person can be said to have been deprived of either life, liberty or property, because denied the right to attend as a pupil at such schools, however obviously insufficient and untenable be the ground upon which the exclusion is put.

The last clause of so much of the Amendment as has been recited, however, forbids the State to "deny to any person within its jurisdiction the equal protection of the laws," and it remains to inquire if the statute of the State, providing for a system of common schools, in so far as it directs that schools shall be maintained for the education of colored children separate from those provided for the education of white children, be obnoxious to this portion of the Federal Constitution.

The opportunity of instruction at public schools is afforded the youth of the State by the statute of the State, enacted in obedience to the special command of the Constitution of the State, directing that the Legislature shall provide for a system of common schools, by which a school shall be kept up and supported in each district, at least three months in every year, etc. (Art. 19, Sec. 3.) The advantage or benefit thereby vouchsafed to each child, of attending a public school is, therefore, one derived and secured to it under the highest sanction of positive law. It is, therefore, a right-a legal right-as distinctively so as the vested right in property owned is a legal right, and as such it is protected, and entitled to be protected by all the guarantees by which other legal rights are protected and secured to the possessor.

The clause of the Fourteenth Amendment referred to did not create any new or substantive legal right, or add to or enlarge the general classification of rights of persons or things existing in any State under the laws thereof. It, however, operated upon them as it found them already established, and it declared in substance that, such as they were in each State, they should be held and enjoyed alike by all persons within its jurisdiction. The protection of law is indeed inseparable from the assumed existence of a recognized legal right, through the vindication of which the protection is to operate. To declare, then, that each

person within the jurisdiction of the State shall enjoy the equal protection of its laws, is necessarily to declare that the measure of legal rights within the State shall be equal and uniform, and the same for all persons found thereinaccording to the respective condition of each-each child as all other children—each adult person as all other adult persons. Under the laws of California children or persons between the ages of five and twenty-one years are entitled to receive instruction at the public schools, and the education thus afforded them is a measure of the protection afforded by law to persons of that condition.

The education of youth is emphatically their protection. Ignorance, the lack of mental and moral culture in earlier life, is the recognized parent of vice and crime in after years. Thus it is the acknowledged duty of the parent or guardian, as part of the measure of protection which he owes to the child or ward, to afford him at least a reasonable opportunity for the improvement of his mind and the elevation of his moral condition, and, of this duty, the law took cognizance long before the now recognized interests of society and of the body politic in the education of its members had prompted its embarkation upon a general system of education of youth. So a ward in chancery, as being entitled to the protection of the Court, was always entitled to be educated under its direction as constituting a most important part of that protection. The public law of the State-both the Constitution and Statute-having established public schools for educational purposes, to be maintained by public authority and at public expense, the youth of the State are thereby become pro hac vice the wards of the State, and under the operations of the constitutional amendment referred to, equally entitled to be educated at the public expense. It would, therefore, not be competent to the Legislature, while providing a system of education for the youth of the State, to exclude the petitioner and those of her race from its benefits, merely because of their African descent, and to have so excluded her would have been to deny to her the equal protection of the laws within the intent and meaning of the Constitution.

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But we do not find in the Act of April, 1870, providing for a system of common schools, which is substantially repeated in the Political Code now in force, any legislative attempt in this direction; nor do we discover that the statute is, in any of its provisions, obnoxious to objections of a constitutional character. It provides in substance that schools shall be kept open for the admission of white children, and that the education of children of African descent must be provided for in separate schools.

In short, the policy of separation of the races for educational purposes is adopted by the legislative department, and it is in this mere policy that the counsel for the petitioner professes to discern "an odious distinction of cast, founded on a deep-rooted prejudice in public opinion." But it is hardly necessary to remind counsel that we cannot deal here with such matters, and that our duties lie wholly within the much narrower range of determining whether this statute, in whatever motive it originated, denies to the petitioner, in a constitutional sense, the equal protection of the laws; and in the circumstances that the races are separated in the public schools, there is certainly to be found no violation of the constitutional rights of the one race more than of the other, and we see none of either, for each, though separated from the other, is to be educated upon equal terms with that other, and both at the common public expense. A question similar to this came before the Supreme Judicial Court of the State of Massachusetts in 1849 (Roberts v. The City of Boston, 5 Cushing R. 198), and was determined by the Court in accordance with the views just expressed by us. That was an action on the case brought by a colored child against the city to recover damages claimed by reason of her exclusion from a public school as a pupil. It appeared that primary schools to the number of about one hundred and sixty were maintained for the instruction of children of both sexes between five and seven years of age, and that of these schools two were appropriated to the exclusive instruction of colored children, and the residue to the exclusive instruction of white children. It also appeared that the plaintiff had been excluded from the

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primary school nearest her father's residence, which was a school devoted exclusively to the instruction of white children, and that the school appropriated to the education. of colored children nearest her father's residence was about a fifth of a mile more distant therefrom than was the school from which she had been excluded. The Constitution of the State of Massachusetts contained the following clauses, which were relied upon by the counsel for the plaintiff to show that the separation of colored from white children for educational purposes was not justified by law. (Part 1, Art. 1:) "All men are born free and equal, and have certain natural, essential and inalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties, that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Art. 6: No man nor corporation or association of men, have any other title to obtain advantages or particular and exclusive privileges distinct from those of the community, than what arise from consideration of services rendered to the public." * * *

It will be seen that the language of the Massachusetts Constitution prohibiting "particular and exclusive privileges," was fully as significant, to say the least, in its bearing on the general question in hand as is that of the Fourteenth Amendment of the Federal Constitution, securing "the equal protection of the laws."

The argument of the counsel for the plaintiff in the Massachusetts case, much like that of the counsel for the petitioner here, was that the separation of the races for educational purposes, "is the occasion of inconveniences to colored children, to which they would not be exposed if they had access to the nearest public schools; it inflicts upon them the stigma of caste; and although the matters taught in the two schools may be precisely the same, a school exclusively devoted to one class must differ essentially, in its spirit and character, from that public school known to the law, where all classes meet together in equality."

The opinion of the Court, delivered by Mr. Chief Justice

SHAW, maintained the rightful authority of the school committee, to separate the colored children from the white children in the public schools of the city of Boston, and in the course of the opinion, the learned Chief Justice remarked as follows: "It will be considered that this is a question of power, or of the legal authority of the committee intrusted by the city with this department of public instruction; because if they have the legal authority, the expediency of exercising it in any particular way is exclusively with them. The great principle advanced by the learned and eloquent advocate of the plaintiff, is that by the Constitution and laws of Massachusetts, all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law. This, as a broad general principle, such as ought to appear in a declaration of rights, is perfectly sound; it is not only expressed in terms, but pervades and animates the whole spirit of our Constitution of free government. But when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law, for their maintenance and security. What those rights are, to which individuals in the infinite variety of circumstances by which they are surrounded in society, are entitled, must depend on laws adapted to their respective relations and conditions.

"Conceding, therefore, in the fullest manner, that colored persons, the descendants of Africans, are entitled by law, in this commonwealth, to equal rights, constitutional and political, civil and social, the question then arises whether the regulation in question, which provide separate schools for colored children, is a violation of any of these rights. "Legal rights must, after all, depend upon the provisions of law; certainly all those rights of individuals which can