"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."
Language cannot be stronger; words cannot be clearer. But now this decision has been reversed by the Supreme Court, and Congress is left powerless to protect rights conferred by the Constitution. It has been shorn of implied powers. It has duties to perform, and no power to act. It has rights to protect, but cannot choose the means. It is entangled in its own strength. It is a prisoner in the bastile of judicial construction.
Let us go further. Justice Story tells us that:
"The words 'but shall be given up on the claim of the person to whom such labor or service may be due,' clothes Congress with the appropriate authority to legislate for its enforcement."
In the light of this remark, let us look at the 14th Amendment:
"All persons bom 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."
To which are added these words:
"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 the laws."
Now, if the words: "But shall be delivered up on claim of the party to whom such service or labor may be due," clothes Congress with power to legislate upon the entire subject, then I ask if the words in the 14th Amendment declaring that "no law shall be made by any State, or enforced, which shall abridge the privileges or immunities of citizens of the United States; and that no State shall 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 the laws," does not clothe Congress with the power to legislate upon the entire subject?
In the two cases there is only this difference: The first decision was made in the interest of human slavery—made to protect property in man; and the second decision ought to have been made for exactly the opposite purpose. Under the first decision, Congress had the right to select the means—but now that is denied. And yet it was decided in M'Cauley vs. The State, 4 Wheaton, 316, that:
"When the Government has a right to do an act, and has imposed on it the duty of performing an act, then it must, according to the dictates of reason, be allowed to select the means."
Again:
"The Government has the right to employ freely every means not prohibited, for the fulfillment of its acknowledged duties."
The Legal Tender Cases—12 Wallace, 457.
It will thus be seen that Congress has the undoubted right to make all laws necessary for the exercise of all the powers vested in it by the Constitution. When the Constitution imposes a duty upon Congress, it grants the necessary means. Congress certainly, then, has the right to pass all necessary laws for the enforcement of the 13th, 14th and 15th Amendments. Any legislation is "appropriate" that is calculated to accomplish the end sought and that is not repugnant to the Constitution. Within these limits Congress has the sovereign power of choice. No better definition of "appropriate legislation" has been given than that by the Supreme Court of California, in the case of The People vs. Washington, 38 California, 658:
"Legislation which practically tends to facilitate the securing to all, through the aid of the judicial and executive departments of the Government, the full enjoyment of personal freedom, is appropriate."
The Supreme Court despairingly asks:
"If this legislation is appropriate for enforcing the prohibitions of the Amendment, it is difficult to see where it is to stop. Why may not Congress, with equal show of authority, enact a code of laws for the enforcement and vindication of all rights of life, liberty and property?"
My answer is: The legislation will stop when and where the discriminations on account of race, color or previous condition of servitude, stop. Whenever an immunity or privilege of a citizen of the United States is trodden down by the State, or by an individual, under the circumstances mentioned in the Civil Rights Act—that is to say, on account of race, color, or previous condition of servitude—then the Federal Government must interfere. The Government must defend the immunities and privileges of its citizens, not only from State invasion, but from individual invaders, when that invasion is based upon the distinction of race, color, or previous condition of servitude. The Government has taken upon itself that duty. This duty can be discharged by a law making a uniform rule, obligatory not only upon States, but upon individuals. All this will stop when the discriminations stop.
After such examination of the authorities as I have been able to make, I lay down the following propositions, namely:
1. The sovereignty of a State extends only to that which exists by its own authority.
2. The powers of the General Government were not conferred by the people of a single State; they were given by the people of the United States; and the laws of the United States, in pursuance of the Constitution, are supreme over the entire Republic.
3. The Constitution of the United States is the supreme law of each State.
4. 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.
5. 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 that instrument has committed to it.
6. It is the duty of Congress to enforce the Constitution, and it has been clothed with power to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the General Government.
7. It is the duty of the Government to protect every citizen of the United States in all his rights, everywhere, without regard to race, color, or previous condition of servitude; and this the Government has the right to do by direct legislation.
8. Every citizen, when his privileges and immunities are invaded by the legislature of a State, has the right of appeal from such. State to the Supreme Court of the nation.
9. When a State fails to pass any law protecting a citizen from discrimination on account of race or color, and fails, in fact, to protect such citizen, then such citizen has the right to find redress in the Federal Courts.
10. Whenever, in the Constitution, a State is prohibited from doing anything that in the nature of the thing can be done by any citizen of that State, then the word "State" embraces and includes all the people of a State.
11. The 13th Amendment declares that neither slavery nor involuntary servitude shall exist within the jurisdiction of the United States.
This is not a mere negation—it is a splendid affirmation. The duty is imposed upon the General Government by that amendment to see to it that neither slavery nor involuntary servitude shall exist.
It is a question absolutely within the power of the Federal Government, and the Federal Government is clothed with power to make all necessary laws to enforce that amendment against States and persons.
12. 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 States wherein they reside. This is also an affirmation. It is not a prohibition. The moment that amendment was adopted, it became the duty of the United States to protect the citizens recognized or created by that amendment. We are no longer citizens of the United States because we are citizens of a State, but we are citizens of the United States because we have been born or have been naturalized within the jurisdiction of the United States. It therefore follows, that it is not only the right, but it is the duty, of Congress, to pass all laws necessary for the protection of citizens of the United States.
