitu¬ tional law—Various extracts selected from the earlier judicial findings of the Supreme Court respecting principles and doc¬ trines of civil rights—Constructions of the Thirteenth, Four¬ teenth, and Fifteenth Amendments—Civil Liberty takes sanctu¬ ary under the shadow of the Supreme Court 173-188 CHAPTER XY. Hall v. DeCuir, the first of a succession of blows from which civil rights have never recovered—Viewed by the African race as the sudden eclipse of Civil Rights—The mortal poison of slavery still lurking in the veins of the commonwealth—Explanatory retrospect—History of civil rights a biography of Charles Sum¬ ner, as commander in politics and a great constitutional lawyer, a majestic, natural king among men—Great lawyers view the evolution of civil rights—Extract from Sumner's review of the foundation of republics—Sumner's Civil-Rights Bill a re-enact¬ ment of the Fourteenth Amendment—The lawyers who saw from a glance at Hall v. DeCuir that it was the defeat of civil rights —Life and Death dispute for victory over Mr. Sumner—The great American Cato's death— 3Ir. Justice Clifford's dissent from the construction of the Supreme Court in Strauder v. West Vir¬ ginia—That decision excited the wonder and admiration of the American people: it introduced a new and nobler form of doc- b xvi CONTENTS. trine in America—Mr. Justice Clifford's separate opinion in Hall v. DeCuir a masterpiece of learning and ingenuity upon mis¬ cellaneous subjects—It relates in a general manner to civil rights —The sole question presented by the record—The associate jus¬ tice pays not the cold tribute of a passing glance to the Four¬ teenth Amendment, throughout the wide range of his foreign and domestic excursion—Chief-Justice Waite delivers the opin¬ ion of the court, with a more guarded and abundant caution— The absence in both of these opinions of any reference to the Fourteenth Amendment, uniformly regarded as a pregnant co¬ incidence—Hull v. DeCuir involved only the constitutionality of a State statute, substantially re-enacting the Civil-Rights Bill—Extract from opinion of Chief-Justice Waite—Resume of the points practically determined by the majority of the court— Extracts from Mr. Justice Clifford's separate opinion 189-203 CHAPTER XYI. Continuation of Hall v. DeCuir—The principle of Welton v. State of Missouri inapplicable to the "circumstances of the case" of Hall v. DeCuir—Chief-Justice Waite quotes Justice Field's language in Welton v. Missouri, that congressional inaction means that interstate commerce shall be "free and untram¬ melled"—Justice Clifford's assertion that common carriers may adopt regulations, without adding that they must be reason¬ able"—Absolute discretion allowed public servants by Mr. Jus¬ tice Clifford—" Free and untrammelled'' cannot exclude opera¬ tion of the Fourteenth Amendment—Proneness of common carriers to pander to prejudice—Their extraordinary license, according to Mr. Justice Clifford—Inconsistent with established principles and with the spirit of American liberty 204-210 CHAPTER XVII. Unsavory odor of race-prejudice—Chief-Justice Waite, bv hold¬ ing the State statute unconstitutional as applying to inter¬ state commerce, reached practically the same result to the African race—Inhumanity of the so-called " reasonable rule" —It is a relic of slavery, and involves class-tyranny—Jus¬ tice Field applied the words "free and untrammelled'' to the transportation of merchandise, not persons—Force of the word "commerce" in this connection—As to congressional " in¬ action"—It could not lessen the force and application of the Fourteenth Amendment, and the Civil-Rights Bill only re-as¬ serted this—The amendment, secured the right to travel without discrimination on account of race—Confusion of "commerce," as used in Welton v. State of Missouri, with the " circumstances of the case" in Hull v. DeCuir—Regulation of commerce within CONTENTS. xvii meaning of Welton v. State of Missouri is not the regulation of civil rights under the Fourteenth Amendment—Extract from Welton's case—The Fourteenth Amendment was not "inaction of Congress"—It was equivalent to a declaration by Congress and the nation that interstate commerce involving civil rights shall be free and untrammelled from the action of the States and their citizens—Definition of "commerce" in Welton's case— Civil rights a subject of commerce, admitting of uniformity of regulation—It is national in its character—The Fourteenth Amendment declarative of a fundamental