have made these enactments a dead letter. Legislative acts, though having all the authority of the national government and embodied in the federal constitution, are already in process of repeal when not supported by public opinion.

Perhaps the most tragic feature of the whole situation is that the masses of the negroes have remained throughout this memorable struggle largely ignorant of the issues involved. The very language of these famous amendments, "life, liberty and property," "due process of law," "equal protection of the law," "citizen," and the like are products of a race genius widely divergent from that of the negro. They presuppose a long series of victories and defeats in the struggle for constitutional liberty which have educated the Anglo-Saxon up to a true appreciation of their significance. To superimpose these ideas upon the negro without giving him the time necessary for living himself into that inner group experience of which they are but the expression is to make of these august symbols of democracy a mockery and a farce.

Any sense of inequality with the white which the negro feels and yet is not able to overcome is inevitable accentuated by such a situation. A writer who has given the problem much study remarks, "It is one of the fundamental precepts of political

science to-day that only those people in a community can participate equally in its civic, social, and political life who are conscious of a common origin, share a common idealism, and look forward to a common destiny. Where the community is composed of two divergent races rendering such a community of life impossible, the weaker and less favored race must inevitably and in the nature of things take the place assigned to it by the stronger and dominant race." 1

The supreme court's interpretation of the fourteenth and fifteenth amendments has demonstrated another fact also, namely, the bankruptcy of the old theory of natural rights. The sublime assurance with which Sumner, Garfield, Edmunds, and others assumed the essential equality of all men by virtue of certain natural rights, a "God-given franchise," which they did not take the trouble to define further, has disappeared. The most vigorous repudiation of the doctrine often comes from the sons of those who championed it.2 Their vision of an ideal social and

1 Collins, "The Fourteenth Amendment and the Negro Question," American Law Review, 1911, p. 855.

2 Charles Francis Adams, writing from the banks of the upper Nile, decries the "utter fallacy of the theoretical rights-of-man and philanthropical African-and-brother doctrines. In plain vernacular English they are 'rot'; 'rot' which I myself have indulged in to considerable extent and in the face of observable facts which would

political order based upon these "vague, irresponsible oracles of Nature" has now little more significance than an iridescent dream.

not down, have had to outgrow. .. The work done by those who were in political control at the close of our civil war was done in utter ignorance of ethnologic law and total disregard of unalterable fact." "Reflex Light from Africa," Century, New Series, Vol. 50, pp. 107,

109.

CHAPTER IX

EQUALITY BEFORE THE LAW

THE chapter just preceding has sufficed to show that the fundamental mistake of the framers of the war amendments was the attempt to bring about democratic conditions at the South through outside coercion. The supreme court by a series of wise decisions has shown that the constitutional sanctions for federal intervention are limited and definite. It may be contended, however, that the essential spirit and intent of these acts is still valid; namely, the securing of equality before the law of all citizens of the commonwealth-not an equality of social position, of racial or individual capacity, but an equality as citizens in the common enjoyment of legal rights.

It is most interesting to hear a progressive southern writer commend these amendments as expressing after all the logical implications of American democracy as applied to the most difficult problem that has ever faced the nation the affiliation of two widely divergent races within the same democratic order. Because they are true to the genius of American democracy, he contends that these ideals

will abide.

"The American claims them and honours them as part of the traditions of his heritage. Conditions may obscure them, grave and unescapable difficulties may seem to compromise their reality and postpone their recognition, but our whole country, North and South, is steadily moving toward them rather than away from them. In their keeping is the future, for they are of that moral and indefectible order which shall outwatch the blunders and tragedies of our generation." 1

Such vigorous optimism leads us to ask what, after all, is the practical significance of "equality before the law" for the negro? We hardly agree with the writer when he asserts that the rights implied in this term are based upon a "moral and indefectible order." We seem to catch here the echo of the outworn doctrine of natural rights taught by Sumner and the humanitarians. All rights are an outgrowth of past social experience and reflect the character and genius of a people. At the roots of that character lie race traits and temperamental peculiarities which condition in innumerable subtle ways the behaviour of the group. Where the social order is composed of widely divergent racial groups only those generalisations are safe which correspond to common characteristics in the

1 E. G. Murphy, "Shall the Fourteenth Amendment be Enforced ?" North American Review, Vol. 180, p. 131.