THE

NEW ENGLANDER.

No. CLXXVIII.

JANUARY, 1884.

ARTICLE THE U. S. SUPREME COURT AND THE CIVIL RIGHTS ACT.

THE decision of the Supreme Court of the United States at the October term, 1883, adverse to the constitutionality of sections one and two of the Civil Rights Act of 1875, while quietly acquiesced in by the people in general, has created no small agitation among our colored citizens. They have held numerous meetings in the larger cities to express their sorrow and indignation, and at these meetings have been present many of their old-time friends, who were connected with the antislavery cause. For then, as now, an indignant protest was made, in the name of God and humanity, against caste, whether in India or America. Some, who were not in that renowned conflict, but have come upon the stage in the years since the war, have mistakenly said, that the old abolitionists warred only for the overthrow of slavery, and that their opinions and advice on the subject of the rights of the free colored people should now have little weight, when uttered against

the extreme views which are occasionally presented by colored men. But in that conflict caste and slavery were equally opposed, on the platform and in the pulpit, by resolutions adopted in anti-slavery conventions and by articles in the newspapers, through tracts and through books. Especially was there a continual quotation of the indignant words of James in the second chapter of his epistle, to condemn the unchristian prejudice against those of African blood, which made distinctions insulting to them in the very house of God, and at the Lord's own table! Slavery was at a distance, in the southern States; but caste was all around them, and they could not and did not forbear to rebuke it. The writer may be allowed, in illustration, to refer to his own experience on this very point. His direct and practical protest against caste began, in his college and theological seminary days, at the Presbyterian church, in New York city, which he was accustomed to attend. He often went and sat with the colored people in the seats to which they were confined in one end of the gallery, to express his sympathy with them, and to rebuke their exclusion from other parts of the house. While he was a pastor in Hartford, Connecticut, in the year 1847, he learned that no minister in the city had exchanged pulpit services with Rev. Dr. Pennington, of the colored Congregational church-a very black brother, as regarded the skin, but who was held in high esteem for his modesty and excellent good sense, and on whom, when he went abroad to a reform convention in London, the University of Göttingen, in Germany, on the recommendation of friends, bestowed the honorary degree of Doctor of Divinity. So the writer arranged an exchange with him, and the congregation were astonished one Sunday, to see Dr. Pennington's dark face in the pulpit; à fact which led some of them indignantly to leave the house. A little later, in the annual election of Moderator of the Hartford Central Association of Ministers, he voted alone, on the first ballot, for Dr. Pennington; but there being no choice, and Dr. Bushnell coming to his aid on the second ballot, a majority was induced to vote in Dr. P.'s favor. Two young theologues, who appeared before the body at that meeting to be licensed to preach, were astounded to have the examination conducted, and their licenses finally signed by a

black clergyman; especially as one of them was going to the State of Tennessee! And at that very moment Dr. Pennington was a fugitive slave, having escaped, years before, from Maryland. After the passage of the Fugitive Slave Law, in 1850, he was in such fear of detection and recapture that he retired to Canada, while one of the writer's church members (John Hooker, Esq.), corresponded with the old master, succeeded in purchasing Dr. Pennington for a small sum (having a regular bill of sale made out to John Hooker), and then, before executing the paper of freedom, took a walk down Main street, in Hartford, for a few minutes, as he said, "just to know how it felt to own a Doctor of Divinity!" In those benighted days nothing so offended our northern communities as to see abolitionists treating colored people as they did white people, and insisting that all others should do the same. They looked with horror and detestation upon such conduct, and an act which now hardly attracts attention or produces a ripple of feeling, then aroused a tempest of indignation. This question of the rights of the African race, slave or free, is thus a very familiar one to the veterans in the anti-slavery war.

And so it was with intense interest that they learned of the recent decision of the Supreme Court on the Civil Rights Act, and the colored people have their deepest sympathy in a natural feeling of alarm, as one of the trusted defences against insult and injury is suddenly leveled to the dust. To those of African descent it is a matter of personal concern, as it cannot be to others. The iron enters into their soul. Nor would it be strange or unpardonable if, in the excitement of the hour, some of them should, like Job in his agony, exceed the bounds of wisdom and of faith. It may not be without reason, then, that an old friend of the colored race offers his view of this decision so important to the American people. For it is really a case of national character, involving the reputation of our Supreme Court, and principles of law affecting many other interests than those immediately concerned; and it is only as it is broadly and calmly viewed that we can reach an intelligent and just judgment as to its merits. But before proceeding further it may be well to cite the sections declared unconstitutional. They read as follows:

SECTION 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, facilities and privileges of inns, public conveyances on land or water, theatres and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

SEC. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race or color and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, or by aiding or inciting such denial, shall for every such offense forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall also for every such offense be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year,

provided certain legal forms are to be observed, which the section proceeds to specify.

This legislation was supposed to be warranted by these words of the Amendments to the National Constitution:

ARTICLE XIII., Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Sec. 2. Congress shall have power to enforce this article by appropriate legislation.

ARTICLE XIV., Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Sec. 5. Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Two general aspects of the subject will consecutively demand attention, and the two need to be carefully distinguished. First, we may consider what view we should take of the Supreme Court in connection with its decision as to the unconstitutionality of this part of the Civil Rights Act. Have we cause to assail the motives of that eminent body for its action.

in this case, or to accuse it of weakness and inconsistency? Its decisions are indeed always open to criticism and dissent, though for the time being, they are the law of the land. Nor does it claim to be infallible, for it reopens subjects for a fresh argument, and reverses, if need be, its former decisions. One learned in the law may then question the correctness of a decision of the court, if he sees cause. It should always be treated, however, with respect, and its motives should remain unimpeached, even if we find ourselves unable to agree with a particular conclusion, unless in cases of an extreme character. The present writer is not a lawyer and it would ill become him, after having read and pondered the full text of the decision and the accompanying opinion of the Court, to pronounce against its arguments and conclusions on legal grounds. And if one takes an outside view of the matter, several things seriously impress a candid mind. They are such as these:

1. The decision was not made by a bare majority of a Court whose members were nearly equally divided; it was almost unanimous. But one judge of the nine gave a dissenting opinion. This fact will necessarily have great weight, as tending to show that the case was reasonably clear, so as to carry conviction to those who would have been certain to disagree, had the question admitted of very much doubt.

2. The decision was not a party one, nor made by those unfriendly to the interests of the colored race, or at a time of special prejudice towards them. Something of that kind might well be alleged against the Dred Scott decision of the Supreme Court, in 1856; for that was under the regime of slavery, and there was hardly a member of the Court in sympathy with the anti-slavery movement. But we are now in a new era. The moral atmosphere is comparatively clear. The current of opinion runs in favor of human rights. The overwhelming majority of the Court (eight out of nine judges) consists of those whose political affiliations are with the party which preserved the Union, abolished slavery, and passed this very Civil Rights Bill; and their prepossessions would naturally have been in its favor, and their sympathies with the colored people whom it was intended to protect. It had also, in a previous decision, sustained this Act in its application to