One may be uninteresting or offensive to the other, precisely as individuals of the same race and color may be uninteresting or offensive to each other. But this distinction can furnish no ground for any discrimination before the law.
We abjure nobility of all kinds; but here is a nobility of the skin. We abjure all hereditary distinctions; but here is an hereditary distinction, founded, not on the merit of the ancestor, but on his color. We abjure all privileges of birth; but here is a privilege which depends solely on the accident whether an ancestor is black or white. We abjure all inequality before the law; but here is an inequality which touches not an individual, but a race. We revolt at the relation of Caste; but here is a Caste which is established under a Constitution declaring that all men are born equal.
Condemning Caste and inequality before the law, the way is prepared to consider more particularly the powers of the School Committee. Here it will be necessary to enter into details.
The Committee charged with the superintendence of the Common Schools of Boston have no power to make any discrimination on account of race or color.
It has been seen already that this power is inconsistent with the Declaration of Independence, with the Constitution and Laws of Massachusetts, and with adjudications of the Supreme Court. The stream cannot rise higher than the fountain-head; and if there be nothing in these elevated sources from which this power can spring, it must be considered a nullity. Having seen that there is nothing, I might here stop; but I wish to show the shallow origin of this pretension.
Its advocates, unable to find it among express powers conferred upon the School Committee, and forgetful of the Constitution, where "either it must live or bear no life," place it among implied or incidental powers. The Revised Statutes provide for a School Committee "who shall have the general charge and superintendence of all the Public Schools" in their respective towns.[37] Another section provides that "the School Committee shall determine the number and qualifications of the scholars to be admitted into the school kept for the use of the whole town."[38] These are all the clauses conferring powers on the Committee.
From them no person will imply a power to defeat a cardinal principle of the Constitution. It is absurd to suppose that the Committee in general charge and superintendence of schools, and in determining the number and qualifications of scholars, may engraft upon the schools a principle of inequality, not only unknown to the Constitution and Laws, but in defiance of their letter and spirit. In the exercise of these powers they cannot put colored children to personal inconvenience greater than that of white children. Still further, they cannot brand a whole race with the stigma of inferiority and degradation, constituting them a Caste. They cannot in any way violate that fundamental right of all citizens, Equality before the Law. To suppose that they can do this would place the Committee above the Constitution. It would enable them, in the exercise of a brief and local authority, to draw a fatal circle, within which the Constitution cannot enter,—nay, where the very Bill of Rights becomes a dead letter.
In entire harmony with the Constitution, the law says expressly what the Committee shall do. Besides the general charge and superintendence, they shall "determine the number and qualifications of the scholars to be admitted into the school,"—thus, according to a familiar rule of interpretation, excluding other powers: Mentio unius est exclusio alterius. The power to determine the "number" is easily executed, and admits of no question. The power to determine the "qualifications," though less simple, must be restricted to age, sex, and fitness, moral and intellectual. The fact that a child is black, or that he is white, cannot of itself be a qualification or a disqualification. Not to the skin can we look for the criterion of fitness.
It is sometimes pretended, that the Committee, in the exercise of their power, are intrusted with a discretion, under which they may distribute, assign, and classify all children belonging to the schools according to their best judgment, making, if they think proper, a discrimination of race or color. Without questioning that they are intrusted with a discretion, it is outrageous to suppose that their discretion can go to this extent. The Committee can have no discretion which is not in harmony with the Constitution and Laws. Surely they cannot, in any mere discretion, nullify a sacred and dear-bought principle of Human Plights expressly guarantied by the Constitution.
Still further,—and here I approach a more technical view of the subject,—it is an admitted principle, that the regulations and by-laws of municipal corporations must be reasonable, or they are inoperative and void. This has been recognized by the Supreme Court in two different cases,—Commonwealth v. Worcester, (3 Pick. R., 462,) and in Vandine's case (6 Pick. R., 187). In another case, City of Boston v. Shaw, (1 Met. R., 130,) it was decided that a by-law of Boston, prescribing a particular form of contribution toward the expenses of making the common sewers, was void for inequality and unreasonableness.
Assuming that this principle is applicable to the School Committee, their regulations and by-laws must be reasonable. Their discretion must be exercised in a reasonable manner. And this is not what the Committee or any other body of men think reasonable, but what is reasonable in the eye of the Law. It must be legally reasonable. It must be approved by the reason of the Law.
Here we are brought once more, in another form, to the question of the discrimination on account of color. Is this legally reasonable? Is it reasonable, in the exercise of a just discretion, to separate descendants of the African race from white children merely in consequence of descent? Passing over those principles of the Constitution and those provisions of Law which of themselves decide the question, constituting as they do the highest reason, but which have been already amply considered, look for a moment at the educational system of Massachusetts, and it will be seen that practically no discrimination of color is made by Law in any part of it. A descendant of the African race may be Governor of the Commonwealth, and as such, with the advice and consent of the Council, may select the Board of Education. As Lieutenant-Governor, he may be ex officio a member of the Board. He may be Secretary of the Board, with the duty imposed on him by law of seeing "that all children in this Commonwealth, who depend upon Common Schools for instruction, may have the best education which those schools can be made to impart."[39] He may be member of any School Committee, or teacher in any Common School of the State. As legal voter, he can vote in the selection of any School Committee.
