Chapter VI: Section 2: Debts and liabilities incurred in aid of rebellion are (2)

It is sometimes asserted that the National Constitution expressly reserves to the States the power of determining who shall vote, because it declares that “the electors in each State shall have the _qualifications_ requisite for electors of the most numerous branch of the State Legislature.” But this assumption proceeds on the fatal error, that, at any time under the Constitution, which makes no distinction of color, there can be any such oligarchical distinction as a “qualification” founded on color. Even assuming that in a period of peace this might be done, yet, beyond all doubt, at the present moment, from the necessity of the case, from the Rights of War, from the Constitutional clause of guaranty, and from the Constitutional Amendment, Congress, by its quadruple powers, is completely authorized to do all it thinks best for the national security and the national faith in the Rebel States. As well question Farragut in the maintop of his steamer, Sherman in his march across Georgia, or Grant in the field before Richmond, as question the authority of Congress in the present crisis. But, if the authority exists, it must be exercised.

II.

And this brings me to the next form of this necessity and duty, as they appear in the guaranty clause of the Constitution. It is expressly declared that “the United States shall guaranty to every State in this Union a republican form of government.” These words, when properly understood, leave no alternative. They speak to us with no uncertain voice. But they must be understood. The Rebel States, while providing constitutional safeguards for property in man, and, according to the vaunt of their Vice-President, making Slavery the corner-stone of the new Government, yet follow our Constitution in the formal guaranty of a republican form of government.[46] Defiantly they assume that Slavery is not inconsistent with such a government. To this degrading assumption we must reply, not only for the national cause, but that republican governments may not suffer.

The magnitude of the question before us is seen in the postulate with which I begin. Assuming that there has been a lapse of government in any State, so as to impose upon the United States the duty of executing this guaranty, then do I insist that it is a bounden duty to see that such State has a “republican form of government,” and, in the discharge of this bounden duty, we must declare that a State, which, in the foundation of its government, sets aside “the consent of the governed,” which imposes taxation without representation, which discards the principle of Equal Rights, and lodges power exclusively with an Oligarchy, Aristocracy, Caste, or Monopoly, cannot be recognized as a “republican form of government,” according to the requirement of American institutions. Even if it may satisfy some definition handed down from antiquity or invented in monarchical Europe, it cannot satisfy the solemn injunction of our Constitution. For this question I now ask a hearing. Nothing in the present debate can equal it in importance. Its correct determination will be an epoch for our country and for mankind.

Believe me, Sir, this is no question of theory or abstraction. It is a practical question, which you are summoned to decide. Here is the positive text of the Constitution, and you must affix its meaning. You cannot evade it, you cannot forget it, without abandonment of duty. Others in vision or aspiration have dwelt on the idea of a Republic, and they have been lifted in soul. You must consider it not merely in vision or aspiration, but practically, as legislators, seeking a precise definition, to the end that the constitutional “guaranty” may be performed. Your powers and duties are involved in this definition. The character of the Government founded by our fathers is also involved in it.

There is another consideration not to be forgotten. In affixing the proper meaning to the text, and determining what is a “republican form of government,” you act as a court in the last resort, from which there is no appeal. You are sole and exclusive judges. You may decide as you please. Rarely in history has such an opportunity been offered to the statesman. You may raise the name of Republic to majestic heights of justice and truth, or you may let it drag low down in the depths of wrong and falsehood. You may make it fulfil the idea of John Milton, when he said that “a commonwealth ought to be but as one huge Christian personage, one mighty growth and stature of an honest man, as big and compact in virtue as in body”;[47] or you may let it shrink into the ignoble form of a pretender, with the name of Republic, but without its soul.