13. Congress can not shirk this responsibility by leaving citizens of the United States to the care and keeping of the several States.
The recent decision of the Supreme Court cuts, as with a sword, the tie that binds the citizen to the nation. Under the old Constitution, it was not certainly known who were citizens of the United States. There were citizens of the States, and such citizens looked to their several States for protection. The Federal Government had no citizens. Patriotism did not rest on mutual obligation. Under the 14th Amendment, we are all citizens of a common country; and our first duty, our first obligation, our highest allegiance, is not to the State in which we reside, but to the Federal Government. The 14th Amendment tends to destroy State prejudices and lays a foundation for national patriotism.
14. All statutes—all amendments to the Constitution—in derogation of natural rights, should be strictly construed.
15. All statutes and amendments for the preservation of natural rights should be liberally construed. Every court should, by strict construction, narrow the scope of every law that infringes upon any natural human right; and every court should, by construction, give the broadest meaning to every statute or constitutional provision passed or adopted for the preservation of freedom.
16. In construing the 13th, 14th and 15th Amendments, the Supreme Court need not go back to decisions rendered in the days of slavery—when every statute was construed in favor of the sovereignty of the State and the rights of the master. These amendments utterly obliterated such decisions. The Supreme Court should begin with the amendments. It need not look behind them. They are a part of the fundamental organic law of the nation. They were adopted to destroy the old statutes, to obliterate the infamous clauses in the Constitution, and to lay a new foundation for a new nation.
17. Congress has the power to eradicate all forms and incidents of slavery and involuntary servitude, by direct and primary legislation binding upon States and individuals alike. And when citizens are denied the exercise of common rights and privileges—when they are refused admittance to public inns and railway cars, on an equality with white persons—and when such denial and refusal are based upon race and color, such citizens are in a condition of involuntary servitude.
The Supreme Court has failed to take into consideration the intention of the framers of these amendments. It has failed to comprehend the spirit of the age. It has undervalued the accomplishment of the war. It has not grasped in all their height and depth the great amendments to the Constitution and the real object of government. To preserve liberty is the only use for government. There is no other excuse for legislatures, or presidents, or courts, for statutes or decisions. Liberty is not simply a means—it is an end. Take from our history, our literature, our laws, our hearts—that word, and we are naught but moulded clay. Liberty is the one priceless jewel. It includes and holds and is the weal and wealth of life. Liberty is the soil and light and rain—it is the plant and bud and flower and fruit—and in that sacred word lie all the seeds of progress, love and joy.
This decision, in my judgment, is not worthy of the Court by which it was delivered. It has given new life to the serpent of State Sovereignty. It has breathed upon the dying embers of ignorant hate. It has furnished food and drink, breath and blood, to prejudices that were perishing of famine, and in the old case of Civilization vs. Barbarism, it has given the defendant a new trial.
From this decision, John M. Harlan had the breadth of brain, the goodness of heart, and the loyalty to logic, to dissent. By the fortress of Liberty, one sentinel remains at his post. For moral courage I have supreme respect, and I admire that intellectual strength that breaks the cords and chains of prejudice and damned custom as though they were but threads woven in a spider's loom. This judge has associated his name with freedom, and he will be remembered as long as men are free.
We are told by the Supreme Court that:
"Slavery cannot exist without law, any more than property and lands and goods can exist without law."
I deny that property exists by virtue of law. I take exactly the opposite ground. It was the fact that man had property in lands and goods, that produced laws for the protection of such property. The Supreme Court has mistaken an effect for a cause. Laws passed for the protection of property, sprang from the possession and ownership of the thing to be protected. When one man enslaves another, it is a violation of all justice—a subversion of the foundation of all law. Statutes passed for the purpose of enabling man to enslave his fellow-man, resulted from a conspiracy entered into by the representatives of brute force. Nothing can be more absurd than to call such a statute, born of such a conspiracy a law. According to the idea of the Supreme Court, man never had property until he had passed a law upon the subject. The first man who gathered leaves upon which to sleep, did not own them, because no law had been passed on the leaf subject. The first man who gathered fruit—the first man who fashioned a club with which to defend himself from wild beasts, according to the Supreme Court, had no property in these things, because no laws had been passed, and no courts had published their decisions.
So the defenders of monarchy have taken the ground that societies were formed by contract—as though at one time men all lived apart, and came together by agreement and formed a government. We might just as well say that the trees got into groves by contract or conspiracy. Man is a social being. By living together there grow out of the relation, certain regulations, certain customs. These at last hardened into what we call law—into what we call forms of government—and people who wish to defend the idea that we got everything from the king, say that our fathers made a contract. Nothing can be more absurd. Men did not agree upon a form of government and then come together; but being together, they made rules for the regulation of conduct. Men did not make some laws and then get some property to fit the laws, but having property they made laws for its protection.
It is hinted by the Supreme Court that this is in some way a question of social equality. It is claimed that social equality cannot be enforced by law. Nobody thinks it can. This is not a question of social equality, but of equal rights. A colored citizen has the same right to ride upon the cars—to be fed and lodged at public inns, and to visit theatres, that I have. Social equality is not involved.
