G a^ University bf the State of New York A CONSTITUTIONAL AND EDUCATIONAL SOLUTION OF THE NEGRO PROBLEM An A.^ of which he is a citizen to protect and enforce them, and to do tiaught to deprive him of their full enjoyment. W^hen any of these rights and privileges are secured in the Constitution' of the United States only by a declaration that the state or the United States shall not violate or abridge them, it is at once understood that they are not created or conferred by the Constitution, but that the Constitution only guarantees that they shall not be impaired by the state, or the United States, as the case may be. The fulfilment of this guaranty by the United States is the only duty with which that government is charged. The affirmative enforcement of the rights and privileges themselves, unless something more is expressed, does not devolve upon it, but be longs to the state government as a part of its residuary sover eignty." [1 W^oods 315] The Fourteenth Amendment has not altered this fundamental power. " The constitutional provision," said Mr Justice Miller, [16 Wall 77-82] " did not create those rights, which it called privileges and immunities of citizens of the states . . Nor did it profess to control the power of the state governments over the rights of its own citizens. With the exception of these and a few other restrictions, the entire domain of the privileges and im munities of citizens of the states lay within the constitutional and legislative power of the states, and without that of the Federal government. Was it the purpose of the Fourteenth Amendment, by the simple declaration that no state should make or enforce any law which shall abridge the privileges and immunities of citi zens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the states to the Federal government? [77] Such a construction would constitute this court a perpetual censor upon all legislation of the states on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights . . The effect is to fetter and degrade the state governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character — in fact it radically changes the whole theory of the relations of the state and Federal" governments to each other, and of both these governments to the people . . We are convinced that no such results were intended. 1903] A SOLUTION OF THE NEGRO PROBLEM 161 [78] Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the states, with powers for domestic and local government, includ ing the regulation of civil rights — the rights of person and of property — was essential to the perfect working of our complex form of government." [82] (2) The social rights of the negro are also subject to state powers so far as they are under any governmental control what- ,ever. Social rights are natural and inalienable, but they have no civil guaranties. They, are not protected by state constitutions. They are not embraced in the Fourteenth and Fifteenth Amend ments. They do not appertain to the negro as an American citizen. They attach to him as an individual, and would belong to him equally were he in America or Africa. They are governed by local customs and individual preferences, not by constitutions and laws; and as Jefferson declared, they are never surrendered or conceded by any people under a just form of government. The Court of Appeals of this state has given the most luminous exposition of these principles. " In the nature of things," it said, " there must be many social distinctions and privileges remain ing unregulated by law and left within the control of the indi vidual. . The attempt to enforce social intimacy and inter course between races by legal enactments would probably tend only to embitter the prejudices, if any such there are, which exist between them, and produce an evil instead of a good re sult. . As to whether such intercourse shall ever occur must eventually depend upon the operation of natural laws and the merits of individuals, and can exist and be enjoyed only by the voluntary consent of the persons between whom such rela tions may arise, but this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improve ment and progress, it has accomplished the end for which it was organized and performed all of the functions respecting social advantages with which it is endowed." [93 N. T. 448] 162 UNIVERSITY OF THB STATE OF NEW YORK [JuUC 29 In 1875 Congress enacted the Civil Uights bill, intended to se cure social equality to the negro in hotels, theatres and public conveyances; but the Supreme Court promptly declared it void on the ground that social are not among the guaranteed rights of the Constitution. [109 U. S. 25] Commenting on this sub ject, the Court remarked: [163 U. S. 544] "The object of the Fourteenth Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatis factory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into con tact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is con nected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced. [544] If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary con sent of individuals. [551] Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in ac centuating the difficulties of the present situation. If the civil and political rights of both races be equal, one can not be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States can not put them upon the same plane." [552] (3) States moreover possess almost absolute power over the political rights of the negro. These are three : to vote, hold office, and act as jurors. Nor are they rights even, but mere privi leges. They are not inalienable. The Creator never endowed any one with them. The argument that a Patagonian or Fiji 1903] A SOLUTION. OF THB NEGRO PROBLEM 163 Islander has a natural right to vote in New York or to be Presi dent of the United States equally as he has a natural right to live, requires no refutation. Have the Goths and Vandals that inuhdate our shores a natural right to vote, and the millions of American women, citizens of this republic, no such right? Never in the history of this republic has the right to vote been pos sessed by more than twenty per cent of the people. " The mistake on this subject," said Mr Justice Mills, "arises from not attend ing to the sensible distinction between political and civil rights. The latter constitute the citizen, while the former are not neces sary ingredients. A state may deny all her political rights to an individual, and yet he may be a citizen. The rights of office and suffrage are political purely and are denied by some or all the states to part of their population, who are' still citizens," and consequently entitled to all their civil rights. [1 Litt. E. 342] If, however, a state should grant political rights, it must not dis criminate on account of race or color. This is a Federal restric tion and the only one. Otherwise, state powers over the political rights of the negro are as absolute as those of Eussia. Constru ing the Fourteenth Amendment, Chief Justice W^allace remarked : " It will be found that from the earliest period of our history the state laws regulated the privilege of the elective franchise within their respective limits, and that these laws were exactly such as local interests, peculiar conditions, or supposed policy dictated, and that it was never asserted that the exclusion of any class of inhabitants from the privilege of voting amounted to an inter ference with the privileges of the excluded as citizens." [43 Cal. 51] And Mr Justice Hunt used this vigorous language : "The right of voting, or the privilige of voting, is a right or privilege arising under the constitution of the state and not under the Constitu tion of the United States. The qualifications are different in the different states. Citizenship, age, sex, residence, are variously required in the different states or may be so. If the right belongs to any particular person, it is because such person is entitled to it by the laws of the state where he offers to exercise it, and not because of citizenship of the United States. If New York should provide that no person should vote until he reached the age of thirty years, or after he had reached the age of fifty, or that no 164 UNIVERSITV OF THE STATE OF NEW YORK [JUUe 29 person having gray hair, or who had not the use of all his limbs, should be entitled to vote, I do not see how it could be held to he a violation of any right derived or held under the Constitution of the United States. We might say that such regulations were unjust, tyrannical, unfit for the regulation of an intelligent state ; but, if rights of a citizen are thereby violated, they are of that fundamental class, derived from his position as a citizen of the state, and not those limited rights belonging to him as a citizen of the United States." [11 Blatch. 204-5] Nor does the Fifteenth Amendment, said Chief Justice Waite, " confer the right of suffrage upon any one. It prevents the states, or the United States, from giving preference, in this par ticular, to one citizen of the United States over another on ac count of race, color or previous condition of servitude. Before its adoption, this could be done. It was as much within the power of the state to exclude citizens of the United States from voting on account of race, etc., as it was on account of age, prop erty, or education. Now it is not. If citizens of one race hav ing certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment there was no constitutional guaranty against this discrimination; now there is." [92 U. S. 217-18] As between states and individuals there have always been, as Mr Justice Hunt said, and there always will be, many cases of hardship in the administration of even the most apparently equal suffrage qualifications; but the remedy lies in an appeal to state governments, and until there is at least evidence of inten tional failure of the states to act, the Federal authorities can not even interfere. On this point the Supreme Court has decided: " It is hardly necessary to say that the hardship, impolicy, or injustice of state laws is not necessarily an objection to their constitutional validity; and that the remedy for evils of that character is to be sought from state legislatures. . This court is not a harbor where refuge can be found from every act of ill advised and oppressive state legislation." [115 U. S. 520-21] (4) Such being the state powers over the negro, what are the corresponding state duties? 1903] A SOLUTION OF THE NEGRO PROBLEM 165 Assuredly no state can have duties toward negroes, if it has no negroes within its boundaries. It can have no negro problem without negro citizens. Hence it is most important to determine the present and probable future situs of the negro race in America. In 1860 the slave states held 4,215,614 negroes and the rest of the country 226,216, or 1.2 per cent of its population. In 1900 there were 8,081,001 negroes in the former slave states, and in the rest of the country 759,788, or 1.5 per cent of its population, a relative increase in forty years of merely three tenths of one per cent. There are now in the free states west of the Mississippi only 162,613 negroes, in Idaho for instance 293, North Dakota 286, South Dakota 465 and Oregon 1105 ; while in New England there are only 59,099, in New Hampshire for example 662, Vermont 826 and Maine 1319. In the two cities of New Orleans and Balti more there are almost as many negroes as in all the West, and 100,000 more than in all New England. There are more negroes today in either Alabama, Georgia, Mississippi or South Carolina than in all the free states and territories of the Union. Thus the negro is today, where he has always been, in the old slave states. Moreover, he has not moved northward, but since emancipation he has been steadily moving southward, gradually segregating himself into the lower Atlantic and Gulf states — South Carolina, Georgia, Florida, Alabama, Mississippi, and Louisiana. In many counties of these states blacks outnumber whites three to one, in many others two to one, while throughout the six states taken as a whole, negroes today exceed the whites. In the states, however, bordering these to the north and west whites have increased since the Eebellion 140 per cent while negroes have increased only 80 per cent. Taking, then, the six Atlantic and Gulf states, we have 300,000 square miles of compact and uniform territory, bounded on the east by the Atlantic, on the north by the 35th parallel running straight through to the Missis sippi, on the west by Texas, and on the south by the Gulf. In all that land there is only one city larger than Albany, only two larger than Utica. It is an agricultural land, a land of cotton and sugar cane, a land that has more negroes than whites, a land that has more negroes than all the rest of the United States, a land that 166 UNIVERSITY OF THB STATE OF NBW YORK [June 29 the negro has already possessed, that he will never abandon, and that will always remain his permanent home in America. And what practicable arguments are offered against these con clusions? None whatever. The plan to export and colonize the blacks, advocated by Jefferson and Madison and Clay and other early abolitionists, is revived and urged today as a feasible solu tion. But the negro is now a citizen. He has equal rights with the whites. To deport him to Mexico, or San Domingo, or elsewhere, you must first secure his consent. It is folly to expect that eight million American citizens will voluntarily expatriate themselves. They are here to stay, like any other American citi zens. Such a plan is visionary and chimerical. So also is the proposition that the negro shall disperse through out the United States, intermarry with the whites, and disappear into a physically amalgamated race. Wendell Phillips has left this record : " Eemember this, the youngest of you, that on the fourth day of July, 1868, you heard a man say that in the light of all history, in virtue of every page he ever read, he was an amalgamationist to the utmost extent ; " and Canon Rawlinson tbus concludes a review of our race difficulties: "To us on lookers at a distance, entirely disinterested spectators, it seems that amalgamation is the true remedy and ultimate absorption of the black race into the white, the end to be desired and aimed at." But in discussing this problem, Phillips and his school have made a common, initial blunder. They have assumed that the negro would disperse throughout the whole United States and become absorbed by the entire white population. As we have seen, however, he has not stirred northward for forty years, and there is no probability that he will in the future. The major premise of the amalgamation argument is fallacious, and the whole theory falls with it. Primarily, therefore, on the Atlantic and Gulf states, and next on the other states of the old South, will forever rest the state solution of the negro problem. New York is excluded. It has no negro problem. It has no duties to perform. Should our Legisla ture make an appropriation to educate negroes in Alabama or Florida for instance, the act would be unconstitutional. Nor is there a negro problem anywhere in the P}ast or North or West. It 1903] A SOLUTION OF THB NEGRO PROBLEM 167 affects none of the other commonwealths. They and their powers and duties and enormous financial resources are all eliminated from the state negro problem. They have no more to do with it than they have with the internal affairs of Persia or Yucatan. (5) Such being the powers of the states and such the states that alone can exercise them, how have they discharged their duties ? Within their borders mobs and individuals have perpetrated gross outrages against the rights of negro citizens, but none more ghastly or horrible than those of Illinois and Ohio. And as the states of the West are not primarily responsible, no more are the states of the South. Since the Eebellion the states have gradually confirmed the civil rights of the negro by a great mass of municipal or police legislation. No Southern state now opposes the negro's civil equality; no state attempts to deprive him of his inalien able rights or his constitutional guaranties; his life, liberty and property are not coveted ; his writ of habeas corpus is secure ; his right of jury trial is unchallenged ; every avenue of industry is open to him, in the South far more than in the North; he has his own homes, schools, churches, asylums, hospitals and benevolent institutions, and is protected in their enjoyment equally with the whites. Within the broad lines of the decisions, the states have also protected the social rights of the negro. Under their municipal or police powers states have established separate schools, forbidden either race to attend the schools of the other, prohibited inter marriage of whites and blacks, separated the races in hotels, theatres and public conveyances, and legislated generally for the physical, mental, moral and religious uplifting of every negro citizen in their bodies politic — and all these laws the Supreme Court has declared are within the police powers of the states, and, while constituting social discriminations, violate no constitutional guaranties. Concerning political rights, it is urged that under the new constitutions the South is disfranchising the negro and exclud ing him from office. Assuming that the charge is tme, I main tain that the blame should not rest primarily on the states 168 UNIVERSITY OF THE STATE OF NEW YORK [JUUC 29 Congress, as we shall see, has plenary power to regulate the political rights of all its citizens. At any time sin-se the Eebellion it could have passed a uniform Federal statute regulating the suffrage of whites and blacks throughout the Union. In the absence of such national guidance, each state has been a guide unto itself. Mississippi adopted one constitu tional restriction, Alabama another, and Virginia a third. The result is confusion and possibly political wrong to the aggre gate negro citizenship. But we should be charitable enough to