And he declares that:
"The Southern States imposed upon the colored race onerous disabilities and burdens--curtailed their rights in the pursuit of liberty and property, to such an extent that their freedom was of little value, while the colored people had lost the protection which they had received from their former owners from motives of interest."
And that:
"The colored people in some States were forbidden to appear in the towns in any other character than that of menial servants--that they were required to reside on the soil without the right to purchase or own it--that they were excluded from many occupations of gain and profit--that they were not permitted to give testimony in the courts where white men were on trial--and it was said that their lives were at the mercy of bad men, either because laws for their protection were insufficient, or were not enforced."
We are informed by the Supreme Court that, "under these circ.u.mstances,"
the proposition for the 14th Amendment was pa.s.sed through Congress, and that Congress declined to treat as restored to full partic.i.p.ation in the Government of the Union, the States which had been in insurrection, until they ratified that article by a formal vote of their legislative bodies.
Thus it will be seen that the rebel States were restored to the Union by adopting the 14th Amendment. In order to become equal members of the Federal Union, these States solemnly agreed to carry out the provisions of that amendment.
The 14th Amendment provides that:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside."
That is affirmative in its character. That affirmation imposes the obligation upon the General Government to protect its citizens everywhere. That affirmation clothes the Federal Government with power to protect its citizens. Under that clause, the Federal arm can reach to the boundary of the Republic, for the purpose of protecting the weakest citizen from the tyranny of citizens or States. That clause is a contract between the Government and every man--a contract wherein the citizen promises allegiance, and the nation promises protection.
By this clause, the Federal Government adopted all the citizens of all the States and Territories, including the District of Columbia, and placed them under the shield of the Const.i.tution--made each one a ward of the Republic.
Under this contract, the Government is under direct obligation to the citizen. The Government cannot shirk its responsibility by leaving a citizen to be protected in his rights, as a citizen of the United States, by a State. The obligation of protection is direct. The obligation on the part of the citizen to the Government is direct. The citizen cannot be untrue to the Government because his State is, The action of the State under the 14th Amendment is no excuse for the citizen. He must be true to the Government. In war, the Government has a right to his service. In peace, he has the right to be protected.
If the citizen must depend upon the State, then he owes the first allegiance to that government or power that is under obligation to protect him. Then, if a State secedes from the Union, the citizen should go with the State--should go with the power that protects.
That is not my doctrine. My doctrine is this: The first duty of the General Government is to protect each citizen. The first duty of each citizen is to be true--not to his State, but to the Republic.
This clause of the 14th Amendment made us all citizens of the United States--all children of the Republic. Under this decision, the Republic refuses to acknowledge her children. Under this decision of the Supreme Court, they are left upon the doorsteps of the States. Citizens are changed to foundlings.
If the 14th Amendment created citizens of the United States, the power that created must define the rights of the citizens thus created, and must provide a remedy where such rights are infringed. The Federal Government speaks through its representatives--through Congress; and Congress, by the Civil Rights Act, defined some of the rights, privileges and immunities of a citizen of the United States--and Congress provided a remedy when such rights and privileges were invaded, and gave jurisdiction to the Federal courts.
No State, or the department of any State, can authoritatively define the rights, privileges and immunities of a citizen of the United States.
These rights and immunities must be defined by the United States, and when so defined, they cannot be abridged by State authority.
In the case of Bartemeyer vs. Iowa, 18 Wall., p. 140, Justice Field, in a concurring opinion, speaking of the 14th Amendment, says:
"It grew out of the feeling that a nation which had been maintained by such costly sacrifices was, after all, worthless, if a citizen could not be protected in all his fundamental rights, everywhere--North and South, East and West--throughout the limits of the Republic. The amendment was not, as held in the opinion of the majority, primarily intended to confer citizenship on the negro race. It had a much broader purpose.
It was intended to justify legislation extending the protection of the National Government over the common rights of all citizens of the United States, and thus obviate objection to the legislation adopted for the protection of the emanc.i.p.ated race. It was intended to make it possible for all persons--which necessarily included those of every race and color--to live in peace and security wherever the jurisdiction of the nation reached. It therefore recognized, if it did not create, a national citizenship. This national citizenship is primary and not secondary.".
I cannot refrain from calling attention to the splendor and n.o.bility of the truths expressed by Justice Field in this opinion.
