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UNIVERSITY OF N.C. AT CHAPEL HILL 
 
 00019187979 
 
 SHALL EQUALITY SUPPLANT LIBERTY? 
 
 REVIEW OF MR. SUMNER'S BILL AND SPEECH. 
 
 The cardinal proposition in the Declaration of Inde- 
 pendence, " that all men are created equal," taken with 
 its context, is a very plain and self-evident one. Sophistry 
 has been employed to show that it implies equality in 
 physical strength and beauty; in wealth and social advan- 
 tages; in moral and intellectual endowments. But the 
 candid common sense of the American people never for a 
 moment understood the phrase to mean anything different 
 from what is taught in the Old and New Testaments, 
 that God is no respecter of persons; that all men are to be 
 held accountable at the bar of eternal justice, and to be 
 weighed in the same moral scales, measured by the same 
 standards of truth and equity. The phrase also manifestly 
 implies that human laws and tribunals should be equally 
 just with the divine, and .that in meting out justice be- 
 tween man and man, no discriminations should be made 
 on account of wealth, talents, ancestry, race, or color. The 
 whole passage, taken together, necessarily implies this, and 
 nothing else. It is as follows: 
 
 " We hold these truths to be self-evident, that all men 
 
 * are created equal ; that they are endowed by their Cre- 
 
 * ator with certain inalienable rights'; that among these are 
 ' life, liberty, and the pursuit of happiness." 
 
 The purpose of those who would have us believe that 
 the statement implies a moral and intellectual equality is 
 easily understood. They simply mean to bring the basis 
 of American institutions into contempt and ridicule, by 
 showing it to be absurd, and that it leads to the destruction 
 of all distinctions between virtue and vice; between igno- 
 rance and culture; and between character and the want of 
 it. This perversion of the Declaration of Independence 
 
originated with English Tories, who were naturally averse 
 to the principles of liberty; and during the late slavery 
 controversy it was adopted by the defenders of that insti- 
 tution. Happily, it has been exploded with the system 
 itself; and all men, in every part of the Union, are begin- 
 ning to go back to the sober, common-sense view of our 
 great charter which universally prevailed in revolutionary 
 times. 
 
 It is to be lamented that so conspicuous a champion of 
 liberty as Mr. Sumner, by pushing his theories of " equality 
 before the law" to an unwarrantable extreme, has to some 
 extent given countenance to the misrepresentations of the 
 sophists referred to above. He is not content with giving 
 equal liberty to black men; but, in the name of equality, 
 he insists on laying at their feet some of the most sacred 
 rights of white men. This I propose to show in a brief 
 review of his "Civil Rights" amendment to the Amnesty 
 bill. The first section is as follows: 
 
 " That all citizens of the United States, without distinc- 
 4 tion of race, color, or previous condition of servitude, are 
 4 entitled to the equal and impartial enjoyment of any ac- 
 4 commodation, advantage, facility, or privilege furnished 
 1 by common carriers, whether on laud or water; by inn- 
 4 keepers ; by licensed oicners, managers, or lessees of theaters or 
 4 other places of public amusement; by trustees, commission- 
 4 ers, superintendents, teachers, or other officers of common 
 4 schools, and other public institutions of learning, the same 
 4 being supported by moneys derived from general taxation 
 4 or authorized by law ; by trustees or officers of church organiza- 
 4 tions, cemetery associations, and benevolent institutions incor- 
 porated by national or State authority; and this right shall 
 4 not be denied or abridged on any pretense of race, color, 
 4 or previous condition of servitude." 
 
 The remaining sections impose heavy pains and penal- 
 ties, consisting of fines and imprisonment in the peniten- 
 tiary for years for the violation of the provisions of this 
 first section. I have italicized the most objectionable 
 features of the section, but shall have occasion to com- 
 ment on other portions of it. 
 
