EQUALITY BEFORE THE LAW:

UNCONSTITUTIONALITY OF SEPARATE COLORED SCHOOLS IN MASSACHUSETTS.

Argument before the Supreme Court of Massachusetts, in the Case of Sarah C. Roberts v. The City of Boston, December 4, 1849.

May it please your Honors:—

Can any discrimination on account of race or color be made among children entitled to the benefit of our Common Schools under the Constitution and Laws of Massachusetts? This is the question which the Court is now to hear, to consider, and to decide.

Or, stating the question with more detail, and with more particular application to the facts of the present case, are the Committee having superintendence of the Common Schools of Boston intrusted with power, under the Constitution and Laws of Massachusetts, to exclude colored children from the schools, and compel them to find education at separate schools, set apart for colored children only, at distances from their homes less convenient than schools open to white children?

This important question arises in an action by a colored child only five years old, who, by her next friend, sues the city of Boston for damages on account of a refusal to receive her into one of the Common Schools.

It would be difficult to imagine any case appealing more strongly to your best judgment, whether you regard the parties or the subject. On the one side is the City of Boston, strong in wealth, influence, character; on the other side is a little child, of degraded color, of humble parents, and still within the period of natural infancy, but strong from her very weakness, and from the irrepressible sympathies of good men, which, by a divine compensation, come to succor the weak. This little child asks at your hands her personal rights. So doing, she calls upon you to decide a question which concerns the personal rights of other colored children,—which concerns the Constitution and Laws of the Commonwealth,—which concerns that peculiar institution of New England, the Common Schools,—which concerns the fundamental principles of human rights,—which concerns the Christian character of this community. Such parties and such interests justly challenge your earnest attention.

Though this discussion is now for the first time brought before a judicial tribunal, it is no stranger to the public. In the School Committee of Boston for five years it has been the occasion of discord. No less than four different reports, two majority and two minority, forming pamphlets, of solid dimensions, devoted to this question, have been made to this Committee, and afterwards published. The opinions of learned counsel have been enlisted. The controversy, leaving these regular channels, overflowed the newspaper press, and numerous articles appeared, espousing opposite sides. At last it has reached this tribunal. It is in your power to make it subside forever.

THE QUESTION STATED.

Forgetting many of the topics and all of the heats heretofore mingling with the controversy, I shall strive to present the question in its juridical light, as becomes the habits of this tribunal. It is a question of jurisprudence on which you are to give judgment. But I cannot forget that the principles of morals and of natural justice lie at the foundation of all jurisprudence. Nor can any reference to these be inappropriate in a discussion before this Court.

Of Equality I shall speak, not only as a sentiment, but as a principle embodied in the Constitution of Massachusetts, and obligatory upon court and citizen. It will be my duty to show that this principle, after finding its way into our State Constitution, was recognized in legislation and judicial decisions. Considering next the circumstances of this case, it will be easy to show how completely they violate Constitution, legislation, and judicial proceedings,—first, by subjecting colored children to inconvenience inconsistent with the requirements of Equality, and, secondly, by establishing a system of Caste odious as that of the Hindoos,—leading to the conclusion that the School Committee have no such power as they have exercised, and that it is the duty of the Court to set aside their unjust by-law. In the course of this discussion I shall exhibit the true idea of our Common Schools, and the fallacy of the pretension that any exclusion or discrimination founded on race or color can be consistent with Equal Rights.

In opening this argument, I begin naturally with the fundamental proposition which, when once established, renders the conclusion irresistible. According to the Constitution of Massachusetts, all men, without distinction of race or color, are equal before the law. In the statement of this proposition I use language which, though new in our country, has the advantage of precision.

EQUALITY BEFORE THE LAW: ITS MEANING.

I might, perhaps, leave this proposition without one word of comment. The equality of men will not be directly denied on this occasion; and yet it is so often assailed of late, that I shall not seem to occupy your time superfluously, I trust, while endeavoring to show what is understood by this term, when used in laws, constitutions, or other political instruments. Here I encounter a prevailing misapprehension. Lord Brougham, in his recent work on Political Philosophy, announces, with something of pungency, that "the notion of Equality, or anything approaching to Equality, among the different members of any community, is altogether wild and fantastic."[13] Mr. Calhoun, in the Senate of the United States, assails both the principle and the form of its statement. He does not hesitate to say that the claim in the Declaration of Independence is "the most false and dangerous of all political errors,"—that it "has done more to retard the cause of liberty and civilization, and is doing more at present, than all other causes combined,"—that "for a long time it lay dormant, but in the process of time it began to germinate and produce its poisonous fruits."[14] Had these two distinguished authorities chosen to comprehend the extent and application of the term thus employed, something, if not all, of their objection would have disappeared. That we may better appreciate its meaning and limitation, I am induced to exhibit the origin and growth of the sentiment, which, finally ripening into a formula of civil and political right, was embodied in the Constitution of Massachusetts.