Thus, in every department connected with our Common Schools, throughout the whole hierarchy of their government, from the very head of the system down to the humblest usher in the humblest Primary School, and to the humblest voter, there is no distinction of color known to the law. It is when we reach the last stage of all, the children themselves, that the beautiful character of the system is changed to the deformity of Caste, as, in the picture of the ancient poet, what above was a lovely woman terminated below in a vile, unsightly fish. And all this is done by the School Committee, with more than necromantic power, in the exercise of a mere discretion.
It is clear that the Committee may classify scholars according to age and sex, for the obvious reasons that these distinctions are inoffensive, and that they are especially recognized as legal in the law relating to schools.[40] They may also classify scholars according to moral and intellectual qualifications, because such a power is necessary to the government of schools. But the Committee cannot assume, a priori, and without individual examination, that all of an entire race are so deficient in proper moral and intellectual qualifications as to justify their universal degradation to a class by themselves. Such an exercise of discretion must be unreasonable, and therefore illegal.
But it is said that the School Committee, in thus classifying the children, have not violated any principle of Equality, inasmuch as they provide a school with competent instructors for colored children, where they have advantages equal to those provided for white children. It is argued, that, in excluding colored children from Common Schools open to white children, the Committee furnish an equivalent.
Here there are several answers. I shall touch them briefly, as they are included in what has been already said.
1. The separate school for colored children is not one of the schools established by the law relating to Public Schools.[41] It is not a Common School. As such it has no legal existence, and therefore cannot be a legal equivalent. In addition to what has been already said, bearing on this head, I call attention to one other aspect. It has been decided that a town can execute its power to form School Districts only by geographical divisions of its territory, that there cannot be what I would call a personal limitation of a district, and that certain individuals cannot be selected and set off by themselves into a district.[42] The admitted effect of this decision is to render a separate school for colored children illegal and impossible in towns divided into districts. They are so regarded in Salem, Nantucket, New Bedford, and in other towns of this Commonwealth. The careful opinion of a learned member of this Court, who is not sitting in this case, given while at the bar,[43] and extensively published, is considered as practically settling this point.
But there cannot be one law for the country and another for Boston. It is true that Boston is not divided strictly into geographical districts. In this respect its position is anomalous. But if separate colored schools are illegal and impossible in the country, they must be illegal and impossible in Boston. It is absurd to suppose that this city, failing to establish School Districts, and treating all its territory as a single district, should be able to legalize a Caste school, which otherwise it could not do. Boston cannot do indirectly what other towns cannot do directly. This is the first answer to the allegation of equivalents.
2. The second is that in point of fact the separate school is not an equivalent. We have already seen that it is the occasion of inconvenience to colored children, which would not arise, if they had access to the nearest Common School, besides compelling parents to pay an additional tax, and inflicting upon child and parent the stigma of Caste. Still further,—and this consideration cannot be neglected,—the matters taught in the two schools may be precisely the same, but a school exclusively devoted to one class must differ essentially in spirit and character from that Common School known to the law, where all classes meet together in Equality. It is a mockery to call it an equivalent.
3. But there is yet another answer. Admitting that it is an equivalent, still the colored children cannot be compelled to take it. Their rights are found in Equality before the Law; nor can they be called to renounce one jot of this. They have an equal right with white children to the Common Schools. A separate school, though well endowed, would not secure to them that precise Equality which they would enjoy in the Common Schools. The Jews in Rome are confined to a particular district called the Ghetto, and in Frankfort to a district known as the Jewish Quarter. It is possible that their accommodations are as good as they would be able to occupy, if left free to choose throughout Rome and Frankfort; but this compulsory segregation from the mass of citizens is of itself an inequality which we condemn. It is a vestige of ancient intolerance directed against a despised people. It is of the same character with the separate schools in Boston.
Thus much for the doctrine of Equivalents as a substitute for Equality.
In determining that the School Committee have no power to make this discrimination we are strengthened by another consideration. If the power exists in the present case, it cannot be restricted to this. The Committee may distribute all the children into classes, according to mere discretion. They may establish a separate school for Irish or Germans, where each may nurse an exclusive nationality alien to our institutions. They may separate Catholics from Protestants, or, pursuing their discretion still further, may separate different sects of Protestants, and establish one school for Unitarians, another for Presbyterians, another for Baptists, and another for Methodists. They may establish a separate school for the rich, that the delicate taste of this favored class may not be offended by the humble garments of the poor. They may exclude the children of mechanics, and send them to separate schools. All this, and much more, can be done in the exercise of that high-handed power which makes a discrimination on account of race or color. The grand fabric of our Common Schools, the pride of Massachusetts,—where, at the feet of the teacher, innocent childhood should come, unconscious of all distinctions of birth,—where the Equality of the Constitution and of Christianity should be inculcated by constant precept and example,—will be converted into a heathen system of proscription and Caste. We shall then have many different schools, representatives of as many different classes, opinions, and prejudices; but we shall look in vain for the true Common School of Massachusetts. Let it not be said that there is little danger that any Committee will exercise a discretion to this extent. They must not be intrusted with the power. Here is the only safety worthy of a free people.
