[39] General Laws of Massachusetts, 1837, Ch. 241, sec. 2.
Thus, in every department connected with our Common Schools, throughout the whole hierarchy of their government, from the very head of the system down to the humblest usher in the humblest Primary School, and to the humblest voter, there is no distinction of color known to the law. It is when we reach the last stage of all, the children themselves, that the beautiful character of the system is changed to the deformity of Caste, as, in the picture of the ancient poet, what above was a lovely woman terminated below in a vile, unsightly fish. And all this is done by the School Committee, with more than necromantic power, in the exercise of a mere discretion.
It is clear that the Committee may classify scholars according to age and sex, for the obvious reasons that these distinctions are inoffensive, and that they are especially recognized as _legal_ in the law relating to schools.[40] They may also classify scholars according to moral and intellectual qualifications, because such a power is necessary to the government of schools. But the Committee cannot assume, _a priori_, and without individual examination, that all of an _entire race_ are so deficient in proper moral and intellectual qualifications as to justify their universal degradation to a class by themselves. Such an exercise of discretion must be unreasonable, and therefore illegal.
SEPARATE SCHOOL NOT AN EQUIVALENT FOR COMMON SCHOOL.
But it is said that the School Committee, in thus classifying the children, have not violated any principle of Equality, inasmuch as they provide a school with competent instructors for colored children, where they have advantages equal to those provided for white children. It is argued, that, in excluding colored children from Common Schools open to white children, the Committee furnish an _equivalent_.
Here there are several answers. I shall touch them briefly, as they are included in what has been already said.
1. The separate school for colored children is not one of the schools established by the law relating to Public Schools.[41] It is not a Common School. As such it has no legal existence, and therefore cannot be a _legal equivalent_. In addition to what has been already said, bearing on this head, I call attention to one other aspect. It has been decided that a town can execute its power to form School Districts only by geographical divisions of its territory, that there cannot be what I would call a _personal_ limitation of a district, and that _certain individuals_ cannot be selected and set off by _themselves_ into a district.[42] The admitted effect of this decision is to render a separate school for colored children illegal and impossible in towns divided into districts. They are so regarded in Salem, Nantucket, New Bedford, and in other towns of this Commonwealth. The careful opinion of a learned member of this Court, who is not sitting in this case, given while at the bar,[43] and extensively published, is considered as practically settling this point.