 I am not disposed to dispute the proposition, that all citi- 
 zens are entitled to the il enjoyment of any accommodation, 
 advantage, facility, or privilege furnished by common car- 
 
riers," especially by such as carry the mails, or in any way 
 are supported by the Government, or enjo}^ special privi- 
 leges. All people are entitled to the use of the public 
 highways. The railroad companies not onty carry the 
 mails, but they have chartered privileges, such as, that no 
 other road shall be constructed too near them. They also 
 had the privilege of cutting their way through the lands 
 of the people, on payment of damages fixed by others 
 than the owners of the lands; and hence, the whole peo- 
 ple have acquired the right to travel on them. The stage 
 lines are in large measure supported by their contracts for 
 carrying the mails, and the right of every citizen who can 
 pay his way to travel in them is thus secured. The duty of 
 steamboats which do not carry the mails to transport all 
 passengers who apply, is not apparent, since they are strictly 
 private enterprises. The rivers are open to the public, and 
 anybody who is able, may run a boat from any one point 
 to another. They are licensed and taxed, but that is a 
 poor privilege, and they should not on that account be 
 compelled to take unwelcome guests on board. 
 
 That public schools, supported by taxation, ought, as a 
 general rule, to be free to all, there can be no doubt. But 
 circumstances may make it expedient to have separate 
 schools for different classes; and in this case there ought 
 to be perfect equality in the distribution of the school fund. 
 Each class of society should have its proportion, according 
 to its numbers. As an illustration, I will take the case of 
 North Carolina, with whose arrangements in this respect 
 I am most familiar. About two-thirds of the population 
 are whites, and one-third blacks or of African descent. 
 The whites, therefore, have the control of the question of 
 public schools in their own hands. They can establish 
 public schools, or they can leave the business of education 
 to be looked after by the people in their individual and 
 social capacities. In the exercise of their discretion, they 
 decided to have public schools, but on these terms, viz: 
 that there shall be separate schools for the whites, and sep- 
 arate schools for the blacks, equally provided for by tax- 
 ation. This plan was adopted by the Radical Republican 
 party when four-fifths of the Legislature were with it. 
 
4 
 
 The Democrats and Conservatives, of course, acquiesced 
 in and approved the plan, so that it was unanimously 
 adopted. Even the colored people approve of it, conscious 
 that it is the only feasible plan of public education — the 
 only one by which their children can be educated. In 
 point of fact, nearly all the school, as well as the other 
 taxes, are paid by the white people. The poll tax, which 
 is mainly devoted to the public schools, is not collected 
 from the blacks in half the cases. 
 
 I believe that the plan adopted in North Carolina has 
 been generally fallen upon in the South, where a common 
 school system exists; and it is manifest that the enactment 
 of Mr. Sumner's bill into a law will tend to destroy the 
 educational systems of the South. The white people will 
 not sustain a system of mixed schools; and his bill should 
 be entitled, "An act to break up the common schools of 
 the country." 
 
 A common school system is not a public necessity, it is 
 not an institution essential to an organized society, like 
 a judiciary or an executive. 
 
 The first half century of our national existence passed 
 away before any State south of Mason and Dixon's line 
 had a system of common schools. Contrasting the great 
 statesmen of the past with the small politicians of the pres- 
 ent day, the southern people have not before their eyes, in 
 any part of the Union, the most conclusive argument in 
 favor of the common school system. Will Mr. Sumner 
 weaken the argument, and strengthen the southern preju- 
 dice against New England's peculiar institution, by at- 
 tempting to enforce by federal authority a most repulsive 
 uniformity? 
 
 The statesman is not called upon to determine the eth- 
 nological and moral questions which have been mooted, as 
 to the relative merits of the white and black races. He 
 should see to it that they have equal rights and equal ad- 
 vantages of public education ; but it is no part of his duty 
 to force the two races into a repulsive social contact. It is 
 a recognized principle of constitutional law that women 
 are citizens; and their personal rights are as sacredly pro- 
 tected by law, but not more so, than those of men ; yet it 
 
is only within a few years that any of them have been ad- 
 mitted into colleges, dedicated to the education of the male 
 sex. They are not now admitted into anj 7 such institution 
 as a matter of legal right — not even into Harvard. In like 
 manner males are never admitted into institutions devoted 
 to the education of females. 
 
 The reason for this separation of the sexes is founded in 
 expediency. There are those who are beginning to doubt 
 and deny the expediency; but thus far the common sense 
 of the country and of the world is on the side of separate 
 schools for the sexes. 
 
