Chapter XII: Appendix (3)

With the eloquence of Chatham, another also from his place in the House of Lords held up to reprobation that apprentice system which, under the sanction of both Houses of Parliament, followed Emancipation in the British West Indies. I refer to Brougham. He did not hesitate to exclaim, “Prodigious, portentous injustice!” And then, continuing, he denounced it as “the gross, the foul, the outrageous, the monstrous, the incredible injustice of which we are daily and hourly guilty towards the whole of the ill-fated African race.”[223] But how small the injustice which aroused his reprobation, compared with that you are asked to perpetuate in Constitutional Law! The wrong he arraigned was against eight hundred thousand persons in distant islands, to whom the people of Great Britain were bound by no peculiar ties, and who were to them only fellow-men. The wrong I now arraign is against four million persons, constituting a considerable portion of the “people” of the United States, to whom we are bound by ties of gratitude, and who are to us fellow-citizens.

From the moment I heard this proposition first read at the desk I have not been able to think of it without pain. The reflection that it may find place in the National Constitution, or even that it may be sanctioned by Congress, is intolerable. And this becomes more so, when I call to mind the circumstances by which we are surrounded and the exigency of the hour.

Lord Bacon tells us that the highest function which men can be called to perform on earth is that of founders of states, or, as he expresses it, _conditores imperiorum_.[224] Such is our present duty. We are to help in this great work by a fundamental provision fixing the basis of our political system for an indefinite future. There are none among the great lawgivers of history who have had a sublimer task.

This duty is enhanced, when we consider that it is the consequence and sequel of an unparalleled war. At a moment of peace such a duty would be commanding; but it is now reinforced by exceptional considerations arising from the exceptional condition of affairs. For four years, Rebellion, of the greatest magnitude known to authentic history, raged among us, threatening to rend the Republic in twain. Millions of treasure were sacrificed. Lives more precious than any treasure were heaped in hecatombs. Families were filled with mourning. In the terrible struggle, while the country was bleeding at every pore and the scales of battle hung doubtful, assistance came from an unexpected quarter. Intermixed with the false men who warred on the Republic were nearly four million slaves, shut out from rights of all kinds, and compelled to do the bidding of masters. These slaves became our benefactors. They were kind to our captive soldiers, sheltering them, feeding them, supplying their wants, and guiding them to safety. Thus in the very heart of the Rebellion there was a filial throb for the Republic. At last arms were put into their hands, and two hundred thousand brave allies, representatives of an unmustered host, leaped forward in defence of the national cause. The Republic was saved. The Rebellion was at an end. Meanwhile the good President who at that time guided our affairs put forth his immortal Proclamation, declaring that these slaves “are and henceforward shall be free”; and not stopping with this declaration, he proceeded to announce that “the Executive Government of the United States, including the military and naval authorities thereof, will recognize and _maintain_ the freedom of said persons.” Thus was the Republic solemnly pledged to these benefactors, first, by ties of gratitude that should be enduring, and, secondly, by an open promise in the face of the civilized world. And this pledge was taken up and adopted by the people of the United States, when, by Constitutional Amendment, they expressly empowered Congress to maintain this freedom by appropriate legislation.

And now, Sir, called to readjust the foundations of political power, which are naturally changed by the disappearance of Slavery, and called also to perform sacred promises to benefactors, in harmony with sacred promises of our fathers, while at the same time we save the name of the Republic from dishonor and see that the national peace is not imperilled, Congress is about to liquidate all these inviolable obligations by a new compromise of Human Rights, and, so far as it can, to place this compromise in the text of the Constitution, thus establishing a false foundation of political power, violating the national faith, dishonoring the name of Republic, and imperilling the national peace. Others have dwelt on the inadequacy of this attempt, even for its avowed purposes. This is plain. Conceived in a desire to do indirectly what ought to be done directly, it must naturally share the conditions of such a device.

Looking at the proposition in its most general aspect, it reminds me, if you will pardon the illustration, of that leg of mutton, served for dinner on the road from London to Oxford, which Dr. Johnson, with characteristic pungency, described “as bad as bad could be,--ill-fed, ill-killed, ill-kept, and ill-dressed.”[225] So this measure--I adopt the saying of an eminent friend, who insists that it cannot be called an “amendment,” but rather a “detriment,” to the Constitution--is as bad as bad can be; and even for its avowed purpose uncertain, loose, cracked, and rickety. _Regarding it as a proposition from Congress to meet the unparalleled exigencies of the hour_, it is no better than the “muscipular abortion” sent into the world by the “parturient mountain.”[226] But only when we look at the chance of good is it “muscipular.” In every other aspect it is gigantic, inasmuch as it makes the Constitution a well-spring of insupportable thraldom, and once more lifts the sluices of blood destined to run until it rises to the horse’s bridle. Adopt it, and you put millions of fellow-citizens under the ban of excommunication, you hand them over to a new anathema maranatha, you declare that they have no _political_ rights “which the white man is bound to respect,”--thus repeating in new form the abomination that has blackened the name of Taney. Adopt it, and you stimulate anew the war of race upon race. Slavery itself was a war of race upon race, and this is only a new form of the terrible war. The proposition is as hardy as gigantic; for it takes no account of the moral sense of mankind, which is the same as if in rearing a monument we took no account of the law of gravitation. It is the paragon and master-piece of ingratitude, showing more than any other act of history what is so often charged and we so fondly deny, that republics are ungrateful. The freedmen ask for bread, and you send them a stone. With piteous voice they ask for protection; you thrust them back defenceless into the cruel den of former masters. Such an attempt, thus bad as bad can be, thus abortive for all good, thus perilous, thus pregnant with a war of race upon race, thus shocking to the moral sense, and thus treacherous to those whom we are bound to protect, cannot be otherwise than shameful.

