Chapter XIII: Appendix (4)

“The Senate shall consist of forty members. The General Court
shall, at its first session after each next preceding special
enumeration, divide the Commonwealth into forty districts
of adjacent territory, _each district to contain, as nearly
as may be, an equal number of legal voters_, according to
the enumeration aforesaid.… Each district shall elect one
Senator.”[252]

Obviously, in adopting this rule, Massachusetts has followed what seems a correct principle. Representative government is an invention of modern times. It was unknown in antiquity. Athens was a democracy where the people met in public assembly for the government of the state: there was no representative body chosen by the people for this purpose. The public assembly was practicable in that age, as the state was small, and the assembly seldom exceeded six thousand citizens,--a large town meeting, or mass meeting, which Milton has termed “that fierce democratie.” But where the territory was extensive and the population scattered and numerous, there could be no assembly of the whole body of citizens. To meet this precise difficulty the representative system was devised. By a machinery so obvious that we are astonished it was not employed in the ancient commonwealths, the people, though scattered and numerous, are gathered, through their chosen representatives, into a small and deliberative assembly, where, without tumult or rashness, they may consider and determine all questions which concern them. In every representative body properly constituted the people are practically present.

If, then, the representative body is a substitute for the people themselves meeting in primary assemblies, it would seem that it must be founded upon the people who compose the primary assemblies,--in other words, upon legal voters. Ordinarily there may be little difference between the proportion of legal voters and the proportion of population; but, strictly, the representative system is the agent of legal voters, and therefore the logic of the case is better satisfied, if it be founded on legal voters rather than on population. With me this is no new idea. On another occasion, in my own State, I asserted it. This was in a Convention for revising the Constitution of Massachusetts, as long ago as 1853. Pardon me, if I read a brief passage from a speech in that Convention, not from any importance which I attach to it, but as showing how completely at that time this rule seemed to me just.

“A practical question arises here, whether this rule should
be applied to the whole body of population, including women,
children, and unnaturalized foreigners, or to those only who
exercise the electoral franchise,--in other words, to voters.
It is probable that the rule would produce nearly similar
results in both cases, as voters, except in few places, would
bear a uniform proportion to the whole population. But it is
easy to determine what the principle of the Representative
system requires. Since its object is to provide a practical
substitute for meetings of the people, it should be founded,
in just proportion, on the numbers of those who, according to
our Constitution, can take part in those meetings,--that is,
upon the qualified voters. The representative body should be a
miniature or abridgment of the electoral body,--in other words,
of those allowed to participate in public affairs.”[253]

In this view I found myself supported by two illustrious names in our history. Mr. Jefferson, shortly after the victory at Yorktown had rescued Virginia from invasion and secured national independence, prepared the draught of a Constitution for his native State, which expressly provided that “the number of delegates which each county may send shall be _in proportion to the number of its qualified electors_, and the whole number of delegates for the State shall be _proportioned to the whole number of qualified electors in it_.”[254] This proposition, which is substantially the Rule of Three applied to voters, was not adopted, but it remains a record of opinion. Some time afterward, in the debates in the Convention which framed the National Constitution, Mr. Madison gave his authority to the same conclusion.

“It had been very properly observed that representation was an
expedient by which the meeting of the people themselves was
rendered unnecessary, and _that the representatives ought,
therefore, to bear a proportion to the voters which their
constituents, if convened, would respectively have_.”[255]

Thus representation founded on voters seems commended by authority and principle. Its adoption would at least give symmetry to our national system, and make the representative more precisely the embodied presence of his constituents, while at the same time it would tend to enlarge the suffrage, and to harmonize sectional pretensions with the national will, when exerted for human rights. If representation were founded on voters, the States would care little, if Congress should annul all inequality in the elective franchise on account of color. The way would be open to Congress.

* * * * *

There are other propositions to my mind more satisfactory, because they reach the special necessity of the hour, and provide the only effectual remedy. Speaking in the name of national justice and for the national safety, they cannot be put aside with indifference; nor is it wise to say that any measure of justice is not practical. I refer, of course, to the propositions, in different forms, to secure that great guaranty, _equality in political rights_, by Constitutional Amendment, or by Act of Congress, or by both.

A Constitutional Amendment placing equality of political rights under the safeguard of a specific text may be superfluous, but it is not unconstitutional or immoral. It will be supplementary to provisions already in the Constitution, and in the nature of a declaratory statute removing all doubts and cavils. It will be like an additional force in mechanics, or like a reinforcement in the field. It will be reduplication in a new form. On such an occasion, where such a cause is in issue, I welcome every alliance; and such I regard the proposition of the Senator from Missouri [Mr. HENDERSON].

* * * * *

The other proposition, looking to the direct action of Congress under the National Constitution and existing Amendments, is obviously the simplest and most practical, inasmuch as it deals with the exigency promptly, frankly, and according to the necessities of the hour. It does not undertake to act by indirection; nor does it postpone to an indefinite future what cannot be postponed without detriment to the Republic. Refusing to procrastinate, it saves all. Such a proposition is commended by every argument of reason, humanity, and patriotism. To say that it is not constitutional is to say that the Constitution itself is not constitutional; for it is derived from the very heart of the Constitution, and is filled with all its best life-blood.