Before considering this vital question, it is proper to regard the origin of this “guaranty,” and see how it obtained place in the Constitution. Perhaps there was no clause more cordially welcomed; nor does it appear that it was subjected to any serious criticism in the National Convention or in any State Convention. It is not found in the Articles of Confederation; but we learn from the “Federalist”[48] that the want of this provision was felt as a capital defect in the plan of the Confederation. Mr. Madison, in a private record, made in advance of the National Convention, and which has only recently seen the light, enumerates among defects of the Confederation what he calls “want of guaranty to the States of their Constitutions and laws _against internal violence_”; and he then proceeds to anticipate danger from Slavery, which could be counteracted only by such “guaranty.” Showing why this was needed, he says, that, “according to _republican theory_, right and power, being both vested in the majority, are held to be synonymous; according to fact and experience, a minority may, in an appeal to force, be an overmatch for the majority”; and he remarks, in words which furnish a key to the “guaranty” afterwards adopted, “Where Slavery exists, the _republican theory_ becomes still more fallacious,”--thus showing, that, at its very origin, it was regarded as a check upon Slavery.[49]

Hamilton was not less positive than Madison. In his sketch of a Constitution, communicated to Madison, and preserved by him,[50] this “guaranty” is found; and in the elaborate brief of his argument on the Constitution, it is specified as one of its “miscellaneous advantages.” The last words of this remarkable paper are “guaranty of republican governments.”[51] Randolph, of Virginia, in his sketch of a Constitution, proposed the “guaranty,” and, in a speech setting forth the evils of the old system, he said of the remedy, that “the basis must be the _republican principle_.”[52] Colonel Mason, of Virginia, taking up the same strain, said, that, though the people might be unsettled on some points, they were settled as to others, among which he put foremost “an attachment to _republican government_.”[53]

The proposition in its earliest form was, “that a republican government, and the territory of each State, except in the instance of a voluntary junction of government and territory, ought to be guarantied by the United States to each State.”[54] This was afterward altered so as to read, “that a republican Constitution and its existing laws ought to be guarantied to each State by the United States.” Gouverneur Morris thought that the proposition in this form was “very objectionable,” and he added, that “he should be very unwilling that such laws as exist in Rhode Island should be guarantied.” On discussion, it was amended, at the motion of Mr. Wilson, the learned and philosophical delegate from Pennsylvania, afterward of the Supreme Court of the United States, so as to read, “that _a republican form of government_ shall be guarantied to each State, and that each State shall be protected against foreign and domestic violence,” and in this form it was unanimously adopted.[55] Afterward it underwent modification in the Convention and in the Committees of Detail and Revision, until it received the final form it now has in the Constitution:[56]--

“_The United States shall guaranty to every State in this Union
a republican form of government_, and shall protect each of
them against invasion, and, on application of the Legislature,
or of the Executive, when the Legislature cannot be convened,
against domestic violence.”

Thus stands the “guaranty.” If further reason be required for its introduction into the Constitution, it will be found in the prophetic language of the “Federalist”:--

“It may possibly be asked, what need there could be of such
a precaution, and whether it may not become a pretext for
alterations in the State governments without the concurrence of
the States themselves. These questions admit of ready answers.
If the interposition of the General Government should not be
needed, the provision for such an event will be a harmless
superfluity only in the Constitution. _But who can say what
experiments may be produced by the caprice of particular
States, by the ambition of enterprising leaders, or by the
intrigues and influence of foreign powers?_”[57]

The very crisis anticipated has arrived. “The caprice of particular States,” and “the ambition of enterprising leaders” have done their worst. And now the “guaranty” must be performed, not only for the sake of individual States, but for the sake of the Union to which they all belong, and to advance the declared objects of the Constitution, specified in its preamble.

The text of this great contract is worthy of study. No stronger or more comprehensive words could be employed, whether we regard the object, the party guarantying, or the party guarantied. The express object is “a republican form of government.” This is plain. The party guarantying is not merely the Executive or some specified branch of the National Government, but “the United States,” or, in other words, the Nation. The Republic, which is the impersonation of all, guaranties “a republican form of government”; and every branch of the National Government must sustain the guaranty, including especially Congress, where is the collected will of the people. The obligation is not less broad, when we consider the party guarantied. Here there can be no evasion. The guaranty is not merely for the advantage of individual States, but for the common defence and the general welfare. It is a guaranty to each in the interest of all, and therefore a guaranty to all. And such is the solidarity of States in the Union, that the good of all is involved in the good of each. For each and all, then, this guaranty must be performed, when the _casus fœderis_ arrives. As guarantor, the Republic, according to a familiar principle, is to act on default of the party guarantied; and then the duty is fixed in all its amplitude.