I shall not content myself with describing the device. This is not enough. You have seen it in its general character only. You shall see it now in its guilty parts, each one of which is sufficient to arouse the conscience against it.

* * * * *

1. Of course you cannot fail to be struck by its language. Here words become things. In express terms there is _admission of the idea of Inequality of Rights founded on race or color_. That this unrepublican idea should be allowed to find place in the text of the Constitution must excite especial wonder, when it is considered how conscientiously our fathers excluded from that text the kindred idea of property in man. The saying of Mr. Madison cannot be too often repeated:--

“He thought it _wrong_ to admit in the Constitution the idea
that there could be property in men.”[227]

But is it less wrong to admit in the Constitution the idea of Inequality of Rights founded on race or color? Surely the authors of this proposition have acted inconsiderately and with little regard to the spirit of the Fathers. Imagine it introduced into the Convention which framed the Constitution. Not many words would have been used; but evidently it would have found no place in that text, which, with pious care, was to be guarded against degradation. And now mark the change. After the lapse of generations, when our obligations have increased with increasing light, at an epoch of history when mankind are more than ever before sensitive to the claims of human rights, and when among ourselves there is more than ever before a desire and a duty to fulfil all the promises of the Declaration of Independence, we are invited to make the Constitution disown the Declaration of Independence, insult the conscience of mankind, and disregard all the obligations pressing upon us. But this is a mild way of stating the character of the attempt plainly apparent in the words. Its essential uncleanness is not disclosed. Adopt this proposition, and you will imitate those ancient birds who defiled the feast that was spread. The Constitution is the feast spread for our country, and you hurry to drop into its text a political obscenity, and to diffuse over its page a disgusting ordure,--

“Defiling all you find,
And parting leave a loathsome stench behind.”[228]

Only by plain language can this attempt be adequately exposed. Only in this way can it be seen in its true character. Only in this way can you be moved to shrink from it with proper repugnance. In this spirit the religious press of the country is beginning to speak. The Boston “Recorder,” the most venerable of all the religious papers of New England, and perhaps of the whole country, which for more than half a century has been a weekly teacher at uncounted firesides, thus solemnly appeals to the conscience of patriots and of statesmen:--

“The proposed Amendment to the Constitution of the United
States, which passed the House of Representatives last week by
a vote of 120 to 46, will, if it should become the fundamental
law of the land, _inflict upon our free institutions greater
infamy than anything contained in our written Constitution_.
There are things there which were sufficiently disgraceful in
their intent and purpose. That the slave-trade should not be
prohibited before 1808, that three fifths of the slaves should
be represented in Congress by the votes of their owners, that
fugitive slaves should be returned to their owners,--these were
scandalous provisions to which our noble fathers submitted
only because without them we could have no common national
existence. But they couched these offensive propositions
in terms that, on the cessation of Slavery, would have no
objectionable meaning. This event they anticipated much earlier
than it has actually occurred. And now that it is a fact, no
one wishes the clauses of the Constitution to which we have
alluded to be stricken out.

“But now it is proposed to ingraft upon this revered instrument
a principle implying that a State may decree that all men are
not born equal, and may disfranchise a majority of her citizens
and their sons and their sons’ sons forever! Good jurists have
declared that the Constitution, as it now stands, would forbid
any such State action, and that all constitutions and laws
disfranchising citizens because of their parentage, color,
race, or descent, are null and void.… We are not aware of any
attempt to refute this view with a shadow of success.

“And now it cannot be that we shall give up our vantage-ground,
_and stain the triumph_ bought with so much precious blood
with _a concession which might be turned to so base a use_.

“Let every patriot, to whom the good name of America is dear,
bestir himself. Let every Christian who believes that God is no
respecter of persons, let every father who would not leave to
his children a legacy of national discord and a birthright in a
nation yet to bleed in Helot conspiracies, let every statesman
who believes that even justice is the only sure foundation of
national tranquillity, arouse himself.”[229]

I have heard somewhere a strange apology for this amendment. It is said that it is “punitive,” and that the idea of Inequality of Rights is to be admitted into the Constitution for punishment, and not for sanction. As well say that the term “three fifths of all other persons” in the Constitution was “punitive.” It was no such thing. It was a compromise; and such is the precise character of the present attempt, which, by its very words, is a plain license to tyranny, in consideration that the tyrants pay in political power. The primary element, standing out in “darkness visible,” is the license; the secondary element is the pay. Here is nothing less than a mighty house that shall be nameless, which it is proposed to license constitutionally for a consideration. Even if political power is curtailed, it is only as a consideration for the license. It is a new sale of “indulgences,” on a larger scale than that of Tetzel. The latter, returning from Rome into Germany, became vendor of licenses for adultery, robbery, theft; but the outrage aroused Martin Luther, and the Reformation began. As well say, that, since pay was required, therefore the indulgences of Tetzel were “punitive.”