Equality as a sentiment was early cherished by generous souls. It showed itself in dreams of ancient philosophy, and was declared by Seneca, when, in a letter of consolation on death, he said, Prima enim pars Æquitatis est Æqualitas: "The chief part of Equity is Equality."[15] But not till the truths of the Christian Religion was it enunciated with persuasive force. Here we learn that God is no respecter of persons,—that he is the Father of all,—and that we are all his children, and brethren to each other. When the Saviour gave us the Lord's Prayer, he taught the sublime doctrine of Human Brotherhood, enfolding the equality of men.

Slowly did this sentiment enter the State. The whole constitution of government was inconsistent with it. An hereditary monarchy, an order of nobility, and the complex ranks of superior and inferior, established by the feudal system, all declare, not the equality, but the inequality of men, and all conspire to perpetuate this inequality. Every infant of royal blood, every noble, every vassal, is a present example, that, whatever may be the injunctions of religion or the sentiment of the heart, men under these institutions are not born equal.

The boldest political reformers of early times did not venture to proclaim this truth, nor did they truly perceive it. Cromwell beheaded his king, but secured the supreme power in hereditary succession to his eldest son. It was left to his loftier contemporary, John Milton, in poetic vision to be entranced

"With fair Equality, fraternal state."[16]

Sidney, who perished a martyr to the liberal cause, drew his inspiration from classic, and not from Christian fountains. The examples of Greece and Rome fed his soul. The English Revolution of 1688, partly by force and partly by the popular voice, changed the succession to the crown, and, if we may credit loyal Englishmen, secured the establishment of Freedom throughout the land. But the Bill of Rights did not declare, nor did the genius of Somers or Maynard conceive the political axiom, that all men are born equal. It may find acceptance from Englishmen in our day, but it is disowned by English institutions.

I would not forget the early testimony of the "judicious" Hooker, who in his "Ecclesiastical Polity," that masterly work, dwells on the equality of men by nature, or the subsequent testimony of Locke, in his "Two Treatises of Government," who, quoting Hooker, asserts for himself that "creatures of the same species and rank, promiscuously born to all the same advantages of nature and the use of the same faculties, should also be equal one amongst another, without subordination or subjection."[17] Hooker and Locke saw the equality of men in a state of Nature; but their utterances found more acceptance across the Channel than in England.

It is to France that we must pass for the earliest development of this idea, its amplest illustration, and its most complete, accurate, and logical expression. In the middle of the last century appeared the renowned Encyclopédie, edited by Diderot and D'Alembert. This remarkable production, where science, religion, and government are discussed with revolutionary freedom, contains an article on Equality, first published in 1755. Here we find the boldest expression of this sentiment down to that time. "Natural Equality," says this authority, "is that which exists between all men by the constitution of their nature only. This Equality is the principle and the foundation of Liberty. Natural or moral equality is, then, founded upon the constitution of human nature common to all men, who are born, grow, subsist, and die in the same manner. Since human nature finds itself the same in all men, it is clear, that, according to Nature's law, each ought to esteem and treat the others as beings who are naturally equal to himself,—that is to say, who are men as well as himself." It is then remarked, that political and civil slavery is in violation of this Equality; and yet the inequalities of nobility in the state are allowed to pass without condemnation. Alluding to these, it is simply said that "they who are elevated above others ought to treat their inferiors as naturally their equals, shunning all outrage, exacting nothing beyond what is their due, and exacting with humanity what is incontestably their due."[18]

Considering the period at which this article was written, we are astonished less by its vagueness and incompleteness than by its bravery and generosity. The dissolute despotism of Louis the Fifteenth poisoned France. The antechambers of the King were thronged by selfish nobles and fawning courtiers. The councils of Government were controlled by royal mistresses. The King, only a few years before, in defiance of Equality,—but in entire harmony with the conduct of the School Committee in Boston,—founded a military school for nobles only, carrying into education the distinction of Caste. At such a period the Encyclopedia did well in uttering important and effective truth. The sentiment of Equality was fully declared. Nor should we be disappointed, that, at this early day, even the boldest philosophers did not adequately perceive, or, if they perceived, did not dare to utter, our axiom of liberty.