 But if, for reasons of expediency, separate schools may 
 be established for males and for females, who are only dif- 
 ferent classes of citizens, why may not expediency dictate 
 the separation of other classes in the process of education? 
 It is true that Mr. Sumner, in his bill and in his speech, 
 very logically, from his premises, ignores the right to sepa- 
 rate the sexes while at school. If it becomes a law, no 
 female institution in the country "authorized bylaw" can 
 maintain its exclusive character. Its "trustees, commis- 
 sioners, superintendents, teachers, or other officers" are 
 commanded, on pain of fine and imprisonment, not to ex- 
 clude any "citizen of the United States" from the "equal 
 and impartial enjoyment of any accommodation, advantage, 
 falicity, or privilege furnished" by the same. He may not 
 have intended to make this sweeping eflaeement of the dis- 
 tinctions of sex, yet so his bill reads, and so his argument 
 runs. 
 
 But supposing the intent and purport of his bill to be 
 different, and that it admits of separate schools for the 
 sexes; and it follows, that he allows, from motives of ex- 
 pediency, an infringement of contitutional rights, as he 
 construes them. Females are only citizens, and not citi- 
 zens of the highest order, since they cannot vote; yet, if I 
 have misconstrued Mr. Sumner's bill, he would, in that 
 alternative, allow them to have separate schools, from the 
 enjoyment of which other citizens are excluded. And this 
 is enough. It admits, on this construction, the propriety 
 and expediency of separate schools for different classes of 
 citizens; and it is not for him to determine that no other 
 
classes shall be separated. The question is one of consti- 
 tutional right. If, on the other hand, he means by his bill 
 to sweep away the distinctions of sex as well as race, I can 
 in that view leave the case in the hands of the whole 
 American people, confident that no considerable number 
 of them will favor the gross idea of introducing rude boys, 
 whether white or black, into those nurseries of refinement 
 and culture — the female seminaries, colleges, and convents 
 of the country. 
 
 It will have been observed that Mr. Sumner's bill not 
 merely guarantees the right of all citizens to admission into 
 all schools founded on or supported by taxation, but to all 
 that are "authorized by law;" in other words, to all acad- 
 emies, colleges, and schools that have been chartered by 
 national or State authority; though the charter is nothing 
 more than a right to sue and be sued, and to have per- 
 petual succession in its otficers. The endowment may 
 have been given by private parties for a specific purpose : 
 as, for instance, to educate females ; to educate men for 
 the ministry in a particular church; to educate orphans of 
 a particular class and locality. It is no matter. Mr. 
 Sumner's " Thorough" sweeps away all these private, de- 
 nominational, and local rights, in order to establish his 
 system of universal " equality." 
 
 In this connection I will remark, that the demand of the 
 Catholics to have separate common schools has been ac- 
 quiesced in by the State of New York and by other north- 
 ern communities, while the resistance to the demand was 
 never founded in constitutional scruples, that I am aware 
 of. It has been contended by the Protestants that a de- 
 nominational separation of the school fund would dissipate 
 and destroy its efficiency, while the Catholic justly claims 
 that he ought not to be taxed for the support of a system 
 of education which he deems hostile, to his religion. I 
 understand that this was the view taken by Mr. Seward 
 when Governor, and that he sanctioned the separation of 
 the school fund. 
 
 In his zeal for "equality" Mr. Sumner will invade the 
 sacred precincts of the church, and unveil the nrysteries of 
 the Masonic and Odd Fellows' lodges. The churches are 
 
nominated in the bill, and their officers, from the bishop 
 and clergy to the sexton, are warned, as they would escape 
 the felon's doom and companionship, not to exclude any 
 " citizen of the United States " from " the equal and im- 
 partial enjoyment of any accommodation, advantage, 
 facility, or privilege furnished" by them. In other words, 
 the several churches must sell or rent pews to any citizen 
 who applies, although his views may be antagonistic to the 
 church, and his real purpose be to vote out the vestry, the 
 trustees, or committee of management, by whatever name 
 called. Indeed, it is not clear that a bishop could refuse 
 the rite of confirmation, or a clergyman the sacrament of 
 the Lord's supper, to a "citizen of the United States" 
 under this system of leveling equality. It may be said 
 that the closing sentence of the section qualifies what 
 precedes, and that the denial of right is not to be based on 
 the fact of "race, color, or previous condition of servi- 
 tude;" but in view of the very positive and unqualified 
 language of the body of the section, which declares "that 
 all citizens of the United States, without distinction of 
 race, color, or previous condition of servitude, are entitled 
 to the equal and impartial enjoyment of any accommoda- 
 tion, advantage, facility, or privilege furnished" by the 
 churches, it will be deemed dangerous to rely on the final 
 clause as a safeguard against fine and imprisonment. 
 