Something has been said of the form in which the proposition is presented. There is the bill of the Senator from Illinois [Mr. YATES], which he has maintained in a speech of singular originality and power, that has not been answered, and I do not hesitate to say cannot be answered. By this bill it is provided that all citizens in any State or Territory shall be protected in the full and equal enjoyment and exercise of civil and political rights, including the right of suffrage. This is founded on the consideration that by the abolition of Slavery the slave became at once a citizen, subject only to such disabilities as are common to other citizens, and that by the second clause of the Constitutional Amendment Congress is empowered to enforce the abolition of Slavery by appropriate legislation. On this foundation the Senator places his bill, assuming, that, to complete the abolition of Slavery, all restrictions, penalties, or deprivations of right, resulting from Slavery in any State or Territory, must be made to cease. The proposition that I have had the honor of presenting is a joint resolution, which, after declaring the duty of Congress to guaranty a republican form of government in States where the governments have lapsed, and also the duty to complete the abolition of Slavery by the removal of all relics of this wrong, proceeds to provide that there shall be no oligarchy, aristocracy, caste, or monopoly, nor any denial of rights, civil or political, on account of race or color, but all persons shall be equal before the law, whether in the court-room or at the ballot-box.[256] Not doubting the power of Congress to carry out this principle everywhere within the jurisdiction of the United States, I content myself for the present by asserting it only in the lapsed States lately in rebellion, where the twofold duty to guaranty a republican government and to enforce the abolition of Slavery is beyond question. To that extent I now urge it.

* * * * *

Both these propositions are opposed as informal and inoperative, because without machinery or penalty. Such is the objection, if I understand it. As it has been made, I answer it. Each on its face is an Act of Congress prohibiting denial of certain rights on account of color. In this respect each is at least a Congressional interpretation of the Constitution, and it is by no means clear that it could not be enforced in the courts. The bill which has already passed the House of Representatives, striking out the word “white” in the electoral laws of the District of Columbia, is without machinery or penalty; but it is at least a Congressional declaration, to be followed, of course, by other legislation with proper machinery and penalty; and this is the precise character of the measures presented by the Senator from Illinois and myself. Objection, if valid at all, must be equally valid against the bill for enfranchisement in the District of Columbia, and against every other Congressional declaration without machinery or penalty. It is, at most, one of form, which I put aside and advance to the substance. The question is too vast and the times are too serious for a special demurrer. It must be tried on its merits. The question is on the power of Congress to establish equality of political rights, at least in the Rebel States. If Congress has this beneficent power, then exercise it in such form as shall seem best, with machinery and penalty or without machinery and penalty; but, in God’s name, exercise it, for the sake of the country, which suffers from your delay.

Has Congress power to secure equality of political rights, at least in the Rebel States? I do not at this time raise the question of its power throughout the United States, but in the Rebel States. If this question were less transcendent in its relations, or if it could be approached calmly and without prejudice, in the light of reason, I cannot doubt the judgment. But you must bring to its determination the same simple desire for truth, undisturbed by external influences, which would control a judicial tribunal; for, in the determination of your powers under the Constitution, you are a judicial tribunal. It will not be enough to deny the beneficent power, or to mock at those who find it in the Constitution. You must answer their arguments.

* * * * *

1. I need not dwell on what has been so often discussed and so much misunderstood; and yet I must remind you of the power of Congress over the Rebel States from _the necessity of the case_; because, after the overthrow of legitimate governments, whose members were sworn to support the Constitution of the United States, there was no other rule possible for these States than that of Congress,--precisely as the Territories, according to Chief Justice Marshall, in a famous judgment, fell under “the power and jurisdiction of the United States” from the necessity of the case.[257] I do not say that a State becomes a technical Territory, as that term is understood among us; but I do say, that, in the lapse of the Rebel States, and in the absence of legitimate governments with members sworn to support the Constitution, these States fell under “the power and jurisdiction of the United States,”--meaning, practically, Congress,--until such time as they are reorganized according to the requirement of the Constitution. In the exercise of such a power and jurisdiction thus cast upon it, Congress must see that all loyal citizens, without distinction of color, take part in the formation of the new governments.[258]

* * * * *

2. Nor need I dwell on another source of power, found in _the rights of war_; but this, too, must be made plain. Nobody doubts that the United States were justified in asserting supremacy in the Rebel States by force of arms. But the war, when once begun, was subject to all the conditions of war, according to the rights of war found in the Law of Nations,--doubly obligatory on us, first, because we belong to the family of nations, and, secondly, because the Law of Nations is expressly recognized by the Constitution itself. Now, according to the rights of war found in the Law of Nations, a conquering power is justified in requiring not only indemnity for the past, but security for the future. It depends upon the people of the United States, represented in Congress, to determine the guaranties of this security. In support of this conclusion, I ask attention to a familiar authority, whose statement seems to cover the case. I read from Vattel:--