attribute this to failure of details of administration, not to a deliberate attempt to commit political crimes under the guise of constitutional authority. If, however, under the same con stitution whites in any state can vote and negroes equally quali fied can not, that, I admit, is a political wrong and for it there is no justification. I condone no crime on suffrage. I justify no political fraud, whether perpetrated in Louisiana or the Caro linas, any more than in Massachusetts or California. But "he that is without sin among you let him first cast a stone; and they which heard it being convicted by their own conscience, went out one by one." Does it lie with the Empire State, so often disgraced by the corruption of its great cities, to cast the first stone? Can Philadelphia or Chicago show clean hands when they go before the bar of public opinion to indict the South for political crimes and misdemeanors? I plead for even handed justice. Would you indict twenty million people for the crimes of a few? Would you find a true bill against fifteen states because some may have unconstitutional provisions? And by whose authority do you say they are uncon stitutional? So far, every decision of the Supreme Court has sustained them! By whose warrant do you declare that the South is illegally disfranchising the negro? I am of opinion that property and educational qualifications in all their consti tutions will be declared valid, while the " grandfather clause " will be pronounced void. I am also of opinion that the " grand father clause ", if unconstitutional, can be separated without de stroying the educational qualification. " Statutes [and State Constitutions] that are constitutional in part only will be up held so far as they are not in conflict with the Constitution, pro vided the allowed and prohibited parts are severable." [95 1903] A SOLUTION OF THE NEGRO PROBLEM 169 U. S. 89; 120 U. S. 685] But there is yet no such decision. Suspend judgment, I pray you, until the Supreme Court shall have passed upon these momentous problems and shall have de cided them, as it will, with equal and impartial justice. Mean while the South has demonstrated the wisdom of disqualifying all illiterate voters, white and black. I believe with Jefferson that a state constitutional provision justly administered, " which dis franchises every citizen who can not read and write," " will immortalize its inventors " ; that it is " the fruitful germ of the improvement of everything good and the correction of everything imperfect " ; and that it " will give you an enlightened people and an energetic public opinion." If the national government does not enact a uniform educational qualification for suffrage, every state in the Union will ultimately be compelled to adopt such a qualification, and the sooner the better. Instead of imputing this as a crime to the South, rather let us commend it for so uniformly adopting the most momentous political reform of the century. (6) The states having exercised all these powers and duties, what, you ask, remains of the negro problem? Nothing, you say. Substantially everything, I reply; and for the reason that the protection of civil, social and political rights is not the vital factor in its solution. Behold an anomalous and unparalleled situation ! The nation enfranchises millions of ne groes, makes them citizens, thrusts them upon the states, and yet four million of them are today so densely ignorant, so criminally vicious, so indescribably poor and thriftless that they neither comprehend their rights nor have the capacity to exercise or en joy them. Listen to the late secretary of the Peabody fund, as true a friend as the negro ever had- "A whole generation has passed since emancipation, and eighty per cent or more of the nearly eight million never knew the evils of personal slavery. Much has been done for the negro, and yet a large proportion are as poor, as ignorant, as thriftless, as improvident, as unfit for re sponsibilities and privileges of citizenship and suffrage as were their ancestors at the close of the great war. With a prepon derant majority there is a low level of intelligence and morality, with rudimentary notions of comfort and under the influence of 170 UNIVERSITY OF THE STATE OF NEW YORK [JuUC 29 grossest superstition. No peasantry in Europe, no laboring class in any civilized country, occupies a lower position in home com forts, in skilled industrial capabilities, in potential influence upon public opinion, upon thought, upon all the constructive and bene ficial agencies of civilization, than does the black population of the Southern states." There is your negro problem. For forty years " much has been done," as Dr Curry said, yet there is your problem still; and it has only one possible solution. Eecreate that festering mass of humanity; transform it into men. What constitutes a state? Not laws alone, nor mere protection of rights. It is " men, high- minded men, with powers as far above dull brutes endued . . as beasts excel cold rocks and brambles rude; men who their duties know, but know their rights and knowing dare maintain. These constitute a state." Let the states make the negro into such men and the negro problem will disappear. With blacks exceeding whites three to one in many Atlantic and Gulf counties, two to one in many more, and outnumbering the whites in the six states as a whole, why must not those states speedily face the inquiry, what will the blacks do with them? "A spider in his natural size is only a spider," said Edmund Burke, " ugly and loathsome, and his filmy net is only fit for catching flies. But suppose a spider as large as an ox and that he spread cables about us; all the wilds of Africa would not produce anything so dreadful." You say no colored race has faced the Anglo-Saxon and lived, and the Southern whites are the purest Anglo-Saxons in the republic; but remember this, never before have Anglo-Saxons faced a colored race not only equal in numbers, but equal in rights and under a sovereign government that has guaranteed, and is able and bound to enforce, such rights. What, I ask, will the illiterate blacks do with the Atlantic and Gulf states? There is your spider already grown large as an ox. Beware lest he spread cables about you. All the wilds of Africa would not produce anything so dreadful! There, I repeat, is your negro problem, and there is only one relief from the appalling situation. The negro is a citizen. Elevate him to the full standard of American citizenship. And there is only one possible means, education. Educated citizens, " these constitute a state " ; educated in intelligence, industry, 1903] A SOLUTION OF THE NEGRO PROBLEM 171 morals, and religion. And hoiv thus to educate the negro — that in its last analysis is the negro problem. (7) Can the Atlantic and Gulf states unaided educate the negro? I answer emphatically, no! Can all the slave states do so? I am of the opinion they can not. In Ihis ultimate analysis it is solely a question of the financial resources of the states affected ; and, with the rich and powerful commonwealths of the Union eliminated, the resources of the re maining states, I maintain, are entirely inadequate. In 1890, when the last available data were compiled, the real and personal property of the fifteen old slave states was $13,380,517,311, of which blacks owned approximately only 3.3 per cent, an average of 164.20 each. The six Atlantic and Gulf states had $3,215,127,929, of which blacks owned approximately only 3.5 per cent, an average of |28.60 each. New York, in contrast, owned $8,516,- 701,991, or $1,429.94 each, and Pennsylvania $6,190,746,550, or $1,177.39 each; nearly a billion and a half more than all the South combined. But even this is not the whole truth. Southern whites possess approximately 96.7 per cent of the wealth and pay approximately 96.7 per cent of the taxes, while negroes own and pay approxi mately only 3.3 per cent. The whites, therefore, have not only to bear their own state burdens, but practically those of the eight million negroes also. Consider also the burden of negro illiteracy and crime that overwhelms the South. The percentage of negro illiterates to negro population throughout the South is 48; in the Atlantic and Gulf states 53, in Alabama 57.4, and in Louisiana 61.1; while in the rest of the United States the percentage of illiterates to the population is only 7.7. In Louisiana the proportion of convicts in the state penitentiaries coming from illiterate blacks is 85 per cent of all the state criminals, in Alabama 85.4, in Florida 86.4, in Georgia 90.4, in Mississippi 91, and in South Carolina 93.2. Yet with negro illiteracy so dense and criminal, the South expends annually on each pupil enrolled in its schools only $4.95, the Atlantic and Gulf states $3.54, Georgia $2.85, South Carolina $2.37, and Alabama $1.85; while Massachusetts, with 5.9 per cent illiterates, expends on each pupil $22.30; New York with 5.5 ex pends $16.69, and Illinois with 4.2 expends $14.50. 172 UNIVERSITY OF THB STATE OF NBW YORK [JuUC 29 Nor is this because the South is doing less than it can, but because it can not do more. Ever since the Eebellion, as the secretary of the Southern Education Board explained, the South has been " forced to provide for the education of two populations out of the poverty of one " ; and yet, to use his words, "of tbe total revenues" of many of these states "fifty per cent are now devoted to the maintenance of education." And since 1870 the South has voluntarily taxed itself and expended for the education of the negro no less than $109,000,000. When any other considerable portion of our country equals this record, it may be proper to contend that the South is not performing its full duty in the education of its negro citizens. Still each pupil in Alabama receives annually only $1.85, in South Carolina $2.37, and in Georgia $2.85. Thus it is not because the states lack constitutional powers, or have failed to discharge their duties, but simply because their flnancial resources are utterly inadequate to meet the enormous demands of their negro citizens. States hold their powers as trustees for all their citizens, white and black alike, and as trustees they must not allow a zeal for their negro bene ficiaries to impair the trust estate. No duty requires and no law permits them to impair their resources by expending money for negro education, nor to confiscate state property by ruinous taxation for the general uplifting of their negro citizens. Yet this is the definite alternative the South has faced ever since Emancipation — millions of poverty-stricken, ignorant and illit erate negroes, made citizens and voters by the nation, ruthlessly injected into its bodies politic, and left there for the states to educate and uplift as citizens and voters, without a dollar of assistance from the nation, and with no adequate financial re sources of their own to meet the appalling emergency ! Here the South has collapsed. This is why neither the six states nor the whole South can today unaided solve the negro problem. And this collapse is distinctively a financial, not a constitutional breakdown. Nor can private aid or organized philanthropy adequately supplement state resources. The problem is to educate and uplift eight million negro citizens in the South. Private philanthropy is doing a noble work, but it affects directly only forty one thousand! If the states can not solve the negro 1903] A SOLUTION OF THB NEGRO PROBLEM 173^ problem, assistance must come from a power superior, not in ferior, to the states themselves. How few even in this audience of scholars realize the supreme gravity of the situation ! How few know there are more illiterates in the South today than ever before ! How few understand that constitutional efforts of the South. must fail unless supplemented by financial aid far beyond the resources of the states themselves ! A tidal wave submerged Galveston, and a thrill of horror ran throughout the land. Do you not behold a huge tidal wave of negro illiteracy gathering force along the whole south Atlantic and Gulf coast, slowly pushing its way inland, and submerging not one city nor one county only, but six sovereign states and threatening as many more! On behalf of your white brothers of that submerged land, and of your sister states below Mason and Dixon's line, I would send out tonight such a clarion cry for assistance as would thrill the conscience of the people and startle the nation into measures of immediate and permanent relief ! And this brings us logically to the inquiry, what can and should the nation do in the premises? II I advance the broad proposition that the nation has ample power to educate its illiterate citizens, white and black, to per form every obligation of American citizenship. The states, as I have shown, can exercise over the negro a. great mass of reserved powers, unenumerated in their constitu tions. But the nation can not. It can exercise no internal powers whatever unless warrant therefor be found in the Fed eral Constitution. [106 U. S. 635] . Hence " whenever the ques tion arises concerning the constitutionality of a particular power, the flrst question," said the Court, "is whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution." [106 U. S. 636] What, if any, therefore, are the express Federal powers to educate'the negro? The Fourteenth Amendment confers express- 174 UNIVERSITY OF THE STATE OF NEW YORK [JUUe 29 power over negro citizenship. It made the negro race in America, five million men, women and children, citizens of the United States, but it contains no express provision for their education. Nor does the Fifteenth Amendment. It expressly guarantees equality of suffrage to negro voters, but is silent as to their educa tion. Article I, Section 4, of the Constitution, confers express power to regulate Federal elections, but makes no specific pro vision for the education of Federal electors. Article 1, Section 8, authorizes Congress " to establish an uniform rule of naturaliza tion." The latent possibilities of this clause over the education of immigrants are almost limitless, but it confers no express power to educate the people. And Article VI incorporates into the Constitution the Ordinance of 1787 which provides that " schools and the means of education shall forever be encouraged." This is an express obligation and doubtless also an express power to grant Federal aid to education, but it confers on the nation no ¦ express power to educate its citizens. These are the constitu tional provisions, if any, from which express Federal power must be derived to educate the negro. I am of opinion they con fer on Congress no express authority for this purpose. I am of opinion, however, they confer most ample implied power; and to prove this is the supreme function of my address. In the Reconstruction debates, Charles Sumner urged that education be made fundamental to the reconstruction of the Southern states; but he urged it as a war measure. "What ever is required," he said, " for national safety is constitutional. Not only it may be done, but it must be done." Education, he maintained, was as necessary as forts; therefore the nation could and should educate. Those were arguments of war, not of peace ; evolved from the principle of national defense inherent in this republic as in every other sovereignty, and not from powers expressed in our written Constitution. In the voluminous discussions of national aid to education, express Federal power to educate was assumed, or based on the " general welfare " clause. The assumption of express power, I have shown, was not justified, for there is no such power in the Constitution ; and since the days of Chief Justice Jay and Thomas Jefferson, our ablest jurists and statesmen have uniformly held that the " general welfare " clause is a taxing power only. 1903] A SOLUTION OF TUB NEGRO PROBLEM 175 I approach this subject from an entirely new point of view. I concede that the nation has no express power to educate. I advance with deference these propositions: (1) The nation has express constitutional power over Federal elections. Federal- citizenship, Federal suffrage and Federal aid to education; (2) it has implied power to enact and should immediately enact a uniform educational qualiflcation for all Federal voters; (3) as a corollary to its express power over elections, citizenship, suffrage and aid to education, it has implied power to educate and should educate all illiterate United States citizens, white and black, to perform their obligations of American citizenship. Let us not deceive ourselves as to the gravity of these proposi tions. They have never heretofore been formulated. They have never been demonstrated. There are no eminent authorities in their support. They have never been judicially determined by the Supreme Court. You have the right to demand from me tonight their conclusive demonstration or I must abandon them as failures. Preliminary to their consideration, let us determine what are the implied powers of the Constitution. Article I, Section 8, says, '• Congress shall have power . . to make all laws which shall be necessary and proper for carrying into execution the foregoing powers " ; and the War Amendments declare, ' Congress shall have the power to enforce by appropriate legislation the provisions of this article." Thus, the right of the Federal government to exercise implied powers is an express constitu tional grant. In the great case of McCulloch, Chief Justice Marshall thus defined their scope: "The sound construction of the Constitution must allow to the national legislature that dis cretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." [4 Wheat. 