The Federal soldiers who escaped from Libby and Andersonville, and who in swamps, in storm, and darkness, were rescued and fed by the slave, had no scruples about eating with a negro. They were willing to sit beneath the same tree and eat with him the food he brought. The white soldier was then willing to find rest and slumber beneath the negro's roof. Charity has no color. It is neither white nor black. Justice and Patriotism are the same. Even the Confederate soldier was willing to leave his wife and children under the protection of a man whom he was fighting to enslave.
Danger does not draw these nice distinctions as to race or color. Hunger is not proud. Famine is exceedingly democratic in the matter of food. In the moment of peril, prejudices perish. The man fleeing for his life does not have the same ideas about social questions, as he who sits in the Capitol, wrapped in official robes. Position is apt to be supercilious. Power is sometimes cruel. Prosperity is often heartless.
This cry about social equality is born of the spirit of caste—the most fiendish of all things. It is worse than slavery. Slavery is at least justified by avarice—by a desire to get something for nothing—by a desire to live in idleness upon the labor of others—but the spirit of caste is the offspring of natural cruelty and meanness.
Social relations depend upon almost an infinite number of influences and considerations. We have our likes and dislikes. We choose our companions. This is a natural right. You cannot force into my house persons whom I do not want. But there is a difference between a public house and a private house. The one is for the public. The private house is for the family and those they may invite. The landlord invites the entire public, and he must serve those who come if they are fit to be received. A railway is public, not private. It derives its powers and its rights from the State. It takes private land for public purposes. It is incorporated for the good of the public, and the public must be served. The railway, the hotel, and the theatre, have a right to make a distinction between people of good and bad manners—between the clean and the unclean. There are white people who have no right to be in any place except a bath-tub, and there are colored people in the same condition. An unclean white man should not be allowed to force himself into a hotel, or into a railway car—neither should the unclean colored. What I claim is, that in public places, no distinction should be made on account of race or color. The bad black man should be treated like the bad white man, and the good black man like the good white man. Social equality is not contended for—neither between white and white, black and black, nor between white and black.
In all social relations we should have the utmost liberty—but public duties should be discharged and public rights should be recognized, without the slightest discrimination on account of race or color. Riding in the same cars, stopping at the same inns, sitting in the same theatres, no more involve a social question, or social equality, than speaking the same language, reading the same books, hearing the same music, traveling on the same highway, eating the same food, breathing the same air, warming by the same sun, shivering in the same cold, defending the same flag, loving the same country, or living in the same world.
And yet, thousands of people are in deadly fear about social equality. They imagine that riding with colored people is dangerous—that the chance acquaintance may lead to marriage. They wish to be protected from such consequences by law. They dare not trust themselves. They appeal to the Supreme Court for assistance, and wish to be barricaded by a constitutional amendment. They are willing that colored women shall prepare their food—that colored waiters shall bring it to them—willing to ride in the same cars with the porters and to be shown to their seats in theatres by colored ushers—willing to be nursed in sickness by colored servants. They see nothing dangerous—nothing repugnant, in any of these relations,—but the idea of riding in the same car, stopping at the same hotel, fills them with fear—fear for the future of our race. Such people can be described only in the language of Walt Whitman. "They are the immutable, granitic pudding-heads of the world.".
Liberty is not a social question. Civil equality is not social equality. We are equal only in rights. No two persons are of equal weight, or height. There are no two leaves in all the forests of the earth alike—no two blades of grass—no two grains of sand—no two hairs. No two any-things in the physical world are precisely alike. Neither mental nor physical equality can be created by law, but law recognizes the fact that all men have been clothed with equal rights by Nature, the mother of us all.
The man who hates the black man because he is black, has the same spirit as he who hates the poor man because he is poor. It is the spirit of caste. The proud useless despises the honest useful. The parasite idleness scorns the great oak of labor on which it feeds, and that lifts it to the light.
I am the inferior of any man whose rights I trample under foot. Men are not superior by reason of the accidents of race or color. They are superior who have the best heart—the best brain. Superiority is born of honesty, of virtue, of charity, and above all, of the love of liberty. The superior man is the providence of the inferior. He is eyes for the blind, strength for the weak, and a shield for the defenceless. He stands erect by bending above the fallen. He rises by lifting others.
In this country all rights must be preserved, all wrongs redressed, through the ballot. The colored man has in his possession in his care, a part of the sovereign power of the Republic. At the ballot-box he is the equal of judges and senators, and presidents, and his vote, when counted, is the equal of any other. He must use this sovereign power for his own protection, and for the preservation of his children. The ballot is his sword and shield. It is his political providence. It is the rock on which he stands, the column against which he leans. He should vote for no man who dees not believe in equal rights for all—in the same privileges and immunities for all citizens, irrespective of race or color.
He should not be misled by party cries, or by vague promises in political platforms. He should vote for the men, for the party, that will protect him; for congressmen who believe in liberty, for judges who worship justice, whose brains are not tangled by technicalities, and whose hearts are not petrified by precedents; and for presidents who will protect the blackest citizen from the tyranny of the whitest State. As you cannot trust the word of some white people, and as some black people do not always tell the truth, you must compel all candidates to put their principle' in black and white.