 If this bill should become law, it will be needless to 
 amend the Constitution, as has been suggested, by a clause 
 recognizing the being of God and the truth of Christianity. 
 What its author proposes is the union of Church and State; 
 the enforced conformity of all denominations with his 
 standard or "equality." Whatever else the churches may 
 put into their creeds, they must not hold that any citizen 
 of the United States, whether Jew or infidel, black or 
 white, is not good enough to take his seat with the elders 
 and disciples at the communion table. 
 
 In vain the Constitution of the United States and those 
 of the separate States have guarantied the most perfect 
 freedom of worship; in vain has a complete and perpetual 
 separation of Church and State been declared. These 
 sacred rights of the individual to worship God according 
 
8 
 
 to the dictates of his conscience, and of classes of in- 
 dividuals to associate themselves together for the purpose, 
 are to be invaded, and to give way to the higher demands 
 of " equality." He heads the pamphlet edition of his 
 speech with the taking title "Equality before the Law," 
 but his bill puts equality against the law, above the law, 
 and against the rights of the citizen. 
 
 The Masons and Odd Fellows are in like predicament 
 with the churches, being described as " benevolent insti- 
 tutions, incorporated by national or State authority." They 
 will have no alternative, but must surrender up their hid- 
 den mysteries to the first comer who can show his claim 
 to citizenship. If he should be a citizen of African de- 
 scent, the danger of black-balling him will be great, for it 
 will be for a court and jury chosen in some of 1he States 
 by a majority of colored voters to say whether he was 
 black-balled on account of his character or on account of 
 his "race, color, or previous condition of servitude." If 
 the latter conclusion should be reached, the whole lodge 
 must go to jail, besides paying a heavy fine; for it is not to 
 be presumed that they would ferret out and " deliver up " 
 the recusant black-baller. 
 
 The effect, if not the purpose of the bill, is to take from 
 the people all right to indulge their private and peculiar 
 tastes. Under its provisions there could not be a social 
 club of gentlemen, a ladies' sewing soctety, a boat club, a de- 
 bating club, a shooting club, or any other organization, for 
 pleasure, for business, for religion, or for benevolence, hav- 
 ing corporate rights, but it must be invaded with this level- 
 ing principle of " equality," which takes away all individual 
 liberty, and becomes despotism in its most odious form. 
 
 I now come to the consideration of the obligations im- 
 posed upon innkeepers and theatrical managers and lessees. 
 And first, the innkeepers. I give Mr. Sumner's authorities 
 as presented by himself. He says : 
 
 "The summary of our great jurist, Mr. Justice Story, 
 ' shows the law: 
 
 " ' An innkeeper is bound to take in all travellers and way- 
 i faring persons and to entertain them, if he can accommodate 
 1 them, for a reasonable compensation.' 
 
"'If an innkeeper improperly refuses to receive or pro- 
 ' vide for a guest, he is liable to be indicated therefor.' — 
 ' Story's Commentaries on the Law of Bailment, § 476. 
 
 " Chancellor Kent states the rule briefly, but with fullness 
 ' and precision : 
 
 " ' An innkeeper cannot lawfully refuse to receive guests 
 ' to the extent of his reasonable accommodations, nor can 
 ' he impose unreasonable terms upon them.' — Kent's Com- 
 ' mentaries, vol. 2, p. 592. 
 
 " This great authority says again, quoting a decided case : 
 
 " 'Innkeepers are liable to an action if they refuse to re- 
 ' ceive a guest without just cause. The innkeeper is even 
 ' indictable for the refusal, if he has room in his house and 
 ' the guest behaves properly.' — Ibid., p. 595. 
 
 "And Professor Parsons, in his work on Contracts, so 
 ' familiar to lawyers and students, says: 
 
 '" He cannot so refuse unless his house is full and he is 
 ' actually unable to receive them. And if on false pretense 
 ' he refuses, he is liable to an action.' — Parsons on Contracts, 
 'p. 627. 
 