Thus it is with all moral and political ideas. First appearing as a sentiment, they awake a noble impulse, filling the soul with generous sympathy, and encouraging to congenial effort. Slowly recognized, they finally pass into a formula, to be acted upon, to be applied, to be defended in the concerns of life, as principles.

Almost contemporaneously with this article in the Encyclopedia our attention is arrested by a poor solitary, of humble extraction, born at Geneva, in Switzerland, of irregular education and life, a wanderer from his birthplace, enjoying a temporary home in France,—Jean Jacques Rousseau. Of audacious genius, setting at nought received opinions, he rushed into notoriety by an eccentric essay "On the Origin of the Inequality among Men," where he sustained the irrational paradox, that men are happier in a state of Nature than under the laws of Civilization. At a later day appeared his famous work on "The Social Contract." In both the sentiment of Equality is invoked against abuses of society, and language is employed tending far beyond Equality in Civil and Political Rights. The conspicuous position since awarded to the speculations of Rousseau, and their influence in diffusing this sentiment, would make this sketch imperfect without allusion to him; but he taught men to feel rather than to know, and his words have more of inspiration than of precision.

The French Revolution was at hand. That great outbreak for enfranchisement was the expression of this sentiment. Here it received distinct and authoritative enunciation. In the Constitutions of Government successively adopted, amid the throes of bloody struggle, the equality of men was constantly proclaimed. Kings, nobles, and all distinctions of birth, passed away before this mighty and triumphant truth.

These Constitutions show the grandeur of the principle, and how it was explained and illustrated. The Constitution of 1791, in its first article, declares that "Men are born and continue free and equal in their rights." This great declaration was explained in the sixth article: "The law is the expression of the general will.... It ought to be the same for all, whether it protect or punish. All citizens, being equal in its eyes, are equally admissible to all dignities, places, and public employments, according to their capacity, and without other distinction than their virtues and talents." At the close of the Declaration of Rights there is this further explanation: "The National Assembly, wishing to establish the French Constitution on the principles which it has just acknowledged and declared, abolishes irrevocably the institutions which bounded liberty and equality of rights. There is no longer nobility, or peerage, or hereditary distinctions, or distinction of orders, or feudal rule, or patrimonial jurisdictions, or any titles, denominations, or prerogatives thence derived, or any orders of chivalry, or any corporations or decorations for which proofs of nobility were required, or which supposed distinctions of birth, or any other superiority than that of public functionaries in the exercise of their functions.... There is no longer, for any part of the nation, or for any individual, any privilege or exception to the common right of all Frenchmen."[19] These diffuse articles all begin and end in the equality of men.

In fitful mood, another Declaration of Rights was brought forward by Condorcet. February 15, 1793. Here are fresh inculcations of Equality. Article First places Equality among the natural, civil, and political rights of man. Article Seventh declares: "Equality consists in this, that each individual can enjoy the same rights." Article Eighth: "The law ought to be equal for all, whether it recompense or punish, whether it protect or repress." Article Ninth: "All citizens are admissible to all public places, employments, and functions. Free people know no other motives of preference in their choice than talents and virtues." Article Twenty-third: "Instruction is the need of all, and society owes it equally to all its members." Article Thirty-second: "There is oppression, when a law violates the natural, civil, and political rights which it ought to guaranty. There is oppression, when the law is violated by the public functionaries in its application to individual cases."[20] Here again is the same constant testimony, reinforced by the accompanying report explaining the Constitution, where it is said: "All hereditary political power is at the same time an evident violation of natural equality and an absurd institution, since it supposes the inheritance of qualities proper for the discharge of a public function. Every exception to the common law made in favor of an individual is a blow struck at the rights of all." And in another part of the same report, "the sovereignty of the people, equality among men, the unity of the Republic," are declared to have been "the guiding principles always present in the formation of the Constitution."[21]

Next came the Constitution of June, 1793, announcing, in its second article, that the natural and imprescriptible rights of men are "Equality, liberty, security, property." In the next article we learn precisely what is meant by Equality, when it says, "All men are equal by nature and before the law."[22] So just and captivating was this definition, which we encounter here for the first time, that it held its place through all the political vicissitudes of France, under the Directory, the Consulate, the Empire, the Restoration, and the Constitutional Government of Louis Philippe. It was a conquest which, when achieved, was never abandoned. Every Charter and Constitution certified to it. The Charter of Louis Philippe testifies as follows: "Frenchmen are equal before the law, whatever may be their titles and ranks."[23] Nor was its use confined to France. It passed into other constitutions, and Napoleon, who so often trampled on the rights of Equality, dictated to the Poles the declaration, that all persons are equal before the law. Thus the phrase is not only French, but Continental, although never English.