The Court will declare the by-law of the School Committee unconstitutional and illegal, although there are no express words of prohibition in the Constitution and Laws.
It is hardly necessary to say anything in support of this proposition. Slavery was abolished in Massachusetts, under the Declaration of Rights in our Constitution, without any specific words of abolition in that instrument, or in any subsequent legislation.[44] The same words which are potent to destroy Slavery must be equally potent against any institution founded on Inequality or Caste. The case of Boston v. Shaw (1 Metcalf, 130), to which reference has been already made, where a by-law of the city was set aside as unequal and unreasonable, and therefore void, affords another example of the power which I here invoke. But authorities are not needed. The words of the Constitution are plain, and it will be the duty of the Court to see that they are applied to the discrimination now waiting for judgment.
The Court might justly feel delicacy, if called to revise an act of the Legislature. But it is simply the action of a local committee that they are to overrule. They may also be encouraged by the circumstance that it is only to the schools of Boston that their decision can be applicable. Already the other towns have voluntarily banished Caste. Banishing it from the schools of Boston, the Court will bring them into much-desired harmony with the schools of other towns, and with the whole system of Common Schools. I am unwilling to suppose that there can be any hesitation or doubt. If any should arise, there is a rule of interpretation which is plain. According to familiar practice, judicial interpretation is made always in favor of life or liberty. So here the Court should incline in favor of Equality, that sacred right which is the companion of those other rights. In proportion to the importance of this right will the Court be solicitous to vindicate and uphold it. And in proportion to the opposition which it encounters from prejudices of society will the Court brace themselves to this task. It has been pointedly remarked by Rousseau, that "it is precisely because the force of things tends always to destroy Equality that the force of legislation should always tend to maintain it."[45] In similar spirit, and for the same reason, the Court should always tend to maintain Equality.
In extenuation of the Boston system, it is sometimes said that the separation of white and black children was originally made at the request of colored parents. This is substantially true. It appears from the interesting letter of Dr. Belknap, in reply to Judge Tucker's queries respecting Slavery in Massachusetts, at the close of the last century, that no discrimination on account of color existed then in the Common Schools of Boston. "The same provision," he says, "is made by the public for the education of the children of the blacks as for those of the whites. In this town the Committee who superintend the free schools have given in charge to the schoolmasters to receive and instruct black children as well as white." Dr. Belknap had "not heard of more than three or four who had taken advantage of this privilege, though the number of blacks in Boston probably exceeded one thousand."[46] Much I fear that the inhuman bigotry of Caste—sad relic of the servitude from which they had just escaped—was at this time too strong to allow colored children kindly welcome in the free schools, and that, from timidity and ignorance, they hesitated to take a place on the same benches with the white children. Perhaps the prejudice was so inveterate that they could not venture to assert their rights. In 1800 a petition from sixty-six colored persons was presented to the School Committee, requesting the establishment of a school for their benefit. Some time later, private munificence came to the aid of this work, and the present system of separate schools was brought into being.
These are interesting incidents belonging to the history of the Boston schools, but they cannot in any way affect the rights of colored people or the powers of the School Committee. These rights and these powers stand on the Constitution and Laws. Without adopting the suggestion of Jefferson, that one generation cannot by legislation bind its successors, all must agree that the assent of a few to an unconstitutional and illegal course nearly half a century ago, when their rights were imperfectly understood, cannot alter the Constitution and the Laws so as to bind their descendants forever in the thrall of Caste. Nor can the Committee derive from this assent, or from any lapse of time, powers in derogation of the Constitution and the Rights of Man.
It is clear that the sentiments of the colored people have now changed. The present case, and the deep interest which they manifest in it, thronging the Court to watch this discussion, attest the change. With increasing knowledge they have learned to know their rights, and feel the degradation to which they are doomed. In them revives the spirit of Paul, even as when he demanded, "Is it lawful for you to scourge a man that is a Roman, and uncondemned?" Their present effort is the token of a manly character, which this Court will respect and cherish.