 " The importance of this rule in determining present duty 
 ' will justify another statement in the language of a popular 
 ' Encyclopedia: 
 
 " ' One of the incidents of an innkeeper is, that he is bound 
 ' to open his house to all traveller's, without distinction, and, has no 
 ' option to refuse such refreshment, shelter, and accommodation as 
 ' he possesses, provided the person who applies is of the cle- 
 ' scription of a traveller, and able and ready to pay the cus- 
 ' tomary hire, and is not drunk or disorderly or tainted with 
 ' infectious disease.' — Chamber's' Encyclopedia, article Inn. 
 
 "And the Encyclopedia adds : 
 
 "'As some compensation for this compulsory hospitality 
 ' the innkeeper is allowed certain privileges.' 
 
 A reader not accustomed to legal studies might draw the 
 inference from these authorities, as they are quoted by Mr. 
 Sumner, that they state what is now, and has always been, 
 the law of this whole land, North and South. Indeed, im- 
 mediately following the foregoing citations he declares that 
 this is the case. He says : 
 
 " 'Thus is the innkeeper under constraint of law, which 
 1 he must obey ; ' bound to take in all travellers and wayfar- 
 
10 
 
 * ing persons; ' ' nor can he impose unreasonable terms upon 
 ' them; ' and liable to an action and even to an indictment 
 ' for refusal. Such is the law.' 
 
 "' With this peremptory rule opening the doors of inns 
 4 to all travellers, without distinction, to the extent of author- 
 ' izing not only an action, but an indictment for the refusal 
 ' to receive a traveller, it is plain that the pending bill is only 
 
 * declaratory of existing law, giving to it the sanction of 
 ' Congress.'" 
 
 In the first place, Justice Story expressly states, in the 
 preface to the work quoted, that it is a treatise on the Eng- 
 lish common law of bailment; and he refers much of 
 it, in its origin, to the Roman, or civil law. There is not 
 more than one reference to American law in his chapter 
 on innkeepers, and that has no relation to the question in- 
 volved. And Mr. Sumner, who is so thoroughlj 7 acquainted 
 with the Constitution and laws of the United States, ought 
 to have stated in his speech that the common law is not the 
 law of the federal Government. That the Constitution does 
 not recognize it ; and that the federal courts have no com- 
 mon-law jurisdiction. Perhaps all of the States, except 
 Louisiana, have adopted the common law, so far as it is 
 consistent with their respective constitutions, laws, and 
 circumstances; but no further. Not one of them, except 
 perhaps Massachusetts and Vermont — and they only with- 
 in a few years — ever gave negroes the benefits of common- 
 law rights to their full extent. 
 
 In the second place, although the English common law 
 of bailment is generally received in this country, that por- 
 tion of it which requires an innkeeper to open his house 
 to all travellers, without distinction of race, "provided the 
 person who applies is of the description of a traveller, and 
 able to pay," &c, has never been the law in the United 
 States — not even in Massachusetts — until recent years, if 
 at all; for, from an incidental remark in the Senator's 
 speech, one would infer that the laws of that State are still 
 dictated by what he denouuces as the " barbarous tyranny " 
 of slavery, which he declares, still stalks in the Senate 
 chamber. 
 
 I proceed to establish these propositions by historical 
 facts, which Mr. Sumner will not dispute, and which are 
 
11 
 
 within the vivid recollection of the present generation. T 
 begin with Massachusetts, in which State the abolition of 
 slavery is coeval with the adoption of her constitution in 
 1780. Six years afterwards, in 1786, her legislature pro- 
 hibited intermarriages between whites and blacks, or per- 
 sons of African descent. In 1834, after Mr. Garrison com- 
 menced the agitation of the slavery question, the Legislature^ 
 refused to repeal this law. In 1843, however, the prohibi- 
 tion was abolished. My authority for this and the follow- 
 ing statements in regard to the condition of the colored 
 people is Mr. Hurd, who has published two interesting 
 volumes in Boston on the "bondage and freedom" of 
 the negro race. He presents other facts in the history of 
 Massachusetts, showing that although she was foremost in 
 abolishing slavery, she for a long time retained on her 
 statute-books very grievous disabilities founded on the 
 color of the skin. 
 
 Similar laws against intermarriages were passed in Maine 
 in 1821, the year after the State government was organ- 
 ized, and they were not repealed up to the period of the 
 rebellion. They are doubtless still in force. 
 