The testimony is complete. This clause was no hasty or accidental amendment, creeping into the Constitution by stealth or compromise, obscure in language and open to various interpretation, but a solemn act, couched in few, lucid, unmistakable words; and its precise purpose was just what so plainly appears,--to keep all the States truly “republican,” and make the whole numerous people, in the development of the future, homogeneous and one. By these words the Nation is not only empowered, but commanded, to perform the great guaranty. Power and duty here concur. Mr. Webster was right, when he called this provision “a very stringent article, drawing after it the most important consequences, and all of them good consequences.”[58]

The question, then, returns, What is “a republican form of government,” according to the requirement of the National Constitution? Mark, if you please, that it is not the meaning of this term according to Plato and Cicero, not even according to examples of history, nor according to definitions of monarchical writers or lexicographers,--but what is “a republican form of government” according to the requirements of the National Constitution? Of course these important words were not introduced and unanimously adopted without purpose. They must be interpreted so as to have real meaning. Any interpretation rendering them insignificant must be discarded as irrational and valueless, if not dishonest. They cannot be treated as a phrase only, nor a dead letter, nor an empty figure-head. Nor can they be treated as profession and nothing more, so that the Constitution shall merely _seem_ to be republican, reversing the old injunction, “To be rather than to seem,”--_Esse quam videri_. They must be treated as real. Thus interpreted, they become at once a support of Human Rights and a balance-wheel to our whole political system.

In determining their signification, I begin by putting aside what is vague, unsatisfactory, and inapplicable, in order to bring the inquiry directly to American institutions.

I put aside all illustration derived from the speculations of ancient philosophers, because, on careful examination, it appears that the term “Republic,” as used by them, was so absolutely different from any idea among us as to exclude their definition from the debate. This captivating term is of Roman origin. It is the same as “commonwealth,” and means the public interest. As originally employed, it was not a specific term, describing a particular form of government, but a general term, embracing all governments, whether kingly, aristocratic, democratic, or mixed. Its equivalent in Greece was “polity,” being the general term for all governments. Therefore the definition of a Republic, according to these ancients, is simply the definition of an organized government, whether kingly, aristocratic, democratic, or mixed. Following this definition, the words of the Constitution are only the guaranty of an organized government, without determining its character. This, of course, leaves open the very question under consideration.

While the ancient nomenclature cannot be cited in determining the definition of a Republic, we may be encouraged by it in demanding that all government, whatever name it bears, shall be designed to establish justice and secure the general welfare. Thus, Plato, who commenced these interesting speculations, likens government to a just man, delighting in justice always, however treated by others; and the philosopher insists that every man is a government to himself as every community is a government to itself. His ideal commonwealth appears in a good man, and this analogy testifies to the government he conceived. Aristotle, in a different vein, and with more precision, opens by declaring that “every state is a certain community” or “partnership.”[59] This idea appears again when he says, “Nothing more characterizes a complete citizen than _having a share_ in the judicial and executive part of the government.”[60] In various places he speaks of “the common good” as a special object,--as, “when the One, the Few, or the Many govern for the common good, theirs must be called a good government”[61]; and he defines a democracy as “where the freemen and the poor, being the majority, are masters of the government.”[62] The same ideas find new fervor and expansion, when Cicero says, “A republic is the interest of the people. But by the people I do not mean every assemblage of men, gathered together anyhow, but a body of men associated through agreement in right and community of interest.”[63] And then again, in another place, the Roman philosopher says, “Only in a state where the power of the people is supreme has Liberty any abode, and, _where not equal_, it is not really Liberty.”[64] But all these requirements or aspirations are applicable to any government, of whatever form; and it is well known that Cicero recorded his preference for a government tempered by admixture of the three different kinds; so that we are not advanced in our definition, unless we insist that our Republic should have all the virtues accorded to the ideal commonwealth. And yet there are two principles which all these philosophers teach: the first is justice; and the second is the duty of seeking the general welfare.