Of one thing you can rest assured: The best white people are your friends. The humane, the civilized, the just, the most intelligent, the grandest, are on your side. The sympathies of the noblest are with you. Your enemies are also the enemies of liberty, of progress and of justice. The white men who make the white race honorable believe in equal rights for you. The noblest living are, the noblest dead were, your friends. I ask you to stand with your friends.
Do not hold the Republican party responsible for this decision, unless the Republican party endorses it. Had the question been submitted to that party, it would have been decided exactly the other way—at least a hundred to one. That party gave you the 13th, 14th and 15th Amendments. They were given in good faith. These amendments put you on a constitutional and political equality with white men. That they have been narrowed in their application by the Supreme Court, is not the fault of the Republican party. Let us wait and see what the Republican party will do. That party has a strange history, and in that history is a mingling of cowardice and courage. The army of progress always becomes fearful after victory, and courageous after defeat. It has been the custom for principle to apologize to prejudice. The Proclamation of Emancipation gave liberty only to slaves beyond our lines—those beneath our flag were left to wear their chains. We said to the Southern States: "Lay down your arms, and you shall keep your slaves." We tried to buy peace at the expense of the negro.
We offered to sacrifice the manhood of the North, and the natural rights of the colored man, upon the altar of the Union. The rejection of that offer saved us from infamy. At one time we refused to allow the loyal black man to come within our lines. We would meet him at the outposts, receive his information, and drive him back to chain and lash. The Government publicly proclaimed that the war was waged to save the Union, with slavery. We were afraid to claim that the negro was a man—afraid to admit that he was property—and so we called him "contraband." We hesitated to allow the negro to fight for his own freedom—hesitated to let him wear the uniform of the nation while he battled for the supremacy of its flag.
These are some of the inconsistencies of the past. In spite of them we advanced. We were educated by events, and at last we clearly saw that slavery was rebellion; that the "institution" had borne its natural fruit—civil war; that the entire country was responsible for slavery, and that slavery was responsible for rebellion. We declared that slavery should be extirpated from the Republic. The great armies led by the greatest commander of the modern world, shattered, crushed and demolished the Rebellion. The North grew grand. The people became sublime. The three sacred amendments were adopted. The Republic was free.
Then came a period of hesitation, apology and fear. The colored citizen was left to his fate. For years the Federal arm, palsied by policy, was powerless to protect; and this period of fear, of hesitation, of apology, of lack of confidence in the right, has borne its natural fruit—this decision of the Supreme Court.
But it is not for me to give you advice. Your conduct has been above all praise. You have been as patient as the earth beneath, as the stars above. You have been law-abiding and industrious, You have not offensively asserted your rights, or offensively borne your wrongs. You have been modest and forgiving. You have returned good for evil. When I remember that the ancestors of my race were in universities and colleges and common schools while you and your fathers were on the auction-block, in the slave-pen, or in the field beneath the cruel lash, in States where reading and writing were crimes, I am astonished at the progress you have made.
All that I—all that any reasonable man—can ask is, that you continue doing as you have done. Above all things—educate your children—strive to make yourselves independent—work for homes—work for yourselves—and wherever it is possible become the masters of yourselves.
Nothing gives me more pleasure than to see your little children with books under their arms, going and coming from school.
It is very easy to see why colored people should hate us, but why we should hate them is beyond my comprehension. They never sold our wives. They never robbed our cradles.. They never scarred our backs. They never pursued us with bloodhounds. They never branded our flesh.
It has been said that it is hard to forgive a man to whom we have done a great injury. I can conceive of no other reason why we should hate the colored people. To us they are a standing reproach. Their history is our shame. Their virtues seem to enrage some white people—their patience to provoke, and their forgiveness to insult. Turn the tables—change places—and with what fierceness, with what ferocity, with what insane and passionate intensity we would hate them!
The colored people do not ask for revenge—they simply ask for justice. They are willing to forget the past—willing to hide their scars—anxious to bury the broken chains, and to forget the miseries and hardships, the tears and agonies, of two hundred years.
The old issues are again upon us. Is this a Nation? Have all citizens of the United States equal rights, without regard to race or color? Is it the duty of the General Government to protect its citizens? Can the Federal arm be palsied by the action or non-action of a State?
Another opportunity is given for the people of this country to take sides. According to my belief, the supreme thing for every man to do is to be absolutely true to himself. All consequences—whether rewards or punishments, whether honor and power, or disgrace and poverty, are as dreams undreamt. I have made my choice. I have taken my stand. Where my brain and heart go, there I will publicly and openly walk. Doing this, is my highest conception of duty. Being allowed to do this, is liberty.
If this is not now a free Government; if citizens cannot now be protected, regardless of race or color; if the three sacred amendments have been undermined by the Supreme Court—we must have another; and if that fails, then another; and we must neither stop, nor pause, until the Constitution shall become a perfect shield for every right, of every human being, beneath our flag.