“The whole right of the conqueror comes from that just
self-defence which comprehends the maintenance and prosecution
of his rights. When, therefore, he has entirely subdued a
hostile nation, he may undoubtedly, in the first place, do
himself justice with regard to that which gave rise to the
war, and indemnify himself for the expenses and damages it has
caused him; he may, according to the exigency of the case,
impose penalties upon the conquered nation by way of example;
he may even, if prudence require, _render it incapable of doing
harm so easily in future_.”[259]

The offending party, when conquered, may be rendered incapable of doing harm so easily in future. This is according to natural justice. Then again the same familiar authority says:--

“If the inhabitants have been personally guilty of any criminal
attempt against the conqueror, _he may by way of punishment
deprive them of their rights and franchises_. This, again, he
may do, if the inhabitants have taken up arms against him and
thus directly rendered themselves his enemies. He then owes
them nothing more than what is due from a humane and equitable
conqueror to subjugated enemies.”[260]

Surely, out of this ample power Congress cannot hesitate in requiring justice to the wards and allies of the Republic through whom the Rebellion was crushed, especially when without justice to them security in the future is nothing but a mockery and a phantasmagoria.

* * * * *

3. From these sources of power I pass to that other found in _the constitutional obligation to guaranty to every State of the Union a republican form of government_. Here is the text:--

“The United States shall guaranty to every State in this Union
a republican form of government.”

This obligation is peremptory, and not discretionary. It is _shall_, and not _may_. The United States _must_ do it. Of course, in executing the guaranty, you must affix a meaning to the term “republican form of government.” To do this I have in this debate endeavored to show the essential principles our fathers had at heart when they founded the Republic. I shall not weary you again with the historic statement. It is enough, if I present the conclusion. According to the Fathers, all men are equal in rights, and, as corollaries from this truth, all just government is founded on the consent of the governed, and taxation without representation is tyranny. Such was their idea of a republican government.

It is idle to allege against this definition, that there were property “qualifications” in most of the States, by which the number of voters was essentially limited. This is true. But it must not be forgotten that a property “qualification,” unless unreasonably large, is not a disfranchisement. It is a condition, sometimes onerous, but not in its nature insurmountable, as the condition of color, and it is equally applicable to all. And yet it is apparent, from the recorded opinions of the Fathers, that even this “qualification” was regarded as inconsistent with the genius of republican institutions.

It is idle also to allege against this definition the toleration of Slavery. This was sad enough; but the Fathers who tolerated Slavery regarded it as absolutely exceptional. According to the definition of a slave, he has no will of his own, and can give no “consent” to government. Therefore he was not considered as belonging to the “body politic.” But not being represented, he was not taxed, except as property. Indeed, a careful examination of his relations to the government shows how completely in his case the rights of “the people” are left untouched. He was not regarded as one of “the people,” and therefore was not under the safeguard of the rights of “the people.” But all this was changed when he became a freeman. He was then one of “the people,” whose property could not be taken by taxation without representation, and whose consent was essential to government. The difference was not between whites and blacks, but between slaves and freemen. All freemen, without distinction of color, were citizens. Listen, if you please, to the “Federalist,” in an article attributed to each of the three eminent authors of that collection, and which the Senator from Maryland [Mr. JOHNSON] assumed was by Madison, but which is claimed for Hamilton, in the last edition of the “Federalist,” by his son. I quote a second time the important words:--

“It is only under the pretext that the laws have transformed
the negroes into subjects of property, that a place is denied
to them in the computation of numbers; AND IT IS ADMITTED,
THAT, IF THE LAWS WERE TO RESTORE THE RIGHTS WHICH HAVE BEEN
TAKEN AWAY, THE NEGROES COULD NO LONGER BE REFUSED AN EQUAL
SHARE OF REPRESENTATION WITH THE OTHER INHABITANTS.”[261]

Such is the exposition of the actual Constitution by Hamilton. According to him, “If the laws were to restore the rights which have been taken away, _the negroes could no longer be refused an equal share of representation_ with the other inhabitants.” But this very hour has sounded. The laws have restored the rights which had been taken away, and it is now your duty to see that the people who have regained their rights are no longer refused an equal share of representation. The opinion of Hamilton on this vital question is still further attested by his saying that the liberty for which our fathers fought was the right of “each individual” to “a share in the government”;[262] that “the electors are to be _the great body of the people_ of the United States”;[263] and still further, by the proposition in his Plan of a Constitution:--

“Representatives shall be chosen, except in the first instance,
by _the free male citizens and inhabitants_ of the several
States comprehended in the Union, all of whom, of the age of
twenty-one years and upwards, _shall be entitled to an equal
vote_.”[264]

In this proposition, which, though not adopted in terms, may be regarded as the pole-star of our fathers, the distinguished author followed the Continental Congress, which recommended the apportionment of the war expenses among the “free citizens and inhabitants,” without distinction of color.[265]

This rule is in entire conformity with that matured by ancient experience, especially in Greece, where, according to the universal master, Aristotle,--

“The whole body of the inhabitants of a country enjoying the
protection of its laws, including the young who are still under
the legal age, and the very old who have passed the time of
action, and all others under any other species of disability,
are in a certain wide and general sense citizens; but the full
and complete definition of a _citizen_ is confined to those who
participate in the governing power.”[266]

Proving, as I have, that colored persons are citizens, this very definition teaches that they cannot be refused participation in the governing power.

