_Question_. Do you wish to say anything as to the reasoning of Justice Harlan on the rights of colored people on railways, in inns and theatres?
_Answer_. Yes, I do. That part of the opinion is especially strong. He shows conclusively that a common carrier is in the exercise of a sort of public office and has public duties to perform, and that he cannot exonerate himself from the performance of these duties without the consent of the parties concerned. He also shows that railroads are public highways, and that the railway company is the agent of the State, and that a railway, although built by private capital, is just as public in its nature as though constructed by the State itself. He shows that the railway is devoted to public use, and subject to be controlled by the State for the public benefit, and that for these reasons the colored man has the same rights upon the railway that he has upon the public highway.
Justice Harlan shows that the same law is applicable to inns that is applicable to railways; that an inn-keeper is bound to take all travelers if he can accommodate them; that he is not to select his guests; that he has not right to say to one "you may come in," and to another "you shall not;" that every one who conducts himself in a proper manner has a right to be received. He shows conclusively that an inn-keeper is a sort of public servant; that he is in the exercise of a _quasi_ public employment, that he is given special privileges, and charged with duties of a public character.
As to theatres, I think his argument most happy. It is this: Theatres are licensed by law. The authority to maintain them comes from the public. The colored race being a part of the public, representing the power granting the license, why should the colored people license a manager to open his doors to the white man and shut them in the face of the black man? Why should they be compelled to license that which they are not permitted to enjoy? Justice Harlan shows that Congress has the power to prevent discrimination on account of race or color on railways, at inns, and in places of public amusements, and has this power under the Thirteenth Amendment.
In discussing the Fourteenth Amendment, Justice Harlan points out that a prohibition upon a State is not a power in Congress or the National Government, but is simply a denial of power to the State; that such was the Constitution before the Fourteenth Amendment.
He shows, however, that the Fourteenth Amendment presents the first instance in our history of the investiture of Congress with affirmative power by legislation to enforce an express prohibition upon the States. This is an important point. It is stated with great clearness, and defended with great force. He shows that the first clause of the first section of the Fourteenth Amendment is of a distinctly affirmative character, and that Congress would have had the power to legislate directly as to that section simply by implication, but that as to that as well as the express prohibitions upon the States, express power to legislate was given.
There is one other point made by Justice Harlan which transfixes as with a spear the decision of the Court. It is this: As soon as the Thirteenth and Fourteenth Amendments were adopted the colored citizen was entitled to the protection of section two, article four, namely: "The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States."
Now, suppose a colored citizen of Mississippi moves to Tennessee.
Then, under the section last quoted, he would immediately become invested with all the privileges and immunities of a white citizen of Tennessee. Although denied these privileges and immunities in the State from which he emigrated, in the State to which he immigrates he could not be discriminated against on account of his color under the second section of the fourth article. Now, is it possible that he gets additional rights by immigration? Is it possible that the General Government is under a greater obligation to protect him in a State of which he is not a citizen than in a State of which he is a citizen? Must he leave home for protection, and after he has lived long enough in the State to which he immigrates to become a citizen there, must he again move in order to protect his rights?
Must one adopt the doctrine of peripatetic protection--the doctrine that the Constitution is good only _in transitu_, and that when the citizen stops, the Constitution goes on and leaves him without protection?
Justice Harlan shows that Congress had the right to legislate directly while that power was only implied, but that the moment this power was conferred in express terms, then according to the Supreme Court, it was lost.
There is another splendid definition given by Justice Harlan--a line drawn as broad as the Mississippi. It is the distinction between the rights conferred by a State and rights conferred by the Nation. Admitting that many rights conferred by a State cannot be enforced directly by Congress, Justice Harlan shows that rights granted by the Nation to an individual may be protected by direct legislation. This is a distinction that should not be forgotten, and it is a definition clear and perfect.
Justice Harlan has shown that the Supreme Court failed to take into consideration the intention of the framers of the amendment; failed to see that the powers of Congress were given by express terms and did not rest upon implication; failed to see that the Thirteenth Amendment was broad enough to cover the Civil Rights Act; failed to see that under the three amendments rights and privileges were conferred by the Nation on citizens of the several States, and that these rights are under the perpetual protection of the General Government, and that for their enforcement Congress has the right to legislate directly; failed to see that all implications are now in favor of liberty instead of slavery; failed to comprehend that we have a new nation with a new foundation, with different objects, ends, and aims, for the attainment of which we use different means and have been clothed with greater powers; failed to see that the Republic changed front; failed to appreciate the real reasons for the adoption of the amendments, and failed to understand that the Civil Rights Act was passed in order that a citizen of the United States might appeal from local prejudice to national justice.
Justice Harlan shows that it was the object to accomplish for the black man what had been accomplished for the white man--that is, to protect all their rights as free men and citizens; and that the one underlying purpose of the amendments and of the congressional legislation has been to clothe the black race with all the rights of citizenship, and to compel a recognition of their rights by citizens and States--that the object was to do away with class tyranny, the meanest and basest form of oppression.