While recognizing this particular form of speech as more specific and satisfactory than the statement that all men are born equal, it is impossible not to be reminded that it finds a prototype in the ancient Greek language, where, according to Herodotus, "the government of the many has the most beautiful name of all, [Greek: isonomia], isonomy" which may be defined Equality before the Law.[24] Thus, in an age when Equality before the Law was practically unknown, this remarkable language, by its comprehensiveness and flexibility, supplied a single word, not found in modern tongues, to express an idea practically recognized only in modern times. Such a word in our own language, as the substitute for Equality, might have superseded criticism to which this declaration is exposed.

EQUALITY UNDER CONSTITUTION OF MASSACHUSETTS AND DECLARATION OF INDEPENDENCE.

The way is now prepared to consider the nature of Equality, as secured by the Constitution of Massachusetts. The Declaration of Independence, which followed the French Encyclopedia and the political writings of Rousseau, announces among self-evident truths, "that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness." The Constitution of Massachusetts repeats the same truth in a different form, saying, in its first article: "All men are born free and equal, and have certain natural essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties." Another article explains what is meant by Equality, saying: "No man, nor corporation or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man being born a magistrate, lawgiver, or judge is absurd and unnatural." This language, in its natural signification, condemns every form of inequality in civil and political institutions.

These declarations, though in point of time before the ampler declarations of France, may be construed in the light of the latter. Evidently, they seek to declare the same principle. They are declarations of Rights; and the language employed, though general in character, is obviously limited to those matters within the design of a declaration of Rights. And permit me to say, it is a childish sophism to adduce any physical or mental inequality in argument against Equality of Rights.

Obviously, men are not born equal in physical strength or in mental capacity, in beauty of form or health of body. Diversity or inequality in these respects is the law of creation. From this difference springs divine harmony. But this inequality is in no particular inconsistent with complete civil and political equality.

The equality declared by our fathers in 1776, and made the fundamental law of Massachusetts in 1780, was Equality before the Law. Its object was to efface all political or civil distinctions, and to abolish all institutions founded upon birth. "All men are created equal," says the Declaration of Independence. "All men are born free and equal," says the Massachusetts Bill of Rights. These are not vain words. Within the sphere of their influence, no person can be created, no person can be born, with civil or political privileges not enjoyed equally by all his fellow-citizens; nor can any institution be established, recognizing distinction of birth. Here is the Great Charter of every human being drawing vital breath upon this soil, whatever may be his condition, and whoever may be his parents. He may be poor, weak, humble, or black,—he may be of Caucasian, Jewish, Indian, or Ethiopian race,—he may be of French, German, English, or Irish extraction; but before the Constitution of Massachusetts all these distinctions disappear. He is not poor, weak, humble, or black; nor is he Caucasian, Jew, Indian, or Ethiopian; nor is he French, German, English, or Irish; he is a Man, the equal of all his fellow-men. He is one of the children of the State, which, like an impartial parent, regards all its offspring with an equal care. To some it may justly allot higher duties, according to higher capacities; but it welcomes all to its equal hospitable board. The State, imitating the divine justice, is no respecter of persons.

Here nobility cannot exist, because it is a privilege from birth. But the same anathema which smites and banishes nobility must also smite and banish every form of discrimination founded on birth,—

"Quamvis ille niger, quamvis tu candidus esses."[25]

EQUALITY BY LEGISLATION OF MASSACHUSETTS.

The Legislature of Massachusetts, in entire harmony with the Constitution, has made no discrimination of race or color in the establishment of Common Schools.

Any such discrimination by the Laws would be unconstitutional and void. But the Legislature has been too just and generous, too mindful of the Bill of Rights, to establish any such privilege of birth. The language of the statutes is general, and applies equally to all children, of whatever race or color.

The provisions of the Law are entitled, Of the Public Schools,[26] meaning our Common Schools. To these we must look to ascertain what constitutes a Public School. Only those established in conformity with the Law can be legally such. They may, in fact, be more or less public; yet, if they do not come within the terms of the Law, they do not form part of the beautiful system of our Public Schools,—they are not Public Schools, or, as I prefer to call them, Common Schools. The two terms are used as identical; but the latter is that by which they were earliest known, while it is most suggestive of their comprehensive character. A "common" in law is defined to be "open ground equally used by many persons"; and the same word, when used as an adjective, is defined by lexicographers as "belonging equally to many or to the public," thus asserting Equality.