 In Connecticut the elective franchise was taken away 
 from the colored people in 1818, and never restored until 
 since the adoption of the XVth Amendment to the Consti- 
 tution of the United States. Negroes from other States 
 were not allowed to attend school in Connecticut. 
 
 The same exclusion from the polls was adopted and en- 
 forced in Pennsylvania and New Jersey, accompanied with 
 other degrading disabilities, such as a disqualification to tes- 
 tify against whites. They were never removed by the peo- 
 ple of those States until since the war. 
 
 In New York a property qualification was made the 
 condition of suffrage for black men, while no such condi- 
 tion was imposed on the whites. This, with other dis- 
 abilities, were removed by the XVth Amendment. 
 
 Ohio, Indiana, Illinois, Michigan, Wisconsin, and Iowa 
 not only excluded persons of African descent from the 
 polls and from the witness-box, where whites are parties, 
 and forbade intermarriages with whites, but they denied 
 to the unfortunate race the right to settle within their 
 
12 
 
 limits, on pain of fine, imprisonment, and expulsion. It 
 is needless to recite in detail the barbarous codes of these 
 free States. Their constitutions and statutes relating to 
 the negro seem to have been plagiarized from those of 
 South Carolina and Mississippi; and they never relented, 
 with trifling exceptions, until since the close of the war. 
 
 Even Kansas and Nebraska, those twin children and 
 first-born of the great anti-slavery revolution, excluded 
 negroes from the polls, and prohibited intermarriages be- 
 tween the races. 
 
 These indisputable facts of history, drawn from the sta- 
 tute-books of the northern States, demonstrate the ab- 
 surdity of Mr. Sumner's statement, that what Story, Par- 
 sons, and Kent lay down as the law of England in regard 
 to innkeepers, is also, as a matter of course, the law of 
 the United States. 
 
 The idea that a class of men who could not vote nor 
 testify against a white person, nor intermarry with white 
 people, had at the same time a legal right to be received 
 into any hotel or theater, is preposterous. In the north- 
 western States, as I have shown above, negroes were not 
 even allowed to settle, much less to demand entrance into 
 a hotel. The law made it necessary for them to skulk and 
 conceal themselves from the faces of men. 
 
 The emphatic declaration of Mr. Sumner, that Ameri- 
 can innkeepers are, and have been, from the days of Kent 
 and Story, bound by law to receive all travellers of Afri- 
 can descent if they are able to pay their way, is, therefore, 
 untrue in point of fact, and he can only mean by it, that 
 they ought of right to be thus bound. 
 
 But I have closely examined his authorities, and I find 
 in them other interesting statements in regard to inn- 
 keepers, to which I propose to call attention. I do so be- 
 cause he has failed to state, in the first place, that the 
 Roman or civil law differed from the common law, in that 
 it did not require an innkeeper to receive all travellers, 
 but left the matter to his discretion. In the second place, 
 he fails to explain why the common law, though borrowed 
 largely from the civil, as it regards bailment, differed from 
 it in this respect. Judge Story, in the same treatise and 
 
13 
 
 chapter quoted by Mr. Sumner, makes the following state- 
 ment : 
 
 "By the common law {which in this respect differs from 
 1 the Roman law) an innkeeper is not, if he has suitable 
 'room, at liberty to refuse to receive a guest who is ready 
 1 and able to pay him a suitable compensation." 
 
 I find the same statement in other authors; but Story is 
 sufficient authority. In another place he quotes the Roman 
 TTlpian in support of an edict, which held innkeepers to a 
 rigid account for the goods of their guests, on the ground 
 that they were under no obligation to receive them, and 
 therefore voluntarily contracted to take care of them. The 
 Roman law was based on the common-sense principle, that 
 innkeepers have their rights as well as other people; and 
 that to force all sorts of vulgar and disreputable people 
 upon them would be unjust. If inns were set up by Gov- 
 ernment, or if their keepers enjoyed any peculiar privi- 
 leges at the expense of the general public, there would be 
 reason for the exaction that they shall entertain all comers. 
 But in the absence of any such public endowment or privi- 
 leges, the requirement that a private citizen, in his own 
 house, upon his own ground, shall receive and entertain 
 all who call, and be responsible for their goods, whether 
 he will or no, is tyranny, however time-honored. 
 