If Justice Harlan was wrong in his position, then, it may truthfully be said of the three amendments that:
"The law hath bubbles as the water has, And these are of them."
The decision of the Supreme Court denies the protection of the Nation to the citizens of the Nation. That decision has already borne fruit--the massacre at Danville. The protection of the Nation having been withdrawn, the colored man was left to the mercy of local prejudices and hatreds. He is without appeal, without redress.
The Supreme Court tells him that he must depend upon his enemies for justice.
_Question_. You seem to agree with all that Justice Harlan has said, and to have the greatest admiration for his opinion?
_Answer_. Yes, a man rises from reading this dissenting opinion refreshed, invigorated, and strengthened. It is a mental and moral tonic. It was produced after a clear head had held conference with a good heart. It will furnish a perfectly clear plank, without knot or wind-shake, for the next Republican platform. It is written in good plain English, and ornamented with good sound sense. The average man can and will understand its every word. There is no subterfuge in it.
Each position is taken in the open field. There is no resort to quibbles or technicalities--no hiding. Nothing is secreted in the sleeve--no searching for blind paths--no stooping and looking for ancient tracks, grass-grown and dim. Each argument travels the highway--"the big road." It is logical. The facts and conclusions agree, and fall naturally into line of battle. It is sincere and candid--unpretentious and unanswerable. It is a grand defence of human rights--a brave and manly plea for universal justice. It leaves the decision of the Supreme Court without argument, without reason, and without excuse. Such an exhibition of independence, courage and ability has won for Justice Harlan the respect and admiration of "both sides," and places him in the front rank of constitutional lawyers.
--_The Inter-Ocean_, Chicago, Illinois, November 29, 1883.
POLITICS AND THEOLOGY.
_Question_. What is your opinion of Brewster's administration?
_Answer_. I hardly think I ought to say much about the administration of Mr. Brewster. Of course many things have been done that I thought, and still think, extremely bad; but whether Mr. Brewster was responsible for the things done, or not, I do not pretend to say. When he was appointed to his present position, there was great excitement in the country about the Star Route cases, and Mr. Brewster was expected to prosecute everybody and everything to the extent of the law; in fact, I believe he was appointed by reason of having made such a promise. At that time there were hundreds of people interested in exaggerating all the facts connected with the Star Route cases, and when there were no facts to be exaggerated, they made some, and exaggerated them afterward. It may be that the Attorney-General was misled, and he really supposed that all he heard was true. My objection to the administration of the Department of Justice is, that a resort was had to spies and detectives. The battle was not fought in the open field. Influences were brought to bear. Nearly all departments of the Government were enlisted. Everything was done to create a public opinion in favor of the prosecution. Everything was done that the cases might be decided on prejudice instead of upon facts.
Everything was done to demoralize, frighten and overawe judges, witnesses and jurors. I do not pretend to say who was responsible, possibly I am not an impartial judge. I was deeply interested at the time, and felt all of these things, rather than reasoned about them.
Possibly I cannot give a perfectly unbiased opinion. Personally, I have no feeling now upon the subject.
The Department of Justice, in spite of its methods, did not succeed.
That was enough for me. I think, however, when the country knows the facts, that the people will not approve of what was done. I do not believe in trying cases in the newspapers before they are submitted to jurors. That is a little too early. Neither do I believe in trying them in the newspapers after the verdicts have been rendered. That is a little too late.
_Question_. What are Mr. Blaine's chances for the presidency?
_Answer_. My understanding is that Mr. Blaine is not a candidate for the nomination; that he does not wish his name to be used in that connection. He ought to have been nominated in 1876, and if he were a candidate, he would probably have the largest following; but my understanding is, that he does not, in any event, wish to be a candidate. He is a man perfectly familiar with the politics of this country, knows its history by heart, and is in every respect probably as well qualified to act as its Chief Magistrate as any man in the nation. He is a man of ideas, of action, and has positive qualities. He would not wait for something to turn up, and things would not have to wait long for him to turn them up.
_Question_. Who do you think will be nominated at Chicago?
_Answer_. Of course I have not the slightest idea who will be nominated. I may have an opinion as to who ought to be nominated, and yet I may be greatly mistaken in that opinion. There are hundreds of men in the Republican party, any one of whom, if elected, would make a good, substantial President, and there are many thousands of men about whom I know nothing, any one of whom would in all probability make a good President. We do not want any man to govern this country. This country governs itself. We want a President who will honestly and faithfully execute the laws, who will appoint postmasters and do the requisite amount of handshaking on public occasions, and we have thousands of men who can discharge the duties of that position. Washington is probably the worst place to find out anything definite upon the subject of presidential booms. I have thought for a long time that one of the most valuable men in the country was General Sherman. Everybody knows who and what he is. He has one great advantage--he is a frank and outspoken man. He has opinions and he never hesitates about letting them be known. There is considerable talk about Judge Harlan. His dissenting opinion in the Civil Rights case has made every colored man his friend, and I think it will take considerable public patronage to prevent a good many delegates from the Southern States voting for him.