I next put aside the examples of history, as absolutely fallacious and inapplicable. In all ages, governments have been called Republics. Tacitus speaks of Rome under the tyranny of the Empire as the Republic; and Marcus Aurelius, while Emperor, pledges himself to the Republic. Indeed, there is hardly a government, from that of the great hunter Nimrod down to insulted and partitioned Poland, which has not been called Republic. In 1773, only a few years before the adoption of the National Constitution, Russia, Austria, and Prussia, after dividing Poland, undertook to establish fundamental laws for this conquered country, where was this declaration:--

“The government of Poland shall be forever free, independent,
_and of a republican form_: the true principle of said
government consisting in the strict execution of its laws, and
the equilibrium of the three estates, namely, the king, the
senate, and the equestrian order.”[65]

But a government thus composed cannot be recognized in this debate as “of a republican form.”

At the adoption of the Constitution, the most competent persons, who disagreed on other things, agreed in discarding these examples. Alexander Hamilton and John Adams met here on common ground. The former, in the Brief of his Argument, exhibits the various forms of government to which the term “Republic” has been applied.

“A Republic, a word used in various senses. Has been applied
to aristocracies and monarchies. (1.) To Rome under the
Kings. (2.) To Sparta, though a Senate for life. (3.) To
Carthage, though the same. (4.) To United Netherlands, though
Stadtholder, hereditary nobles. (5.) To Poland, though
aristocracy and monarchy. (6.) To Great Britain, though
monarchy, &c.”[66]

John Adams, in his Defence of the American Constitutions, written immediately anterior to the National Constitution, concurs with Hamilton.

“But, of all the words in all languages, perhaps there has
been none so much abused in this way as the words _Republic_,
Commonwealth, and Popular State. In the _Rerum-Publicarum
Collectio_, of which there are fifty and odd volumes, and many
of them very incorrect, France, Spain, and Portugal, the four
great Empires, the Babylonian, Persian, Greek, and Roman, and
even the Ottoman, are all denominated Republics.”[67]

In his old age the patriarch expressed himself in the same sense, and with equal force.

“The customary meanings of the words _Republic_ and
_Commonwealth_ have been infinite. They have been applied to
every government under heaven: that of Turkey, and that of
Spain, as well as that of Athens and of Rome, of Geneva and San
Marino.”[68]

And then again he said:--

“In some writing or other of mine, I happened, _currente
calamo_, to drop the phrase, ‘The word _Republic_, as it is
used, may signify anything, everything, or nothing.’ For this
escape I have been pelted, for twenty or thirty years, with as
many stones as ever were thrown at St. Stephen, when St. Paul
held the clothes of the stoners. But the aphorism is literal,
strict, solemn truth. To speak technically, or scientifically,
if you will, there are monarchical, aristocratical, and
democratical republics. The government of Great Britain and
that of Poland are as strictly republics as that of Rhode
Island or Connecticut under their old charters.”[69]

In the latter remark, Mr. Adams simply repeats his treatise, where he calls England and Poland “monarchical or regal _republics_.”[70]

It is plain that our fathers, when they adopted the “guaranty” of “a republican form of government,” intended something certain, or which, if not certain on the face, could be made certain. But this excludes the authority of incongruous and inconsistent examples. They did not use words to signify “anything, everything, or nothing”; nor did they use words which were as applicable to England and Poland as to the United States. Therefore I cannot err in putting aside examples which, however they illustrate republican government in times past, are utterly out of place as a guide to the interpretation of the National Constitution. Something better must be found: nor is it wanting.