GENTLEMEN of the Jury: I regard this as one of the most important cases that can be submitted to a jury. It is not a case that involves a little property, neither is it one that involves simply the liberty of one man. It involves the freedom of speech, the intellectual liberty of every citizen of New Jersey.
The question to be tried by you is whether a man has the right to express his honest thought; and for that reason there can be no case of greater importance submitted to a jury. And it may be well enough for me, at the outset, to admit that there could be no case in which I could take a greater—a deeper interest. For my part, I would not wish to live in a world where I could not express my honest opinions. Men who deny to others the right of speech are not fit to live with honest men.
I deny the right of any man, of any number of men, of any church, of any State, to put a padlock on the lips—to make the tongue a convict. I passionately deny the right of the Herod of authority to kill the children of the brain. A man has a right to work with his hands, to plow the earth, to sow the seed, and that man has a right to reap the harvest. If we have not that right, then all are slaves except those who take these rights from their fellow-men. If you have the right to work with your hands and to gather the harvest for yourself and your children, have you not a right to cultivate your brain? Have you not the right to read, to observe, to investigate—and when you have so read and so investigated, have you not the right to reap that field? And what is it to reap that field? It is simply to express what you have ascertained—simply to give your thoughts to your fellow-men.
If there is one subject in this world worthy of being discussed, worthy of being understood, it is the question of intellectual liberty. Without that, we are simply painted clay; without that, we are poor, miserable serfs and slaves. If you have not the right to express your opinions, if the defendant has not this right, then no man ever walked beneath the blue of heaven that had the right to express his thought. If others claim the right, where did they get it? How did they happen to have it, and how did you happen to be deprived of it? Where did a church or a nation get that right?
Are we not all children of the same Mother? Are we not all compelled to think, whether we wish to or not? Can you help thinking as you do? When you look out upon the woods, the fields,—when you look at the solemn splendors of the night—these things produce certain thoughts in your mind, and they produce them necessarily. No man can think as he desires. No man controls the action of his brain, any more than he controls the action of his heart. The blood pursues its old accustomed ways in spite of you. The eyes see, if you open them, in spite of you. The ears hear, if they are unstopped, without asking your permission. And the brain thinks in spite of you. Should you express that thought? Certainly you should, if others express theirs. You have exactly the same right. He who takes it from you is a robber.
For thousands of years people have been trying to force other people to think their way. Did they succeed? No. Will they succeed? No. Why? Because brute force is not an argument. You can stand with the lash over a man, or you can stand by the prison door, or beneath the gallows, or by the stake, and say to this man: "Recant or the lash descends, the prison door is locked upon you, the rope is put about your neck, or the torch is given to the fagot." And so the man recants. Is he convinced? Not at all. Have you produced a new argument? Not the slightest. And yet the ignorant bigots of this world have been trying for thousands of years to rule the minds of men by brute force. They have endeavored to improve the mind by torturing the flesh—to spread religion with the sword and torch. They have tried to convince their brothers by putting their feet in iron boots, by putting fathers, mothers, patriots, philosophers and philanthropists in dungeons. And what has been the result? Are we any nearer thinking alike to-day than we were then?
No orthodox church ever had power that it did not endeavor to make people think its way by force and flame. And yet every church that ever was established commenced in the minority, and while it was in the minority advocated free speech—every one. John Calvin, the founder of the Presbyterian Church, while he lived in France, wrote a book on religious toleration in order to show that all men had an equal right to think; and yet that man afterward, clothed in a little authority, forgot all his sentiments about religious liberty, and had poor Servetus burned at the stake, for differing with him on a question that neither of them knew anything about. In the minority, Calvin advocated toleration—in the majority, he practiced murder.
I want you to understand what has been done in the world to force men to think alike. It seems to me that if there is some infinite being who wants us to think alike, he would have made us alike. Why did he not do so? Why did he make your brain so that you could not by any possibility be a Methodist? Why did he make yours so that you could not be a Catholic? And why did he make the brain of another so that he is an unbeliever—why the brain of another so that he became a Mohammedan—if he wanted us all to believe alike?
After all, may be Nature is good enough and grand enough and broad enough to give us the diversity born of liberty. May be, after all, it would not be best for us all to be just the same. What a stupid world, if everybody said yes to everything that everybody else might say.
The most important thing in this world is liberty. More important than food or clothes—more important than gold or houses or lands—more important than art or science—more important than all religions, is the liberty of man.
If civilization tends to do away with liberty, then I agree with Mr. Buckle that civilization is a curse. Gladly would I give up the splendors of the nineteenth century—gladly would I forget every invention that has leaped from the brain of man—gladly would I see all books ashes, all works of art destroyed, all statues broken, and all the triumphs of the world lost—gladly, joyously would I go back to the abodes and dens of savagery, if that were necessary to preserve the inestimable gem of human liberty. So would every man who has a heart and brain.
How has the church in every age, when in authority, defended itself? Always by a statute against blasphemy, against argument, against free speech. And there never was such a statute that did not stain the book that it was in, and that did not certify to the savagery of the men who passed it. Never. By making a statute and by defining blasphemy, the church sought to prevent discussion—sought to prevent argument—sought to prevent a man giving his honest opinion. Certainly a tenet, a dogma, a doctrine, is safe when hedged about by a statute that prevents your speaking against it. In the silence of slavery it exists. It lives because lips are locked. It lives because men are slaves.