421] Discussing implied powers, the Supreme Court further said : " The words ' necessary ' and ' proper ' are not limited to such measures as 176 UNIVERSITY OF THE STATE OF NEW YORK [JUUe 29 ^re absolutely and indispensably necessary, without which the powers granted must fail of execution; but they include all appropriate means which are conducive or adapted to the end to be accomplished, and which in the judgment of Congress will most advantageously effect it." [110 U. S. 440] " Every right," eontinued the Court in a later opinion, " created by, arising under or dependent upon, the Constitution of the United States, may be protected and enforced by Congress by such means and in such manner as Congress, in the exercise of the correlative duty of protection, or of the legislative powers conferred upon it by the Constitution, may in its discretion deem most eligible and best adapted to attain the object." [144 U. S. 293] Applying these principles, what are the implied powers of the national government to educate its illiterate citizens, white and black, to perform the obligations of American citizenship ? (1) The nation has implied power to enact a uniform educa tional qualification for all Federal voters, under Article I, Sec tion 4, of the Constitution. " The times, places and manner of holding elections for sen ators and representatives," says the Constitution, " shall be pre scribed in each state by the legislature thereof, but Congress may at any time by law make or alter such regulations." I con cede the power of states to regulate their own elections. It is plenarj' and unlimited except by their own legislative discretion. As Mr Justice Hunt remarked ; " If New York should provide that no person . . having gray hair or who had not the use of all his limbs, should be entitled to vote, I do not see how it could be held to be a violation of any right derived or held under the Constitu tion of the United States." [11 Blatch. 204] The power of a state to adopt an educational qualification as a part of its regulations for voters is elementary, and inherent in its municipal or police powers. Such a qualification is con tained in the Dortch law of Tennessee. The Supreme Court of that state held that the provision " does not impose any oppres sive or impossible condition upon the exercise of the elective franchise " and that " it is a just and reasonable exercise of the legislative power to enact laws to secure the freedom of elections and the purity of the ballot box." [90 Tenn. 409] 1903] A SOLUTION OF THE NEGRO PROBLEM 177 The Supreme Court of the United States has also adopted the principle that such a qualification of suffrage is a reasonable exercise of state police power. While passing upon a number of such limitations in the Idaho law, it held that "the general legislative power to pass laws" — a power that every state necessarily possesses — is sufficient authority for imposing such a condition upon the exercise of its political franchises; that, the Court said, is a "reasonable qualification of voters and for holding office." [133 U. S. 346] As to the effect of the Amendment upon State control of political franchises, Mr Jus tice Strong said : " Within the limits from which it is not ex cluded by the Amendment, a state may prescribe the qualifica tions, and in so doing make discriminations. It may confine the selection to males, to freeholders, to citizens, to persons within certain ages or to persons having educational qualifications." [100 U. S. 310] If therefore an educational qualification be for " the freedom of elections and the purity of the ballot box," as the Tennessee court says, then it is a " reasonable qualification of voters," within the rule of the Supreme Court, and justified by the general legislative power of the state. [133 U. S. 346] If states adopt age, sex, property or educational qualifications, the validity of the law can not be questioned. And further, if they embody such quali fications in their constitutions and make them an essential and vital part of their " manner of holding elections," it is a politi cal act, vested solely within their legislative discretion, valid, unquestionable, and must so stand without appeal. It is such state regulations that Congress may adopt, " make " its own, or " alter." Hence, when Congress finds an educational requirement incorporated in a state constitution or statute and made a qualification of state and Federal voters, it has no power to deny that it is a valid part of the " manner of holding [such] elections." As the power of Congress to adopt is as broad as the power of the states to enact. Congress can adopt any means or in strument or qualification which the states have enacted. Said Mr Justice Miller : " It is past debate that Congress has the power under the Constitution to adopt the laws of the several states respecting the mode of electing members of Con- 178 UNIVERSITY OF THK STATE OF NEW YORK [Juue 29 gress. . This court has held more than once that Congress has exercised this power, and has adopted these laws." [127 U. S. 752] Therefore under Article I, Section 4, Congress, if it deems proper, may adopt as its own and enact as a Federal election law, state constitutions or statutes prescribing an edu cational qualiflcation for state and Federal voters. Five states in the South and five in the rest of the country have already adopted into their constitutions and election laws and made a part of their " manner of holding elections," an educational qualiflcation for state and Federal voters. And it has been expressly held by the Supreme Court that a state constitution prescribing an educational requirement for suf frage is not in derogation of the Federal Constitution. That was the Williams case of Mississippi. [170 U. S. 213] And that these educational qualiflcations are deemed an essential part of one general election law respecting " the times, places and manner of holding elections," and not based on another or different principle, is shown by the fact that they have uni formly been enacted by constitutional amendment, making the qualiflcation and registry of voters and the casting and return of votes all parts of one elective system. [189 U. S. 475] As the organic law of a state is the most solemn expression of the will of its people, assuredly we must admit that at least ten sovereign states of the Union have made education a funda mental requirement of their " manner of holding elections." Hence on such initiative the national government may pre scribe an educational qualiflcation for all Federal voters, either by adopting the state educational qualiflcations or by enacting an independent Federal statute. It may exercise its power over elections either "wholly or partially." [100 U. S. 383] It may adopt the election laws of the states entire, including their educational qualiflcations; it may alter them by eliminating the " grandfather clause " for instance ; or it may add to them in its discretion. " The power of Congress over the subject," said Mr Justice Bradley, " is paramount. It may be exercised as and when Congress sees flt to exercise it. When exercised, the action of Congress, so far as it extends and conflicts with the regulations of the state, necessarily supersedes them." [100 U. S. 384] The sole test in the adoption of state constitutions 1903] A SOLUTION OF THB NEGRO PROBLEM 179 and laws will be the good of the nation; and the sole limitation upon the selection of state qualiflcations will be the legislative discretion of Congress. Congress may also enact an independent educational qualiflca tion for Federal voters, uniform throughout the whole United States. I maintain that the law of uniformity, a constantly ex- [)anding principle of Federal jurisprudence, requires that Congress shall make the educational qualiflcation of Federal voters na tional in extent. Public welfare imperatively demands that such a statute should be enacted immediately. As Chief Justice Mar shall said, in an early case : " The genius and character of the whole government seems to be that its action is to be applied . . to all those internal concerns which affect the states generally." [9 Wheat. 195] Later Mr Justice Bradley remarked: " The na tional government . . has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people, equally and alike, and which require uniformity of regulations and laws." [12 Wall. 555-56] We may assume that one of the main objects of Article I, Sec tion 4, in giving Congress supervisory power over elections was to promote uniformity and prevent diversity of election and suffrage laws in the different states. As Mr Justice Curtis said of the concurrent jurisdiction of state and nation: "Whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Con gress." [12 How. 319] And thus, the requirement of national uniformity may be deemed by Congress, in its political discreti.m, a just occasion for assuming exclusive control of the suffrage, and, such decision being political, there can be no appeal there from. The jurisdiction of the United States is exclusive, according to the rule laid down by Chief Justice Waite, " when the subjects on which it is exerted are national in character, and admit and require uniformity of regulations." [116 U. S. 334] "Where the subject-matter requires a uniform system as between the states," said Chief Justice Fuller, " the power controlling it is vested exclusively in Congress, and can not be encroached upon by the states." [135 U. S. 108-9] " The power of Congress," said Mr 180 UNIVERSITY OF THB STATE OF NEW YORK [JUUO 29 Justice Bradley, " is exclusive wherever the matter is national in character or admits of one uniform system or plan of regula tion." [114 U. S. 630] Whenever Congress enacts such a uniform statute, all in consistent statutes of particular states are ipso facto superseded and abolished. " It is enough," in the opinion of Mr Justice Brewer, " that the two statutes operating upon the same subject- matter prescribe different rules. In such case one must yield, and that one is the state law." [158 U. S. 103] And, as Mr Justice Miller, discussing the local quarantine laws of Louisiana, said, " It may be conceded that whenever Congress shall undertake to provide for the commercial cities of the United States a general system of quarantine . . all state laws on the subject will be abrogated, at least so far as the two are inconsistent." [118 U. S. 464] Such has been the policy of the states .and the nation on all subjects of concurrent jurisdiction. Where the jurisdiction ex ists, and the subject-matter is national in charactelr and admits of one uniform system, Congress has the power to enact and admin ister uniform Federal statutes. Such, for instance, are the uni form Federal statutes regulating navigable waters, patents, trade marks, copyrights and bankruptcy. The exceptions even emphasize the rule. The conflict between the marriage and divorce laws of the various states for instance, is a national scandal. If Congress had the power, it would be its unquestioned duty to enact uniform Federal marriage and divorce laws; but because it has neither express nor implied authority over the subject, it can do nothing. On the other hand because Congress has the power, it has enacted uniform patent, copyright and bankruptcy laws ; and likewise because it has power to regu late Federal elections and because the qualification of voters is such a regulation. Congress can and should prescribe the terms and conditions of such qualification. If conflicts of jurisdiction have compelled Congress to enact uniform laws regulating commerce and pilotage and patents and bankruptcy, why not also uniform laws regulating Federal suf frage? The purity of the ballot is as essential to the safety and good government of the nation as the regulation of patents and pilots. An enlightened democracy is as requisite to national 1903] A SOLUTION OP THB NEGRO PROBLEM 181 welfare as uniform bankruptcy laws. Contrariety of restric tions is as embarrassing to suffrage as to interstate com merce. And if Congress determines that the confiicting election laws of the different states, an educational qualification in one, a property qualification in another, and none in a third, can be cured or improved by a uniform educational qualification of the suffrage, I maintain it has unqualified power to enact a Federal statute regulating the whole subject. (2) The nation has implied power to educate its illiterate citi zens, white and black, as a corollary to its power to enact a uniform educational qualiflcation. It is a corollary just as implied power to acquire and govern the Philippines is correlative to the express power " to declare war " and " to make treaties " ; as the Sherman trust law is ancil lary to the express power " to regulate commerce among the several states " ; as hundreds of postal laws and regulations are corollaries of the simple express power " to establish postofflces and post roads " ; and as the great mass of shipping and admiralty statutes are all correlative to the express power " to regulate com merce with foreign nations." I again concede that the national government has no express power over national education. Its power is not that original municipal or police authority over education possessed by the states ; nor even the inherent police power which the nation itself possesses in the District of Columbia and the territories. The nation's power to educate its illiterate citizens white and black is merely ancillary and derivative. When education is necessary or conducive to the execution of one of the express powers of the Constitution, then the national government can employ educa tion as a means of achieving that end. Quoting again Chief Justice Marshall, " Let the end be legitimate, let it be within the scope of the Constitution, and all means which are ap propriate, which are plainly adapted to that end . . are constitutional." [4 Wheat. 421] To regulate Federal suffrage is an express power. Implied therefrom is the power to enact a uniform educational qualiflcation; and as a corollary I claim the power to educate. Is not education "plainly adapted," as Chief Justice Marshall puts it, to preparing citizens for an edu- 182 UNIVERSITY OF THB STATE OF NEW YORK [JuUC 29 cational qualiflcation? If not, what possible means is more " plainly adapted to that end "? Suffrage is the supreme political franchise of citizenship. Good government and the very existence of the republic depend upon its right exercise. Therefore the restriction of the suffrage to the educated, intelligent and moral is an appropriate exercise of governmental control over the elective franchise. The gravest peril that threatens the republic is the suffrage of the ignorant and vicious. Therefore the exclusion of these ele ments by an educational qualiflcation to the elective franchise is an appropriate function of government. Moreover, almost as grave a danger as the participation of the ignorant and vicious in the government is the existence of a vast mass of ignorant and vicious citizens excluded from all participation therein. To disfranchise for ignorance and not to endeavor to remove the bar by education would be an illogical as well as dangerous experiment. Hence the power to prescribe an educational quali flcation for Federal suffrage and the power to educate in order to remove such disqualiflcation are necessary and integral parts of a uniform Federal election law. (3) The nation has implied power to educate its illiterate negro citizens, as a corollary to the Fourteenth Amendment. This power is conferred by Section 5 : " Congress shall have power to enforce by appropriate legislation the provisions of this Article." The power is not negative and passive only, like constitutional prohibitions, but affirmative; it authorizes Congress to employ affirmative legislation to execute it. The power is "to enforce"; the agent is Congress; the means -are " appropriate legislation " ; and the objects are the " provisions " of the Amendment. 1 The power " to enforce " means simply to carry out, to give effect and force to. It is supplementary to the general power of Article I, Section 8, " to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government." The phrase, " carry into execution," is equivalent to " enforce." [16 Pet. 615] Thus the provisions of the Fourteenth Amendment 1903] A SOLUTION OF THB NEGRO PROBLEM 183 can be enforced both by implied power under Article I, Section 8 [144 U. S. 293], and, as Mr Justice Swayne explained, by the "express authority" contained in the Amendment itself. [100 U. S. 311] " The Amendment derives much of its force " from the express authority of Section 5 [100 U. S. 345] ; and " it is to be construed liberally to carry out the purposes of its framers." [100 U. S. 307] Therefore Congress has express power to carry into effect the provisions of the Amendment, and the Supreme Court has expressly declared that " legislation is contemplated to make the amendment fully effective."' [100 U. S. 345] By " appropriate legislation " the Amendment intends " what ever legislation is . . adapted to carry out the objects the Amendment has in view " [100 IT. S. 345-46] ; or any " efficient and appropriate mode " of extending and securing its provisions. [100 U. S. 310-11] Any means are " appropriate," said Mr Justice Gray, which are " conducive or adapted to the end to be accomplished." [110 U. S. 440] Article I, Section 8 provides that legislation ,must be " necessary and proper " for the purpose intended. The power under the Fourteenth Amendment, Sec tion 5, is more liberal -- legislation shall be " appropriate." Under Section 8 arose the doctrine of strict construction ; under Section 5 there can be no such contention. The choice of means, moreover, to carry out the objects of the Amendment, as in the case of every constitutional power commit ted to it, is left wholly to the discretion of Congress. " Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and the manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide. These may be varied to meet the necessities of the particular right." [92 U. S. 217] " Every right created by, arising under or dependent upon the Constitution of the United States may be protected and enforced by Congress by such means and in such manner as Congress . . may in its discretion, deem most eligible and best adapted to attain the object." [144 U. S. 293] Therefore Congress may give effect to the " provisions " of the Fourteenth Amendment by ariAj legislative means it deems ap propriate for the purpose. 