Thus far I have spoken of the attempt only as it appears in its words, without analyzing it in detail.

* * * * *

2. One of its elementary parts and consequences is that _it sanctions the acknowledged tyranny of taxation without representation_. A whole race, constituting a considerable part of the people of the United States, and embraced under the words of the preamble to the Constitution, “We the people,” are left without representation in the Government, but nevertheless held within the grasp of taxation, direct and indirect, tariff and excise, State and National. Sir, this is tyranny,--or else our fathers were wrong, when they protested against a kindred injustice. The principle is fundamental. You cannot violate it without again dishonoring the Fathers.

To the application of this principle there have been two replies: first, that in its origin it was a claim of representation for communities only, and not for individuals; and, secondly, that in its nature it embraces women as well as men. And from these two considerations it is argued that it cannot be invoked for the protection of four million people whose only offence is a dark skin. Even if it had been originally a claim for communities only, and not for individuals, it is difficult to see how it can be rejected as a rule in determining the rights of fellow-citizens counted by millions. Our fathers, when they cried out that taxation without representation is tyranny, were not more than two millions and a half. Our fellow-citizens now renewing the same cry are more than four millions, possessing the weight of numbers, if not of organization. But it is a mistake to suppose that the original claim was for communities only, and not for individuals. This is a question of history, to be considered with the gravity of history, and as such I ask attention to it.

In opening this debate, I carried you to that Provincial Court in Massachusetts, where, in assailing Writs of Assistance, James Otis first launched the thunderbolt, “Taxation without representation is tyranny.” You remember how careful he was to insist that without representation there could be no taxation of any kind, direct or indirect, on land or on trade, and that the representation must be substantial, real, and not merely imaginary, or, as it was expressed at that time, “virtual.” In developing this principle, he announced the equal rights of all, without distinction of color. On this ground he stood, when he uttered those memorable words, which the whole country adopted at once with patriotic frenzy, and which I insist you shall not deny in our organic law.

But, to show more precisely the meaning of Otis, I let him be his own interpreter. Again and again he asserts the equality of men. This was his fundamental principle, which on an important occasion he thus expressed: “The first simple principle is equality and the power of the whole.”[230] Nor did he allow this to be limited in application by any distinction of color. John Adams, who was present when the orator first raised his great cry, says: “Nor were the poor negroes forgotten. Not a Quaker in Philadelphia, or Mr. Jefferson, of Virginia, ever asserted the rights of negroes in stronger terms.”[231] Otis, in another form, assailed directly the distinction of color, saying: “Will short, curled hair, like wool, instead of Christian hair, as ’tis called by those whose hearts are as hard as the nether millstone, help the argument?”[232] Such, then, were his premises,--the equal rights of all, without distinction of color. From these his conclusion was easy:--

“The very act of taxing, exercised over those who are not
represented, appears to me to be depriving them of one of their
most essential rights as freemen, and, _if continued, seems
to be, in effect, an entire disfranchisement of every civil
right_. For what one civil right is worth a rush, after a man’s
property is subject to be taken from him at pleasure, without
his consent? If a man is not _his own assessor_, in person or
by deputy, his liberty is gone, or lays entirely at the mercy
of others.”[233]

Stronger words for universal suffrage could not be employed. His argument is, that, if men are taxed without being represented, they are deprived of essential rights, and the continuance of this deprivation despoils them of every civil right,--thus making the latter depend upon the right of suffrage, which by curious neologism is known as political instead of civil. Then, giving point to his argument, the patriot insists, that, in determining taxation, “a man must be his own _assessor_, in person or by deputy,” without which his liberty is entirely at the mercy of others. Here, again, in different form, is the original thunderbolt; and the claim is made not merely for communities, but for “a man.”

Such a principle naturally encountered opposition at that time, even as now in this Chamber; but Otis was ready at all points. To the argument, that Manchester, Birmingham, and Sheffield, like America, returned no members to Parliament, he flashed forth in reply:--

“If they are not represented, they ought to be. _Every man of a
sound mind should have his vote._”

And then again, taking up the reply, he exclaimed:--

“Lord Coke declares that it is against Magna Charta, and
against the franchises of the land, for freemen to be taxed but
by their own consent.”[234]

Thus does he interpret again the flaming words, “Taxation without representation is tyranny.”

But, while thus positive, there is reason to believe that Otis so far yielded to prevailing sentiment, and especially to the opinions of Harrington, whose “Oceana” was much read at that time, as sometimes to recognize property in determining the basis of political power. On one occasion he said that Government could not be “rightfully founded on property alone,” thus seeming to intimate that property might enter into the foundation, although, as he derisively remarks, “the possessor of it may not have much more wit than a mole or a musquash.”[235] But it was doubtless obvious to his clear intelligence that a claim of power founded on property was very different from a claim of power founded on color. Property may be acquired; but color, from its nature, is an insurmountable condition. The original Constitution of Massachusetts recognized property as an element of political power; but it rejected all discrimination founded on color. If, therefore, under the maxim of Otis, there may be discrimination founded on property, most clearly, according to reason and early practice, there can be none founded on color; so that at the present hour his maxim is of vital force as a claim, not merely for the community, but for the individual. Let the country now, as aforetime, take it up and repeat it until it becomes the watchword of patriotism.