law 211-223 CHAPTER XYIII. Reappearance of the term " reasonable" in the closing paragraph of Mr. Justice Clifford's opinion—Objectionableness of his use of terms—Their generality opens the way to the subversion of the amendment—This law invests the public servant with discretion, which he may exercise to the best of his temerity, ignorance, and prejudice—Extraordinary conglomeration of unintelligible law-jargon introduced into the well-established doctrines of bailees—Open to two constructions—They say to the public ser¬ vant, The bands of obedience to the Fourteenth Amendment are loosened—The term " discretion" as applied to civil rights not to be taken as it has been since the Levitical and canon law and jus gentium—The novelty of this law no more wonderful than that of the creation of seven millions of citizens by a stroke of the pen—The liberties of the African race effected by the war-measures of the Republican party may be destroyed by the subtle distinctions of the courts—The public servant may infuse the same bigotry into his regulations as into his religion or politics—He need have no superstitious veneration for the fundamental law of his country—He may under this law commit the old pro-slavery sin in the new Fourteenth Amend¬ ment, commercial, inaction-of-Congress, Hall-tf.-DeCuir way— The hoof of the unclean beast everywhere visible—This doc¬ trine receives the imprimatur of the Supreme Court by their affirmation of rules and regulations which on account of race discriminated against a citizen of the United States—Authori¬ ties cited by Mr. Justice Clifford to maintain the latitudi- nous terms employed in his separate opinion do not support his doctrine—Those decisions rendered at a period of bitter racial excitement, under the high pressure of pro-slavery sentiment— Those authorities are antiquities, pre-historic, in the light of Strauder v. West Virginia—The " free-and-untrammelled-as- far-as-practicable-reasonable-discretionary prerogative" of the public servant abandoned by Mr. Justice Clifford at the end of his opinion—This doctrine tenable only upon the exploded xviii CONTENTS. inaction-of-Congress theory—Public servant at liberty to turn the Fourteenth Amendment round about and upside down as he pleases, and land himself in a safe position*—The substantial result of Justice Clifford's opinion formulated CHAPTER XIX. The scant, sidelong glance, and the face-to-face inspection of the doctrine of civil rights—Ku-Klux intimidation of a Republican voter " a proposition so startling as to arrest attention and de¬ mand the gravest consideration"—Opinion of Mr. Justice Miller in case of Yarborough—Its force and earnestness—The civil rights of Republican voters sustained—Contrast between the case of Yarborough and that of Hall v. DeCuir—The civil rights of citizens of African descent, without a Republican ballot in their hands, become "trifles light as air"—The reason of the distinction—Extract from the decision in Ex parte Yarborough —Mr. Justice Miller's glowing picture—Political and poetical jurisprudence—Another view of civil rights, disconnected from party politics—The stupendous and beautiful fabric unsurpassed in natural grandeur, by which seven millions of people were raised to unqualified freedom by the generous philanthropy of a Christian people—Historical background—Lincoln laden with the inspiration of woe—The grim remnants of Gettysburg. Ma¬ nassas, and the Wilderness—Fascinating aspect of Black Civil Rights presented as a voter—The awe-struck admiration of the Supreme Court—The Olympian Joves of the Republican party —The empyrean heights of high moral ideas—The Yarborough protectorate of political power—The African a stuffed specimen of sagacious legislation—Political trimmers perpetuate their su¬ premacy by means of his vote—Brute force of the public servant allowed to topple over the monument to Freedom—The Re¬ publican party, like a Janus-faced, gaping monster, with deep intent, half-veiled, half-shown, hiding one thing in its heart and uttering another—Neither party belongs to the noble family of truth—Ample space covered by the Constitution in Yarborough and the Legal-Tender Cases—Its holy light—The darkness of the Mississippi—A citizen of the United States, in the peace of God and the State, standing erect within the broad folds of the Fourteenth Amendment, utterly defenceless in the assertion of civil rights—The question one of constitutional law—The dis¬ tinction anomalous—The great furnace