184 UNIVERSITY OF THE STATE OF NEW YORK [JuUC 29 The "provisions" mean the terms of the Amendment; but the terms of an instrument can not be enforced except by en forcing its purpose and intent. Any means that effectuate its purposes will enforce its " provisions." Hence also Congress has power to carry out the purposes of the Amendment by any legislative means it deems appropriate. 2 The main purpose or " provision " of the Amendment is deflned in the flrst clause : " All persone 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." The sole object of this clause is to confer citizenship, not upon whites, but upon negroes, of the United States. The Fourteenth is one of the War Amendments which Mr Justice Miller said could not be understood or rationally interpreted without considering their history and design. Their one great and pervading purpose was to embody the results of the war by securing the rights of the negro race. [16 Wall. 67-72] " It is true," said the learned Justice, " that only the Fifteenth Amendment in terms mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race and designed to retaiedy them as the Fifteenth." [16 Wall. 71-72] Of the flrst clause Mr Justice Miller said: "That its main purpose was to establish the citizenship of the negro admits of no doubt." [16 Wall. 73] " The main object of the opening sentence of the 14th Amendment," in the opinion of Mr Justice Gray, " was to settle the question as to the citizenship of free negroes." [112 U. S. 101] " Its main purpose," adds Chief Justice Fuller, "doubtless was to establish the citizen ship of free negroes which had been denied in the opinion de livered by Chief Justice Taney in Dred Scott against Sanford." [169 U. S. 676] And Mr Justice Field more fully explains, "The clause as to citizenship was inserted in the Amendment not merely as an authoritative declaration of a generally recog nized law of this country so far as the white race is concerned, but also to overrule the doctrine of the Dred Scott case." [22 Fed. Rep. 909] It is thus evident that the Amendment was a special act for the beneflt of the black race alone. 1903] A SOLUTION OF THE NEGRO PROBLEM 185 The citizenship of white persons was not affected one way or the other; for, as Chief Justice Waite showed conclusively in the Woman Suffrage case, white men, women and children were citizens before the Amendment, hence the Amendment could not make them more so. [21 Wall. 170] Whites no more owe citizenship to the Fourteenth Amendment, as Chief Justice Wallace explained [43 Cal. 46], than they owe freedom to the Thirteenth. But as to negroes, " the clause changed the entire status of these people. It lifted them from their condition of mere freemen and conferred upon them, equally with all other native born, the rights of citizenship." [22 Fed. Eep. 909] Tbe Amendment made the negro a citizen both of the United States and of the state wherein he: resides. In our political system " there is a citizenship of the United States and a citizen ship of a state, which are distinct from each other." [16 Wall. 74] The Amendment conferred both upon the American negro; birth being the sole condition of Federal citizenship, birth and residence of state citizenship. "A citizen of the United States, residing in any state of the Union, is a citizen of that state," said Chief Justice Marshall [6 Pet. 762]; "and the Fourteenth Amendment embodies that view," decided Chief Justice Fuller. [143 U. S. 161] Thus the negro when considered as a state citizen is a creation of the Fourteenth Amendment equally as he is when considered as a Federal citizen. One is as much within the purpose of the Amendment as the other. And the powers of the Federal government to render that purpose effec tive apply equally to both creations. The main purpose of the Amendment, however, was not com pleted by simply declaring the negro to be a citizen. " Citizen " in the Constitution, the Courts decide, is used in its political sense; it is not synonymous with "resident" or "inhabitant" [120 U. S. 692; 144 U. S. 292] As Attorney General Bates ex pressed it, " The Constitution uses the word ' citizen ' to express the political quality of the individual in his relations to the Nation." [10 Atty. Gen. Op.] When the nation adopted the Amendment its purpose was to transform by a wholesale act all American negroes into those artificial beings known as American citizens. That purpose was not effected and as- 186 UNIVERSITY OF THE STATE OF NEW YORK [JunC 29 suredly it was never contemplated that it could be effected, by an arbitrary flat. Let there be flve million American citizens! The merciless physical power of war followed by the flat of the Thirteenth Amendment, had sufficed to transform the flve million negroes from property, chattels and slaves into " resi dents," and " inhabitants," but to further transform them into American citizens, it was necessary that they should be en dowed with the characteristic faculties of that political crea tion — the attributes that distinguish American " citizens " from mere " residents," and " inhabitants." Otherwise negro citizenship would be a metaphysical abstraction. The attri butes to which I refer are the fundamental rights and duties of our citizenship — not every right which a citizen may acquire, nor every duty he may assume, but all that are fundamental and indispensable. The negro's incorporation into the stat^ and nation entitled him ipso facto to their civil rights. [Cooley's Const. Law 77] " The Fourteenth Amendment," said Mr Justice Strong, " gave citizenship and the privileges of citizenship to persons of color." [100 U. S. 306] With these rights and privileges I shall not now concern myself. It is not necessary to maintain that edu cation is essential to the constitutional enjoyment of civil rights. The infant, the idiot and the criminal are entitled to their civil rights and the protection thereof, with the wisest and most virtuous in the land. 3 In addition to civil rights there are corresponding civil duties; and the performance of such duties is as fundamental to American citizenship as the enjoyment of such rights. The duties of American citizens are determined by the social compact under which both states and nation were formed. When men organize themselves into a state they pass ipso facto from uncontrolled nature into citizenship. They cease to be an unorganized mob and become an organized citi zenry. Organization itself confers citizenship on individuals. They enter into a compact of mutual rights and duties by which they are obligated. Citizenship is simply the political relation between the individual and the body politic. "A body politic," says the constitution of Massachusetts, "is a social compact by 1903] A SOLUTION OF THB NEGRO PROBLEM 187 which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by cer tain laws for the common good." And such is the theory of citizenship in all our republics. [94 U. S. 124] "Citizens are members of the political community to which they belong," said Chief Justice Waite. "They are the people who compose the community, and who, in their associated capacity, have estab lished or submitted themselves to the dominion of a govern ment for the promotion of their general welfare and the pro tection of their individual as well as their collective rights." [92 U. S. 549] When a people organize a state, the flrst step is to surrender a certain portion of their natural rights to be administered by a common govemment. " When one becomes a member of society he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain." [94 U. S. 124] The extent of this concession varies with the form of government. The Declaration of Inde pendence holds that it should be such powers only as are ab solutely necessary to secure the reserved, or inalienable, rights of the people. But it matters not what the powers may be, the organization ipso facto creates a compact. " In the forma tion of a government," said Chief Justice Waite, " the people may confer upon it such powers as they choose " [92 U. S. 549] — it matters not whether the government organized be a despotism, a limited monarchy or a republic — the act of organ ization raises a contract; the relation of subject and sovereign is created; mutual obligations are entered into; the citizen is bound to obey and support the government's administration of surrendered rights; the government is bound to protect the citizen in the enjoyment of his unsurrendered rights; each is entitled to certain rights and each is bound to respect the other's title. Such is the nature of the social compact under which we live; the duty of the state to support the citizen's rights and the duty of the citizen to support the state's rights. These essential duties have been deflned by the Supreme Court. The duty of the state is " protection," that of the citizen is " allegiance." "Allegiance and protection are, in this 188 UNIVERSITY OF THB STATE OF NBW YORK [JUUO 29 connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for al legiance." [21 Wall. 166] The essential duty of the sovereign, therefore, without ability for which he can not be a true sovereign, is protection ; the essen tial duty of the subject, without ability for which he can not be a true subject, is allegiance. But under our republican system, the citizen sustains a dual role — he is both sovereign and subject. " The great dis tinction between a monarchy and our republic is, that in the former the monarch is considered as sovereign, and each indi vidual of his nation is subject to him; but in a republic all the citizens, as such, are equal, and no citizen can rightfully exer cise any authority over another but by virtue of a power con stitutionally given by the whole community, and such authority when exercised is in effect an act of the whole community which forms the body politic. In such governments therefore the sovereignty resides in the great body of the people, but resides in them, not as so many distinct individuals, but in their politic capacity only." [3 Dall. 93] " The political body which, ac cording to our republican institutions, forms the sovereignty which holds the power and conducts the govemment through its representatives," said Chief Justice. Taney, " is what is famil iarly called the ' sovereign people,' and every citizen is one of this people and a constituent member of this sovereignty." [19 How. 404] "At the Eevoli.tion," explained Chief Justice Jay, " the sovereignty devolved on the people, and they are truly the sovereigns of the country. . The citizens of America are equal as fellow citizens, and as joint tenants of the sover eignty." [2 Dall. 472] The duty of allegiance is analyzed by the Courts into two functions, to obey the government and to promote the public welfare. They are the fundamental obligations which the citizen undertakes in the social compact. " Citizens," said Chief Justice Waite, " have submitted themselves to the do minion of a government for the promotion of their general wel fare." [92 U. S. 549] In its feudal sense, " allegiance is nothing more than the tie or duty of obedience of a subject to tho 1903] A SOLUTION OF THB NEGRO PROBLEM 189 sovereign." [3 Pet. 155; 7 Coke 8] But under our republican system it means the " obedience which the individual owes to the government . . in return for the protection he receives." [16 Wall. 154] Or in the words of Mr Justice Miller: " The citizen or subject owes allegiance, which signifies the loyal de votion and support due from him to the government." [Miller on Const. 276] Obedience is thus due to govermnent. But government is nothing but law; the prime duty of allegiance, therefore, is to obey the laws, as made, interpreted and exe cuted by the government. Simple obedience, however, does not exhaust the citizen's duty of allegiance. The obligation of obedience is entered into " for the common good," said the Massachusetts Constitution; or as Chief Justice Waite put it, " for the promotion of the general welfare and the protection of their collective rights." [92 U. S. 549] Allegiance includes the " obligation of fidelity/' said Mr Justice Field, " in retum for the protection he receives " [16 Wall. 154] ; or " loyal de votion " as Mr Justice Miller explained. [Miller on Const. 270] The duty therefore of the citizen as subject, may be summarized as obedience to law and promotion of the welfare of the nation. On the other hand, the duty of protection which the citizen as so-vereign owes is the duty to govern by just and equal laws. In the ancient case of Calvin, the court announced the law: "As the subject oweth true and faithful allegiance and obedience, so the sovereign is to govern and protect his subjects." [7 Coke 5] Blackstone put it more tersely : " The principal duty of the King is to govern his people according to law." [1 BI. Com. 233] And this principle, is enacted in the guaranty in the Fourteenth Amendment — the "equal protection of the law." But duty to govern is not discharged by merely enacting laws. As the duty to obey includes promotion of public welfare, so also does the duty to govern. The citizen-sovereign must have both intelli gence and that public spirit which we denominate patriotism, to devise laws that will not only protect the citizen-subject but promote the highest collective good of the body politic. Both of these duties are fundamental and essential because they are contractual and imposed by the social compact. This dual relationship, moreover, being once assumed, can not 190 UNIVERSITY OF THE STATE OF NEW YORK [JunC 29 be divested by the citizen alone. " The general doctrine," said Mr Justice Story, " is that no persons can by any act of their own, without the consent of their government, put off their allegiance." [3 Pet. 246] And the doctrine is thus stated by Chief Justice Parsons : " Protection and allegiance are reciprocal. The sover eign can not refuse protection to any subject, nor discharge him from his allegiance against his consent. . So on the other hand the subject can never discharge himself from his allegiance." [9 Mass. 461] The main purpose of the Fourteenth Amendment, therefore must unquestionably be to create negro citizens with abiUty to perform their fundamental duties of allegiance and protection. " What is a power," said Alexander Hamilton, " but the ability or faculty of doing a thing? What is the abiUty to do a thing but the power of employing the means necessary to its execu tion?" [33 Federalist] Hence in order to effectuate the main purpose of the Amend ment the nation must have the power to provide, and must pro vide negro citizens with " the ability to do " their fundamental and essential duties by any legislative means it deems appropriate. 4 Ability to perform these fundamental and essential duties necessitates in the American citizen intelligence and moral char acter. He must understand his duties and be willing to dis- cliarge them. Understanding comes from intelligence; willing ness from moral character. It is immaterial how honest may be a citizen's intention and loyal his will; he can not do his duty unless he knows it. He may sin out of ignorance; but ignoruntia legis non excusat. It is also immaterial how intelli gent he may be unless he has the will to do his duty. As a citizen-subject, therefore, he must possess the law-abiding spirit, as well as know the statutes; as a citizen-sovereign, he must govern for the highest public good as well as understand the public interests. The intelligent treason of an Aaron Burr is a breach of the social compact as much as the brutal crime of a negro fleld hand. Moreover, intelligence and civic virtue attach to the citizen as a mere citizen and member of the body politic, and not be- 1903] A SOLUTION OF THE NEGRO PROBLEM 191 cause he may possess political franchises or be an active par ticipant in the government. Intelligence and civic virtue are as essential to the mother and child of the elector or legislator as to the elector or legislator himself. By the social compact women and children are members of the body politic and as such as well as men they must possess the essential attributes of citizenship. When the Amendment was adopted the negro was destitute of both intelligence and moral disposition. His mind was what Byron calls a " leafless desert." It had never felt the " magic power of thought." The flrst gleam of political intelligence had never penetrated its solitude. He had no care to know the laws or desire to obey them. He had no sense of duty to state or nation. He had never been a citizen or voluntary subject. He had never received the nation's protection. He had never borne it allegiance. He had always been a slave. He was venal, cor rupt, indifferent to civic responsibilities. He possessed no civic virtue whatever. He broke state and Federal statutes with no thought of violating a duty or committing a crime. In every attribute of citizenship he was as unlike the loyal, obedient, law-respecting citizen our theory of government de mands as night was from day. The introduction of such an element was an unparalleled menace to the republic. Never in the history of this or any other free government had such an experiment been attempted — a vast and incongruous horde, as a whole no more flt to be American citizens than their an cestors in the jungles of Africa — millions of human beings ar bitrarily labeled "American citizens" and injected into the bodies politic of the states and nation. In order to effectuate the main purpose of the Amendment and provide these merely nominal citizens with " the ability to do " their fundamental civic duties, the nation must now supply them with intelligence and moral character. 