But Otis was not the only interpreter of this maxim of Liberty. The Legislature of Massachusetts, on repeated occasions, made the same claim. In solemn resolutions, drawn by Samuel Adams, and adopted unanimously, it declared, in substance, that, “by the Law of Nature, no man has a right to impose laws more than to levy taxes upon another”; that “the freeman pays no tax, as the freeman submits to no law, but such as emanates from the body in which he is represented.”[236] Surely this claim is not merely for the community, but for the individual freeman also.

Virginia was not behind Massachusetts. In her Declaration of Rights, drawn by that determined patriot, George Mason, and adopted June 12, 1776, anterior to the Declaration of Independence, is the following emphatic claim:--

“All men having sufficient evidence of permanent common
interest with and attachment to the community _have the right
of suffrage, and cannot be taxed or deprived of their property
for public uses without their own consent_ or that of their
representatives so elected, nor bound by any law to which they
have not in like manner assented for the public good.”[237]

Here again the claim is not merely for the community, but for “all men,” and it is set forth thus positively in a Declaration of Rights.

And now listen to Benjamin Franklin. I quote a statement found among his papers, and placed by his excellent editor under date of 1768-9, while the Colonists were echoing the cry, “Taxation without representation is tyranny.”

“That _every man_ of the commonalty, excepting infants, insane
persons, and criminals, is of common right, and by the laws of
God, a freeman, and entitled to the free enjoyment of liberty.

“_That liberty or freedom, consists in having an actual share
in the appointment of those who frame the laws_, and who are to
be the guardians of every man’s life, property, and peace; for
the _all_ of one man is as dear to him as the _all_ of another,
and the poor man has an _equal_ right, but _more_ need, to have
representatives in the Legislature than the rich one.

“That they who have no voice nor vote in the electing of
representatives _do not enjoy liberty, but are absolutely
enslaved to those who have votes and to their representatives_;
for to be enslaved is to have governors whom _other men
have set over us_, and be subject to laws _made by the
representatives of others_, without having had representatives
of our own to give consent in our behalf.”[238]

Here is no claim for communities merely, but expressly for “every man,” including especially “the poor man,” and without distinction of color.

This American testimony is fitly crowned by the Declaration of Independence, which, beginning with the proclamation that “all men are created equal,” proceeds to assert that governments “derive their just powers from the consent of the governed.” Here again is no claim for communities, but for “all men”; and this is the most authoritative interpretation of the original claim thundered forth by Otis, and echoed throughout the land. It is idle to show that in certain instances the Fathers failed to apply the sublime principles they declared. Their failure can be no apology for us, on whom the duty is now cast.

But there is still another interpreter. The maxim of Otis was not original with him. It is found in the writings of John Locke, so remarkable for masculine sense and an exalted love of liberty. On a former occasion I adduced his authority, which is plain and positive. Pardon me, if I call attention to it once more. After asserting that Government cannot take the property of any one without his own consent, being the consent of the majority, the philosopher thus expresses himself:--

“For, if any one shall claim a power to lay and levy taxes on
the people by his own authority _and without such consent of
the people_, he thereby invades the fundamental law of property
and subverts the end of government; for what property have I
in that which another may by right take, when he pleases, to
himself?”[239]

Mr. Hallam, commenting on this text, does not hesitate to say, that it “in some measure seems to charge with usurpation all the established governments of Europe,”--that “neither the Revolution of 1688 nor the administration of William the Third could have borne the test by which Locke has tried the legitimacy of government.”[240]

A later English writer, Mr. Tremenheere, commenting also on this text, sets forth its two propositions as follows: “First, that a political society can only be bound by the act of the majority; second, that taxation without representation is tyranny.”[241] Such are the two propositions this English writer finds in Locke, and which he cites for condemnation. Thus, if we repair with Otis to the very source from which he drew, we find that there was no claim for communities merely, but for the individual man, without distinction of color.

Mr. Bright, our English friend, in one of his admirable speeches,[242] has recently furnished an additional illustration. He has brought to light a resolution from no less an authority than Lord Somers, on an important occasion, kindred to the present, when it was proposed to disfranchise all who were not of the Established Church, as it is now proposed to disfranchise all who are not of a certain color. Speaking for the House of Lords, in conference with the Commons, this great constitutional lawyer insisted:--

“That though the Lords allow that no man hath a place by
birthright, or but few such examples in our Government, yet
that _giving a vote for a Representative in Parliament is
the essential privilege whereby every Englishman preserves
his property_, and that whatsoever deprives him of such vote
deprives him of his birthright.”[243]

Here again is the very cry of Otis; and you cannot fail to observe that the claim is not for communities merely, but for “every Englishman,” without distinction of color.

