The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-11-22
THE DISSENTING OPINION.
Justice Harlan Enthusiastically In
dorsed by Col, InSersoIl.
IF the Opinion Is Not Good Law, the Amend
ments Are Only "Cloud Forts" and
"Swords of Lath."

3 dence, to-day, and asked: what 90 you
think of Justice Harlan's dissenting opinion
in the civil-rights case?'
The Colonies answer was II have just
read 1t, and think it admirable in every re-
spect. 1t is unanswerable. He has given to
words their natural meaning. He has recog-
nized the intention of the trainers of the re-
cent amendments. There is nothing in this
opinion that is strained, insincere, or artifi
cial 1t rs frank and manly. 1t is solid ma
sonry without crack or flaw. He does not
resort to legal paint putty, or to verbal
varnish or veneer He states the position of
his brethren of the bench with perfect fair
ness, and oVerturns it with perfect ease. He
has drawn an instructive parallel between
the decisions of the olden time, unfolding
the power OF Congress to deal with individu-
ais in the interest of slavery, and the power
conferred on Congress by the recent amend
ments. He has shown by the old decisions,
that when duty is enjoined upon Congress,
ability to perform it is given that when
certain end is required all necessary means
are granted. He also shows that the fugitive
4 slave acts of 1898 and of 1850 rested entirely
! upon the implied power of Congress to
one implied in favor of slavery against hui
Il man rights, aud implied from language
shadewy, feeble and uncertain when COM
pared with the language of the recent amend
ments He has shown, too, that Congress ex-
iercised the utmost ingen uity in deVising laws
the enforce the masters claim. Implication
twas held ample to deprive human being of
This liberty, but to secure freedom the doc
Urine of implication is abandoned. As a
Foundation for wrong implication was their
4 rock As q f0uD1atinn riOhf If
! sand. Implied power then was sufficient to
enslave, while power expressly given is now
L important to protect"
"What do you think of the use he has
/ made of the bred Scott decision?
We'll l think, he has shown conclusively
that the present decision, under the present
circumstances, is far worse than the bred
4 Scott decision was under the then circum-
stances. The bred Scott decision was libel
/ upon the best men of the revolutionary
| period. That decision asserted broadly that
our forefathers regarded the negroes as hav-
ing no rights which white men were bound
to respect; that the negroes were merely
merchandise and that the opinion was fixed
and universal in the civilized portion of the
white race, and that no one thought of dis
putting it. Yet franklin contended that
4 slavery might be abolished under the pream-
BILE of the constitution. Thomas Jefferson
said that if the slave should rise to cut the
throat of his master, God had no attribute
that would side against the slave. Thomas
Paine attacked the institution with all the
intensity and passion of his nature. John
q Adams regarded the institution with horror.
So did every civilized man. South and North.
Justice Harlan shows conclusiyely that
E the Thirteenth amendment was adopted in
the light of the bred Scott decision that it
overturned and destroyed not simply the de-
cision, but the reasoning upon which it was
"a based; that it proceeded upon the ground
iA that colored people had rights that white
hOu0d tn OItlv INIT
that the nation was bound to protect. He
takes the ground that the amendment was
suggested by the condition of that race,
which had been declared by the Supreme
Court of the United States to have no rights
which white men were bound to respect;
that i t was made to protect people whose
rights had been invaded and whose strong
arms had assisted in the overthrow of the re-
bellion; that it was made for the purpose of
@putting these men upon legal equality with
white citizens.
. THE DOCTRINE OF IMPLICATION.
I "Justice Harlan also shows that while
! Legislation of Congress to enforce masters
right was upheld by implication the rights
sof the negro do not depend upon that doc
| trine; that the Thirteenth amendment does
not rest upon Implication, nor upon infer
!. ence that by its terms it places the power
in Congress beyond the possibility of doubt
--conferring the power to enforce the amend
ment by appropriate legislation in express
} terms and he also shows that the Supreme
Court has admitted that legislation for that
purpose may be direct and primary. Had
: not the power been given in express
3 terms. Justice Harlan contends that the
= sweeping declaration that slavery nor invol-
q untary servitude shall exist would by
4 N for UIo
q also shows conclusively that, under the
ell Thirteenth amendment Congress has the
al right by appropriate legislation to protect
Nj fhe colored people against the deprivation of
81 eny right on account of their race, and that
al Iongress is not necessarily restricted, under
81 Che Thirteenth amendment, to legislation
M against slavery as an institution, but that
n power may be exerted to the extent OF pro-
4 tecting the race from discrimina ton in re-
"A spect to such rights as belong to freemen,
,sl Where such discrimination is based on race or
Ia color.
. IF Justice Harlan is wrong the amend
nj nents are left without force and Congress
t. Without power. No purpose can be assigned
at Tor their adoption. No object can be guessed
al that was to be accomplished. They become
+ Words so arranged that they sound like sense,
II but when examined fall meannglessy apart,
n Under the decision of the Supreme Court
o. fhey are Quaker cannon-cloud forts-prop-
ieerty' for political stage scenery-coats of mail
re- made of bronzed paper-sheds of gilded
esp observation-disclosures Of lath"
ed DO you wish to say anything as to the
a dreasoning of Justice Harlan the rights OF
ii scolored persons on railways in inns and
RI stheaters?''
nd Yes, do That part of the opinion is
ESPECIALLY strong. He shows conclusively
d that common carrier is in the exercise of
ere sort of public Office and has duties to per-
n storm, and that he cannot exonerate himself
from the performance of these duties with
out the consent of the parties concerned. He
flso shows that railroads public high
Fays, and that the railway company is the