I put aside, also, definitions of European writers and lexicographers anterior to the National Constitution; for all these have the vagueness and uncertainty of political truth at that time in Europe. Among these, none is of higher authority than Montesquieu, who brought to political science study, genius, and a liberal spirit. But even this great writer, who profited by all his predecessors, quickens and elevates without furnishing a satisfactory guide. He taught that “Virtue” was the inspiring principle of a republic, and by “virtue” he means the love of country, which, he says, is the love of equality.[71] This is beautiful, and makes Equality a foremost principle; but, with curious inconsistency, he includes “democracy” and “aristocracy” under the term “Republic,”--the former being where the people in mass have the sovereign power, and the latter “where the sovereign power is in the hands of _part of the people_.” When defining “democracy,” he expresses the importance of the suffrage as a fundamental of government, saying, among other things, that it is as important to regulate _by whom_ the suffrage shall be given as in a monarchy to know who is the monarch.[72] But among all these glimpses of truth there is no definition of “a republican form of government” which can help us in interpreting the National Constitution. Surely an aristocracy, “where the sovereign power is in the hands of _part of the people_,” cannot find a just place in our political system. It may be “a republican form of government” according to Montesquieu, but it cannot be according to American institutions.

One of the ablest among the modern predecessors of Montesquieu was John Bodin, also a Frenchman, who wrote nearly two centuries earlier. Like the ancient writers, he uses the term “republic” to embrace monarchy, aristocracy, and democracy, which he calls “three kinds of republics,”--_tria rerumpublicarum genera_. If the republic is in the power of one, _penes unum_, it is a monarchy; if in the power of a few, _penes paucos_, it is an aristocracy; if in the power of all, _penes universos_, it is a democracy. Proceeding further, he says that a democracy is “where all or the major part of all the citizens, _omnes aut major pars omnium civium_, collected together, have the supreme power.”[73] Here the philosopher plainly follows the rule of jurisprudence in regard to corporations; but this definition seems to sanction the exclusion of part of the citizens, less than a majority, while it is inadequate in other respects. It says nothing of equality of rights, or of that great touchstone of the republican idea, the dependence of taxation upon representation.

But in his day the word was general, and not specific, as appears in other instances. The easy-going and very natural Brantôme, a contemporary of Bodin, quotes a book of his day which in its title speaks of “the Republic of France.”[74] This was while the most unrepublican house of Valois ruled. The great Chancellor l’Hospital uses the word in the same sense, when in his famous testament he speaks of yielding to “the necessity of the Republic.”[75] We have also the authority of Henri Martin, in his admirable History of France, who says that the word in Bodin “means only the State in its broad signification.”[76] Plainly, from writers of this period there is little help in the present inquiry.

There are later definitions to be put aside also. Thus, for instance, it is often said that a republic is “a government of laws, and not of men”; and this saying found favor with some among our fathers.[77] Long before, Aristotle had declared that such a government would be the kingdom of God.[78] But this condition, though marking an advanced degree of civilization, and of course essential to a republic, cannot be recognized as decisive. On its face it is vague from comprehensiveness. It is enough to say that it would embrace England, whose government our fathers renounced in order to build a republic. And still further, it would throw its shield over a government which “frameth mischief by a law.” This will not do.

There is also a plausible definition by Millar, the learned author of the work on the British Constitution, who states, hypothetically, that by Republic may be meant “a government in which there is no king or hereditary chief magistrate.”[79] But this, again, must be rejected, as leaving aristocracies and oligarchies in the category of republics.

Sometimes we hear that a government with an elective chief magistrate is a republic. Here, again, nothing is said of aristocracy or oligarchy, which coexist with an elective chief magistrate,--as in Venice, where the elected Doge was surrounded by an oligarchy of nobles, and in Holland, where the elected Stadtholder was a prince surrounded by princes. But there are other instances which make this definition unsatisfactory, if not absurd. The Pope of Rome is an elective chief magistrate; so also is the Grand Lama; but surely the States of the Church are not republican, nor is Thibet.

Rejecting the definition founded on the elective character of the chief magistrate, we must also reject another, founded on “the sovereignty of more than one man.” It has been said positively, by an eminent person who has written much on the subject, that “the strict definition of a republic is that in which the sovereignty resides in more than one man.”[80] But this strict definition embraces aristocracies and oligarchies.