But it is said that these separate schools are for the benefit of both colors, and of the Public Schools. In similar spirit Slavery is sometimes said to be for the benefit of master and slave, and of the country where it exists. There is a mistake in the one case as great as in the other. This is clear. Nothing unjust, nothing ungenerous, can be for the benefit of any person or any thing. From some seeming selfish superiority, or from the gratified vanity of class, short-sighted mortals may hope to draw permanent good; but even-handed justice rebukes these efforts and redresses the wrong. The whites themselves are injured by the separation. Who can doubt this? With the Law as their monitor, they are taught to regard a portion of the human family, children of God, created in his image, coequals in his love, as a separate and degraded class; they are taught practically to deny that grand revelation of Christianity, the Brotherhood of Man. Hearts, while yet tender with childhood, are hardened, and ever afterward testify to this legalized uncharitableness. Nursed in the sentiments of Caste, receiving it with the earliest food of knowledge, they are unable to eradicate it from their natures, and then weakly and impiously charge upon our Heavenly Father the prejudice derived from an unchristian school. Their characters are debased, and they become less fit for the duties of citizenship.
The Helots of Sparta were obliged to intoxicate themselves, that by example they might teach the deformity of intemperance. Thus sacrificing one class to the other, both were injured,—the imperious Spartan and the abased Helot. The School Committee of Boston act with similar double-edged injustice in sacrificing the colored children to the prejudice or fancied advantage of the white.
A child should be taught to shun wickedness, and, as he is yet plastic under impressions, to shun wicked men. Horace was right, when, speaking of a person morally wrong, false, and unjust, he calls him black, and warns against him:—
"Hic niger est: hunc tu, Romane, caveto."[47]
The Boston Committee adopt the warning, but apply it not to the black in heart, but the black in skin. They forget the admonition addressed to the prophet: "The Lord said unto Samuel, Look not on his countenance: ... for the Lord seeth not as man seeth; for man looketh on the outward appearance, but the Lord looketh on the heart."[48] The Committee look on the outward appearance, without looking on the heart, and thus fancy that they are doing right!
Who can say that this does not injure the blacks? Theirs, in its best estate, is an unhappy lot. A despised class, blasted by prejudice and shut out from various opportunities, they feel this proscription from the Common Schools as a peculiar brand. Beyond this, it deprives them of those healthful, animating influences which would come from participation in the studies of their white brethren. It adds to their discouragements. It widens their separation from the community, and postpones that great day of reconciliation which is yet to come.
The whole system of Common Schools suffers also. It is a narrow perception of their high aim which teaches that they are merely to furnish an equal amount of knowledge to all, and therefore, provided all be taught, it is of little consequence where and in what company. The law contemplates not only that all shall be taught, but that all shall be taught together. They are not only to receive equal quantities of knowledge, but all are to receive it in the same way. All are to approach the same common fountain together; nor can there be any exclusive source for individual or class. The school is the little world where the child is trained for the larger world of life. It is the microcosm preparatory to the macrocosm, and therefore it must cherish and develop the virtues and the sympathies needed in the larger world. And since, according to our institutions, all classes, without distinction of color, meet in the performance of civil duties, so should they all, without distinction of color, meet in the school, beginning there those relations of Equality which the Constitution and Laws promise to all.
As the State derives strength from the unity and solidarity of its citizens without distinction of class, so the school derives strength from the unity and solidarity of all classes beneath its roof. In this way the poor, the humble, and the neglected not only share the companionship of the more favored, but enjoy also the protection of their presence, which draws toward the school a more watchful superintendence. A degraded or neglected class, if left to themselves, will become more degraded or neglected. "If any man have ears to hear, let him hear.... For he that hath, to him shall be given; and he that hath not, from him shall be taken even that which he hath."[49] The world, perverting the true sense of these words, takes from the outcast that which God gave him capacity to enjoy. Happily, our educational system, by the blending of all classes, draws upon the whole school that attention which is too generally accorded only to the favored few, and thus secures to the poor their portion of the fruitful sunshine. But the colored children, placed apart in separate schools, are deprived of this peculiar advantage. Nothing is more clear than that the welfare of classes, as well as of individuals, is promoted by mutual acquaintance. Prejudice is the child of ignorance. It is sure to prevail, where people do not know each other. Society and intercourse are means established by Providence for human improvement. They remove antipathies, promote mutual adaptation and conciliation, and establish relations of reciprocal regard. Whoso sets up barriers to these thwarts the ways of Providence, crosses the tendencies of human nature, and directly interferes with the laws of God.
May it please your Honors: Such are some of the things which I feel it my duty to say in this important cause. I have occupied much time, but the topics are not yet exhausted. Still, which way soever we turn, we are brought back to one single proposition,—the Equality of men before the Law. This stands as the mighty guardian of the colored children in this case. It is the constant, ever-present, tutelary genius of this Commonwealth, frowning upon every privilege of birth, every distinction of race, every institution of Caste. You cannot slight it or avoid it. You cannot restrain it. God grant that you may welcome it! Do this, and your words will be a "charter and freehold of rejoicing" to a race which by much suffering has earned a title to much regard. Your judgment will become a sacred landmark, not in jurisprudence only, but in the history of Freedom, giving precious encouragement to the weary and heavy-laden wayfarers in this great cause. Massachusetts, through you, will have fresh title to respect, and be once more, as in times past, an example to the whole land.