If we examine the text of this statute, we shall find nothing to sustain the rule of exclusion which has been set up. The first section provides, that "in every town, containing fifty families or householders, there shall be kept in each year, at the charge of the town, by a teacher or teachers of competent ability and good morals, one school for the instruction of children in Orthography, Reading, Writing, English Grammar, Geography, Arithmetic, and Good Behavior, for the term of six months, or two or more such schools, for terms of time that shall together be equivalent to six months." The second, third, and fourth sections provide for the number of such schools in towns having respectively one hundred, one hundred and fifty, and five hundred families or householders. There is no language recognizing any discrimination of race or color. Thus, in every town, the schools, whether one or more, are "for the instruction of children" generally,—not children of any particular class or race or color, but children,—meaning the children of the town where the schools are.

The fifth and sixth sections provide a school, in certain cases, where additional studies are to be pursued, which "shall be kept for the benefit of all the inhabitants of the town." The language here recognizes no discrimination among the children, but seems directly to exclude it.

In conformity with these sections is the peculiar phraseology of the memorable Colonial law of 1647, founding Common Schools, "to the end that learning may not be buried in the graves of our forefathers." This law obliged townships having fifty householders to "forthwith appoint one within their towns to teach all such children as shall resort to him to write and read."[27] Here again there is no discrimination among the children. All are to be taught.

On this legislation the Common Schools of Massachusetts have been reared. The section of the Revised Statutes,[28] and the statute of 1838,[29] appropriating small sums, in the nature of a contribution, from the School Fund, for the support of Common Schools among the Indians, do not interfere with this system. These have the anomalous character of all the legislation concerning the Indians. It does not appear, however, that separate schools are established by law among the Indians, nor that the Indians are in any way excluded from the Common Schools in their neighborhood.

I conclude, on this head, that there is but one Public School in Massachusetts. This is the Common School, equally free to all the inhabitants. There is nothing establishing an exclusive or separate school for any particular class, rich or poor, Catholic or Protestant, white or black. In the eye of the law there is but one class, where all interests, opinions, conditions, and colors commingle in harmony,—excluding none, therefore comprehending all.

EQUALITY UNDER JUDICIAL DECISIONS.

The Courts of Massachusetts, in harmony with the Constitution and the Laws, have never recognized any discrimination founded on race or color, in the administration of the Common Schools, but have constantly declared the equal rights of all the inhabitants.

There are only a few decisions bearing on this subject, but they breathe one spirit. The sentiment of Equality animates them all. In the case of The Commonwealth v. Dedham, (16 Mass. R., 146,) while declaring the equal rights of all the inhabitants, in both Grammar and District Schools, the Court said:—

"The schools required by the statute are to be maintained for the benefit of the whole town, as it is the wise policy of the law to give all the inhabitants equal privileges for the education of their children in the Public Schools. Nor is it in the power of the majority to deprive the minority of this privilege.... Every inhabitant of the town has a right to participate in the benefits of both descriptions of schools; and it is not competent for a town to establish a grammar school for the benefit of one part of the town to the exclusion of the other, although the money raised for the support of schools may be in other respects fairly apportioned."

Here is Equality from beginning to end.

In the case of Withington v. Eveleth, (7 Pick. R., 106,) the Court say they "are all satisfied that the power given to towns to determine and define the limits of school districts can be executed only by a geographical division of the town for that purpose." A limitation of the district merely personal was held invalid. This same principle was again recognized in Perry v. Dover, (12 Pick. R., 213,) where the Court say, "Towns, in executing the power to form school districts, are bound so to do it as to include every inhabitant in some of the districts. They cannot lawfully omit any, and thus deprive them of the benefits of our invaluable system of free schools." Thus at every point the Court has guarded the Equal Rights of all.

The Constitution, the Legislation, and the Judicial Decisions of Massachusetts have now been passed in review. We have seen what is contemplated by the Equality secured by the Constitution,—also what is contemplated by the system of Common Schools, as established by the laws of the Commonwealth and illustrated by decisions of the Supreme Court. The way is now prepared to consider the peculiarities in the present case, and to apply the principle thus recognized in Constitution, Laws, and Judicial Decisions.

SEPARATE SCHOOLS INCONSISTENT WITH EQUALITY.

It is easy to see that the exclusion of colored children from the Public Schools is a constant inconvenience to them and their parents, which white children and white parents are not obliged to bear. Here the facts are plain and unanswerable, showing a palpable violation of Equality. The black and white are not equal before the law. I am at a loss to understand how anybody can assert that they are.