 I will now proceed to show how this requirement came 
 to be made of English innkeepers, and that the reason for 
 it has ceased to exist. I find the following statement in 
 another of Mr. Sumner's authorities — Chambers' Encyclo- 
 pedia. It immediately follows the passage quoted by him, 
 and is a part of the same paragraph. It is said that if an 
 innkeeper 
 
 " 'Sets up a new inn where there is no need of one, to 
 1 the hindrance of ancient well-governed inns, he is iu- 
 ' dictable andfineable, and by statute such inn may be sup- 
 * pressed.'" 
 
 I find the same fact stated in Hawkins' Pleas of the 
 Crown, which is a higher authority than the Encyclopedia. 
 It is therefore certain, that the obligation imposed by the 
 common law upon innkeepers, requiring them to enter- 
 tain all travellers who call, was not in its origin an arbi- 
 
14 
 
 trary freak, but a reasonable exaction, in consideration of 
 the exclusive monopoly they enjoyed. The innkeeper 
 was a favorite of Government, and was defended against 
 competition, on the condition that he would engage to en- 
 tertain all travellers who might call. But this exclusive 
 privilege, which was the reason of the requirement, has 
 long since passed away in England, and perhaps never 
 existed in any part of this country. 
 
 The reason for the law having ceased, the law itself 
 should cease, according to a well-settled principle of juris- 
 prudence. It is unjust to enforce the condition, after the 
 monopoly, which was the consideration for it, has been 
 taken away. Every man who chooses can now set up an 
 inn or hotel, when and where he pleases, just as he may 
 set up a store or a work-shop. It is competent for colored 
 men to set up hotels or inns all over the country, and in 
 fact they do have their boarding houses, and sometimes 
 their hotels. In every city and village they are to be 
 found; and there is not a wayside station on the railroads 
 where refreshments may not be had. 
 
 Admit that a colored man in travelling suffers incon- 
 venience, still, it is only an inconvenience; and it is not at 
 all comparable with the inconvenience which would be 
 suffered by a white family, if compelled, on pain of aban- 
 doning perhaps the pursuit of a lifetime, to entertain a 
 black man, to take him to their tables, their parlors, and 
 lodge him in their beds. Neither is the inconvenience 
 suffered by black men " on account of race, color, or previ- 
 ous condition of servitude," to be compared with that of 
 the still greater number of white men, who would be turned 
 away, with disdain, from any fashionable hotel in New 
 England, on account of poverty and plainness of dress. 
 If the innkeeper has no rights which travellers are bound 
 to respect, I see no reason why he should not be made to 
 entertain those who belong to the numerous class of labor- 
 ing white poor, as well as the very small class of colored 
 men who have means. All over the South, as well as the 
 greater part of the North, owing to the prejudice against 
 color, innkeepers would prefer to entertain ten poor white 
 men, to one well-to-do black man. 
 
 I am not attempting to justify the prejudice against 
 color. I only maintain that it exists ; that it is one of the 
 controlling sentiments of the people ; that religious con- 
 victions are not stronger; and'that while it should not be 
 allowed to trespass on the rights of others, the attempt 
 should not be made in the name of law to conquer it. 
 We are all prone to regard the religious sentiments of 
 those who differ from us as more or less the result of pre- 
 
15 
 
 judice, yet there is no right which the Constitution and 
 laws more studiously protect than the enjoyment of these 
 diverse notions of religion. In like manner social preju- 
 dices, whether well or ill-grounded, are held of right, and 
 cannot he legislated away. Mr. Sumner is willing to leave 
 nothing to time, but would level all distinctions by statute. 
 We owe to our fellow-men and to society, high, impera- 
 tive, sacred duties, which law cannot enforce nor attempt 
 to enforce without becoming tyrannical. The scope and 
 province of law is to prevent men from injuring each other. 
 The office of religion is to teach them to love one another. 
 The attempt to enforce uniformity in religion has never 
 failed to lead to tyranny in the Government and cor- 
 ruption in the Church; and all efforts to enforce kindness 
 and good-fellowship in the name of "equality" must 
 begin with a despotic intermeddling in private affairs, and 
 end in greater alienation of classes. 
 