The historian Thirlwall, in his studies of Greek polity, recognized this rule, when he wrote:--

“But a finished democracy, that which fully satisfied the Greek
notion, was one in which every attribute of sovereignty might
be shared, without respect to rank or property, by _every
freeman_.”[267]

In recognizing the right of “every freeman” to the full enjoyment of the elective franchise, our fathers followed the early example.

Curiously enough, we find confirmation of the true principle, where you would little expect it, in that very Dred Scott decision which undertook to blast a race. Chief Justice Taney on that occasion laid down a rule which at this moment is applicable to every “citizen,” without distinction of color:--

“The words, ‘people of the United States’ and ‘citizens’
are synonymous terms, and mean the same thing. They both
describe the political body, who, according to our republican
institutions, form the sovereignty, and who hold the power and
conduct the government through their representatives. They are
what we familiarly call the ‘sovereign people’; _and every
citizen is one of this people, and a constituent member of this
sovereignty_.”[268]

This is strong enough; but Mr. Justice Daniel is still more precise:--

“There is not, it is believed, to be found in the theories of
writers on Government, or in any actual experiment heretofore
tried, an exposition of the term _citizen_, which has not been
understood as conferring _the actual possession and enjoyment,
or the perfect right of acquisition and enjoyment, of an entire
equality of privileges, civil and political_.”[269]

Thus does that terrible judgment, once a ban to the colored race, now testify to their indisputable rights as “citizens.”

Therefore I cannot hesitate to say, that, when the slaves of our country became “citizens,” they took their place in the “body politic” as a component part of the “people,” entitled to equal rights, and under protection of two guardian principles,--first, that all just government stands on the consent of the governed, and, secondly, that taxation without representation is tyranny; and these rights it is the duty of Congress to guaranty as essential to the idea of a republic. The aspiration of Abraham Lincoln, in his marvellous utterance at Gettysburg, was, that “government of the people, by the people, and for the people should not perish from the earth.” But who will venture to exclude from the “people” millions of citizens?

If governments in the Rebel States are brought to this criterion, they must fail. The departure from the true standard is not merely theoretical, as it might be regarded in States where the disfranchised are few in number, but there is an absolute failure to come within the conditions required. It is not decent to call a State republican, where more than a majority of its “people,” constituting the larger part of the “body politic,” is permanently disfranchised; nor is it decent to call a State republican, where any considerable portion of the “people,” constituting an essential part of the “body politic,” is permanently disfranchised. If in times past such a State could have been treated as republican, it will not do to treat it so now. It lacks the vital elements, and must be treated accordingly. I do not dwell on this point, for it seems absurd to call it in question.

Clearly it is your duty to enforce the guaranty. By your oaths to support the Constitution, you must take care that in all the States where governments have lapsed this guaranty shall be carried out. In performance of this duty you may proceed either by an _enabling act_, establishing in advance the conditions of restoration to “practical relation with the Union,” or by an act directly annulling all constitutions and laws inconsistent with a republican government. The power is in Congress. It has been recognized in formal terms by the Supreme Court; and you are the final judge of the “means” to be employed. To say that you have not the power is to abdicate at a great exigency and renounce the very means of salvation. It is to fling away your arms in the very face of the enemy. It is to spike the Constitution at a moment when its full cannonade is needed for the overthrow of wrong. Clearly the power is yours, and upon your heads will be the fearful responsibility, if you fail to exercise it.

* * * * *

4. From this power in the Constitution I pass to another, also in the Constitution, supplied by the _second clause of the Constitutional Amendment_. It is there provided that Congress shall “enforce” the abolition of Slavery by “appropriate legislation.” Here, according to all rules of interpretation and the judgments of the Supreme Court, Congress is empowered to do what in its discretion seems best to this end. It may adopt any “means” which seem “appropriate.” It may select any weapon in the arsenal. I do not stop to cite judgments of the Court, or to dwell on this power. The case is clear, and I challenge contradiction. As the grant is recent, it is not open to any suggestion of loss or waiver by desuetude or non-user. It is fresh as the abolition of Slavery itself, and at this moment is just as vital. You may as well deny the one as the other.

Here, even at the cost of repetition, allow me to remind you that already, during the present session, the Senate, in pursuance of this power, has undertaken to pass “a bill to _protect all persons in the United States in their civil rights_, and furnish the means of their vindication.” The declared object of the bill, in its very title, is the protection of all persons in the United States in their civil rights; and this object is carried out by the following provision:--

“There shall be no discrimination in civil rights or immunities
among the inhabitants of _any State or Territory of the United
States_ on account of race, color, or previous condition of
slavery.”