of Justice heated seven times more than it was wont to be heated—The illustrious Re¬ publican court, when the civil right to vote was slightly inter¬ fered with, 11 stepped into the State domain"—No masquerading about " Congress being clothed with no authority to adopt a civil code for the regulation of the conduct of individuals in the State" CONTENTS. xix PAGES —Heartiness of the opinion in Yarborough ; its rugged homeli¬ ness, direct purpose, robust simplicity fill the nation with ad¬ miration—The court walked with a velvet tread, but struck with a hand of steel—Hall v. DeCuir the last peak of the sub¬ merged world of slavery 235-246 CHAPTER XX. Separate opinion of Associate-Justice Clifford—His delineation of the prerogatives of public servants—Their classification under twenty general propositions—The origin of the legal philosophy of these rules obscure—They constitute a self-adjusting engine of oppression—Their resemblance to the Visigothic code—The despair of justice—An insuperable difficulty in the applica¬ tion of the general abstractions of these rules to the special circumstances of each case—This system invites race-discrimi¬ nation—The construction of the duties of the public servant in marked contrast with the universally acknowledged stringency of the law governing common carriers since the period of Sir William Jones—Uniformly-enforced and fixed regulations dis¬ courage bickering and vexatious litigation 247-254 CHAPTER XXI. Coggs v. Bernard—American state requires repose—Infant science of civil rights needs more protection than a grammatical con¬ struction of words of Fourteenth Amendment—Civil-Rights Bill a specialization of equality before the law—Perils which confront the state—Enforcement of the Fourteenth Amendment imperative—Loose generalizations of Hall v. DeCuir—Muddy, muddled, and misty rules—To be just and reasonable the public servant's rules should protect the public whose complexion has the tinge of the Fourteenth Amendment—Applicable to the whole public—Doctrine that well-settled rules of constitutional construction " forbid a State Legislature from invasion of private rights by arbitrary restrictions, requirements, or limitations"— Application to enforcement of the Fourteenth Amendment by State constitutions or statutes—Doctrine at war with the de¬ clared policy of the nation—Louisiana Civil-Rights Bill—At¬ tempt to enforce the Fourteenth Amendment declared to be void under this doctrine—If constitutional legislation of a State in¬ cidentally operates to " divest private property of its value," it is damnum absque injuria—Illustration of uniform impartiality in administration of law towards promiscuous aliens at Rome, not¬ withstanding antagonism of barbarism, previous condition, color, and " natural and well-known repugnances"—Issue in the fourth century between the prejudices of barbarism and the faith of Christ — Disciples of the Holy See from St. Peter — Bishop of CONTENTS. PAGK* Home dispensing laws to Christendom, from the Capitol where Pagan prejudice had fulminated its edicts against Christianity— The Cross and the Crescent at Lepanto—The freedom of Ameri¬ can civil rights obtained " with a great sum"—The half-million heroes who faced death in the honest conviction that they were maintaining "vested rights" "under well-settled rules of con¬ stitutional construction" 255-262 CHAPTER XXII. The ebb and flow of the tides of commerce—Apprehended loss to the public servant; the public would not deny themselves food, drink, raiment, travel, amusement, and the consolations of re¬ ligion because the avenues to these pursuits of life and happiness are opened in accordance with the Constitution—Public servant's refusal to acquiesce in the law of the land—There is no " settled rule of constitutional construction" which renders invalid a State statute conforming the internal polity of the State to com¬ pliance with the law of the Fourteenth Amendment, even if such statute did " virtually strip the property of such of its citizens as complied with this law of all its utility"—The public ser¬ vant's occupation constitutes no exception to law which sacri¬ fices the individual interest to the general good—The. public servant a creature of organized society—His calling and prop¬ erty exist only by virtue of the state's authority—Individual loss in body-politic often necessary to the general welfare—Salus populi suprema lex—The public servant not exempt—Sacrifices for the benefit of the entire community—The