Among the regulations of the Primary School Committee is one to this effect. "Scholars to go to the school nearest their residences. Applicants for admission to our schools (with the exception and provision referred to in the preceding rule) are especially entitled to enter the schools nearest to their places of residence." The exception here is "of those for whom special provision has been made" in separate schools,—that is, colored children.

In this rule—without the unfortunate exception—is part of the beauty so conspicuous in our Common Schools. It is the boast of England, that, through the multitude of courts, justice is brought to every man's door. It may also be the boast of our Common Schools, that, through the multitude of schools, education in Boston is brought to every white man's door. But it is not brought to every black man's door. He is obliged to go for it, to travel for it, to walk for it,—often a great distance. The facts in the present case are not so strong as those of other cases within my knowledge. But here the little child, only five years old, is compelled, if attending the nearest African School, to go a distance of two thousand one hundred feet from her home, while the nearest Primary School is only nine hundred feet, and, in doing this, she passes by no less than five different Primary Schools, forming part of our Common Schools, and open to white children, all of which are closed to her. Surely this is not Equality before the Law.

Such a fact is sufficient to determine this case. If it be met by the suggestion, that the inconvenience is trivial, and such as the law will not notice, I reply, that it is precisely such as to reveal an existing inequality, and therefore the law cannot fail to notice it. There is a maxim of the illustrious civilian, Dumoulin, a great jurist of France, which teaches that even a trivial fact may give occasion to an important application of the law: "Modica enim circumstantia facti inducit magnam juris diversitatem." Also from the best examples of our history we learn that the insignificance of a fact cannot obscure the grandeur of the principle at stake. It was a paltry tax on tea, laid by a Parliament where they were not represented, that aroused our fathers to the struggles of the Revolution. They did not feel the inconvenience of the tax, but they felt its oppression. They went to war for a principle. Let it not be said, then, that in the present case the inconvenience is too slight to justify the appeal I make in behalf of colored children for Equality before the Law.

Looking beyond the facts of this case, it is apparent that the inconvenience from the exclusion of colored children is such as to affect seriously the comfort and condition of the African race in Boston. The two Primary Schools open to them are in Belknap Street and Sun Court. I need not add that the whole city is dotted with schools open to white children. Colored parents, anxious for the education of their children, are compelled to live in the neighborhood of the schools, to gather about them,—as in Eastern countries people gather near a fountain or a well. The liberty which belongs to the white man, of choosing his home, is not theirs. Inclination or business or economy may call them to another part of the city; but they are restrained for their children's sake. There is no such restraint upon the white man; for he knows, that, wherever in the city inclination or business or economy may call him, there will be a school open to his children near his door. Surely this is not Equality before the Law.

If a colored person, yielding to the necessities of position, removes to a distant part of the city, his children may be compelled daily, at an inconvenience which will not be called trivial, to walk a long distance for the advantages of the school. In our severe winters this cannot be disregarded, in the case of children so tender in years as those of the Primary Schools. There is a peculiar instance of hardship which has come to my knowledge. A respectable colored parent became some time since a resident of East Boston, separated from the mainland by water. Of course there are Common Schools at East Boston, but none open to colored children. This parent was obliged to send his children, three in number, daily across the ferry to the distant African School. The tolls amounted to a sum which formed a severe tax upon a poor man, while the long way to travel was a daily tax upon the time and strength of his children. Every toll paid by this parent, as every step taken by the children, testifies to that inequality which I now arraign.

This is the conduct of a colored parent. He is well deserving of honor for his generous efforts to secure the education of his children. As they grow in knowledge they will rise and call him blessed; but at the same time they will brand as accursed that arbitrary discrimination of color in the Common Schools of Boston which rendered it necessary for their father, out of small means, to make such sacrifices for their education.

Here is a grievance which, independent of any stigma from color, calls for redress. It is an inequality which the Constitution and the Laws of Massachusetts repudiate. But it is not on the ground of inconvenience only that it is odious. And this brings me to the next head.

SEPARATE SCHOOLS ARE IN THE NATURE OF CASTE.

The separation of children in the Schools, on account of race or color, is in the nature of Caste, and, on this account, a violation of Equality. The case shows expressly that the child was excluded from the school nearest to her dwelling—the number in the school at the time warranting her admission—"on the sole ground of color." The first Majority Report presented to the School Committee, and mentioned in the statement of facts, presents the grounds of this discrimination with more fulness, saying, "It is one of races, not of colors merely. The distinction is one which the All-wise Creator has seen fit to establish; and it is founded deep in the physical, mental, and moral natures of the two races. No legislation, no social customs, can efface this distinction."[30] Words cannot be chosen more apt than these to describe the heathenish relation of Caste.