The bill proceeds to provide machinery and penalties for the enforcement of this prohibition. Mark, if you please, that this is not merely in the Rebel States, nor even in the States where Slavery was recently abolished, but everywhere throughout the United States. All this is done by virtue of that very clause of the Constitutional Amendment which I adduce. It is done by Congress, in the exercise of its discretion, in order to “enforce” the abolition of Slavery. It is the “means” which Congress adopts. It is the weapon which Congress selects from the arsenal. But surely, if Congress, in order to “enforce” the abolition of Slavery, can secure all persons throughout the United States in _civil rights_, it can, out of the same abundant power, secure all persons throughout the United States in _political rights_; and this is precisely what is proposed by the bill of the Senator from Illinois. My own proposition, as I now present it, aims for the present at securing _political rights_ throughout the Rebel States; but the irresistible argument is the same in each case. Each is to “enforce” the abolition of Slavery.

I do not stop to exhibit the elective franchise as essential to the security of the freedman, without which he will be the prey of Slavery in some new form, and cannot rise to the stature of manhood. In opening this debate I presented the argument fully. Suffice it to say, that Emancipation will fail in beneficence, if you do not assure to the former slave all the rights of the citizen. Until you do this, your work will be only _half done_, and the freedman only _half a man_.

* * * * *

Such, Sir, are four sources of power,--each ample: first, the necessity of the case, as with Territories, where there is no other jurisdiction; secondly, the rights of war, under which all needful safeguards for the future may be required; thirdly, the duty to guaranty to every State in the Union a republican form of government; and, fourthly, the authority to “enforce” the abolition of Slavery by “appropriate legislation.” Out of each and all Congress may derive its power. It only remains that it should act as becomes the representatives of the American people.

* * * * *

Mr. President, as I am about to close, allow me to remind you once more, that, from the nature of the case and from the character of your obligations, the work of Emancipation must be completed by the National Government. It cannot be left to become the sport of sectional prejudice or wayward passion. It began with you, and it is for you to give it that final assurance to be found only in Enfranchisement. It is for you to “maintain” the former slave in the liberty he received at your hands. Such a duty cannot be renounced or delegated. It must be sacredly performed by the National Government, according to its original pledge in the Proclamation of Emancipation, and according to all the suggestions of reason. Humanity, too, joins in the cry. You cannot consent that the child Emancipation, born of your breath, shall be surrendered to the custody of enemies. Take it in your arms, I entreat you, and nurse it into strength. Be instructed by the examples of history, teaching that the masters of slaves cannot be trusted to legislate for them,--a conclusion announced by the best English statesmen, speaking from their experience, in words which I have often quoted. I refer to the concurring voice of Edmund Burke, George Canning, and Henry Brougham. Thus, by testimony as well as by reason, in harmony with the national pledge, we are admonished that the work must be done by the Nation.

Do not say that you have not the power, when the will only is needed. It is the part of a good judge to amplify his jurisdiction: _Boni judicis est ampliare jurisdictionem_. Such is an approved maxim of law, handed down from early days. Kindred in character are other maxims, which enjoin the duty of inclining always in favor of Liberty, to the extent of catching at anything, even a twine thread, by which to save it. But on this occasion the good Congress need not amplify its jurisdiction. Enough, if it enforces what plainly exists. It need not catch at any twine thread to save Liberty. The great cables of the Constitution, with mighty anchors, are at command.

Sir, the freedman must be protected, and not sacrificed. You can do it, but only in one way. Paper will not do it. Parchment will not do it. Compromise will not do it. Give him the strength which comes from the fulness of citizenship, and he will then be protected. Only principles can be followed. They are like Divine promises, which, when properly understood and applied, answer every case of difficulty or distress, and, as in the Pilgrim’s Progress, “will open any lock in Doubting Castle.” Have faith. Before the earnest man difficulties disappear. To the boatman who said it was impossible to brave the storm then raging, William Tell, inspired by patriotic purpose, replied, “I know not whether it be possible, but I know that it must be attempted,”--and the deliverer reached his destination. The same courage is needed now. The attempt at least must be made; and who can say that it will fail? On its side will be Providence, the prayers of good men, Nature in her manifold attributes, and the awakened judgment of the civilized world. The time has gone by, when the spirit of caste can continue to bear sway. See to it, Senators, that this spirit has no foothold in the Constitution of our country. To this duty I summon you now, by every obligation of statesmanship, for the sake of the Republic and for your own sakes. To the spirit of caste answer back in the spirit of that Christian truth which you have been taught. Recall the precious words of the early English writer, who, describing “the Good Sea-Captain,” tells us that he “counts the image of God nevertheless His image, cut in ebony, as if done in ivory.”[270] The good statesman must be like the good sea-captain. His ship is the State, which he keeps safe on its track. He, too, must see the image of God in all his fellow-men, and, in the discharge of his responsible duties, must set his face forever against any recognition of inequality in human rights. Other things you may do; but this you must not do.