understood neces¬ sary condition upon which men enter into political society— The calling of the public servant subject to the working of this rule—He has no superior claim upon society—He had no re¬ lationship, cognatic or agnatic, to "special rights"—Judge Cooley's theory—Illustrations of destructive restriction upon individual rights—Public policy—Government is an attempt through its combined power to solve the problem of the civic equality of its members—The power of the state is the civic equipoise—Illustration of Legal-Tender Cases—Haves-Tilden election-case 268-270 CHAPTER. XXIII. Origin of evil in nature and government mysteriously veiled Cicero, Locke, and Burke—Their view of the state's functions —"Well-settled rules of constitutional construction" prevent the adopted citizen from being divested of his rights, even were it proved that the public servant's business may suffer from en¬ forcement of the fundamental laws of the country—Burke's re¬ flections upon the social compact in this connection—Universal CONTENTS. xxi analogies illustrative of injuries to individuals' absolute rights in political society—Ante-bellum " settled rules of constitutional construction"—The latter-day construction of the Fourteenth Amendment—Emancipation Proclamation an invasion of pri¬ vate rights which stripped the country of $1,250,000,000 of the constitutional "vested rights of her citizens"—The distinction between public servants' "vested rights" and other people's not apparent to the uneducated perceptions of a less profoundly sagacious and discriminating understanding than Mr. Justice Clifford's—Mr. Murat Halstead's constitutional views and Judge Clifford's come close enough for an eclipse of one or the other luminary—The public servant's vested rights not less inviolable than those of the vested interests of foreign and domestic com¬ merce—Sacrificial liability to civic martyrdom—The vested rights of all private citizens of every body-politic subject to de¬ terioration in value—Vested rights under the tariff—Congres¬ sional Report upon the Western Pacific roads illustrative of same principle—National justice—The public robbers of the Western roads, who offer the state $36,000,000 in payment of their debt of $122,000,000, are amenable to law—Yet the lowest of the tribe of public servants are allowed to violate a fundamental constitu¬ tional law with impunity—Railroad chieftains brought to trial for violation of their charters, but by " well-settled rules of con¬ stitutional construction" in civil rights the public servant may violate with impunity the supreme law of the land—Railroad criminals make no assault upon fundamental principles—They attack the wealth of the nation—Invasion of civil rights vio¬ lates the supreme command of the nation, and involves a rob¬ bery of that which is more precious than hecatombs of gold . 271-281 CHAPTER XXIV. The offence of railroad magnates, rank though it be, is whiter than wool contrasted with the subversion of the fundamental prin¬ ciples of the government—Other illustrations of the liabilities of individuals to damage by the altered conditions of society consequent upon the adoption of new laws for the common well- fare—The railroad interests and capital of $7,254,995,223 subject to the interstate-commerce decrees—Arthur Kill case—Kansas v. Herman Ziebold and others—Kansas Prohibition cases—The foundation-stone of these decisions is the sacrificial principle which runs through political society, traceable to the doctrines of Christianity—St. Augustine's view—Sacrificial view from state stand-point—The Interstate-Commerce Law operating against vested interests for the general good—Its almost unlimited pow¬ ers—The Christian doctrine of sacrifice applicable in govern¬ ment—The existence of evil unavoidable—The public servant xxii CONTENTS. the sole member of the body-politic who is exempt from sacri¬ fice, according to the separate opinion in Hall v. DeCuir—His¬ torical testimony respecting doctrine of sacrifice—Views of po¬ litical economists—The destructive chimeras of Hall v. DeCuir —The choice spirits of philosophy fail to find the Spirit of Evil, which is everywhere coy, haggard, and wild—Veiled in the shape of slavery, it entered into the Constitution side by side with Liberty 282-294 CHAPTER XXY. Tlie separate opinion displays the primacy of legal genius, innocent of dishonest error, but not independent of a desire to support antiquated pro-slavery predilections—View of the society