If I understand myself, I advocate only the doctrines that in my judgment will make this world happier and better. If I know myself, I advocate only those things that will make a man a better citizen, a better father, a kinder husband—that will make a woman a better wife, a better mother—doctrines that will fill every home with sunshine and with joy. And if I believed that anything I should say to-day would have any other possible tendency, I would stop. I am a believer in liberty. That is my religion—to give to every other human being every right that I claim for myself, and I grant to every other human being, not the right—because it is his right—but instead of granting I declare that it is his right, to attack every doctrine that I maintain, to answer every argument that I urge—in other words, he must have absolute freedom of speech.
I am a believer in what I call "intellectual hospitality." A man comes to your door. If you are a gentleman and he appears to be a good man, you receive him with a smile. You ask after his health. You say: "Take a chair; are you thirsty, are you hungry, will you not break bread with me?" That is what a hospitable, good man does—he does not set the dog on him. Now, how should we treat a new thought? I say that the brain should be hospitable and say to the new thought: "Come in; sit down; I want to cross-examine you; I want to find whether you are good or bad; if good, stay; if bad, I don't want to hurt you—probably you think you are all right,—but your room is better than your company, and I will take another idea in your place." Why not? Can any man have the egotism to say that he has found it all out? No. Every man who has thought, knows not only how little he knows, but how little every other human being knows, and how ignorant, after all, the world must be.
There was a time in Europe when the Catholic Church had power. And I want it distinctly understood with this jury, that while I am opposed to Catholicism I am not opposed to Catholics—while I am opposed to Presbyterianism I am not opposed to Presbyterians. I do not fight people,—I fight ideas, I fight principles, and I never go into personalities. As I said, I do not hate Presbyterians, but Presbyterianism—that is, I am opposed to their doctrine. I do not hate a man that has the rheumatism—I hate the rheumatism when it has a man. So I attack certain principles because I think they are wrong, but I always want it understood that I have nothing against persons—nothing against victims.
There was a time when the Catholic Church was in power in the Old World. All at once there arose a man called Martin Luther, and what did the dear old Catholics think? "Oh," they said, "that man and his followers are going to hell." But they did not go. They were very good people. They may have been mistaken—I do not know. I think they were right in their opposition to Catholicism—but I have just as much objection to the religion they founded as I have to the church they left. But they thought they were right, and they made very good citizens, and it turned out that their differing from the Mother Church did not hurt them. And then after awhile they began to divide, and there arose Baptists; and-the other gentlemen, who believed in this law that is now in New Jersey, began cutting off their ears so that they could hear better; they began putting them in prison so that they would have a chance to think. But the Baptists turned out to be good folks—first rate—good husbands, good fathers, good citizens. And in a little while, in England, the people turned to be Episcopalians, on account of a little war that Henry VIII. had with the Pope,—and I always sided with the Pope in that war—but it made no difference; and in a little while the Episcopalians turned out to be just about like other folks—no worse—and, as I know of, no better.
After awhile arose the Puritan, and the Episcopalian said, "We don't want anything of him—he is a bad man;" and they finally drove some of them away and they settled in New England, and there were among them Quakers, than whom there never were better people on the earth—industrious, frugal, gentle, kind and loving—and yet these Puritans began hanging them. They said: "They are corrupting our children; if this thing goes on, everybody will believe in being kind and gentle and good, and what will become of us?" They were honest about it. So they went to cutting off ears. But the Quakers were good people and none of the prophecies were fulfilled.
In a little while there came some Unitarians and they said, "The world is going to ruin, sure;"—but the world went on as usual, and the Unitarians produced men like Channing—one of the tenderest spirits that ever lived—they produced men like Theodore Parker—one of the greatest brained and greatest hearted men produced upon this continent—a good man—and yet they thought he was a blasphemer—they even prayed for his death—on their bended knees they asked their God to take time to kill him. Well, they were mistaken. Honest, probably.
After awhile came the Universalists, who said: "God is good. He will not damn anybody always, just for a little mistake he made here. This is a very short life; the path we travel is very dim, and a great many shadows fall in the way, and if a man happens to stub his toe, God will not burn him forever." And then all the rest of the sects cried out, "Why, if you do away with hell, everybody will murder just for pastime—everybody will go to stealing just to enjoy themselves." But they did not. The Universalists were good people—just as good as any others. Most of them much better. None of the prophecies were fulfilled, and yet the differences existed.
And so we go on until we find people who do not believe the Bible at all, and when they say they do not, they come within this statute.
Now, gentlemen, I am going to try to show you, first, that this statute under which Mr. Reynolds is being tried is unconstitutional—that it is not in harmony with the constitution of New Jersey; and I am going to try to show you in addition to that, that it was passed hundreds of years ago, by men who believed it was right to burn heretics and tie Quakers to the end of a cart; men and even modest women—stripped naked—and lash them from town to town. They were the men who originally passed that statute, and I want to show you that it has slept all this time, and I am informed—I do not know how it is—that there never has been a prosecution in this State for blasphemy.