OPPOSITE SIDES ON THE MEANING OF THE PROPOSED CONSTITUTIONAL AMENDMENT.

FINAL SPEECH IN THE SENATE ON THIS AMENDMENT, MARCH 9, 1866.

When Mr. Fessenden sat down, after his closing speech, Mr.
Sumner took the floor and made the following remarks.

MR. PRESIDENT,--Allow me to remind you of that famous shield suspended in the highway, and so often adduced as a lesson of candor. Two travellers approaching from opposite quarters, and standing face to face, read the inscription as each saw it. Straightway there was difference and contest. Each insisted; but closer observation showed that the two sides were different. So it is on the present occasion. The measure before the Senate has two sides. The Senator from Maine [Mr. FESSENDEN], as he approaches it, sees only the side which limits the representation. As I approach it, I see the recognition of a caste and the disfranchisement of a race. He defends it; I condemn it. But he defends only what he sees; I condemn only what I see. It is the misfortune of the measure that it has two sides with two opposite inscriptions. This is especially unhappy at this moment, when we are bound to be frank and loyal, and to do nothing which may be interpreted in a double sense. Above all should this be the case with regard to an Amendment of the Constitution. But the present proposition does not fall within these conditions. It is enough that there are at this moment two opposite opinions with regard to its meaning.

Now, Sir, it will not be denied that there are opposite opinions on its meaning. The Senator from Maine affixes one meaning; I affix another. The Senator sees nothing bad; I see nothing good,--or rather, all that it proposes is absorbed, merged, and lost in the evil. Against it I am earnest, and I speak so. For those from whom I differ I have nothing but personal kindness; but I must condemn the text they seek to inject into the Constitution. What is debate? It is the expression of opinions, conclusions, and convictions. These must be expressed fully, freely, and according to the conscience of the speaker. If a measure is deemed bad, unjust, scandalous, founded in wrong principles, and calculated to produce infinite mischief, all this must be said; and it must be said with plainness, according to the nature of the exigency. To this end language is given. The measure must be exposed. There are no terms to be spared which may be needed in this exposition, whether to reach the judgment or the feelings. Of course, on this occasion I see only the subject. The Senator reminds you of the friends whose votes I arraign,--cherished colleagues in both Houses, valued associates in political opinion, and two thirds of the House of Representatives. All this increases my sorrow. It gives me a pang; but it cannot make me change convictions springing from the very depths of conscience,--nor my course.

But I am not alone in my interpretation. Only the other day I presented the petition of the editor of the Boston “Recorder,” in which he was moved to protest against it in strongest terms, inasmuch as it disfranchised a race and offended against the Declaration of Independence. I have here papers and testimonies showing how extensively this interpretation prevails. Here, for instance, is a communication from an honored citizen of New York, once a member of the other House, one of the Old Guard of Abolitionists, who, from the first gun at Fort Sumter, has seen our duties with a sensitive conscience and a patriotic soul: I mean Gerrit Smith. Mark, if you please, that I cite his words simply as showing how an ingenuous nature is touched by this attempt.

“I see that the House of Representatives approves, and by a
very strong vote, the proposed Apportionment Amendment of
the Constitution. I see, too, that nearly all the members
who are the most radical friends of Freedom are included in
this vote, and that there is, therefore, no room in the case
for questioning motives. Freedom may, however, be wounded
unwittingly. Nay, she may be wounded even in the house of her
friends. Such is her fate in the present instance. And no
less deep and dangerous is the wound, but, on the contrary,
all the deeper and more dangerous, because inflicted by hands
which aimed not to harm, but to help her. Moreover, though
it is always consoling to be able to trace an error to the
understanding, the error may, nevertheless, be quite as
pernicious as if the heart were involved in it.

…

“A disgraceful, if not indeed fatal, blot upon the Constitution
and country will be this one. Disgraceful is it to a government
to license the gambling-house, even though it be on the
condition of being paid for the license. Disgraceful to it to
license the brothel or the dram-shop, even though on such
condition. But how emphatically disgraceful for a government
to license Slavery, that crime of crimes, even though the
consideration in return for the license be very great, and the
pay very tempting! This, however, is the deep disgrace with
which the Apportionment Amendment threatens the Constitution
and the country.… It is true that Slavery is not literally in
the Amendment. It is true, too, that proscription from the
ballot-box does not always mean Slavery. But it is also true,
that, where such proscription is of one race by another, there
is an instance where the proscribed are enslaved. The power,
therefore, which this Amendment will give the Southern whites
to withhold the ballot from the Southern blacks will be the
power to enslave them. If they shall withhold from them the
ballot, they will also withhold from them freedom.

…

“I notice that a common excuse among the friends of Freedom
for favoring this Apportionment Amendment is, that we can get
nothing better. I know not how that may be; but I do know that
we can get nothing much worse, and that it would be far better
to get nothing than to get this.”