This term, which has its prototype in Spanish and French, finds its way into English from the Portuguese casta, which signifies family, breed, race, and is generally used to designate any hereditary distinction, particularly of race. It is most often employed in India, and it is there that we must go to understand its full force. A recent English writer says, that it is "not only a distinction by birth, but is founded on the doctrine of an essentially distinct origin of the different races, which are thus unalterably separated."[31] This is the very ground of the Boston School Committee.

This word is not now for the first time applied to the distinction between the white and black races. Alexander von Humboldt, speaking of the negroes in Mexico, characterizes them as a caste.[32] Following him, a recent political and juridical writer of France uses the same term to denote not only the distinctions in India, but those of our own country, especially referring to the exclusion of colored children from the Common Schools as among "the humiliating and brutal distinctions" by which their caste is characterized.[33] It is, then, on authority and reason alike that we apply this term to the hereditary distinction on account of color now established in the schools of Boston.

Boston is set on a hill, and her schools have long been the subject of observation, even in this respect. As far back as the last century, the French Consul here made a report on our "separate" school;[34] and De Tocqueville, in his masterly work, testifies, with evident pain, that the same schools do not receive the children of the African and European.[35] All this is only a reproduction of the Cagots in France, who for generations were put under the ban,—relegated to a corner of the church, as in a "negro pew," and even in the last resting-place, where all are equal, these wretched people were separated by a line of demarcation from the rest.[36] The Cagots are called an "accursed race," and this language may be applied to the African under our laws. Strange that here, under a State Constitution declaring the Equality of all men, we should follow the worst precedents and establish among us a Caste. Seeing the discrimination in this light, we learn to appreciate its true character. In India, Brahmins and Sudras, from generation to generation, were kept apart. If a Sudra presumed to sit upon a Brahmin's carpet, his punishment was banishment. With similar inhumanity here, the black child who goes to sit on the same benches with the white is banished, not indeed from the country, but from the school. In both cases it is the triumph of Caste. But the offence is greater with us, because, unlike the Hindoos, we acknowledge that men are born equal.

So strong is my desire that the Court should feel the enormity of this system, thus legalized, not by the Legislature, but by an inferior local board, that I shall introduce an array of witnesses all testifying to the unchristian character of Caste, as it appears in India, where it is most studied and discussed. As you join in detestation of this foul institution, you will learn to condemn its establishment among our children.

I take these authorities from the work of Mr. Roberts to which I have already referred, "Caste opposed to Christianity," published in London in 1847. Time will not allow me to make comments. I can only quote the testimony and then pass on.

The eminent Bishop Heber, of Calcutta, characterizes Caste in these forcible terms:—

"It is a system which tends, more than any else the Devil has yet invented, to destroy the feelings of general benevolence, and to make nine tenths of mankind the hopeless slaves of the remainder."

But this is the very system now in question here. Bishop Wilson, also of Calcutta, the successor of Heber, says:—

"The Gospel recognizes no such distinction as those of Castes, imposed by a heathen usage, bearing in some respects a supposed religious obligation, condemning those in the lower ranks to perpetual abasement, placing an immovable barrier against all general advance and improvement in society, cutting asunder the bonds of human fellowship on the one hand, and preventing those of Christian love on the other. Such distinctions, I say, the Gospel does not recognize. On the contrary, it teaches us that God 'hath made of one blood all the nations of men.'"

The same sentiment is echoed by Bishop Corrie, of Madras:—

"Thus Caste sets itself up as a judge of our Saviour himself. His command is, 'Condescend to men of low estate. Esteem others better than yourself.' 'No,' says Caste, 'do not commune with low men: consider yourself of high estimation. Touch not, taste not, handle not.' Thus Caste condemns the Saviour."

Here is the testimony of Rev. Mr. Rhenius, a zealous and successful missionary:—

"I have found Caste, both in theory and practice, to be diametrically opposed to the Gospel, which inculcates love, humility, and union; whereas Caste teaches the contrary. It is a fact, in those entire congregations where Caste is allowed the spirit of the Gospel does not enter; whereas in those from which it is excluded we see the fruits of the Gospel spirit."

Another missionary, Rev. C. Mault, follows in similar strain:—

"Caste must be entirely renounced; for it is a noxious plant, by the side of which the graces cannot grow; for facts demonstrate, that, where it has been allowed, Christianity has never flourished."