of the state by the next generation, from whose eyes the scales will have fallen—Its wonder at juristical casuistry—Final admission that reasonable regulations must control the public servant's authority—Seasonable rules must conform to the organic law of the nation—If a State representative of Louisiana had done what Benson did, the judge or officer would have rendered him¬ self liable to fine and imprisonment—A law which is unconsti¬ tutional and void if passed by a State is yet a reasonable rule when ordained by an individual or corporation of a State, when adopted by a public servant—The term "reasonable" must be construed in the light of the Fourteenth Amendment .... 295-300 CHAPTER XX 71. Extracts from Supreme Court decisions definitive of the term " rea¬ sonable," as related to the interpretation of the Fourteenth Amendment—Construction of the word "reasonable," applied to the regulations of common carriers judged in the light of Supreme Court interpretation of the design and purpose of the Fourteenth Amendment—General discussion of the meaning of the term " reasonable" in connection with the rules and regula¬ tions of the public servant—Its constitutional, political, and common-law sense—A symbol of universal justice—An eternal rule of natural right incorporated into the organic law—Over¬ turned by an inferior class—Its purpose defeated, yet the instru¬ mentality judicially determined to be a reasonable rule .... 801-307 CHAPTER XX7II. From the commencement of the reign of the common law few par¬ allels can be found to such an unreasonable rule—The mystics, from Jacob Boehm down, and the science of the law, ransacked by an analyst of mature jurisprudence, can afford no principle by which a rule can be deemed reasonable that permits the pub¬ lic servant, persons, or corporations of a State by a reasonable CONTENTS. xxiii rule to defeat the national polity—Regulations, to be reasonable, are to be interpreted in the light of events too recent to be called history, unless the Fourteenth Amendment is a mouldy blank, only a metaphysical conception under a legal aspect—Other tests, moral, historical, and political, of a " reasonable" rule—Errors of heredity—The rule does not distinguish the civic from the social right—It cannot dissociate the citizen from the slave— The rule makes the civil rights of one class of citizens conven¬ tionally higher than those of others—It declares that another class of citizens cannot be deemed what the amendment made them, citizens in law and in fact—Rules which require on all prominent occasions the continuous reassertion and strict en¬ forcement of slavery rites are construed in Hall v. DeCuir to be reasonable—The co-heirs of liberty in America serfs and peasants—Civilization, wedded to her idols, boasts that she is a superior creature—The Teutonic aristocracies in Ditmarsh— The Celtic clans—Slavonic, Russian, and Polish nationalities aliens in race, color, and blood—Blonde and brunette types— Genealogy of races is as broad as mankind—Alterations In the political conditions of classes nothing new in the world's history —All dominant orders, with their superior claims to sanctity, in the first struggle with popular opinion overthrown .... 308-317 CHAPTER XXV11I. The Fourteenth Amendment and the social condition of America contrasted with the chaotic state of society when Grotius wrote De Jure Belli et Pacis—The inherited qualities of a race such as its predecessors have transmitted—Relationship of mankind indicated by science—Is the rule reasonable which rejects scien¬ tific and historical facts?—The sojourners in the cloudy taber¬ nacle of caste—The science of man as applicable to this as to all other races—The present difference in a great measure owing to the primitive condition in which semi-barbarous slavery has left American public opinion—The black race slowly emerging —The philosophy of Liberty—Delicate dislike to the entire sub¬ ject of civic rights—Inherited blindness—Philosophy to inter¬ pret the term " reasonable"—The spirit of slavery deeply rooted in America—In determining the obligation of the term " reason¬ able" it is sufficient that the law is so written—No one has the courage to discuss the term "reasonable" in this connection— Vulgar ignorance preferred to the profound reflections, extensive knowledge, and repeated observation of experienced statesmen Analogy of the Revolution of 1688—The downfall of the • Stuarts—The Revolution of 1776—Arbitrary power prone in the dust—The