I have also presented the petition of George T. Downing, Frederick Douglass, and others, representing the colored race in Washington, in which they give their opinions. Protesting against this proposition, as authorizing disfranchisement on account of race or color, they pray Congress

“To favor no Amendment of the Constitution of the United States
which will grant or allow any one or all of the States of this
Union to disfranchise any class of citizens on the ground of
race or color.”

They then proceed:--

“In the Constitution, as it now stands, there is not a sentence
nor syllable conveying any shadow of right or authority by
which any State may make color or race a disqualification for
the exercise of the right of suffrage, and the undersigned
will regard as a real calamity the introduction of any words
expressly or by implication giving any State or States such
power; and we respectfully submit, that, if the Amendment now
pending shall be adopted, it will enable any State to deprive
any class of citizens of the elective franchise.”

Such is the testimony of these very intelligent representatives of colored fellow-citizens. They speak with peculiar authority, from the interest they necessarily have in the question. They speak for the freedmen.

* * * * *

Mr. President, I do not wish to argue the main question again. I have said enough,--the Senator has reminded you several times how much. I am sorry to have trespassed so often and so long. I will not trespass now. Of course, there is a radical difference between the Senator and myself. We see opposite things, when we look at this proposition; and permit me to say, we see opposite things, when we look at the Constitution itself. I cannot see as he sees. I do not believe, that, under the Constitution, even as it exists, the disfranchisement of a considerable portion of fellow-citizens is consistent with a republican government. Still further, I do not believe that “color” can be a “qualification” for an elector. He does. And here is a point of divergence which carries us far apart. He consents willingly to this fatal text. I cannot.

I have listened to all that has been said. But the proposition is to me as obnoxious as ever. I cannot see it otherwise. Feeling that caste and disfranchisement on account of color are utterly irreligious, unrepublican, and scandalous, you must pardon me, if I strive to prevent their introduction into the Constitution of my country, especially at a moment when we are under such obligations of gratitude to these outcasts, and when injustice to them is so full of peril to the Republic. I have spoken strongly; you will pardon it to the ardor of my nature and to the strength of my convictions. I have fought a long battle with Slavery, and I confess solicitude, when I see anything looking like concession to this wrong. It is not enough to show me that a measure is expedient; you must show me also that it is right. Ah, Sir, can anything be expedient which is not right? From the beginning of our history, the country has been afflicted with compromise. It is by compromise that human rights have been abandoned. I insist that this shall cease. After all its trials, the country needs repose,--it deserves repose; but repose can be found only in everlasting principles. It cannot be found by inserting in your Constitution the disfranchisement of a race.

This proposition can be fully appreciated in its “bad eminence” only when it is considered as the offering of Congress at this time for the protection of fellow-citizens to whom we are under obligations of gratitude. This is our panacea, our balm of Gilead. This is what we are to do. And the Senate is warned not to give the protection found in the elective franchise, either by Constitutional Amendment or by Act of Congress,--that such a Constitutional Amendment would not be adopted by the people, and therefore we ought not to present it,--and that Congress has not the power to establish equality in political rights. Sir, I do not despair of the Republic,--I will not, I cannot. But, if ever I were disposed to despair, it would be when listening to such arguments and excuses. The people are in advance, and will sustain us, if we are courageous. They will adopt any Constitutional Amendment that ought to be adopted. They will adopt anything that is true, just, and noble, for the protection of benefactors, and to carry out the principles of our Government; they will sustain any legislation having such object. This is what they expect. It is what the freedmen expect. It is what the Unionists of the South expect. Not willingly will they be surrendered to the tender mercies of Rebels. They ask Congress to protect them; and they see that this can be only by giving the ballot to the freedmen. I have in my hand a letter from one Southern Unionist addressed to another, and received only yesterday, dated February 25th, and written in the very heart of Alabama, which thus speaks of this very question:--

“All men of common sense must now see that there can now be
no loyal civil governments in these States, if the negroes
are not permitted to neutralize with their votes the votes of
Rebels. On this account I do hope the joint resolution recently
introduced in the Senate by Mr. Sumner will prevail. Whatever
may have been our former notions in regard to the negro, it is
now very evident that practically they are better citizens than
the majority of whites, in some portion of the Rebel States.
The Declaration of Independence is the true and just basis upon
which these State governments must be founded.”

Such is the voice of a Unionist of Alabama. He looks to Congress. God forbid that Congress should abdicate its beneficent powers! They are all needed for the safety and welfare of the Republic. I cannot, I dare not, help in any such abdication.

The history of the debate and its result appear in the Appendix
to the Speech of February 5th and 6th.[271]

NO MORE STATES WITH THE WORD “WHITE” IN THE STATE CONSTITUTION.

SPEECHES IN THE SENATE, ON THE BILL FOR THE ADMISSION OF THE STATE OF COLORADO INTO THE UNION, MARCH 12 AND 13, APRIL 17, 19, AND 24, AND MAY 21, 1866.

March 12th, in the Senate, the bill for the admission of the
State of Colorado was taken up for consideration, when Mr.
Sumner commenced an opposition, in which he persevered. The
question was, in his judgment, of peculiar importance, as
involving the true principle of Reconstruction; so that, while
insisting upon equal rights in Colorado, he was contributing to
the same cause.

