The real Americans, the real believers in Liberty, will give three cheers for Judge Harlan.
One word more. The Government is bound to protect its citizens, not only when they are away from home, but when they are under the flag. In time of war the Government has a right to draft any citizen; to put that citizen in the line of battle, and compel him to fight for the nation. If the Government when imperiled has the right to compel a citizen, whether white or black, to defend with his blood the flag, that citizen, when imperiled, has the right to demand protection from the Nation. The Nation cannot then say, "You must appeal to your State." If the citizen must appeal to the State for redress, then the citizen should defend the State and not the General Government, and the doctrine of State Rights then becomes complete.
—The National Republican, Washington, D. C., October 17, 1883.
JUSTICE HARLAN AND THE CIVIL RIGHTS BILL.
Question. What do you think of Justice Harlan's dissenting opinion in the Civil Rights case?
Answer. I have just read it and think it admirable in every respect. It is unanswerable. He has given to words their natural meaning. He has recognized the intention of the framers of the recent amendments. There is nothing in this opinion that is strained, insincere, or artificial. It is frank and manly. It is solid masonry, without crack or flaw. He does not resort to legal paint or putty, or to verbal varnish or veneer. He states the position of his brethren of the bench with perfect fairness, and overturns it with perfect ease. He has drawn an instructive parallel between the decisions of the olden time, upholding the power of Congress to deal with individuals in the interests of slavery, and the power conferred on Congress by the recent amendments. He has shown by the old decisions, that when a duty is enjoined upon Congress, ability to perform it is given; that when a certain end is required, all necessary means are granted. He also shows that the Fugitive Slave Acts of 1793 and of 1850, rested entirely upon the implied power of Congress to enforce a master's rights; and that power was once implied in favor of slavery against human rights, and implied from language shadowy, feeble and uncertain when compared with the language of the recent amendments. He has shown, too, that Congress exercised the utmost ingenuity in devising laws to enforce the master's claim. Implication was held ample to deprive a human being of his liberty, but to secure freedom, the doctrine of implication is abandoned. As a foundation for wrong, implication was their rock. As a foundation for right, it is now sand. Implied power then was sufficient to enslave, while power expressly given is now impotent to protect.
Question. What do you think of the use he has made of the Dred Scott decision?
Answer. Well, I think he has shown conclusively that the present decision, under the present circumstances, is far worse than the Dred Scott decision was under the then circumstances. The Dred Scott decision was a libel upon the best men of the Revolutionary period. That decision asserted broadly that our forefathers regarded the negroes as having no rights which white men were bound to respect; that the negroes were merely merchandise, and that that opinion was fixed and universal in the civilized portion of the white race, and that no one thought of disputing it. Yet Franklin contended that slavery might be abolished under the preamble of the Constitution. Thomas Jefferson said that if the slave should rise to cut the throat of his master, God had no attribute that would side against the slave. Thomas Paine attacked the institution with all the intensity and passion of his nature. John Adams regarded the institution with horror. So did every civilized man, South and North.
Justice Harlan shows conclusively that the Thirteenth Amendment was adopted in the light of the Dred Scott decision; that it overturned and destroyed, not simply the decision, but the reasoning upon which it was based; that it proceeded upon the ground that the colored people had rights that white men were bound to respect, not only, but that the Nation was bound to protect. He takes the ground that the amendment was suggested by the condition of that race, which had been declared by the Supreme Court of the United States to have no rights which white men were bound to respect; that it was made to protect people whose rights had been invaded, and whose strong arms had assisted in the overthrow of the Rebellion; that it was made for the purpose of putting these men upon a legal authority with white citizens.
Justice Harland also shows that while legislation of Congress to enforce a master's right was upheld by implication, the rights of the negro do not depend upon that doctrine; that the Thirteenth Amendment does not rest upon implication, or upon inference; that by its terms it places the power in Congress beyond the possibility of a doubt—conferring the power to enforce the amendment by appropriate legislation in express terms; and he also shows that the Supreme Court has admitted that legislation for that purpose may be direct and primary. Had not the power been given in express terms, Justice Harlan contends that the sweeping declaration that neither slavery nor involuntary servitude shall exist would by implication confer the power. He also shows conclusively that, under the Thirteenth Amendment, Congress has the right by appropriate legislation to protect the colored people against the deprivation of any right on account of their race, and that Congress is not necessarily restricted, under the Thirteenth Amendment, to legislation against slavery as an institution, but that power may be exerted to the extent of protecting the race from discrimination in respect to such rights as belong to freemen, where such discrimination is based on race or color.