Surely this is enough. But it is said that the claim is as applicable to women as to men, especially where women are tax-payers. To this I reply, that Locke, Somers, Otis, and Franklin, in making the claim, did not give it any such extent, and the question which I submit is simply as to their meaning in the words “Taxation without representation is tyranny.” Clearly their claim was for _men_, believing, as they did, that _women_ were represented through men; and it is hardly candid to embarrass the present debate, involving the rights of an oppressed race, by another question entirely independent. In saying that the claim was for men, I content myself with the authority of Theophilus Parsons, afterward the eminent Chief Justice of Massachusetts, who, in a masterly state-paper, known as the “Essex Result,” which was the prelude to the Constitution of Massachusetts, thus discloses the opinion of the Fathers on this precise point:--

“Every freeman, who hath sufficient discretion, should have
a voice in the election of his legislators.… All the members
of the State are qualified to make the election, unless they
have not sufficient discretion, or are so situated as to
have no wills of their own. Persons not twenty-one years old
are deemed of the former class, from their want of years and
experience.… Women, what age soever they are of, are also
considered as not having a sufficient acquired discretion,--not
from a deficiency in their mental powers, but from the natural
tenderness and delicacy of their minds, their retired mode of
life, and various domestic duties. These, concurring, prevent
that promiscuous intercourse with the world which is necessary
to qualify them for electors. Slaves are of the latter class,
and have no wills.”[244]

The reasons assigned for the exclusion of women may be very unsatisfactory; but they show at least that the Fathers, when insisting that taxation and representation must go together, did not regard women, any more than minors, within the sphere of this commanding principle. And here I leave this head of the argument, concluding as I began, that you cannot adopt this pretended Amendment without setting at defiance the great maxim of constitutional liberty which was the rallying cry of our fathers.

* * * * *

3. Continuing the dissection, I exhibit this proposition as a new form of _concession to State Rights_. Such it is plainly on its face; such it is in reality; and the more you examine it, the more complete the concession appears. Already it has been announced as such by those who seek to commend it in quarters of doubtful loyalty. Here, for instance, is a speech of Hon. John E. King, claimant of a seat in Congress from Louisiana, only a few days ago addressed to the Legislature of his State, where, after calling attention to the present attempt, he exults in what seemed to him the prospect of its adoption:--

“The present Congress is proceeding to amend without the
eleven States that are unrepresented in that body. _However,
there is some good in all this evil._ If this Amendment should
pass,--and the speaker said that himself and colleagues had no
doubt that it would,--it will settle forever the right of the
States to legislate, each for itself, as to who shall be the
voters therein.”[245]

Thus, while deprecating Amendments to the Constitution in the absence of the eleven Rebel States, the partisan of State Rights is reconciled to the pending proposition, inasmuch as it is a triumph of this sectional pretension. Alas, that now, at the close of a rebellion in the name of State Rights, we should be considering calmly how to assure this pernicious heresy new support in the Constitution itself!

Let me be understood. I suggest no interference with the just rights of the States. These belong to the harmonies of the Union. But, in the name of Justice, I insist that nothing further shall be done to invest the States with peculiar local power. If not taught by the lessons of the late war, then be taught by the principles avowed at the very beginning of the Government.

The object of the Constitution was to ordain, under authority of the people, a national government possessing unity and power. The Confederation had been merely an agreement “between the States,” styled “a league of firm friendship.” Found to be feeble and inoperative, through the pretension of State Rights, it gave way to the Constitution, which, instead of a “league,” created a “Union” in the name of the people of the United States. Beginning with these inspiring and enacting words, “We, the people,” it was popular and national. Here was no concession to State Rights, but a recognition of the power of the people, from whom the Constitution proceeded. The States are acknowledged; but they are all treated as component parts of the Union in which they are absorbed under the National Constitution, which is the supreme law. There is but one sovereignty, and that is the sovereignty of the people of the United States.

On this very account the adoption of the Constitution was opposed by Patrick Henry and George Mason. The first pronounced: “That this is a consolidated government is demonstrably clear.” “The question turns on that poor little thing, the expression, ‘We, the people,’ instead of ‘the States’ of America.”[246] The second exclaimed: “Whether the Constitution be good or bad, the present clause [‘We, the people’] clearly discovers that it is a national government, and no longer a confederation.”[247] But against this powerful opposition the Constitution was adopted in the name of the people of the United States. Throughout the discussion, State Rights were treated with little favor. Madison said, the States were “only political societies,” and “never possessed the essential rights of sovereignty.”[248] Gerry said, the States had “only corporate rights.”[249] Wilson, the philanthropic member from Pennsylvania, afterward a learned judge of the Supreme Court of the United States, and author of the “Lectures on Law,” said: “Will a regard to State Rights justify the sacrifice of the Rights of Men? If we proceed on any other foundation than the last, our building will neither be solid nor lasting.”[250] Such were the voices at that heroic day. And now, at the end of an unparalleled war to abase State Rights, we are asked to naturalize in the Constitution a new provision confirming to the States an odious pretension, shocking to the moral sense. But its character belongs to another head.