Already you have banished Slavery from this Commonwealth. I call upon you now to obliterate the last of its footprints, and to banish the last of the hateful spirits in its train. The law interfering to prohibit marriage between blacks and whites has been abolished by the Legislature. Railroads, which, imitating the Boston schools, placed colored people apart by themselves, are compelled, under the influence of an awakened public sentiment, to abandon this regulation, and to allow them the privileges of other travellers. Only recently I have read that his Excellency, our present Governor,[50] took his seat in a train by the side of a negro. In the Caste Schools of Boston the prejudice of color seeks its final refuge. It is for you to drive it forth. You do well, when you rebuke and correct individual offences; but it is a higher office to rebuke and correct a vicious institution. Each individual is limited in influence; but an institution has the influence of numbers organized by law. The charity of one man may counteract or remedy the uncharitableness of another; but no individual can counteract or remedy the uncharitableness of an organized injury. Against it private benevolence is powerless. It is a monster to be hunted down by the public and the constituted authorities. And such is the institution of Caste in the Common Schools of Boston, which now awaits a just condemnation from a just Court.
One of the most remarkable expositions of Slavery is from the pen of Condorcet, in a note to the "Thoughts" of Pascal. Voltaire, in his later commentary on the same text, speaks of this "terrible" note, and adopts its conclusion. In the course of this arraignment, the philosopher, painting the character of the slave-master, says, "Such is the excess of his stupid contempt for this wretched race, that, returning to Europe, he is indignant to see them clothed as men and placed by his side."[51] Thus the repugnance of the slave-master to see the wretched race placed by his side is adduced as crowning evidence of the inhumanity of Slavery. But this very repugnance has practical sanction among us, and you are to determine whether it shall be longer permitted. Slavery, in one of its enormities, is now before you for judgment. Hesitate not, I pray you, to strike it down. Let the blow fall which shall end its domination here in Massachusetts.
The civilization of the age joins in this appeal. I need not remind you that this prejudice of color is peculiar to our country. You may remember that two youths of African blood only recently gained the highest honors in a college at Paris, and on the same day dined with the King of the French, the descendant of St. Louis, at the Palace of the Tuileries. And let me add, if I may refer to my own experience, that at the School of Law in Paris I have sat for weeks on the same benches with colored pupils, listening, like myself, to the learned lectures of Degerando and Rossi; nor do I remember, in the throng of sensitive young men, any feeling toward them except of companionship and respect. In Italy, at the Convent of Palazzuolo, on the shores of the Alban Lake, amidst a scene of natural beauty enhanced by historical association, where I was once a guest, I have, for days, seen a native of Abyssinia, recently from his torrid home, and ignorant of the language spoken about him, mingling, in delightful and affectionate familiarity, with the Franciscan friars, whose visitor and scholar he was. Do I err in saying that the Christian spirit shines in these examples?
The Christian spirit, then, I again invoke. Where this prevails, there is neither Jew nor Gentile, Greek nor Barbarian, bond nor free, but all are alike. From this we derive new and solemn assurance of the Equality of Men, as an ordinance of God. Human bodies may be unequal in beauty or strength; these mortal cloaks of flesh may differ, as do these worldly garments; these intellectual faculties may vary, as do opportunities of action and advantages of position; but amid all unessential differences there is essential agreement and equality. Dives and Lazarus are equal in the sight of God: they must be equal in the sight of all human institutions.
This is not all. The vaunted superiority of the white race imposes corresponding duties. The faculties with which they are endowed, and the advantages they possess, must be exercised for the good of all. If the colored people are ignorant, degraded, and unhappy, then should they be especial objects of care. From the abundance of our possessions must we seek to remedy their lot. And this Court, which is parent to all the unfortunate children of the Commonwealth, will show itself most truly parental, when it reaches down, and, with the strong arm of Law, elevates, encourages, and protects our colored fellow-citizens.
Report of the Committee of Overseers, February 7, 1850.
In Board of Overseers, February 1, 1849.
Voted, That Hon. Peleg Sprague, Hon. Simon Greenleaf, Charles Sumner, Esq., Hon. Albert H. Nelson, and Peleg W. Chandler, Esq., be a committee to visit the Law School during the ensuing year. [Hon. William Kent was afterwards substituted for Mr. Greenleaf, who declined.]
In Board of Overseers, February 7, 1850.
Ordered, That the Report of the Committee appointed to visit the Law School be printed.
Attest,
ALEXANDER YOUNG, Secretary.
The Committee appointed by the Overseers of Harvard University to visit the Law School performed that service November 7, 1849. Among their number present on the occasion was Hon. William Kent, of New York, who gratified his associates by coming a long distance to join in this duty.