Now, gentlemen, what is blasphemy? Of course nobody knows what it is, unless he takes into consideration where he is. What is blasphemy in one country would be a religious exhortation, in another. It is owing to where you are and who is in authority. And let me call your attention to the impudence and bigotry of the American Christians. We send missionaries to other countries. What for? To tell them that their religion is false, that their gods are myths and monsters, that their saviors and apostles were impostors, and that our religion is true. You send a man from Morristown—a Presbyterian, over to Turkey. He goes there, and he tells the Mohammedans—and he has it in a pamphlet and he distributes it—that the Koran is a lie, that Mohammed was not a prophet of God, that the angel Gabriel is not so large that it is four hundred leagues between his eyes—that it is all a mistake—there never was an angel so large as that. Then what would the Turks do? Suppose the Turks had a law like this statute in New Jersey. They would put the Morristown missionary in jail, and he would send home word, and then what would the people of Morristown say? Honestly—what do you think they would say? They would say, "Why, look at those poor, heathen wretches. We sent a man over there armed with the truth, and yet they were so blinded by their idolatrous religion, so steeped in superstition, that they actually put that man in prison." Gentlemen, does not that show the need of more missionaries? I would say, yes.
Now, let us turn the tables. A gentleman comes from Turkey to Morristown. He has got a pamphlet. He says, "The Koran is the inspired book, Mohammed is the real prophet, your Bible is false and your Savior simply a myth." Thereupon the Morristown people put him in jail. Then what would the Turks say? They would say, "Morristown needs more missionaries," and I would agree with them.
In other words, what we want is intellectual hospitality. Let the world talk. And see how foolish this trial is. I have no doubt that the prosecuting attorney-agrees with me to-day, that whether this law is good or bad, this trial should not have taken place. And let me tell you why. Here comes a man into your town and circulates a pamphlet. Now, if they had just kept still, very few would ever have heard of it. That would have been the end. The diameter of the echo would have been a few thousand feet. But in order to stop the discussion of that question, they indicted this man, and that question has been more discussed in this country since this indictment than all the discussions put together since New Jersey was first granted to Charles II.'s dearest brother James, the Duke of York.. And what else? A trial here that is to be reported and published all over the United States, a trial that will give Mr. Reynolds a congregation of fifty millions of people. And yet this was done for the purpose of stopping a discussion of this subject. I want to show you that the thing is in itself almost idiotic—that it defeats itself, and that you cannot crush out these things by force. Not only so, but Mr. Reynolds has the right to be defended, and his counsel has the right to give his opinions on this subject.
Suppose that we put Mr. Reynolds in jail. The argument has not been sent to jail. That is still going the rounds, free as the winds. Suppose you keep him at hard labor a year—all the time he is there, hundreds and thousands of people will be reading some account, or some fragment, of this trial. There is the trouble. If you could only imprison a thought, then intellectual tyranny might succeed. If you could only take an argument and put a striped suit of clothes on it—if you could only take a good, splendid, shining fact and lock it up in some dungeon of ignorance, so that its light would never again enter the mind of man, then you might succeed in stopping human progress. Otherwise, no.
Let us see about this particular statute. In the first place, the State has a constitution. That constitution is a rule, a limitation to the power of the Legislature, and a certain breastwork for the protection of private rights, and the constitution says to this sea of passions and prejudices: "Thus far and no farther." The constitution says to each individual: "This shall panoply you; this is your complete coat of mail; this shall defend your rights." And it is usual in this country to make as a part of each constitution several general declarations—called the Bill of Rights. So I find that in the old constitution of New Jersey, which was adopted in the year of grace 1776, although the people at that time were not educated as they are now—the spirit of the Revolution at that time not having permeated all classes of society—a declaration in favor of religious freedom. The people were on the eve of a revolution. This constitution was adopted on the third day of July, 1776, one day before the immortal Declaration of Independence. Now, what do we find in this—and we have got to go by this light, by this torch, when we examine the statute.
I find in that constitution, in its Eighteenth Section, this: "No person shall ever in this State be deprived of the inestimable privilege of worshiping God, in a manner agreeable to the dictates of his own conscience; nor under any pretence whatever be compelled to attend any place of worship contrary to his own faith and judgment; nor shall he be obliged to pay tithes, taxes, or any other rates for the purpose of building or repairing any church or churches, contrary to what he believes to be true." That was a very great and splendid step. It was the divorce of church and state. It no longer allowed the State to levy taxes for the support of a particular religion, and it said to every citizen of New Jersey: All that you give for that purpose must be voluntarily given, and the State will not compel you to pay for the maintenance of a church in which you do not believe. So far so good.
The next paragraph was not so good. "There shall be no establishment of any one religious sect in this State in preference to another, and no Protestant inhabitants of this State shall be denied the enjoyment of any civil right merely on account of his religious principles; but all persons professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably, shall be capable of being elected to any office of profit or trust, and shall fully and freely enjoy every privilege and immunity enjoyed by other citizens."
What became of the Catholics under that clause, I do not know—whether they had any right to be elected to office or not under this Act. But in 1844, the State having grown civilized in the meantime, another constitution was adopted. The word Protestant was then left out. There was to be no establishment of one religion over another. But Protestantism did not render a man capable of being elected to office any more than Catholicism, and nothing is said about any religious belief whatever. So far, so good.