* * * * *

4. Proceeding with the dissection, I now exhibit the proposition, not only as a concession to State Rights, which is admitted by a Louisiana supporter, but, if unhappily adopted, as the _constitutional recognition of an Oligarchy, Aristocracy, Caste, and Monopoly founded on color_. All this appears on the face; and as you examine it, the intolerable consequence becomes still more apparent. Thus far we have been saved from such shame. The proposition before us assumes that the elective franchise may be denied or abridged constitutionally on account of race or color, and thus sanctions the usurpation,--thereby investing those who deny or abridge it with exclusive political control, without regard to number, though they may be a minority or even a small fraction of the people. What, Sir, is this rancid pretension, if it be not an oligarchy, aristocracy, caste, and monopoly founded on color, under sanction of the Constitution? It is all these together, having beyond question the distinctive features of each and the distinctive discredit of each,--therefore odious in government, odious in religion, odious in economy, and altogether constituting an outrageous indecency.

It is idle to say that this is done already in the States. It may be done _in fact_. But now you propose to give this criminal fact the support of the Constitution, and lift it into perpetual vigor.

The country has been harassed and degraded for generations by the Slave Power, which was nothing but an oligarchy, aristocracy, caste, and monopoly; and now, when this power has been overcome in battle, it is proposed to inaugurate it anew, with slight change of name, but with the same field of action, and the same malignant spirit to wield its energies. By your concession it tyrannized before, and now by your concession it will tyrannize again. The citizens it once trampled on as slaves it will continue to trample on as outcasts, and it will set up your permission emblazoned in the Constitution itself.

* * * * *

5. Proceeding with this proposition, I exhibit it as petrifying in the Constitution the wretched _pretension of a white man’s government_. At this moment, when we are striking the word “white” from the national statutes, when this word has disappeared even from Post-Office laws, when, by a vote of the House of Representatives, it has been condemned in the laws regulating the elective franchise in the District of Columbia, it is proposed to insert an equivalent in the Constitution itself. To exhibit this shame is surely enough to make you turn away from it. Do not say that this is not proposed. What is the concession that the elective franchise may be denied or abridged “on account of race or color” but an insertion of the word “white” in the National Constitution? In that text, as it still stands, from beginning to end, from the preamble to the signature of George Washington, or the last word of the last Amendment, there is no recognition of “color.” For the sake of decency, keep it so.

* * * * *

6. Proceeding still further with the proposition, I exhibit it as assuming, what is false in Constitutional Law, _that color can be a qualification for an elector_. The Constitution says that “the electors in each State shall have the _qualifications_ requisite for electors of the most numerous branch of the State Legislature.” Of course this leaves open the question, What is meant by “qualifications”? But this word must be interpreted in the light of the Constitution, which knows no “color,” and again in the light of the Declaration of Independence, which knows no “color,” and yet again in the light of common sense, which refuses to recognize “color” as a “qualification,” in any just sense of the term. Consult the dictionaries of the day, and you will find it means “fitness,” “ability,” “accomplishment,” “the state of being qualified”; but it does not mean “color.” It is applicable to the conditions of age, residence, character, education, property, and the payment of taxes; but it cannot be applicable to “color.” The English dictionaries most in vogue at the time of our fathers were those of Bailey and Johnson. According to Bailey, who was the earliest, “qualification” is defined:--

“(1.) That which fits any person or thing for any particular
purpose.”

“(2.) A particular faculty or endowment, an accomplishment.”

According to Johnson, who is the highest authority, it is defined:--

“(1.) That which makes any person or thing fit for anything.”

“EXAMPLE.--It is in the power of the prince to make piety and
virtue become the fashion, if he would make them necessary
_qualifications_ for preferment.--SWIFT.”

“(2.) Accomplishment.”

“EXAMPLE.--Good _qualifications_ of mind enable a magistrate
to perform his duty, and tend to create a public esteem of
him.--ATTERBURY.”

According to these definitions “qualification” means “fitness” or “accomplishment,” and according to examples from classical writers it means qualities like “piety” and “virtue,” or like “mind.” Obviously it cannot embrace color, which is a physical condition, insurmountable in nature. An insurmountable condition is not a _qualification_, but a _disfranchisement_. As well say that the quality of the hair or the length of the foot should be a “qualification,” as the color of the skin. The whole pretension is one of the false glosses fastened upon the National Constitution by Slavery, which must now be sloughed off.

* * * * *

7. Again, I exhibit the proposition as positively _tying the hands of Congress in its interpretation of a republican government_, so that, under the guaranty clause, it must recognize an oligarchy, aristocracy, caste, and monopoly founded on color, with the tyranny of taxation without representation, as _republican in character_, which I insist they are not. At present the hands of Congress are not tied. Congress is free to act generously, nobly, truly, according to the highest idea of a republic, discountenancing all inequality of rights and the tyranny of taxation without representation. Let this pretension find place in the Constitution, and the guaranty clause will be restricted in operation. The two clauses taken together, as they must be, will read substantially: “The United States shall guaranty to every State in this Union a republican form of government: it being understood that the denial or abridgment of the elective franchise on account of race or color, and the tyranny of taxation without representation, are not inconsistent with a republican government.” In other words the denial or abridgment of the elective franchise on account of race or color, and the tyranny of taxation without representation, will be recognized in the Constitution as republican in character. Of course all attempt to enforce this guaranty against an oligarchy, aristocracy, caste, and monopoly founded on color, or against the tyranny of taxation without representation, will be from this time impossible. The precious power now existing will be lost forever.