_Question_. What are your present views on theology?
_Answer_. Well, I think my views have not undergone any change that I know of. I still insist that observation, reason and experience are the things to be depended upon in this world. I still deny the existence of the supernatural. I still insist that nobody can be good for you, or bad for you; that you cannot be punished for the crimes of others, nor rewarded for their virtues.
I still insist that the consequences of good actions are always good, and those of bad actions always bad. I insist that nobody can plant thistles and gather figs; neither can they plant figs and gather thistles. I still deny that a finite being can commit an infinite sin; but I continue to insist that a God who would punish a man forever is an infinite tyrant. My views have undergone no change, except that the evidence of that truth constantly increases, and the dogmas of the church look, if possible, a little absurder every day. Theology, you know, is not a science. It stops at the grave; and faith is the end of theology. Ministers have not even the advantage of the doctors; the doctors sometimes can tell by a post-mortem examination whether they killed the man or not; but by cutting a man open after he is dead, the wisest theologians cannot tell what has become of his soul, and whether it was injured or helped by a belief in the inspiration of the Scriptures. Theology depends on assertion for evidence, and on faith for disciples.
--_The Tribune_, Denver, Colorado, January 17, 1886.
MORALITY AND IMMORTALITY.
_Question_. I see that the clergy are still making all kinds of charges against you and your doctrines.
_Answer_. Yes. Some of the charges are true and some of them are not. I suppose that they intend to get in the vicinity of veracity, and are probably stating my belief as it is honestly misunderstood by them. I admit that I have said and that I still think that Christianity is a blunder. But the question arises, What is Christianity? I do not mean, when I say that Christianity is a blunder, that the morality taught by Christians is a mistake.
Morality is not distinctively Christian, any more than it is Mohammedan. Morality is human, it belongs to no ism, and does not depend for a foundation upon the supernatural, or upon any book, or upon any creed. Morality is itself a foundation. When I say that Christianity is a blunder, I mean all those things distinctively Christian are blunders. It is a blunder to say that an infinite being lived in Palestine, learned the carpenter's trade, raised the dead, cured the blind, and cast out devils, and that this God was finally assassinated by the Jews. This is absurd. All these statements are blunders, if not worse. I do not believe that Christ ever claimed that he was of supernatural origin, or that he wrought miracles, or that he would rise from the dead. If he did, he was mistaken--honestly mistaken, perhaps, but still mistaken.
The morality inculcated by Mohammed is good. The immorality inculcated by Mohammed is bad. If Mohammed was a prophet of God, it does not make the morality he taught any better, neither does it make the immorality any better or any worse.
By this time the whole world ought to know that morality does not need to go into partnership with miracles. Morality is based upon the experience of mankind. It does not have to learn of inspired writers, or of gods, or of divine persons. It is a lesson that the whole human race has been learning and learning from experience.
He who upholds, or believes in, or teaches, the miraculous, commits a blunder.
Now, what is morality? Morality is the best thing to do under the circumstances. Anything that tends to the happiness of mankind is moral. Anything that tends to unhappiness is immoral. We apply to the moral world rules and regulations as we do in the physical world. The man who does justice, or tries to do so--who is honest and kind and gives to others what he claims for himself, is a moral man. All actions must be judged by their consequences. Where the consequences are good, the actions are good. Where the consequences are bad, the actions are bad; and all consequences are learned from experience. After we have had a certain amount of experience, we then reason from analogy. We apply our logic and say that a certain course will bring destruction, another course will bring happiness.
There is nothing inspired about morality--nothing supernatural.
It is simply good, common sense, going hand in hand with kindness.
Morality is capable of being demonstrated. You do not have to take the word of anybody; you can observe and examine for yourself.
Larceny is the enemy of industry, and industry is good; therefore larceny is immoral. The family is the unit of good government; anything that tends to destroy the family is immoral. Honesty is the mother of confidence; it united, combines and solidifies society.
Dishonesty is disintegration; it destroys confidence; it brings social chaos; it is therefore immoral.
I also admit that I regard the Mosaic account of the creation as an absurdity--as a series of blunders. Probably Moses did the best he could. He had never talked with Humboldt or Laplace. He knew nothing of geology or astronomy. He had not the slightest suspicion of Kepler's Three Laws. He never saw a copy of Newton's Principia.
Taking all these things into consideration, I think Moses did the best he could.
The religious people say now that "days" did not mean days. Of these "six days" they make a kind of telescope, which you can push in or draw out at pleasure. If the geologists find that more time was necessary they will stretch them out. Should it turn out that the world is not quite as old as some think, they will push them up. The "six days" can now be made to suit any period of time.
Nothing can be more childish, frivolous or contradictory.
Only a few years ago the Mosaic account was considered true, and Moses was regarded as a scientific authority. Geology and astronomy were measured by the Mosaic standard. The opposite is now true.