5 Education is an efficient means to this end. In its last an alysis education is a means only. If we bear this in mind it will dissipate many illusions. " We have too often forgotten," said Professor Thompson, "that education is a means merely, a very flexible means to any end that we have in view, and that 192 UNIVERSITY OF l'J5S STATE OF NEW YORK [JUUe 29 we must flrst flx the end by careful reflection and then with equal care adjust the means to the end." Education is the " means by which the powers of the understanding are developed and improved, and knowledge is imparted." [Century Diet.] Property, civil rights, social equality, political franchises — not one is a substitute. The framers of the Amendment as I have shown " flrst fixed the end by careful refiection " which they " had in view " ; now we must " with equal care adjust the means to the end." Education is an efficient means to provide knowledge. The negro is ignorant of every civic duty. Education can impart such knowledge. However dull his mind the negro can be taught; he can learn the elementary principles of citizenship as a child learns its alphabet. Education is an efficient means to provide intelligence. Edu cation gives knowledge and knowledge gives understanding and understanding gives intelligence. Something more is necessary to make men intelligent than mere knowledge. They must be taught to think, to refiect, to compare, to devise, to apply — in short they require that other function of education — the development of the intellect, " the means by which the powers of the understanding are developed and improved." [Century Diet] Education is an efficient means to provide civic virtue. Moral character, I have shown, is indispensable to an American citizen. Will is a moral attribute. Without will or dispo sition to discharge his fundamental duties, the citizen ia as dis qualified as though he were ignorant of such duties. There is a moral education as well as an intellectual; an education of char acter as well as of mind. Education is a means to each. Edu cation is training, and " in its broadest sense," said the Supreme Court of Tennessee, " comprehends the whole course of train ing, moral, intellectual and physical." [6 Heisk. 395] So the Supreme Court of Massachusetts: "Education is a broad and comprehensive term. It has been defined as the process of de veloping and training the powers and capabilities of human beings. . Education may be particularly directed to either 1903] A SOLUTION OF THE NEGRO PROBLEM 193 the mental, moral or physical powers and faculties, but in its broadest and best sense it relates to them all." [145 Mass. 146] The want of will to do the true duty of a citizen is a moral defect, and requires moral education. A citizen without moral character is an outlaw, a rebel, a traitor. The only remedy is by the inculcation of principles of civic virtue, education di rected toward the moral side of his character. " The attain ment of knowledge," said Webster, " does not comprise all which is contained in the larger term of education. The feel ings are to be disciplined; the passions are to be restrained; true and worthy motives are to be inspired ; a profound religious feeling is to be instilled, and pure morality inculcated, under all circumstances. All this is comprised in education." A citizen with this training will desire to obey the law; without it he is a criminal at heart. It was for this reason that Webster advocated education "as a wise and liberal system of police. . By general instruction, we seek, as far as possible, to purify the whole moral atmosphere; to keep good sentiments uppermost, and to turn the strong current of feeling and opinion, as well as the censures of the law and the denuncia tions of religion, against immorality and crime. We hope for a security beyond the law, and above the law, in the prevalence of an enlightened and well principled moral sentiment. And knowing that our govemment rests directly on the public will, in order that we may preserve it we endeavor to give a safe and proper direction to that public will. We do not, in deed, expect all men to be philosophers or statesmen; but we confidently trust, and our expectation of the duration of our system of government rests on that trust, that, by the diffusion of general knowledge and good and virtuous sentiments, the political fabric may be secure, as well against open violence and overthrow, as against the slow, but sure, undermining of licentiousness." With moral education, obedience to the law becomes instinctive. In the Puritan colonies of New England, Bancroft claimed, " one could dwell from year to year and not see a drunkard, nor hear an oath, nor meet a beggar." The famous Ordinance of 1787 made "religion and morality" the 194 UNIVERSITY OF THB STATE OF NEW YORK [JuUC 29 main objects for which " education shall forever be encouraged." Moral education will eradicate the criminal instinct and create the law-abiding spirit of good citizenship as surely as intellectual education will banish ignorance. Many negroes of the South may be moral perverts as is now studiously asserted, to whom moral education is of little benefit; just as many negro dullards are beyond the reach of the most benign intellectual culture; but moral education always has been and always will be suc cessful in the great majority of cases, and beyond any other known means. Moral education, therefore, is an efficient means to provide the civic virtue of the citizen. Education is an efficient means to provide patriotism or de votion to the public welfare. An American citizen requires not only intelligence and civic virtue, but that higher public spirit — patriotism — to discharge his duties to the nation. To pro mote the public welfare, whether as citizen-subject or citizen- sovereign, he must have political intelligence and political in telligence requires political education, and political education is the most efficient means to inspire patriotism. Where obe dience requires mere knowledge of statutes, public welfare re quires knowledge of the social compact and of the intricate political relations of the citizen to the state. Where obedience requires a mere law-abiding spirit, patriotism demands an active and self-sacrificing devotion to the public good. There are hereditary patriots, like the ancient Greeks, the Scotch High landers or the Swiss, who by heredity possess the patriotic public spirit ; but the emancipated slave is not such. He has never felt his identity with the republic. He is utterly ignorant of public duties. He must be enthused with the spirit of patriotism, and education alone can accomplish it. " There is great need of edu cated men in our public life," said Ex-president Cleveland, " but it is the need of educated men with patriotism. . Patriotism has to do with the moral sense. It reverences traditions, it loves ideas, it cherishes the names and the deeds of heroes. . The sen timent of our fathers, made up of their patriotic intentions, their sincere beliefs, their homely impulses and their noble aspira tions, entered into the government they established; and unless ¦'¦903] A SOLUTION OF THB NEGRO PROBLEM 195 it is constantly supported and guarded by a sentiment as pure as theirs, our scheme of popular government will fail. Another and a different plan may take its place ; bnt this which we hold in sacred trust, as it originated in patriotism, is only fitted for patriotic and honest uses and purposes, and can only be adminis tered in its integrity and intended beneficence by honest and patriotic men. . Nor will it suffice that the factors which com pose this sentiment have a sluggish existence in our minds as articles of an idle faith which we are willing perfunctorily to profess. They must be cultivated as motive principles, stimulat ing us to effort in the cause of good government, and constantly warning us against the danger and dishonor of faithlessness to the sacred cause we have in charge." Education is an efficient means to maintain a high standard of American citizenship. As I have said, the true glory of this republic is its constitutional government. But it is axiomatic that our governments, state and national, must stand or fall by the character of their citizens. The standard of American citizenship is the average of individual citizenship. The power, dignity, influence and civilization of the nation depend, there fore, upon the average citizen. The higher his character the higher the state, while a declining standard is the surest fore runner of the nation's decay. The highest civilization known to history was due to the select citizenship of the Greek republics. In Athens descendants of foreigners could not become citizens until the fourth generation. They were subjected to three gen erations of political education before they were deemed flt to assimilate with the body politic. The result was the most en lightened, homogeneous and efficient democracy ever known — " the eye of Greece, mother of arts and eloquence." " The aver age Athenian citizen," said Freeman, " was in political intelli gence above the average English member of Parliament. It was this concentration of all power in an aggregate of which every citizen formed a part which is the distinguishing feature of the true Greek democracy." A people without political intelligence is incapable of self-government according to the American stand ard. Ignorant of their duties as citizen-subjects, they degen- 196 UNIVERSITY OF THE STATE OF NBW YORK [JuUC 29 erate into mob rule ; ignorant of their duties as citizen-sovereigns, they govern as tyrants. Nothing can be more inconsistent -with our political institutions than an ignorant citizenry. If we expect " to be ignorant and free," we expect, as Jefferson said, " what never was and never will be." Witness the mobs, riots, lynchings and burnings that disgrace our states North and South. What is the cause? In its last analysis, the ignorant and vicious character of the guilty citizens. Every citizen who lynches or bums, commits murder. He breaks the most sacred law of God and man. He perpetrates the most heinous offence against civic duties. He outrages every obligation of allegiance and protec tion. The crime is proof either of the inconceivable ignorance of the guilty citizens, or of their intelligent yet vicious moral character ; whichever it is, the lynchings and burnings themselves are self-evident and indisputable proof of the deplorable, de bauched and criminal standards of the local citizenry. It is a primary obligation of the nation, therefore, to maintain the highest possible standard of citizenship. If we lower it we are false to our ideals and history; recreant to our rights and duties; unfaithful to the sacred trusts imposed upon us by our patriotic ancestors. Eight million negroes have been ad mitted to American citizenship since the Amendment was adopted, the majority of them ignorant, vicious, indescribably poor, and notoriously unfit for the franchise. Is it conceivable that the nation intended to thus admit the negro wholesale and then permit him to remain a constantly increasing menace to our civic standards and a flaunting disgrace to every republican ideal? A thousand times, no! It is the plain purpose of the Amendment that the nation shall elevate the negro, and that, too, with all possible expedition, to the full standard of American citizenship. Such being the nation's power, it should pass as axiomatic that education is the only efficient means of exer cising it. Education means elevation when directed to a higher standard. The negro's mind must be enlightened; his char acter improved. Intellectual education is the only efficient means for the former; moral education for the latter. The education of centuries has made the Puritan and the Anglo- Saxon, and given them their character and civic standards. 1903] A SOLUTION OF THE NEGRO PROBLEM 197 Education can in time create like qualities in the negro. The flrst care of the colonies was public schools. Lowell said of Puritan New England : " It was in making education not only common to all, but in some sense compulsory on all, that the destiny of the free republics of America was practi cally settled." The education of the negro will be slow. The Anglo-American is the product of a steady educational evolu tion in intelligence and character for two thousand years. A total change of mind and morals has been effected by time and education in every people since history began. Our oldest civili zation is African. The present Egyptian fellah shows the degradation of a declining race. The ancient Eoman looked with contempt upon the Celts of Britain; but his disdain was no greater than that of the Irish boss as he drives his gang of Italian laborers through the streets of New York. Descendants of Greece are flower peddlers in our Metropolis; while our all powerful German bankers and merchants come from the Teu tonic savages whom Caesar despised. Why may not the Afri can's day of intellectual superiority return again? Another cycle, not so long as that which has degraded him from the citi zenship of a Eameses or Ptolemy, may yet restore him to in tellectual and moral equality with other races. But whether the time be short or long, it is the solemn obligation of the nation to the negro as well as to the other members of the body politic, to carry out the purpose of the Amendment by educating every negro citizen up to the full standard of American citizen ship, so far as possible and with all expedition. Education, flnally, is an efficient means to maintain a homo geneous American citizenry. It was never contemplated that we should be a heterogeneous people. In the flrst Colonies, not only was citizenship conflned to one race and one political faith, but to one religion. Church membership was an es sential condition of citizenship in many parts of New England. And since the Amendment, the need for homogeneity is more imperative than ever. According to President Hayes, now "the great task is, how to fuse a people differing so widely in race and nationality into one harmonious whole." It is not to be 198 UNIVERSITY OF THB STATE OF NEW YORK [JuUC 29 assumed that the framers of the Amendment intended to in corporate five million negro citizens without eventually assimi lating them to the other members of the body politic. Physical amalgamation of the races they never contemplated. That theory has always been revolting, has long been discarded, and is now repugnant to both whites and blacks. The only assimi lation that can be effected is of intellect and character. Edu cation is the only means that can effect it. It can change in tellect and character and elevate both. Generations may be required to work the metamorphosis; still, education in the end will accomplish it — education up to the full standard of Ameri can citizenship. "The tendency of education," said President Hayes, " is to assimilate and fuse together the various elements of our population, to promote unity, harmony and general good will in our American society." Therefore, Congress has power, in order to effectuate the full purpose of the Amendment, to educate our negro citizens until they are homogeneous in mind and character with the other members of the body politic. Such is the implied power of the Fourteenth Amendment. I maintain it is ample to educate every illiterate negro citizen. It is moreover a continuing power. It is a power to educate not only the five million manumitted and citizenized negroes of 1868, but all illiterate negro citizens -within our boundaries so long as the Amendment is unrepealed and the republic endures. (4) The nation has implied power to educate its illiterate negro voters as a corollary to the Fifteenth Amendment. This Amendment is supplementary to the Fourteenth. " It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and property without the right of suffrage. Hence the Fifteenth Amendment. . The negro having by the Fourteenth Amendment been declared to be a citizen of the United States, is thus made a voter in every state of the Union." [16 Wall. 71] Its main purpose, therefore, was to give the emancipated and citizenized negro the right to vote on the same terms as the white man. [92 U. S. 217] 1903] A SOLUTION OF THB NEGRO PROBLEM 199 The second section empowers Congress to enforce this pur pose by appropriate legislation. The choice of legislative means is vested exclusively in Congress. Therefore Congress has power to carry out that purpose by any means it deems effective. The sole question is whether education is an appropriate means of rendering effective the elective franchise thus conferred. If it is, then Congress has power, in its discretion, to adopt it. Education is necessary to enable the ignorant negro to vote. "A vote," says our Court of Appeals, " is but the expression of the will of the voter " [27 N. Y. 57] ; " a formal expression of will or opinion " [Standard Diet.] ; " the formal expression of a will, preference, wish or choice" [Century Diet.]. Without intelli gence, a voter can not express his " will," " preference," " wish " or " choice." In no true sense is he a voter. The exercise of the right cf suffrage involves more than the mere mechanical act of depositing a ballot. An election is a selection or choice ;" a de liberate act of choice " [Century Diet.] ; " a choice between alternatives" [Standard Diet.]