* * * * *

8. Again, I exhibit the proposition as _positively tying the hands of Congress in completing and consummating the abolition of Slavery_. By the second clause of the recent Constitutional Amendment Congress is expressly empowered to “enforce” the abolition of Slavery by “appropriate legislation.” Accordingly, the Senate, by what is known as the Civil Rights Bill, has already undertaken to establish equality of civil rights in all the States and Territories, so that hereafter, in our courts at least, there shall be no discrimination of color. It was justly insisted that such “legislation” is needed to “enforce” the abolition of Slavery, and on this account is constitutional. The Senate acted accordingly. The bill has passed this body by more than a two-thirds vote. Obviously by the same title equality in political rights can be established also under this Amendment, if such equality shall be deemed important to “enforce” the abolition of Slavery, or, in other words, to complete and consummate the good work. In the exercise of a granted power Congress is sole judge of the “means” it employs; and this conclusion is sustained not only by reason, but by the Supreme Court of the United States in solemn judgments. You will remember the familiar precedents, which I insist are decisive. And now, in the face of these judgments, in the face of reason, and with the authoritative precedent of the Senate establishing equality of civil rights before us, it is proposed to insert in the Constitution a provision despoiling Congress of its power under the Constitutional Amendment, so that hereafter that Amendment, which should be interpreted generously and to advance Liberty, will be changed so as to read: “Congress shall have power to enforce this article by appropriate legislation: it being understood that it shall not interfere for this purpose with any denial or abridgment of the elective franchise in any State on account of race or color.” Thus again will a beneficent power be lost at a moment when all is needed for the safety and renown of the Republic.

* * * * *

9. Again, I exhibit this proposition as _installing recent rebels to govern loyal citizens_ under sanction of the Constitution. The ruling class began and sustained the Rebellion. The citizens you disfranchise were loyal, and some of them poured out their red blood for the Republic; and yet we are asked to intrench this ruling class in the Constitution, so that they can wield unchecked power, while loyal millions are humbled at their feet. The bare statement offends reason and conscience.

Pray, who may justly look to the Republic for protection? Is it the rebel or the loyal? Is it the citizen who has caused all your woes, and now gnashes his teeth at your triumph,--or is it the citizen who has watched your flag with sympathetic pride, and now rejoices in your triumph? Who can hesitate? And yet the proposition before the Senate gives the palm of power and honor to the rebel class, and fixes this preëminence in the National Constitution. You cannot say, more than Cain, “Am I my brother’s keeper?” You are your brother’s keeper; and you must see that he is saved from cruel oppression.

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10. And, lastly, I denounce this proposition as a _compromise of human rights_, the most questionable of any in our history. Persons out of the Senate have sought to vindicate it, as other compromises in times past, by representing it as something which it is not. This is done by exhibiting one side only of the compromise, and thus calling it “punitive”; as if in 1850 the admission of California, which was one side of the compromise, had been exhibited, while the unutterable atrocity of the Fugitive Slave Bill, which was the other side, had been concealed from view. The present compromise, like other compromises, has two sides; in other words, it is a concession for a consideration. On one side it is conceded that the States may, under the Constitution, exclude citizens counted by the million from the body politic, and practise the tyranny of taxation without representation, provided, on the other side, there is a corresponding diminution of representative power in the lower House of Congress, without, however, touching the representative power in the Senate. The glaring feature of this compromise is the criminal concession, constituting the sacrifice of brave defenders, and even of a whole race, to whom we owe protection. The consideration is small. It will be forgotten, when the monstrous concession looms in history as a landmark of dishonor.

There have been other compromises of human rights in times past. But, considering the grandeur of the occasion, the promises of the Fathers, the extent of present obligations, the promptings of gratitude, the demands of public faith, the exigencies of public security, and the good name of the Republic, all now involved, I am sure that no compromise so discreditable and disastrous was ever before proposed. A feeble prototype may be found in that intolerable treaty known as the Assiento, from which every Englishman turns with a blush, where, at the end of an unprecedented war, England bartered all that had been won by the victories of Marlborough for the privilege of supplying slaves to the Spanish colonies. The slave-trade received solemn sanction, and England pocketed the dishonest profits,--just as now a kindred offence on a grander scale is to receive solemn sanction, and we who sanction it are to pocket the profits in political power. Do not talk, Sir, of this measure as “punitive,” unless you mean that it is punitive of benefactors,--for this is the only character it can bear in history. On a former occasion I entreated you not to copy the example of Pontius Pilate, who handed over the Saviour of the world, in whom he found no fault at all, to be scourged and crucified. It is my duty now to remind you that you go further than Pontius Pilate. He was a mocker and a jester;[251] but he received nothing for what he did. You do. Not content with resolving the Senate into a Prætorium, I feel rather that you imitate Judas, who betrayed the Saviour for thirty pieces of silver, and imitate the soldiers who appropriated to themselves the raiment of the Saviour. Do not answer me with a sneer. Has not the Saviour himself told us that what we do to the least we do to Him? Ay, Sir, in offering fellow-citizens to be sacrificed, in betraying them for less than “thirty” Representatives in Congress, and in appropriating their political raiment, you do all this to the Saviour himself. Pardon this necessary plainness. I speak for my country, which I seek to save from dishonor; I speak for fellow-citizens whom I would save from outrage; and I speak for that public faith and public security in which is bound up the welfare of all.