In a speech of some length he set forth “three distinct
objections at this moment to the admission of Colorado as
a State,” which he considered in their order: first, the
irregularity of the proceedings, ending in the seeming adoption
of the Constitution; secondly, the smallness of the population;
and, thirdly, that its Constitution was not republican in form,
and consistent with the Declaration of Independence, according
to the requirement of the Enabling Act. In the course of his
remarks on the two latter heads, he said:--

I have here a table of the total vote at the elections in different years. In August, 1861, it was 10,580; in December, 1861, 9,354; in October, 1862, 8,224; in September, 1864, 5,769; in September, 1865, 5,895: so that you will perceive from 1861 to 1865 the vote constantly diminishing, being at the beginning upward of 10,000, and at the end less than 6,000. And when the Constitution was submitted, only 3,025 voted for it, while 2,870 voted against it. The present question is, whether 5,895 voters shall be invested with the powers of a State; whether they shall send into this Chamber two Senators, whose votes shall be equal to the vote of New York, of Pennsylvania, of Ohio, or of Massachusetts. Is that just? Is it fair? When a State is once admitted into the Union, we all know, that, under the National Constitution, it is on a footing of perfect equality; therefore, in advance, before we receive a State into that high equality, we should well consider whether it is in its population entitled to such eminence.

It is no answer to say that Pennsylvania, New York, Ohio, and Massachusetts have large political weight in the other House, which this new State, if received, will not have. The question is, whether in the Senate it will not have a weight to which such a number of voters cannot be justly entitled. This leads me to consider for one moment the functions of the Senate. The Senate of the United States is a peculiar body, utterly without precedent or parallel in the history of any other constitutional government, differing from the upper House of the English Parliament, from the upper House of the French Chambers, from the upper House in Prussia, from the upper House in Italy, inasmuch as it has three functions,--one legislative, one diplomatic, and one executive. By its legislative function, it acts, in coöperation with the other House, in the making of laws; by its diplomatic function, it acts, without coöperation with the other House, on treaties with foreign powers; and by its executive function, it acts, without the other House, on the nominations of the President. A preponderance of power possessed by the larger States in the House of Representatives cannot affect the last two functions, the diplomatic and the executive; and the precise question is, whether a few voters, not numbering six thousand, in a distant Territory, shall be organized so as to enter this Chamber, and on questions of diplomacy and on executive questions to neutralize the vote of a large State. Even conceding that on legislative questions, through the preponderance of the large States in the other House, there may be a certain remedy to this disorder, there is no such remedy in the exercise of these two other important functions of the Senate. I submit, therefore, that it is not advisable at this moment to invest this small number of voters with these vast political powers. They must wait a little longer,--wait until they are more numerous,--at least until entitled to one Representative in the other House. At the proper time we shall gladly welcome them; but the time has not come.

* * * * *

There is another objection, which stands forth on the face of their constitution. It is not republican in form, or in harmony with the Declaration of Independence. The requirement of the Enabling Act, under which they pretend to proceed, but which, as I have shown, was already exhausted before they entered upon these proceedings, has these words:--

“That the Constitution, when formed, shall be republican, and
not repugnant to the Constitution of the United States and the
principles of the Declaration of Independence.”[272]

Look now at this Constitution. Article III., entitled “Suffrage and Elections,” begins as follows:--

“SECTION 1. Every _white male citizen_ of the age of
twenty-one years and upwards, who is by birth, or has become
by naturalization or by treaty, or shall have declared his
intention to become, a citizen of the United States according
to the laws thereof, and who shall have resided in the State
of Colorado for six months preceding any election, and shall
have been a resident for ten days of the precinct or election
district where he offers to vote, shall be deemed a qualified
elector, and entitled to vote at the same.”

Note well the text, “every white male citizen”: in other words, nobody who is not “white,” under this constitution, is recognized as entitled to the elective franchise. Now, Sir, I insist--and I here challenge reply from any Senator on this floor--that such a constitution does not comply with the requirement of the Enabling Act, that it is not republican, and that it is repugnant to the principles of the Declaration of Independence. I say that it is not republican; for the first principle of republican government is equality. Let that be denied, and you fail in republican government.

MR. MCDOUGALL [of California]. In what age of the world was
there a republic where there was equality? Please answer me
that.… I would like to have the single instance where it
existed in ancient times, in the middle ages, or in the modern
ages.

MR. SUMNER. Speaking on that subject lately, I took occasion to show that there was no such case. The Senator is nearly right. There had been no such case. It was for our fathers, it was left to them, when they undertook to constitute a new government, to declare equality the essential and cardinal principle of a republic. My answer is precise: there had been no such case. But the true idea of a republican government began with our fathers, and its definition is found in their Declaration of Independence. Were they not sufficiently explicit? Is their language vague? Call it “a glittering generality,”--but there it is, in immortal text, whose truth will be recognized more and more as time advances. You may not recognize it now, but others after you will do it reverence.