. Hence a vote at an election must be a deliberate expression of opinion between alternatives, or it is no vote. A person who has not the ability to cast such a vote is no voter. A voter, rhoreover, must possess the moral disposition to vote for the best men and measures according to his intelligence. He must possess moral character to cast his vote in accordance with the dictates of his intelligent opinion. Voting, therefore, is an act of intelligence and will, of a higher order, too, than is required for the elementary duties of citizenship. Political intelligence and morality are required — thought, judgment, discretion, knowledge of men, knowledge of affairs of state, understanding of the measures to be voted upon, sense of the effect of the vote on the issues involved, fixedness of political principles and purposes, and moral determination to give effect to them for the best interest of the state. Hence a voter must be provided with such intelligence and civic virtue before he is fit to exercise his suffrage. Webster laid down these principles : " That the exercise of the elective franchise is a social duty of as solemn a nature as man 200 UNIVERSITY OF THB STATE OF NBW YOEK [Juue 29 can be called to perform; that a man may not innocently trifle with his vote; that every free elector is a trustee as well for others as himself; and that every man and every measure he supports has an important bearing on the interests of others as well as on his own." The ignorant negro emerging from barbarism and bondage did not possess a single intellectual or moral qualification for suffrage. He was no more fit to exercise its inestimable fran chises than the idiot, the insane or the criminal. But the purpose of the Amendment was assuredly not com pleted by a simple fiat, Let the negro vote! Its framers could not have intended to subject the republic to the perma nent domination of an ignorant and vicious negro electorate. The gift of the franchise to grantees incapable of exercising it, except at the constantly increasing peril of the grantor, would be an inconceivable act of folly to attribute to those illustrious statesmen. We must assume, therefore, that the purpose of the Amendment is to provide intelligence and moral character to the illiterate negro voter as much as to guarantee him equality of suffrage. And if this implied power should equal or even exceed in relative importance the original grant itself, it would find precedents in many other constitutional franchises. I have already proved that education is the only efficient means of providing intelligence and moral character. It fol lows, therefore, that the Fifteenth Amendment, in creating at one stroke our ignorant negro electorate, empowered Congress to educate them to cast their votes with intelligence and patriotism. " Citizenship and the right to vote " said President Hayes, " were conferred upon the colored people by the govern ment and people of the United States. It is therefore the sacred duty, as it is the highest interest, of the United States to see that these new citizens and voters are fitted by education for the grave responsibility that has been cast upon them." Such is the sovereign purpose of the Fifteenth Amendment. It empowered the nation to educate every illiterate negro voter when it was adopted in 1870, and it confers power to continue to educate so long as it stands unrepealed and there are illiterate negro \'oters in the republic. 1903] A SOLUTION OF THB NEGRO PROBLEM 201 (5) The nation has implied power to educate its illiterate citizens, white and black, under the Ordinance of 1787. I am not aware that this suggestion has ever before been made, but it is feasible and its constitutionality unimpeachable. While the convention was drafting the present Constitution in Philadelphia, Congress was framing in New York the famous Ordinance for the government of the Northwest Territory. Members of Congress were also members of the convention. " There was a perfect concurrence of opinion between these two bodies," said Webster. While they were both in session the Constitutional Convention rejected a proposition to make edu cation an express power of govemment; but at the same time the Congress enacted the Northwest Ordinance which provides: " Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." This Ordinance by its own terms was declared to be a solemn " compact between the original states and the people and states in the Territory," and to " forever remain unalterable unless by common consent." It is reasonable to assume that express power to educate was omitted from the Constitution on the un derstanding that it should be embodied in the Ordinance, and that thereupon the Ordinance should be embodied in the Con stitution, for that identical course was pursued. Simultane ously with the enactment of the Ordinance by Congress, the Constitutional Convention inserted this clause in the constitu tion it was then drafting: "Article VI. All . . engagements entered into before the adoption of this Constitution shall be valid against the United States under this Constitution, as under the Confederation." " Thus this Ordinance," says the Supreme Court, "the most solemn of all engagements, has be come a part of the Constitution and is valid to protect and for ever secure " its rights " to the inhabitants of every territory to which it applies." [14 Pet. 417] By successive acts, Con gress has " applied " the Ordinance and its educational pro vision to every foot of territory in the Union except the original thirteen states ; hence, what the Court has called " this most 202 UNIVERSITY OF THB STATE OF NBW YORK [JUUO 29 solemn and mutual compact, this engagement of the old Con gress — embodied in the Constitution itself" [14 Pet. 417], and its speciflc provision that " schools and the means of education shall forever be encouraged," are today constitutional obliga tions and binding upon the nation in all that territory. I am of opinion, moreover, that a constitutional obligation under the Ordinance rests upon the whole nation to " encourage education." As the Ordinance is declaratory of preexisting funda mental principles, the nation may be considered as bound to " en courage education " in every foot of territory it governs. The dec laration that " religion, morality and knowledge " are " necessary to good government and the happiness of mankind," and that " schools and the means of education shall forever be encouraged," was not merely a " compact " for the sole beneflt of the Northwest Territory; it was also a Declaration as solemn as that of Inde pendence itself, of principles which underlie all our institutions. " This Ordinance," said Webster, " did that which was not so com mon, and which is not even now universal. That is, it set forth and declared it to be a high and binding duty of government itself to support schools and advance the means of education on the plain reason that religion, morality and knowledge are necessary to good government and to the happiness of mankind." These were fundamental principles of the original states, before they were extended to the new. Aside from any constitutional obliga tion, they govern the conduct of the nation today in the same way as do the fundamental principles of the Declaration of Inde pendence. Of the controlling moral force of the latter Mr Justice Brewer said : " While such Declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter, of which the former is the thought and the spirit; and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence." [165 U. S. 160] They form what Mr Justice Gray called, " the general spirit of (ho Constitution from which Congress derives all its powers." 1903] A SOLUTION OF THB NEGRO PROBLEM 203 [136 U. S. 44] I am of opinion therefore the great principle that " education shall forever be encouraged " is as fundamental as the aphorisms of the Declaration, and that a primary function of the Ordinance is to declare this principle and embody it in the Constitution so that it shall forever remain a moral as well as constitutional obligation of the nation. There are but two ways in which the nation can " encourage education " ; by lending pecuniary aid to state schools and by establishing and maintaining schools of its own. The Ordin ance confers no express power to do either, but it imposes an express duty ; and in the performance of that obligation Congress may imply ample power to vote aid to schools of states or to establish schools of its own, if necessary to educate illiterate Federal citizens. According to all rules of legal construction also, it must do one or the other; just as it must make laws, appropriate moneys, provide national defence, or perform any other constitutional obligation. (6) The nation, flnally, has implied power to educate its illiterate citizens, white and black, as a corollary to all these powers combined. Even if any one of the four powers just considered should alone prove insufficient, the court would uphold the sovereign efficiency of all combined. This far reaching principle was flrst distinctly announced when the court sustained the Federal acqui sition of the battlefleld of Gettysburg. A power claimed by Congress, said the court in the Gettysburg case, "need not be plainly and unmistakably deduced from any one of the par ticularly specifled powers. Any number of powers may be grouped together, and an inference from them all may be drawn that the power claimed has been conferred." [160 U. S. 683] Thus we discover these great constitutional powers — streams of national sovereignty pouring forth from the fountains of the Constitution, irresistibly potent to set in motion the tremendous machinery of the nation, to educate every illiterate American to perform all the functions and duties of American citizenship. 204 UNIVERSITY OF THB STATE OF NBW YORK [JUUO 29 III Such being the sovereign powers of the nation, I call upon it tonight to perform its full and bounden obligations. Is it conceivable that they can be less than the education of every illiterate citizen in the body politic ? (1) Yet it is urged by many that the nation would perform its full duty if it should repeal the Fifteenth Amendment. The negro voter, literate and illiterate, would be eliminated, but how would that solve the problem ? The negro would still be a citizen, still illiterate, still vicious, and still an increasing menace to the states and nation. The repeal of the Fifteenth Amendment is impracticable. The Amendment is a revolutionary measure, and revolutions as Wendell Phillips said never go backwards. The Thirteenth emancipated the negro, the Fourteenth citizenized him, the Fifteenth guaranteed his suffrage; it is one step only in the irresistible, onward movement of this Eepublic to diffuse power equally among all its people. "The sun can as easily be turned backward in its course as can one particle of that power." [Mann on Ed. 149] (2) It is also persistently urged that the nation would per form its full duty if it should prohibit the South from further disfranchisement of the negro, under the following provision of the Fourteenth Amendment : " When the right to vote . . ' is denied to any of the male members of such state, being twenty one years of age and citizens of the United States, or in any way abridged, . . the basis of representation therein shall be re duced in the proportion which the number of such male citizens shall bear to th<^ Tvhole number of male citizens twenty one years of age in such . i+^." It is urged that gross disparity exists between the votes of the North and South, that the cause is negro disfranchisement, that the Fourteenth Amendment empowers Congress to penalize the South therefor by reducing its Congressmen and Electors, and that such penalty will prevent the further disfranchisement of ignorant negroes. 1 Let us flrst consider the question of disparity. Take the Con gressional vote at the last Presidential election of flve represen- 1903] A SOLUTION OF THB NEGRO PROBLEM 205 tative Northern and Southern states. Maryland's vote, for ex ample, for each Congressman averaged 44,085 and Ohio's 49,522; Missouri's 42,728 and Illinois' 45,275 ; Kentucky's 42,626 and New York's 41,826 ; North Carolina's 29,267 and Pennsylvania's 36,662 ; Virginia's 26,409 and Massachusetts' 29,628. Here is assuredly no startling disparity. But the North and South are not the whole country. Com pare also the East and West. Ehode Island's vote, for instance, was 28,284 and South Dakota's 96,131; Vermont's 28,108 and Colorado's 92,167; Maine's 26,430 and Utah's 84,842. If there fore Congress should penalize the South for disparity alone, when contrasted with the East, should it not also penalize the East for its glaring disparity when contrasted with the West? It is true that in the six Atlantic and Gulf States, where the ignorant negro vote was greatest, the congressional vote was least; Alabama's was 17,731; Florida's 12,677; Georgia's 11,155; Louisiana's 9770; Mississippi's 7388, and South Carolina's 7259. Still, the disparity between these states and the Bast is less than that between the East and the West. For instance, Rhode Island's vote is 1.59 times as great as Alabama's, but South Dakota's is 3.39 times as great as Rhode Island's. Vermont's is 2.22 times as great as Florida's, but Utah's is 3.01 times as great as Vermont's. Maine's is 2.36 times as great as Georgia's, but Colorado's is 3.48 times as great as Maine's. Granting, however, that disfranchisement is the evil, and dis parity only establishes a basis for the penalty, let us remember there may be disfranchisement of whites as well as blacks. There is no such limitation in the Amendment. Where does this lead ? Outside of the South many states disfranchise voters and flve have educational qualiflcations. In Massachusetts in 1900 flve per cent of the voters were disfranchised because of illiteracy, thus withdrawing from representation 142,000 of the inhabitants ; in Connecticut seven per cent, withdrawing 57,000; and in Cali fornia six per cent, withdrawing 100,000. Massachusetts and California would thus lose one Congressman each by a general penalizing statute. 206 UNIVERSITY OF THE STATE OF NEW YORK [JUUC 29 2 Aside from questions of polity, I maintain that a penalizing statute would be unconstitutional. And first, I observe that the Fourteenth Amendment was intended solely for the benefit and protection of the negro race. Upon its face the penalizing provision applies to whites as well as blacks. But as I have already stated, the three War Amendments can not be understood or rationally interpreted without keeping in mind their history and design. [16 Wall. 67] "The most cursory glance at these Articles discloses a unity of purpose," said Mr Justice Miller; "and no one can fail to be impressed with the one prevading purpose found in them all, lying at the foundation of each, and without which none of them would have even been suggested. We mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the Fifteenth Amend ment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other Articles was addressed to the grievances of that race and de signed to remedy them as the Fifteenth." [16 Wall. 67-72] To the same effect Mr Justice Strong said: "The Fourteenth Amendment is one of a series of constitutional provisions hav ing a common purpose. . The true spirit and meaning of the Amendments . . can not be understood without keeping in view the history of the times when they were adopted, and the gen eral objects they plainly sought to accomplish. At the time they were incorporated into the Constitution it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike. . Discriminations against them had been habitual. . The colored race, as a race, was abject and ignorant, and in that condition was unfitted to command the respect of those who had superior intelligence. Their train ing had left them mere children, and as such they needed pro tection. . It was in view of these considerations that the Four teenth Amendment was framed and adopted." [100 U. S. 306] 1903] A SOLUTION OF THB NEGRO PROBLEM 207 And the Supreme Court in the Slaughter House Cases used this significant language and quoted and approved it again in the Strauder case : " We doubt very much whether any action of a State not directed by way of discrimination against the negroes, as a class . . will ever be held to come within the purview of this provision. [14th Amendment] It is so clearly a provision for that race and that emergency fhat a strong case would be necessary for its application to any other." [16 Wall. 81; 100 U. S. 307] The penalizing clause, especially, was designed to meet the suffrage phase of the negro question. It was intended to pro tect the negro's vote and to cure the evils of overrepresenta- tion of the Southern whites which had existed under the old Constitution. One of the earliest disputes in the republic was over the representation of slaves in Congress. Tbey were counted in the census but not allowed to vote. The Constitu tional Convention inserted the provision concerning the appor tionment of " direct taxes and representatives " solely to settle the "share of representation claimed by Southern States on account of their slave population." [102 U. S. 596] The com promise embodied in Article I, Section 2 of the Constitution was that the basis of representation should be the whole num ber of free persons plus three fifths of the slaves. This became a long standing grievance of the Northern States; it gave the Southerner more influence in the national council than the North erner; it made five citizens in the South equal to eight in the North. When the Thirteenth Amendment was passed, it was seen that the previous difficulty and inequality would be ag gravated, if, as was probable, the suffrage should still be con fined to the white race in the South; hence the second section of the Fourteenth Amendment. In the words of Mr Justice Gray: "Slavery having been abolished, and persons formerly held as slaves made citizens, this clause fixing the apportion ment of representatives has abrogated so much of the cor responding clause of the original constitution as counted only three fifths of such persons." [112 U. S. 102] That section did not purport to enfranchise the emancipated negroes, nor assume that they had the right to vote. The clear intention of the 208 UNIVERSITY OF THE STATE OF NEW YOEB. ''.JuUC 29 Fourteenth Amendment was to leave the control of the elective franchise where it had always been, with the states. States were not prohibited from disfranchising negroes on account of color alone. Before the adoption of the Fifteenth Amend ment, said Chief Justice Waite, "it was as much within the power of a state to exclude citizens of the United States from voting on account of race, etc., as it was on account of age, property or education." [92 