* * * * *

Mr. President, such is the argument for the rejection of this pretended Amendment. Following it from the beginning, you have seen, first, how it carries into the Constitution the idea of Inequality of Rights, thus defiling that unspotted text; secondly, how it is an express sanction of the acknowledged tyranny of taxation without representation; thirdly, how it is a concession to State Rights at a moment when we are recovering from a terrible war waged against us in the name of State Rights; fourthly, how it is the constitutional recognition of an oligarchy, aristocracy, caste, and monopoly founded on color; fifthly, how it petrifies in the Constitution the wretched pretension of a white man’s government; sixthly, how it assumes, what is false in Constitutional Law, that color can be a “qualification” for an elector; seventhly, how it positively ties the hands of Congress in fixing the meaning of a republican government, so that under the guaranty clause it will be constrained to recognize an oligarchy, aristocracy, caste, and monopoly founded on color, together with the tyranny of taxation without representation, as not inconsistent with such a government; eighthly, how it positively ties the hands of Congress in completing and consummating the abolition of Slavery according to the second clause of the Constitutional Amendment, so that it cannot for this purpose interfere with the denial of the elective franchise on account of color; ninthly, how it installs recent rebels in permanent power over loyal citizens; and, tenthly, how it shows forth its unmistakable character as a compromise of human rights, the most questionable of any in our history.

* * * * *

And now the question occurs, What shall be done? To this I answer, Reject at once the pretended Amendment; show it no favor; give it no quarter. Let the country see that you are impatient of its presence. But there are other propositions, in the form of substitutes. For any one of these I can vote. They may differ in efficiency, but there is nothing in them immoral or shameful. There is, _first_, the proposition to found representation on voters instead of population, and, _secondly_, the proposition to secure equality in political rights by Constitutional Amendment or by Act of Congress.

* * * * *

The proposition to found representation on voters instead of population was originally introduced by me during the last Congress. Almost at the same time I presented a series of resolutions declaring not only the power, but the duty, of the United States to guaranty republican governments in the Rebel States on the basis of the Declaration of Independence, so that the new governments should be founded on the consent of the governed and the equality of all persons before the law. Thus, while proposing to found representation on voters, I at the same time asserted the power of Congress under the Constitution to secure equality in political rights. The proposition with regard to voters was much discussed during the recess of Congress. At the beginning of the present session it seemed to find favor. But at last statistics were adduced tending to show that it would transfer power from Eastern States to Western States in proportion to the excess of females over males in the former; and this abnormal circumstance was made an argument against it. Since then it has given place to the offensive attempt now pending.

The proposition to found representation on voters instead of population may be seen, _first_, in what it does not, and, _secondly_, in what it does.

Seeing it in what it does not, all will confess that it does not carry into the Constitution itself the idea of Inequality of Rights, thus defiling that unspotted text; that it gives no sanction to the acknowledged tyranny of taxation without representation; that it makes no concession to State Rights, at a moment when we are recovering from a terrible war waged against us in the name of State Rights; that it does not recognize an oligarchy, aristocracy, caste, and monopoly founded on color; that it does not petrify in the Constitution the wretched pretension of a white man’s government; that it does not assume, what is false in Constitutional Law, that color can be a “qualification” for a voter; that it does not positively tie the hands of Congress in fixing the meaning of a republican government, so that under the guaranty clause it will be constrained to recognize an oligarchy, aristocracy, caste, and monopoly founded on color, together with the tyranny of taxation without representation, as not inconsistent with such a government; that it does not positively tie the hands of Congress in completing and consummating the abolition of Slavery according to the second clause of the Constitutional Amendment; that it does not install recent rebels in permanent power over loyal citizens; that it does not show forth in unmistakable character as a compromise of human rights, the most questionable of any in our history. All these things, so offensive to the conscience and the reason, this proposition avoids. In all these respects it is at least blameless.

On the other hand, without inflicting any stigma upon the Constitution or upon the Republic, without abandoning any principle, without making any concession to the States, without tying the hands of Congress, and without any compromise of human rights, it does rearrange the basis of representation so as to accomplish all that is proposed even by the most sanguine supporters of the other attempt, and it does this effectually, without the opportunity for evasion afforded by the other proposition. The alleged inequality in operation, owing to excess of females over males in certain States, may make you hesitate; but better take representation founded on voters, even with any such alleged inequality, than do a grievous wrong. Better wrong yourselves than wrong others.

Let me confess that I was tempted to this proposition by the conviction that I was carrying out the cherished idea of Massachusetts embodied in her own Constitution. According to a recent Amendment, the representation in both branches of the Legislature is founded on “legal voters,” and not on population. Here are the words.

“A census of the _legal voters of each city and town_ on the
first day of May shall be taken and returned into the office of
the Secretary of the Commonwealth.… The enumeration aforesaid
shall determine the apportionment of Representatives for the
periods between the taking of the census.

“The House of Representatives shall consist of two hundred and
forty members, which shall be apportioned by the Legislature,
at its first session after the return of each enumeration
as aforesaid, to the several counties of the Commonwealth,
_equally, as nearly as may be, according to their relative
numbers of legal voters_, as ascertained by the next preceding
special enumeration.…