And then gives the reason:
"For the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States."
I now ask, has that subject—that is to say, Liberty,—been submitted to the general legislative power of Congress? The 13th Amendment provides that Congress shall have power to enforce that amendment by appropriate legislation.
In construing the 13th and 14th Amendments and the Civil Rights Act, it seems to me that the Supreme Court has forgotten the principle of construction that has been laid down so often by courts, and that is this: that in construing statutes, courts may look to the history and condition of the country as circumstances from which to gather the intention of the Legislature. So it seems to me that the Court failed to remember the rule laid down by Story in the case of Prigg vs. The Commonwealth of Pennsylvania, 16 Pet., 611, a rule laid down in the interest of slavery—laid down for the purpose of depriving human beings of their liberty:
"Perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties and rights with all the lights and aids of contemporary history, and to give to the words of each just such operation and force consistent with their legitimate meaning, as may fairly secure and attain the ends proposed."
It must be admitted that certain rights were conferred by the 13th Amendment. Surely certain rights were conferred by the 14th Amendment; and these rights should be protected and upheld by the Federal Government. And it was held in the case last cited, that:
"If by one mode of interpretation the right must become shadowy and unsubstantial, and without any remedial power adequate to the end, and by another mode it will attain its just end and secure its manifest purpose—it would seem, upon principles of reasoning absolutely irresistable, that the latter ought to prevail. No court of justice can be authorized so as to construe any clauses of the Constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them."
In the present case, the Supreme Court holds, that Congress can not legislate upon this subject until the State has passed some law contrary to the Constitution.
I call attention in reply to this, to the case of Hall vs. De Cuir, 95 U. S., 486. The State of Louisiana, in 1869, acting in the spirit of these amendments to the Constitution, passed a law requiring that all persons engaged within that State in the business of common carriers of passengers, should make no discrimination on account of race, color, or previous condition of servitude. Under this law, Mrs. De Cuir, a colored woman, took passage on a steamer, buying a ticket from New Orleans to Hermitage—the entire trip being within the limits of the State. The captain of the boat refused to give her equal accommodations with other passengers—the refusal being on the ground of her color. She commenced suit against the captain in the State Court of Louisiana, and recovered judgment for one thousand dollars. The defendant appealed to the Supreme Court of that State, and the judgment of the lower court was sustained. Thereupon, the captain died, and the case was taken to the Supreme Court of the United States by his administrator, on the ground that a Federal question was involved.
You will see that this was a case where the State had acted, and had acted exactly in accordance with the constitutional amendments, and had by law provided that the privileges and immunities of the citizen of the United States—residing in the State of Louisiana—should not be abridged, and that no distinction should be made on account of race or color. But in that case the Supreme Court of the United States solemnly decided that the legislation of the State was void—that the State of Louisiana had no right to interfere—no right, by law, to protect a citizen of the United States from being discriminated against under such circumstances.