I conclude these rejected specimens with that of Dr. Johnson in his Dictionary, which appeared before American Independence:--

“REPUBLIC. (1.) Commonwealth; state in which the power is
lodged in more than one. (2.) Common interest; the public.”

These definitions are all as little to the purpose as the “vulgar error,” chronicled by Sir Thomas Browne, “that storks are to be found and will only live in republics,”[81]--or the saying of Rousseau, at a later day, that, “were there a nation of gods, it would govern itself democratically,”[82]--or the remark of John Adams, that “all good government is republican.”[83] It is evident that we must turn elsewhere for the illumination we need. If others thus far have failed, it is because they have looked across the sea instead of at home, and have searched foreign history and example instead of simply recognizing the history and example of their own country. They have imported inapplicable and uncertain definitions, forgetting that the Fathers, by positive conduct, by solemn utterances, by declared opinions, and by public acts, all in harmony and constituting one overwhelming testimony, exhibited their idea of a republican government in a way at once applicable and certain. They are the natural interpreters of their own Constitution. Mr. Fox, the eminent English statesman, exclaimed in debate, that, “if, by a peculiar interposition of Divine power, all the wisest men of every age and of every country could be collected into one assembly, he did not believe that their united wisdom would be capable of forming even a tolerable constitution,”[84]--meaning, of course, that a constitution must be derived from habits and convictions, and not from any invention. There is sound sense in the remark; and it is in this spirit that I turn from a discussion having only this value, that it shows how little there is in the past to interpret the meaning of the Fathers.

* * * * *

Every constitution embodies the principles of its framers. It is a transcript of their minds. If its meaning in any place is open to doubt, or if words are used which seem to have no fixed signification, we cannot err in turning to the framers; and their authority increases in proportion to the evidence they have left on the question. By “a republican form of government” our fathers plainly intended a government representing the principles for which they had struggled. Now, if it appears that through years of controversy they insisted on certain principles as vital to free government, even to the extent of encountering the mother country in war,--that afterward, on solemn occasions, they heralded these principles to the world as “self-evident truths,”--that also, in declared opinions, they sustained these principles,--and that in public acts they embodied these principles,--then is it beyond dispute that these principles must have entered into the idea of the government they took pains to place under the guaranty of the nation. But all these things can be shown unanswerably.

In these words of hypothesis I foreshadow the four different heads under which these principles may be seen.

_First_, as asserted by the Fathers throughout the long radical controversy which culminated in war.

_Secondly_, as announced in solemn declarations.

_Thirdly_, as sustained in declared opinions.

_Fourthly_, as embodied in public acts.

* * * * *

1. I begin with _the principles asserted by our fathers throughout the protracted controversy that preceded the Revolution_. If Senators ask why our fathers struggled so long in controversy with the mother country, and then went forth to battle, they will find that it was to establish the very principles for which I now contend. To secure the natural rights of men, and especially to vindicate the controlling maxim that there can be no taxation without representation, they fought with argument and then with arms. Had these been conceded, there would have been no Lexington or Bunker Hill, and the Colonies would have continued yet longer under transatlantic rule. The first object was not independence, but the establishment of these principles; and when at last independence began, it was because these principles could be secured in no other way. Therefore the triumph of independence was the triumph of these principles, which necessarily entered into and became the animating soul of the Republic then and there born. The evidence is complete, and, if I dwell on it with minuteness, it is because of its decisive character.

The great controversy opened with the pretension of Parliament to tax the Colonies, first disclosed to Benjamin Franklin as early as 1754. It was at the time a profound secret; but the patriot philosopher, whose rare intelligence embraced the natural laws of government not less than those of science, in a few masterly sentences exposed the injustice of taxation without representation.[85] For a moment the Ministry shrank back; but at last, when the power of France had been humbled, and the Colonies were no longer needed as allies in war, George Grenville, blind to principle and only seeing an increase of revenue, renewed the irrational claim. The Colonies were to be taxed by the Parliament in which they had no representation. Two millions and a half of people--for such was the population then--were to pay taxes without voice in determining them. The men of that day listened to the tidings with dismay. In this ministerial outrage they saw the overthrow of their liberties, whether founded on natural rights or on the rights of British subjects. In their conclusions they were confirmed by two names of authority in British history, Algernon Sidney and John Locke, each of whom solemnly asserted the liberties now in danger. One had borne his testimony on the scaffold, the other in exile.