"No religious test shall be required as a qualification for any office of public trust. No person shall be denied the enjoyment of any civil right on account of his religious principles."
That is a very broad and splendid provision. "No person shall be denied any civil right on account of his religious principles." That was copied from the Virginia constitution, and that clause in the Virginia constitution was written by Thomas Jefferson, and under that clause men were entitled to give their testimony in the courts of Virginia whether they believed in any religion or not, in any bible or not, or in any god or not.
That same clause was afterward adopted by the State of Illinois, also by many other States, and wherever that clause is, no citizen can be denied any civil right on account of his religious principles. It is a broad and generous clause. This statute, under which this indictment is drawn, is not in accordance with the spirit of that splendid sentiment. Under that clause, no man can be deprived of any civil right on account of his religious principles, or on account of his belief. And yet, on account of this miserable, this antiquated, this barbarous and savage statute, the same man who cannot be denied any political or civil right, can be sent to the penitentiary as a common felon for simply expressing his honest thought. And before I get through I hope to convince you that this statute is unconstitutional.
But we will go another step: "Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right."
That is in the constitution of nearly every State in the Union, and the intention of that is to cover slanderous words—to cover a case where a man under pretence of enjoying the freedom of speech falsely assails or accuses his neighbor. Of course he should be held responsible for that abuse.
Then follows the great clause in the constitution of 1844—more important than any other clause in that instrument—a clause that shines in that constitution like a star at night.—
"No law shall be passed to restrain or abridge the liberty of speech or of the press."
Can anything be plainer—anything be more forcibly stated?
"No law shall be passed to abridge the liberty of speech."
Now, while you are considering this statute, I want you to keep in mind this other statement:
"No law shall be passed to restrain or abridge the liberty of speech or of the press."
And right here there is another thing I want to call your attention to. There is a constitution higher than any statute. There is a law higher than any constitution. It is the law of the human conscience, and no man who is a man will defile and pollute his conscience at the bidding of any legislature. Above all things, one should maintain his selfrespect, and there is but one way to do that, and that is to live in accordance with your highest ideal.
There is a law higher than men can make. The facts as they exist in this poor world—the absolute consequences of certain acts—they are above all. And this higher law is the breath of progress, the very outstretched wings of civilization, under which we enjoy the freedom we have. Keep that in your minds. There never was a legislature great enough—there never was a constitution sacred enough, to compel a civilized man to stand between a black man and his liberty. There never was a constitution great enough to make me stand between any human being and his right to express his honest thoughts. Such a constitution is an insult to the human soul, and I would care no more for it than I would for the growl of a wild beast. But we are not driven to that necessity here. This constitution is in accord with the highest and noblest aspirations of the heart—"No law shall be passed to restrain or abridge the liberty of speech."
Now let us come to this old law—this law that was asleep for a hundred years before this constitution was adopted—this law coiled like a snake beneath the foundations of the Government—this law, cowardly, dastardly—this law passed by wretches who were afraid: to discuss—this law passed by men who could not, and who knew they could not, defend their creed—and so they said: "Give us the sword of the State and we will cleave the heretic down." And this law was made to control the minority. When the Catholics were in power they visited that law upon their opponents. When the Episcopalians were in power, they tortured and burned the poor Catholic who had scoffed and who had denied the truth of their religion. Whoever was in power used that, and whoever was out of power cursed that—and yet, the moment he got in power he used it: The people became civilized—but that law was on the statute book. It simply remained. There it was, sound asleep—its lips drawn over its long and cruel teeth. Nobody savage enough to waken it. And it slept on, and New Jersey has flourished. Men have done well. You have had average health in this country. Nobody roused the statute until the defendant in this case went to Boonton, and there made a speech in which he gave his honest thought, and the people not having an argument handy, threw stones. Thereupon Mr. Reynolds, the defendant, published a pamphlet on Blasphemy and in it gave a photograph of the Boonton Christians. That is his offence. Now let us read this infamous statute:
"If any person shall willfully blaspheme the holy name of God by denying, cursing, or contumeliously reproaching his being"—
I want to say right here—many a man has cursed the God of another man. The Catholics have cursed the God of the Protestant. The Presbyterians have cursed the God of the Catholics—charged them with idolatry—cursed their images, laughed at their ceremonies. And these compliments have been interchanged between all the religions of the world. But I say here to-day that no man, unless a raving maniac, ever cursed the God in whom he believed. No man, no human being, has ever lived who cursed his own idea of God. He always curses the idea that somebody else entertains. No human being ever yet cursed what he believed to be infinite wisdom and infinite goodness—and you know it. Every man on this jury knows that. He feels that that must be an absolute certainty. Then what have they cursed? Some God they did not believe in—that is all. And has a man that right? I say, yes. He has a right to give his opinion of Jupiter, and there is nobody in Morristown who will deny him that right. But several thousands years ago it would have been very dangerous for him to have cursed Jupiter, and yet Jupiter is just as powerful now as he was then, but the Roman people are not powerful, and that is all there was to Jupiter—the Roman people.