U. S. 217] And it was foreseen by the authors of the Fourteenth Amendment that, owing to the jealousy and contempt of the white citizens for their former slaves, the privilege of voting would be denied them. In that case the old inequality of representation between North and South would be increased. The slaves having been converted into free men, they were counted in full in the basis of repre sentation, instead of three fifths of them. The suffrage being conflned to the white race as before, it follows that flve Southern voters — assuming the white and black populations to be practi cally equal — as in the South Atlantic and Gulf States — would have as much influence in the national councils as ten Northern voters, instead of eight as formerly. The Fourteenth Amend ment remedied this injustice by providing that in case any State should deny its negro citizens the right to vote, its con gressional representation should be proportionately reduced. It is true, the terms of the provision are broad enough to make disfranchisement of any race for any cause, except sex, minority, rebellion and crime, a ground for inflicting the penalty. Neither the Thirteenth nor Fourteenth Amendment speaks in terms of the negro, yet they refer to him alone. [16 Wall. 72] We must therefore follow the rule of construction laid down by the Supreme Court; the Amendment must be treated historically, and its " true meaning can not be safely and rationally solyed without a reference to that history." [16 Wall. 67, 71] The provision, therefore, was inserted for a special occasion, to remedy the overrepresentation of the Southern whites, an evil that threatened to become worse upon the emancipation of the slaves. And the penalizing provision must be construed in view of that occasion and that purpose. It follows, therefore, that disfranchisement on account of race can be the only legitimate 1903] A SOLUTION OF THB NEGRO PROBLEM 209 occasion for reducing Congressional representation. Nothing could be more foreign to the purposes of the Fourteenth Amend ment than the proposition now often advanced, that Congress can penalize a State for disfranchising paupers, idiots, the ignorant or any other class not specifled in the Amendment. The supreme purpose of all three Amendments was to protect the negro race against discrimination. If there is no negro discrimination, there is no occasion to invoke the Amendments. "It was in view of these considerations," said Mr Justice Strong, " the Fourteenth Amendment was framed and adopted." [100 U. S. 306] It is true, the provisions are against racial discrimination in general, and thus protect the white race, as well as the black, but there must be racial, and no other, dis crimination to violate the provisions of the Amendment. Massachusetts as well as Louisiana, California equally with Virginia, can disfranchise all their criminals, paupers, idiots, or illiterates for instance, without incurring the penalty of Con gressional reduction, now, just as they did before the Amend ment, provided the disfranchisement is applied to all races alike. The states have always possessed snch power; and it is pre posterous to contend that the Amendment was intended to inflict a penalty for this or any other historic, just and im partial qualiflcation of suffrage. I maintain, therefore, that the Amendment is aimed at racial discrimination, and that alone. 3 The power to reduce representation must not be confused with che original power to apportion representatives. The ap portionment is made flrst, by a separate provision of the Con stitution; the reduction is made from that apportionment when the right to vote is denied. The Fourteenth Amendment does not authorize Congress to apportion representatives according to the vote cast, as many seem to think. It is immaterial how many state conventions resolve to "hold fast to the doctrine of equity everywhere in the exercise of the elective franchise, maintaining that justice requires any state excluding any of its citizens from the ballot to be proportionately reduced in its representation in the Electoral College and the lower house of the national Congress." [Ohio Eep. Platform, 1903] Such is 210 UNIVERSITY OF THE STATE OF NEW YORK [JuUC 29 not the law. "Eepresentatives," says the Constitution, " shall be apportioned among the States according to their respective numbers." These " numbers " the Supreme Court has decided are the "census" [23 Wall. 347], or as Chief Justice Fuller more recently expressed it, " the population as ascertained by the census." [158 U. S. 618] Therefore, any attempt to substi tute the voting population for the census population as a basis for apportioning representatives would be unconstitutional and void. 4 My principal argument, however, against a penalizing statute is that Congress no longer possesses the power to penalize states under the Fourteenth Amendment. The penal izing clause was abrogated thirty-tbree years ago when the Fif teenth Amendment was adopted. The power of Congress to reduce is in the nature of a penalty. It comes after the appor tionment of Congressmen and Electors, and is a reduction there from for cause. It therefore must be strictly construed. The conditions upon which Congress can exercise its jurisdiction must be indisputably established. " Jurisdiction is as neces sary to valid legislative action as to valid judicial action." [11 Wall. 430; 114 U. S. 208] The jurisdiction of Congress depends solely upon the condi tions precedent laid down in the Amendment; and should it assume to penalize the states irrespective of such precedents, its act, as Mr Justice Swayne said, would be " ultra vires and void." [7 Wall. 444] The jurisdictional facts which must exist before Congress can exercise its power to reduce representation are, that the state has denied the right to vote to citizens otherwise duly qualified; and that it has denied the right solely on account of the race of the disfranchised persons. These facts must exist; they can not be assumed by Congress, as many seem to think. The question whether Congress has acquired jurisdiction is judicial; it involves the construction of a constitutional amend ment, and is peculiarly within the cognizance of the courts. Any attempt of Congress to exercise the power of reduction, when in fact the state has not discriminated against legal 1903] A SOLUTION OF THE NEGRO PROBLEM 211 voters on account of race, would be unconstitutional, and as such would be promptly set aside by the courts. 5 The first condition to establishing these jurisdictional facts is that denial of suffrage and racial discrimination must be the corporate acts of a state. The unofficial acts of individuals afford no ground for congressional action. " The provisions of the Fourteenth Amendment of the Constitution," said Mr Jus tice Strong, " all have reference to state action exclusively, and not to any action of private individuals." [100 U. S. 318] " They have reference to actions of the political body denomi nated a state, by whatever instruments or in whatever modes that action may be taken. A state acts by its legislative, its executive or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exerted, shall deny . . ". [100 U. S. 346-47] Although the Supreme Court has thus authoritatively an nounced these principles, the erroneous belief is prevalent that the unofficial action of individuals will satisfy the requirement of the Amendment. Many even gravely contend that when negro citizens are deprived of their votes by mob violence. Con gress may reduce a State's representation; in short, that when the right to vote is denied in fact, it is immaterial how it is denied, or by whom. They would penalize a state, although its laws expressly forbid discrimination and its officials strive to protect the voter. Such assuredly is not the provision of the Amendment. The crime of a private individual is not the corporate act of a state; nor is mob violence the action of any body politic. The remedy of a voter deprived of his right by force or fraud of private individuals, whether acting singly or collectively, is by appeal to the executive or judicial officers of the state whose law has been broken, and not by appeal to Congress to reduce the state's representation. This also was the substance of the decisions in the Civil Eights cases. There the Court held that civil rights were guaranteed by the Fourteenth Amendment only against " state aggression," and that such rights " can not be impaired by the wrongful acts 212 UNIVERSITY OF THE STATE OF NEW YORK gg OUUf ] of individuals, unsupported by state authority in the shape of laws, customs or judicial or executive proceedings. The wrong ful act of an individual, unsupported by any such authority, is simply a private wrong or a crime of that individual; an in vasion of the rights of the injured party, it is true, whether it affects his person, his property or his reputation; but if not sanctioned in some way by the state, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress. An individual can not deprive a man of his right to vote . . he may by force or fraud iriterfere with the enjoyment of the right in, a particular case; he may commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow citizen; but unless protected in thesie wrongful acts by some shield of state law or state authority, he can not destroy or injure the right; he will only render himself amenable to satisfaction or punishment; and amenable therefor to the laws of the state where the wrongful acts are committed." [109 U. S. 17-18] In the same case Mr Justice Bradley said : " It is state action of a particular character that is prohibited. Individual in vasion of individual rights is not the subject-matter of the Amendment." [109 U. S. 11] In declaring the conspiracy provisions of the Civil Rights bill unconstitutional, Mr Justice Woods said : " The language of the Fourteenth Amendment does not leave this subject in doubt. When the state has been guilty of no violation of its pro visions . . when on the contrary the laws of the state, as enacted by its legislative and construed by its judicial and ad ministered by its executive departments, recognize and protect the rights of all persons, the Amendment imposes no duty and confers no power on Congress. . As therefore the section of the law under consideration is directed exclusively against the action of private persons, without reference to the laws of the state or their administration by her offlcers, we are clear in the opinion that it is not warranted by any clause in the Fourteenth Amend ment" [106 U. S. 639-40] 1903] A SOLUTION OF THB NEGRO PROBLEM 213 It thus appears conclusively that the first condition to estab lishing jurisdictional facts must be the corporate act of a state. 6 The second condition is that such corporate act must be effective. There must be actual, not theoretical, discrimination on account of race. In other words there must be a valid act of the state to that effect, legislative, executive or judicial, or Congress can not penalize the state. The Amendment says when " the right to vote is denied or abridged," the representation shall be reduced. A void attempt by istatute or a " grandfathetr clause" in a constitution, for instance, to deny or abridge does not comply with the condition. A state act not only must purport to, but must actually, discriminate, before Congress can penalize. 7 The Fifteenth Amendment has made the flrst condition im possible. During the few years between the adoption of the Fourteenth and Fifteenth Amendments a state might have passed a valid law or taken valid executive or judicial action denying negroes the right to vote on account of their race ; but now, says the Supreme Court, it is impossible. [92 U. S. 217] A law for instance purporting to so discriminate is void; not voidable, but void ab initio; and a void law is no law. [I Cr. 137] Congress has nothing to do when a state law violates the Fifteenth Amendment; the constitutional prohibition operates proprio vigore; and it requires but the judgment of a court to pronounce the law a nullity. Said Mr Justice Bradley at Cir cuit : " Congress can not with any propriety or to any good purpose, pass laws forbidding the state legislature to deny or abridge the right, nor declaring void any state legislation adopted for that end. The prohibition is already in the constitutional amendment, and laws in violation of it are absolutely void by virtue of that prohibition. So far as relates to rendering null and void the obnoxious law, it is done already. . When the (constitutional) provision is violated by the passage of an ob noxious law, such law is clearly void and all acts done under it will be trespasses." [1 Woods 323-27] The Fifteenth Amendment has also made the second condition impossible. There can be no actual discrimination. The negro 214 UNIVERSITY OF THB STATE OF NBW YORK [JUUO 29 can not be disfranchised by a void state suffrage law any more than by the Dingley Tariff. "An unconstitutional act is not a law," said Mr Justice Field, " it is as inoperative as though it had never been passed." [118 U. S. 442] If the negro does not cast his vote, it is his own folly, 'timidity, or indifference. He must be presumed to know the law. He can enforce his vote. He can compel the poll clerks to accept it. He can sue them for damages; as has been done many times in both the North and South ; as has been recently done in South Carolina [179 U. S. 58], and in Tennessee [185 U. S. 487] ; and as is now being done in Mississippi and Alabama. He has today every remedy for illegal disfranchisement that white citizens have or ever have had since the government was founded. And if notwithstanding, he loses his vote, it is his own act or fault and not the fault or effect of any corporate action of a state. State discrimination being thus impossible, both conditions precedent are impossible, and Congress can not exert the powOT to penalize. Any law of Congress attempting to do so would be palpably unconstitutional and would be as promptly set aside by the Supreme Court as were the Reconstruction Acts and Civil Eights bills. (3) Since the nation can neither repeal the Fifteenth Amend ment nor enforce negro suffrage under the Fourteenth, what solution of the negro problem remains? Endowed with omnip otent sovereignty to educate the people, I maintain that edu cation and education alone is the nation's supreme obligation. Behold the serried ranks of a stupendous army, greater than Xerxes or Alexander or Tamerlane ever led to battle, six million illiterate Americans, already conquerors of our outposts and marching straight against the strongholds of the nation ! Be fore it fortresses crumble and citadels fall down like the walls of Jericho! Nothing on earth can oppose it but the dynamic force of education! That power is in your hands; if you would not call down the maledictions of the civilized world, if you would not commit a crime against humanity itself, then use it and drive from the land illiteracy and its hosts of evil ! So tonight I plead for education. 1903] A SOLUTION OF THE NEGRO PROBLEM 215 I plead for education that Washington called " an object of primary importance " to the republic. I plead for education that Jefferson declared necessary to every state in the Union. I plead for education that W^ebster argued was the founda tion of all our institutions. I plead for education that Sumner maintained was essential to national defence. I plead for education that Garfield demanded as the comple ment of the Eebellion. I plead for education for all — the fifteen million voters and the eighty million citizens. I plead for education that shall be elementary — education, simple, primary and fundamental — education of the common and district school — education such as the Massachusetts Con stitution declares must forever be cherished that " wisdom and knowledge as well as virtue " may be " diffused generally among the body of the people." I plead for education that shall be industrial — that incul cates habits of industry and right views of manual labor; that teaches self-help and self-support, the foundation of self-respect and independence; schools for training apprentices [10 Allen 498] ; agricultural schools [105 Mass. 431] ; farm schools [15 How. 367] ; schools for mechanics and useful arts [66 Wis. 398] ; schools for science and applied arts [13 Mo. App. 213] ; art insti tutes [17 E. I. 73]; all, indeed, "educational institutions . . the design being not so much to secure pecuniary beneflt as to . . teach various kinds of work, form habits of industry, and inculcate right views of manual labor.J' [145 Mass. 146] I plead for education that shall be political — that all may know and appreciate their duties as citizen-sovereigns and citi zen-subjects; that all may perform their obligations of allegi ance and protection ; and whether as humblest subject or highest public official that all may fill their positions with honor to them selves and glory to their country. I plead for education that shall be moral and religious — that larger education of the people as Webster expressed it, in which 216 UNIVERSITY OF THE STATE OF NEW YORK [Juue 29 " a profound religious feeling is to be instilled and pure morality inculcated under all circumstances," becanse " whatever makes men good Christians," he said, "inakes them good citizens;" and because, as the Supreme Court further adds, "this is a religious people, and the influence of religion in all human affairs is essential to the well-being of the community." [143 U. S. 465] Finally, I plead for education that sball be compulsory — en forced upon every illiterate citizen and voter by the strong arm of the nation, as arbitrarily and compulsorily as the nation stamps out cholera, or quarantines fever, or suppresses crime, or drives from the land a public enemy — enforced upon six million ignorant and vicious American citizens, with an arbi trary and compulsory alternative that they must use the means supplied by the nation to rid themselves of their ignorance and vice or be dealt with as any other defiant lawbreakers, con fessed criminals, or arrogant foes of the republic. Give every ignorant negro, every illiterate citizen, such an education, and the state will become as Milton said, " One huge Christian personage, one mighty growth and stature, as big and compact in virtue as in body," and education will assume its true function, a force that will dominate every other pow-er in our constitutional government. (4) And that the supreme blessings of education may be ours, I plead tonight for immediate and ample appropriations by the. nation. There stand six million United States citizens ten years of age and over, white and black, male and female, all densely ignorant, all deman.ding, all imploring, all even by right entitled to, a Federal eduT;ation. Should we educate them as Alabama does, it would cost the nation annually $11,433,128; or as New York does, |1()3, 145,340. Whatever the amount, I urge that it be ample, and that action be immediate. Aside from authority " to pay the debts and provide for the common defense and general welfare," which is a mere taxing power, there is no express authority in the Constitution to appropriate funds for any purpose. Practically all the vast congressional appropria- 1903] A SOLUTION OF THE NEGRO PROBLEM 217 tions are not made on express but implied and ancillary author ity. Take the .