The attention of the Committee was first directed to the actual condition of the School, and its advantages as a place of legal education. Here there is occasion for lively satisfaction. The number of students is one hundred, assembled from all parts of the Union, and constituting a representation of the whole country. Their attendance upon the lectures and other exercises, though entirely voluntary, is full and regular; while their industry, good conduct, and intelligent reception of instruction is a source of gratification to their professors.
Lectures were given, during the current term, by Professor Parker, upon Equity Pleadings, Bailments, and Practice,—by Professor Parsons, upon Blackstone's Commentaries, Admiralty Jurisdiction, Shipping, Bills and Notes,—and by Professor Allen, upon Real Law and Domestic Relations. In treating most of these branches, the professors employed text-books of acknowledged authority, to which the attention of the students was especially directed. They also examined the students in these books, and in leading cases illustrating the subject.
This system, which, with substantial uniformity, has been continued in the School since its earliest foundation, appears well adapted to instruction in the law. It is essential that the student should be directed to certain text-books, which he must study carefully, devotedly. Nor can he properly omit to go behind these, and verify them by the decided cases, letting no day pass without its fulfilled task. In this way he is prepared for examination, and enabled to appreciate the explanations and illustrations of the lecture-room, throwing light upon the text, and showing its application to practical cases. The labors of the student will qualify him to comprehend the labors of the instructor. Still further, examinations in the text-books, accompanied by explanations and illustrations, interest the student in the subject, and bring his mind in contact with that of his instructor.
These same purposes are promoted by the favorite exercise of moot-courts, held twice a week by the different professors in succession. A case involving some unsettled question of law is presented by four students, designated so long in advance as to allow time for careful preparation; and at the close of the arguments an opinion is pronounced by the presiding professor, commenting upon the arguments on each side, and deciding between them. These occasions are found to enlist the best attention, not only of those immediately engaged, but of the whole School,—while some of the efforts they call forth show distinguished research and ability. On this mimic field are trained forensic powers destined to be the pride and ornament of the bar.
The advantages for study afforded by the extensive library of the Law School should not be forgotten. This is separate from the Public Library of the University, and contains about fourteen thousand volumes. Here are all the American Reports,—the Statutes of the United States, as well as those of all the several States,—a regular series of all the English Reports, including the Year-Books,—the English Statutes,—the principal treatises on American and English law,—also a large body of works in the Scotch, French, German, Dutch, Spanish, Italian, and other foreign law,—and an ample collection of the best editions of the Roman or Civil Law, with the works of the most celebrated commentators upon that ancient text. This library is one of the largest and most valuable, relating to law, in the country. As an aid to study, it cannot be estimated too highly. Here the student may range at will through all the demesnes of jurisprudence. Here he may acquire knowledge of law-books, learning their true character and value, which will be of incalculable service in his future labors. Whoso knows how to use a library possesses the very keys of knowledge. Next to knowing the law is knowing where to find it.
There is another advantage, of peculiar character, in the opportunity of kindly and profitable social relations among the students, and also between students and professors. Young men engaged in similar pursuits are instructors to each other. The daily conversation concerns their common studies, and contributes some new impulse. Mind meets mind, and each derives strength from the contact. The professor is also at hand. In the lecture-room, and also in private, he is ready for counsel and help. The students are not alone. At every step they find an assistant ready to conduct them through the devious and toilsome passes, and to remove the difficulties which throng the way. This twofold companionship of students with each other and with their appointed teachers is full of good influence, not only in the cordial intercourse it begets, but in the positive knowledge it diffuses, and its stimulating effect upon the mind.
In dwelling on the advantages of the Law School as a seat of legal education, the Committee therefore rank side by side with the lectures and exercises of the professors the profitable opportunities afforded by the library and the fellowship of persons engaged in the same pursuits, all echoing to the heart of the pupil, as from the genius of the place, constant words of succor, encouragement, and hope.
From the present prosperity of the School, the Committee are led to look back at its early beginning, to observe its growth, and to commemorate with gratitude its benefactors.
It hardly need be added, that a Law School was not embraced by our forefathers in the original design of the College, and that it is a late graft upon the ancient stock. The College was planted at a time when law was not treated, even in England, as a part of academic instruction. The first settlers could not be expected to establish professorships unknown in the land from which they had parted; nor did there appear in those early days, or for some time later, any occasion for professional instruction. The law, as science, profession, or practical instrument of government, was scarcely recognized. Lawyers were not known as a class, nor was their business respected. Thomas Lechford, of Clement's Inn, who emigrated not long after the foundation of the College, hoping to gain a livelihood as attorney, being cautioned at a quarter court "not to meddle with controversies," went back to England. As the Colony grew, it gradually laid hold of the Common Law, and for some time before the Revolution claimed it as a birthright.