So also does the Rev. John McKenny, a Wesleyan missionary:—

"I have been upward of twelve years in India, and have directed much of my attention to the subject of Caste, and am fully of opinion that it is altogether contrary to the nature and principles of the Gospel of Christ, and therefore ought not to be admitted into the Christian Church."

So also the Rev. R.S. Hardy, a Wesleyan missionary, and author of "Notices of the Holy Land":—

"The principle of Caste I consider so much at variance with the spirit of the Gospel as to render impossible, where its authority is acknowledged, the exercise of many of the most beautiful virtues of our holy religion."

So also the Rev. D.J. Gorgerly, of the same Society:—

"I regard the distinction of Caste, both in its principles and operations, as directly opposed to vital godliness, and consequently inadmissible into the Church of Christ."

So also the Rev. W. Bridgnall, of the same Society:—

"I perfectly agree with a writer of respectable authority, in considering the institution of Caste as the most formidable engine that was ever invented for perpetuating the subjugation of men: so that, as a friend of humanity only, I should feel myself bound to protest against and oppose it; but in particular as a Christian, I deem it my obvious and imperative duty wholly to discountenance it, conceiving it to be utterly repugnant to all the principles and the whole spirit of Christianity. He who is prepared to support the system of Caste is, in my judgment, neither a true friend of man nor a consistent follower of Christ."

So also the Rev. S. Allens, of the same Society:—

"During a residence of more than nine years in Ceylon I have had many opportunities of witnessing the influence of Caste on the minds of the natives, and I firmly believe it is altogether opposed to the spirit of Christianity; and it appears to me that its utter and speedy extinction cannot but be desired by every minister of Christ."

So also the Rev. R. Stoup, of the same Society:—

"From my own personal observation, during a four years' residence in Ceylon, I am decidedly of opinion that Caste is directly opposed to the spirit of Christianity, and consequently ought to be discouraged in every possible way."

I conclude these European authorities with the confirmation of Rev. Joseph Roberts, author of the work on Caste:—

"We must in every place witness against it, and show that even Government itself is nurturing a tremendous evil, that through its heathen managers it is beguiled into a course which obstructs the progress of civilization, which keeps in repulsion our kindlier feelings, which creates and nurses distinctions the most alien to all the cordialities of life, and which, more than any other thing, makes the distance so immense betwixt the governed and governors."

There is also the testimony of native Hindoos converted to Christianity, who denounce Caste as Jefferson denounced the despotism of Slavery. Listen to the voice of a Hindoo:—

"Caste is the stronghold of that principle of pride which makes a man think of himself more highly than he ought to think. Caste infuses itself into and forms the very essence of pride itself."

Another Hindoo testifies as follows:—

"I therefore regard Caste as opposed to the main scope, principles, and doctrines of Christianity; for either Caste must be admitted to be true and of divine authority, or Christianity must be so admitted. If you admit Caste to be true, the whole fabric of Christianity must come down; for the nature of Caste and its associations destroy the first principles of Christianity. Caste makes distinctions among creatures where God has made none."

Another native expresses himself thus:—

"When God made man, his intention was, not that they should be divided, and hate one another, and show contempt, and think more highly of themselves than others. Caste makes a man think that he is holier than another, and that he has some inherent virtue which another has not. It makes him despise all those that are lower than himself in regard to Caste, which is not the design of God."

Still another native uses this strong language:—

"Yes, we regard Caste as part and parcel of idolatry, and of all heathen abominations, because it is in many ways contrary to God's Word, and directly contrary to God himself."

I hope that I have not occupied too much time with this testimony, which is strictly in point. There is not a word which is not plainly applicable to the present case. The witnesses are competent, and in their evidence, as in a mirror, may be seen the true character of the discrimination which I bring to judgment before this Court.

It will be vain to say that this distinction, though seeming to be founded on color, is in reality founded on natural and physical peculiarities independent of color. Whatever they may be, they are peculiarities of race; and any discrimination on this account constitutes the relation of Caste, in the most restricted sense of this term. Disguise it as you will, it is nothing but this hateful, irreligious institution. But the words Caste and Equality are contradictory. They mutually exclude each other. Where Caste is, there cannot be Equality; where Equality is, there cannot be Caste.

Unquestionably there is a distinction between the Ethiopian and the Caucasian. Each received from the hand of God certain characteristics of color and form. The two may not readily intermingle, although we are told by Homer that Jupiter did not