So, Justice Field, in his dissenting opinion in what are known as _The Slaughter-House Cases_, found in 16 Wallace, p. 95, still speaking of the 14th Amendment, says:
"It recognizes in express terms--if it does not create--citizens of the United States, and it makes their citizenship dependent upon the place of their birth or the fact of their adoption, and not upon the const.i.tution or laws of any State, or the condition of their ancestry.
"A citizen of a State is now only a citizen of the United States residing in that State. The fundamental rights, privileges and immunities which belong to him as a free man and a free citizen of the United States, are not dependent upon the citizenship of any State. * * *
"They do not derive their existence from its legislation, and cannot be destroyed by its power."
What are "the fundamental rights, privileges and immunities" which belong to a free man? Certainly the rights of all citizens of the United States are equal. Their immunities and privileges must be the same.
He who makes a discrimination between citizens on account of color, violates the Const.i.tution of the United States.
Have all citizens the same right to travel on the highways of the country? Have they all the same right to ride upon the railways created by State authority? A railway is an improved highway. It was only by holding that it was an improved highway that counties and States aided in their construction. It has been decided, over and over again, that a railway is an improved highway. A railway corporation is the creation of a State--an agent of the State. It is under the control of the State--and upon what principle can a citizen be prevented from using the highways of a State on an equality with all other citizens?
These are all rights and immunities guaranteed by the Const.i.tution of the United States.
Now, the question is--and it is the only question--can these rights and immunities, thus guaranteed and thus confirmed, be protected by the General Government?
In the case of _The U. S. vs. Reese, et al._, 92 U. S., p. 207, the Supreme Court decided, the opinion having been delivered by Chief-Justice Waite, as follows:
"Rights and immunities created by, and dependent upon, the Const.i.tution of the United States can be protected by Congress. The form and the manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide. This may be varied to meet the necessities of the particular right to be protected."
This decision was acquiesced in by Justices Strong, Bradley, Swayne, Davis, Miller and Field. Dissenting opinions were filed by Justices Clifford and Hunt, but neither dissented from the proposition that:
"Rights and immunities created by or dependent upon the Const.i.tution of the United States can be protected by Congress," and that "the form and manner of the protection may be such as Congress in the exercise of its legitimate discretion shall provide."
So, in the same case, I find this language:
"It follows that the Amendment"--meaning the 15th--"has invested the citizens of the United States with a new const.i.tutional right, which is within the protecting power of Congress. This, under the express provisions of the second section of the Amendment, Congress may enforce by appropriate legislation."
If the 15th Amendment invested the citizens of the United States with a new const.i.tutional right--that is, the right to vote--and if for that reason that right is within the protecting power of Congress, then I ask, if the 14th Amendment made certain persons citizens of the United States, did such citizenship become a const.i.tutional right? And is such citizenship within the protecting power of Congress? Does citizenship mean anything except certain "rights, privileges and immunities"?
Is it not an invasion of citizenship to invade the immunities or privileges or rights belonging to a citizen? Are not, then, all the immunities and privileges and rights under the protecting power of Congress?
The 13th Amendment found the negro a slave, and made him a free man.
That gave to him a new const.i.tutional right, and according to the Supreme Court, that right is within the protecting power of Congress.
What rights are within the protecting power of Congress? All the rights belonging to a free man.
The 14th Amendment made the negro a citizen. What then is under the protecting power of Congress? All the rights, privileges and immunities belonging to him as a citizen.
So, in the case of _Tennessee vs, Davis_, 100 U, S,, 263, the Supreme Court, held that:
"The United States is a government whose authority extends over the whole territory of the Union, acting upon all the States, and upon all the people of all the States.
"No State can exclude the Federal Government from the exercise of any authority conferred upon it by the Const.i.tution, or withhold from it for a moment the cognizance of any subject which the Const.i.tution has committed to it."
This opinion was given by Justice Strong, and acquiesced in by Chief-Justice Waite, Justices Miller, Swayne, Bradley and Harlan.
So in the case of _Pensacola Tel. Co. vs. Western Union Tel. Co_., 96 U.
S., p. 10, the opinion having been delivered by Chief-Justice Waite, I find this:
"The Government of the United States, within the scope of its power, operates upon every foot of territory under its jurisdiction. It legislates for the whole Nation, and is not embarra.s.sed by State lines."
This was acquiesced in by Justices Clifford, Strong, Bradley, Swayne and Miller.
So we are told by the entire Supreme Court in the case of _Tiernan vs.
Rynker_, 102 U. S., 126, that:
"When the subject to which the power applies is national in its character, or of such a nature as to admit of uniformity of regulation, the power is exclusive of State authority."