$85,309,061 appropriated for the Postoffice De partment by the last Congress; not one dollar was specifically voted " to establish post offices and post roads," as the Constitu tion reads. The enormous expenditures for public buildings, internal improvements and pensions are also all based on deriva tive powers. The nation I have shown has ample power to educate; it has therefore ample ancillary power to make appro priations therefor, limited solely as to amount and method of expenditure, by its own discretion. And as an exercise of discre tion, was it right that the last Congress should appropriate $18,733,499 for the Indian Bureau ; $2,534,560 for the Bureau of Animal Industry; $2,497,280 for the W'eather Bureau; $1,287,660 for the Bureau of Plants ; $500,000 for the Bureau of Mouth and Foot Diseases; $382,160 for the Bureau of Soils, and only $56,190 for the Bureau of Education? As an exercise of discretion was Congress justified in expending $971,000 for the bayous of Louisiana; $1,185,000 for the rivers of Mississippi; $1,464,000 for the harbors of Alabama; $1,515,000 for the ports of Georgia; $1,524,837 for the inlets of Florida — $39,585,822 to improve the rivers and harbors of the country, and not a dollar to improve the minds and souls of its people? We opened schools and ex pended thousands of dollars for the Porto Eicans; we sent a regiment of teachers and hundreds of thousands of money to educate the Filipinos ; we spent millions upon millions to civilize the Indians; why should we not make ample appropriations to educate our own illiterate citizens, white and black, out of the bounteous resources and overflowing treasury of the nation? (5) Finally you inquire, how these purposes can ba effected. Presidents Jefferson, Madison and Grant urged a constitu tional amendment Even if it could have been adopted in the past it is not now within the domain of practical politics. Since 1804 numerous amendments have been suggested but not one has been adopted except as a distinctively war measure. [16 Wall. 67] All others have failed and will continue to fail until some overwhelming national crisis shall again irresistibly 218 UNIVERSITY OF THE STATE OF NEW YORK [JUUC 29 compel the amendment of the Constitution. But I have shown that an amendment is not necessary. The nation now has ample constitutional power to educate all illiterate citizens. Two simple Federal statutes will suffice. First, a uniform educa tional qualification for all voters at national elections — the qualification to be based on literacy and moral character. For a model of an educational qualiflcation alone, I com mend the clause that with immaterial variations has been embodied in the constitutions of five Northern and flve Southern states. For a model of both literacy and moral char acter I commend the present constitution of Connecticut. Its suffrage qualifications have been in force many years. They limit suffrage not only to those who can read, but to those " who sustain a good moral character," both qualifications to be de termined by the Supervisors of Elections. Second, a statute appropriating funds and providing that the National Bureau of Education shall distribute them throughout the nation, by school districts, on the basis of illiteracy as determined by the preceding census. 1 would endow the Bureau of Education with super visory powers, similar to those of the Board of Eegents, so that it can make education compulsory, flx the courses of study and direct instruction into any channel, industrial, intellectual, moral or religious, that the citizenship of any locality may particularly require. Such is my solution of the negro problem — education, a consti tutional power, a function of government, the salvation of the re public, and the bright hope of humanity ! Beaching deep down to the foundations of the evil, it contemplates no sudden revolutioh, provides no immediate panacea, promises no instantaneous relief, but outlines a policy, coordinates the functions of state and nation and sets in motion a conservative, constitutional, and irresistible force — the omnipotent force of education. And because its evolu tion must be slow like all other primordial powers, I urge upon you tonight the imperious necessity for immediate action. Behold the squandered energies of a generation ! Behold the irretriev able blunders of the past forty years! Behold civil rights bills elections laws, reconstruction acts, all swept from existence by 1903] A SOLUTION OF THB NEGRO PROBLEM 219 the scathing decisions of the Supreme Court! Not since the Fifteenth Amendment has Congress enacted a single measure that has particularly advanced the negro race. Now comes the distinguished Secretary of War and startles the nation by admitting our deplorable failure! "The country," he says, " has to face the failure of the plan which was adopted at the close of the Civil War." Never did this illustrio-js statesman perform a more patriotic duty than when he thus shocked the nation out of its lethargic indifference to the negro problem. The President also has been rudely awakened to the gravity of the crisis. He appointed to office less than a score of colored citizens in performance of a strictly legitimate executive function, and was overwhelmed by a cyclone of protest and abuse from the entire Southland. And our ex-President pub licly deplores '¦ the grievous amount of ignorance, the sad amount of viciousness and the tremendous amount of laziness and thrift- lessness " that the negro adds to our citizenship, and warns the American people of the alarming and increasing peril of the negro crisis. Yet I believe this crisis will not culminate in another Eebellion, as Senator Tillman threatens, nor again deluge the land in fra tricidal blood. It is the inexorable evolution of the great Rebellion itself. It is the imperative demand for the logical consummation of the policies of the Civil War. It is a crisis for constructive statesmen, not generals and armies. Our fathers emancipated, citizenized and enfranchised the negro; then by an inexplicable political blunder, an inexcusable error of national polity, they stopped short of the sovereign act of all, the emancipation of the minds as well as the bodies of the race — the education of the five million manumitted and enfranchised citizens for the tre mendous civic duties thrust upon them. " If we are to have another conflict," said General Grant, " I predict that the dividing line will not be Mason and Dixon's, but between patriotism and intelligence on the one side . . and igno rance on the other." President Harrison, alarmed at this heritage of rebellion and dreading the conflict " between intelligence and ignorance " impending ominously over his administration, urged 220 UNIVERSITY OF THE STATE OF NEW YORK [June 29 that his generation " should courageously face these grave ques tions and not leave them as a heritage to the next." But the na tion paid no heed to his words of wisdom, nor to the impassioned appeals of Sumner, nor to the eloquent arguments of Winthrop, nor to the earnest pleas of Hayes, nor to the solemn warnings of Garfield — and because it has not done so and has not systemat ically and compulsorily educated the negro during the past forty years and must do so today — that is why the negro crisis now looms up in such tremendous proportions and compels the gravest consideration of the whole people. Nor could this crisis have developed at a more opportune time. The nation is prepared for the emergency. On the negro prob lem it can now concentrate its greatest energies. No longer need they be devoted to our material and territorial growth. Our ex pansion has obtained such momentum that no human power, out side of our citizenship, can ever check it. Our dominion over the whole continent is as certain as the tides and seasons. What grander field for expansion on the face of the globe today ! Vast domains to the north and the south, larger than the United States with all its islands, girded about by the same great oceans, magnificent, mighty, undeveloped and almost uninhabited do mains; and the youngest of you will yet behold the flag of the republic floating over every foot of that territory from the Isthmus to the Pole, while under its protection hundreds of mil lions of people, speaking the same language, obeying the same laws, and worshiping the same God, will live together in one continental republic where intelligence shall rule and education be the dominating governmental force ! Forward, then, ye citizen-sovereigns, white and black alike! Gird yourselves like men to meet the crisis now upon you and the greater responsibilities looming up on the horizon of the future. And ye executive, legislative, and judicial officers, ser vants of the people, mistake not the spirit of the tiraes! Your watchword must be education — there your duties must begin and there find their glorious fruition. I adopt the words of a great educator: "In our country and in our times, no man is worthy the honored name of a statesman, who does not include 1903] A SOLUTION OF THE NEGRO PROBLEM 221 the highest practicable education of the people in all his plans of administration . . Unless he speaks, plans, labors, at all times and in all places, for the culture and edification of the whole people, he is not, he can not be, an American statesman." [Mann on Ed. 162] The President of the United States is supremely interested in the negro's welfare and desires with a singleness of purpose seldom equaled in our history the material, mental, moral, and religious uplifting of the whole people. In his next annual message, observing the precedents of former Executives, why should he not urge upon Congress the appalling evils of illiteracy and the supreme necessity for national relief? " It is of the greatest importance that all should be possessed of education and intelligence enough to cast a vote with a right understanding of its meaning," Avas the advice which President Grant gave to Congress. " Hence," he said, " the education of the masses becomes of the first necessity for the preservation of our institutions. . Make education compulsory so far as to de prive all persons who can not read and write from becoming voters." [Annual Message, 1875] And in the following year he added : " The compulsory support of the free school and the disfranchisement of all who can not read and write the English language, after a fixed probation, would meet my hearty ap proval." [Annual Message, 1870] " It is vain to hope for the success of a free government without the means of insuring the intelligence of those who are the source of power," urged President Hayes in his flrst annual message. " I shall be glad to give my approval to any appropriate measures which may be enacted by Congress for the purpose of supple- mentitig with national aid the local systems of education in all the states." [Annual Message, ISTT] " To education more than to any otlier agency we are to look as the resource for the ad vancement of the people," was his advice to Congress in the fol lowing year; '-and I desire to repeat the suggestion contained iu my former message in behalf of the enactment of appropriate measures by Congress for the purpose of supplementing with national aid the local systems of education in the several state.?." 222 UNIVERSITY OF THE STATE OF NEW YORE [JUUC 29 [Annual Message, 1878] A year later he said : " No more funda mental responsibility rests upon Congress than that of devising appropriate measures of financial aid to education supplemental to local action in the states and territories." [Annual Message, 1879] And his final words were : " The best and surest guaranty of the primary rights of citizenship is to be found in that capacity for self-protection which can belong only to a people whose right to universal suffrage is suggested by universal education. The means at the command of the local and state authorities are in many cases wholly inadequate to furnish free instruction to all who need it. . I respectfully recommend that Congress by suitable legislation and with proper safeguards, supplement the local educational funds in the several states where the grave duties and responsibilities of citizenship have been devolved on uneducated people. . Whatever government can fairly do to promote free popular education ought to be done." [Annual Message, 1880] President Garfield's inaugural address was an eloquent appeal to the nation : " The danger which arises from ignorance in the voter can not be denied," he said. " The voters of the Union who make and unmake constitutions, and upon whose will hang the destinies of our governments, can transmit their supreme author ity to no successors save the coming generation of voters, who are the sole heirs of sovereign power. If that generation comes to its heritage blinded by ignorance and corrupted by vice, the fall of the republic will be certain and remediless. To the South this question is of supreme importance. But the responsibility for the existence of slavery does not rest upon the South alone. The nation itself is responsible for the extension of the suffrage, and is under special obligations to aid in removing the illiteracy which it has added to the voting population. For the North and South alike there is but one remedy. All the constitutional power of the nation and of the states and all the volunteer forces of the people should be summoned to meet this danger by the saving influence of universal education." The increasing anxiety of President Arthur was manifest in each successive message. " No measures calculated to promote 1903] A SOLUTION OF THB NEGRO PROBLEM 223 that general intelligence and virtue upon which the perpetuity of our institutions so greatly depends have ever been regarded with indifference by Congress or the Executive. . Many who now exercise the right of suffrage are unable to read the ballot which they cast. Upon many who had just emerged from a con dition of slavery were suddenly devolved the responsibilities of citizenship in that portion of the country most impoverished by war. . All that can be done by local legislation and private generosity should be supplemented by such aid as can be consti tutionally afforded by the national government." [Annual Mes sage, 1881] " It is a momentous question for the decision of Congress whether immediate and substantial aid shoulcl not be extended by the general government for supplementing the efforts of private beneflcence and of state and territorial legislation in behalf of education." [Annual Message, 1882] " I have previ ously referred to the alarming state of illiteracy in certain por tions of the country, and again submit for the consideration of Congress whether some Federal aid should not be extended to public primary education wherever adequate provision therefor has not already been made." [Annual Message, 1883] And in his last message, " the granting of government aid for popular education," he said, was a measure which should receive the " serious consideration " of Congress. President Harrison also added the influence of his great name : " It is of the gravest national concern that those who hold the ultimate control of all public affairs should have the neces sary intelligence wisely to direct and determine them. . The sudden emancipation of the slaves of the South, the bestowal of the suffrage which soon followed, and the impairment of the ability of the states where these new citizens were chiefly found to adequately provide educational facilities, presented not only exceptional but unexampled conditions. That the situation has been much ameliorated thete is no doubt. The ability and inter est of the states have happily increased. But a great work remains to be done, and I think the general government should lend its aid." [Annual Message, 1889] 224 UNIVERSITY OF THB STATE OF NEW YOEK [ JUUe 30 Supported by such official action of his predecessors as well as by the imperious demands of the situation, why should not Presi dent Roosevelt with all the force of his great character urge Congress to enact immediately a uniform educational qualifica tion and to grant ample appropriations for the education of all illiterate citizens. And Congress, why should it not call a truce to partisanship and sectionalism until it places on the books these nonpartisan, patriotic measures? Then the nation, reunited in spirit as in truth, over the grave of its dead past and over the buried issues of slavery and rebellion and reconstruction, would march on to its stupendous aud mighty destiny, the freest, most enlightened, most powerful sovereignty ever organized among men. r\