The history of the University Library exposes the poverty of the means for the study of the law in those early days. In its Catalogue, published in 1723, we find but seven volumes of Common Law. These are Spelman's Glossary, Pulton's Collection of Statutes, Keble's Statutes, Coke's First and Second Institutes, and two odd volumes of the Year-Books. Such were the means for the study of our law afforded by the public library, which Cotton Mather, sometime before the publication of this catalogue, described as "the best furnished that could be shown anywhere in all the American regions." Since books are the instruments of learning, it follows, if these were wanting, that the study of the law could make little advance. Happily this is now changed.
The first professorship of law in the University was established in 1815, upon a foundation partly supplied by an ancient devise of Isaac Royall, Esq.,—a munificent gentleman of ample fortune, who, being connected by blood and marriage, as well as by political opinions, with the principal royalists of Massachusetts, forsook the country with them at the commencement of the Revolution, and died at Kensington, in England, in October, 1781. Though an exile, he did not forget the land he had left. Thither before death his "heart untravelled fondly turned." By his will, recorded at the Probate Office in Boston, he devised to Medford, in Massachusetts, where he had resided, certain lands in Granby, for the support of schools. The residue of his estate in that town, and other lands in the County of Worcester, he devised to the Overseers and Corporation of Harvard College, "to be appropriated towards the endowing a Professor of Laws in the said College, or a Professor of Physic and Anatomy, whichever the said Overseers and Corporation shall judge to be best for the benefit of the said College." The capital, with its accumulation, from the property thus devised, is $7,943, yielding an annual income of about four hundred dollars. It is believed that the University and the lovers of the law are indebted to the late Hon. John Lowell, while a member of the Corporation, for calling these funds—yet unappropriated to either object of the devise—from their sleep in the treasury, by procuring the establishment of a professorship of law, which was ordered, for the present, to bear the name of Royall, in honor of him whose will in this regard was now first executed. This was in 1815. The residue of the funds for its support have been supplied by the University, mainly from fees paid by students of law. The Hon. Isaac Parker, late Chief Justice of this Commonwealth, was the first professor.
In 1817 the Hon. Asahel Stearns was placed upon another foundation, established by the University. The statutes of this professorship required him to open and keep a school in Cambridge for the instruction of graduates and of others prosecuting the study of the law. Besides prescribing to his pupils a course of study, it was made his duty to examine and confer with them upon their studies, to read to them a course of lectures, and generally to act the part of tutor, so as to improve their minds and assist their acquisitions. From this time may be dated the establishment of the Law School in the University.
Chief-Justice Parker never resided at Cambridge, but, in the performance of his duties as professor, every summer read lectures to the Law School and the senior class of undergraduates. These were of an elementary nature, adapted to youthful minds,—the audience being for the most part undergraduates,—and were characterized by that free and flowing style which marks the judicial opinions of this eminent Judge. They comprised a view of the Constitutions of the United States and of Massachusetts, with the early juridical history of New England, and the origin of its laws and institutions. Professor Stearns, who resided in Cambridge, was occupied immediately with the duties of instruction. He was accustomed to hear recitations in the more important text-books, to preside in moot-courts, and to read lectures on interesting titles of law. His valuable work on Real Actions, so well known to lawyers, was prepared in the discharge of his duties as professor, and read to his pupils in a course of lectures. The first edition was dedicated by the author "To the Law Students of Harvard University, as a testimony of his earnest desire to aid them in the honorable and laborious study of American jurisprudence."
The number of students at this period was small. From 1817 to 1829 the largest class for any single year was eighteen, and the average annual number was not more than thirteen. The first important step, however, was taken. Law was admitted within the circle of University studies, while, by the learning and reputation of its professors, the cause of legal education was commended, and the idea of a Law School was shown to be practicable.
On the resignation of Chief-Justice Parker and Professor Stearns a new epoch in the history of the School began. The Hon. Nathan Dane, in 1829, emulating the example of Viner in England, applied the profits of his extensive Abridgment and Digest of American Law to the foundation of a new professorship, still called from his name; and at his request, the late Joseph Story, then a resident of Salem, and an Associate Justice of the Supreme Court, was appointed the first professor. In his communication to the University, making this endowment, the venerable founder marked out the proposed duties as follows: "It shall be the duty of the professor to prepare and deliver, and to revise for publication, a course of lectures on the five following branches of law and equity, equally in force in all parts of our Federal Republic, namely, the Law of Nature, the Law of Nations, Commercial and Maritime Law, Federal Law, and Federal Equity, in such wide extent as the same branches now are, and from time to time shall be, administered in the Courts of the United States, but in such compressed form as the professor shall deem proper, and so to prepare, deliver, and revise lectures thereon as often as the said Corporation shall think proper." The original endowment by Mr. Dane was $10,000, to which on his death was added $5,000, making the sum-total $15,000. Mr. Justice Story removed to Cambridge in 1829, commencing his new career as Dane Professor of Law with an inaugural discourse, where the honorable nature of legal studies, the arduous labors required in their pursuit, and the duties upon which he was entering, were reviewed with singular power and beauty. At the same time, John Hooker Ashmun, Esq., a lawyer of remarkable acuteness and maturity, who, though young, had shown already the capacity of a jurist, was associated with him as Royall Professor of Law.