 Hotels or inns are private property. The State con- 
 tributes nothing to their establishment, gives them no 
 exclusive privilege, and does nothing for them more than 
 it does for private residences. On the contrary, the State 
 levies a special tax on inns, as such, which is certainly not 
 a mark of special regard or favor; and yet this is the sole, 
 preposterous, ground for the exaction that they shall re- 
 ceive and entertain all travellers. The principle has never, 
 as I have shown, been carried to the extent of compelling 
 white innkeepers to receive black travellers. It ought not 
 to be required in any case. The reason which gave rise to 
 the custon has ceased to exist, as explained above; and the 
 principle of the Roman law should be adopted. In fact, 
 as we all know, innkeepers never take in unwelcome 
 guests in this country. They are always willing to receive 
 white persons of respectable appearance; and they reject 
 with disdain an applicant for lodging, though he may be 
 honest and worthy, if his dress and appearance indicate 
 that he moves in a sphere much below the average guests 
 of the house. A hod-carrier or other common laborer 
 would be turned adrift from the fashionable hotels of Bos- 
 ton, and he would have no redress; but under Mr. Sum- 
 ner's bill, the rejection of a colored applicant would be a 
 dangerous experiment. His presence, though well dressed, 
 and with a pocket full of money, would be as little wel- 
 come as that of the hod-carrier; but as the representative 
 of a race, whose rights are guarded by special laws, and 
 by well-organized associations, he would become a formida- 
 ble suitor in court. 
 
 If this bill of " equality" should become a law, there 
 could be no evasion of its provisions by inn or hotel-keep- 
 
16 
 
 ers, as some have vainly imagined. They would not cease 
 to be innkeepers by taking down their signs and surrender- 
 ing their licenses. It is a well-settled principle of Ameri- 
 can as well as English law, that neither the sign nor the 
 license is necessary to make a house an inn. If a man is 
 in the habit of receiving travellers into his house, and re- 
 quiring pay for the same, those facts constitute him an inn- 
 keeper. Every boarding house in the land which is in the 
 habit of receiving transient guests — and there are few that 
 do not— would be bound by this law of "equality." Let 
 no one, therefore, flatter himself that he can escape by the 
 evasion of taking down his sign, or surrendering a license. 
 
 As it regards churches, Masonic and Odd Fellows' 
 lodges, and theaters, it is not pretended by Mr. Sumner 
 that either in England or America any common-law right 
 of admission for all comers has existed; but in violation 
 of individual and social rights he proposes, in the name of 
 "equality," to open these institutions to the public. Their 
 very nature and constitution make them exclusive. They 
 are only associations of individuals, and they have a right 
 to be exclusive. There exists the same right to compel a 
 banking or mercantile association to take in an unwel- 
 come partner, as there does to constrain a church, a 
 lodge, or a theater, to receive an unwelcome member or 
 attendant. If the church were a part of the State, as in 
 European monarchies, there would be reason for such a 
 law of "equality." 
 
 Equality before the law is the plea for these various 
 tyrannical invasions of the rights of individuals and classes. 
 But equality must not supplant liberty. 
 
 An enforced equality becomes the most galling despot- 
 ism. There is no right more sacred than that of choos- 
 ing one's associates and guests. There is no right so 
 essential to the existence of virtuous and honorable society. 
 It involves the purit}^, refinement, and elevation of females; 
 the moral training of children ; and the whole happiness 
 and respectability of families. A man could live under 
 any of the known despotisms of the Old World, and enjoy 
 this sacred right. He might be a subject of the Czar, th^ 
 Sultan, or the Emperor of China, without forfeiting it; 
 but under Mr. Sumner's cruel and remorseless law of 
 " equality," he must surrender the inestimable privilege at 
 the church-door, at the lodge, at the club-room, at the the- 
 ater, and at the hotel. There is no tyranny so searching, 
 so galling, and so degrading as this doctrine of" equality" 
 imbodied in this bill, which pursues its victims from the 
 cradle to the grave. Jeffekson. 
 
 McGlLL & WlTHEROW, PRINTERS, WASHINGTON, D. C. 
 
Photomount 
 
 Pamphlet 
 
 Binder 
 
 Gaylord Bros. 
 
 Makers 
 
 Syracuse, N. Y. 
 
 PH. JAN 21, 1908 
 
II, 
 
 TTH 13dVH3 IV N dd AllSa3/