From the exertions of the new professors the Law School received fresh impulse. The number of students increased, and the fame of the institution was extended. Professor Story, though much absent in the discharge of his judicial duties, yet found time for active part in teaching. He presided in moot-courts and lecture-rooms, and, by earnest encouragement and profuse instruction, not less than by illustrious example, raised the classes to unwonted ardor. He continued in this sphere, giving and receiving happiness, for a period of sixteen years, when, as age advanced, desiring to lay down some of his cares, he proposed to resign his seat on the bench, and dedicate the remainder of his days to his professorship. As he was about to make this change he was arrested by death, September 10, 1845.
Professor Ashmun had already fallen by his side, much regretted, at the early age of thirty-three. Besides moot-courts, examinations in text-books, and oral expositions of the law, this learned teacher occasionally read written lectures. Among these was a valuable course on Medical Jurisprudence, Equity, and the Action of Assumpsit. His place was supplied in 1833 by an eminent jurist, Simon Greenleaf, Esq., who labored for a long period with rare success, beloved by a large circle of grateful pupils, and by his associates in instruction, till 1848, when he was compelled by ill-health to resign his connection with the Law School. Among his distinguished labors, in the discharge of his duties as professor, is a work on the Law of Evidence, which is now a manual in the courts of our country, and one of the classics of the Common Law.
On the death of Professor Story, Professor Greenleaf was made Dane Professor. Hon. William Kent, of New York, occupied for a year the place of Royall Professor, when he felt constrained, by circumstances beyond his control, to leave Cambridge. Since then Hon. Theophilus Parsons has been Dane Professor, and Hon. Joel Parker, late Chief Justice of New Hampshire, Royall Professor. Hon. Franklin Dexter has lectured for a brief period on the Constitution of the United States and the Law of Nations, and Hon. Luther S. Cushing on Parliamentary Law and Criminal Law. Hon. Frederick H. Allen, late a judge in Maine, at present University Professor, without any permanent foundation, is coöperating with Professor Parsons and Professor Parker in the general duties of instruction.
In reviewing the history of the School, the Committee, while gratefully remembering all its instructors, are impressed by the long and important labors of Story. In the meridian of his fame as judge, he became a practical teacher of jurisprudence, and lent to the University the lustre of his name. Through him the Dane Professorship has acquired a renown placing it on the same elevation with the Vinerian Professorship at Oxford, to which we are indebted for the Commentaries of Sir William Blackstone. These "twin stars," each in its own hemisphere, shine rival glories. Nor is this the only parallel; for Viner, like our Dane, endowed the professorship which bears his name from the profits of his immense Abridgment of the Law. In the performance of his duties, Professor Story prepared and published the most important series of juridical works which has latterly appeared in the English language, embracing a comprehensive treatise on the Constitution of the United States, a masterly exposition of that portion of International Law known as the Conflict of Laws, and Commentaries on Equity Jurisprudence, Equity Pleading, and various branches of Commercial Law.
The extent of his labors, and their influence in building up the School, appear in an interesting passage of his last will and testament, bearing date January 2, 1842. After bequeathing to the University several valuable pictures, busts, and books, he proceeds as follows: "I ask the President and Fellows of Harvard College to accept these as memorials of my reverence and respect for that venerable institution, at which I received my education. I hope it may not be improper for me here to add, that I have devoted myself, as Dane Professor, for the last thirteen years,[52] to the labors and duties of instruction in the Law School, and have always performed equal duties and to an equal amount with my excellent colleagues, Mr. Professor Ashmun and Mr. Professor Greenleaf, in the Law School. When I came to Cambridge, and undertook the duties of my professorship, there had not been a single law student there for the preceding year. There was no law library, but a few old and imperfect books being there. The students have since increased to a large number, and for six years last past have exceeded one hundred a year. The Law Library now contains about six thousand volumes, whose value cannot be deemed less than twenty-five thousand dollars. My own salary has constantly remained limited to one thousand dollars,—a little more than the interest of Mr. Dane's donations. I have never asked or desired an increase thereof, as I was receiving a suitable salary as a Judge of the Supreme Court of the United States,—while my colleagues have very properly received a much larger sum, and of late years more than double my own. Under these circumstances, I cannot but feel that I have contributed towards the advancement of the Law School a sum out of my earnings, which, with my moderate means, will be thought to absolve me from making, what otherwise I certainly should do, a pecuniary legacy to Harvard College, for the general advancement of literature and learning therein."
From the books of the Treasurer it appears that the sums received from students in the Law School during the sixteen years of his professorship amounted to $105,000. Of this amount, only $47,800 was disbursed in salaries and current expenses. The balance, amounting to $57,200, is represented by the following items, namely:—