Sidney, in his Discourses on Government, did not hesitate to say, that “God leaves to man the choice of forms in government,”--and then again, that “all just magistratical power is from the people.”[86] Such words were calculated to strengthen the sentiment of human freedom. But it was Locke who gave formal expression to the very principles now assailed. In a famous passage of his work on Civil Government, inspired and tempered by his exile in Holland, this eminent Englishman bore his testimony.

“It is true governments cannot be supported without great
charge, and it is fit every one who enjoys his share of the
protection should pay out of his estate his proportion for the
maintenance of it. But still it must be with his own consent,
i. e. the consent of the majority, _giving it either by
themselves or their representatives chosen by them_; 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?”[87]

Here is a plain enunciation of two capital truths: first, that all political society stands only on the consent of the governed; and, secondly, that taxation without representation is an invasion of fundamental right. It was these truths that our fathers embraced in the controversy before them; and these same truths, happily characterized by Hallam as “fertile of great revolutions and perhaps pregnant with more,”[88] are as fertile and as pregnant now as then.

But even this illumination did not begin with these illustrious Englishmen. Two centuries before their testimony, Philippe de Comines, a minister of Louis the Eleventh, in his Memoirs, marking an epoch in historical literature, announced the same principle; so that here France antedates England.

“Is there king or lord on earth who has power, outside his
domain [personal estate], to impose a penny upon his subjects,
_without grant and consent of those who must pay it_, unless by
tyranny or violence?”[89]

That good man, who excelled so much as teacher, and did so much for scholarship and history, Arnold of Rugby, records a conclusion hardly less important than that of his earlier compatriots.

“It seems to be assumed in modern times that the being born of
free parents within the territory of any particular state, and
the paying towards the support of its government, _conveys a
natural claim to the rights of citizenship_.”[90]

Others had said there could be taxation only with the consent of the people taxed. The last authority exhibits citizenship associated with contribution to the support of the government. This same political truth appeared in Virginia as early as 1655-6, where, by solemn enactment, repealing a restriction upon suffrage, it was declared “something hard and unagreeable to reason that any persons shall pay equal taxes and yet have no votes in elections.”[91] And it reappears in the famous Declaration of Rights, adopted unanimously June 12, 1776, which announces that men “cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected.”[92]

Sidney and Locke unquestionably exercised more influence over the popular mind, preceding the Revolution, than any other writers. They were constantly quoted, and their names were held in reverence. But their authority has not ceased. As they spoke to our fathers, they now speak to us: _Sicut patribus, sic nobis_.

The cause of Human Liberty, in this great controversy, found voice in James Otis, a young lawyer of eloquence, learning, and courage, whose early words, like the notes of the morning bugle mingling with the dawn, awakened the whole country. Asked by the merchants of Boston to speak at the bar against Writs of Assistance, issued to enforce ancient Acts of Parliament, he spoke both as lawyer and as patriot, and so doing became a statesman. His speech was the most important, down to that occasion, ever made on this side of the ocean. An earnest contemporary, who was present, says, “No harangue of Demosthenes or Cicero ever had such effects upon this globe as that speech.”[93] It was the harbinger of a new era. For five hours the brilliant orator unfolded the character of these Acts of Parliament; for five hours he held the court-room in rapt and astonished admiration; but his effort ascended into statesmanship, when, after showing that the colonists were without representation in Parliament, he cried out, that, notwithstanding this exclusion, Parliament had undertaken to “impose taxes, and enormous taxes, burdensome taxes, oppressive, ruinous, intolerable taxes”; and then, glowing with generous indignation at this injustice, he launched that thunderbolt of political truth, “Taxation without representation is Tyranny.”[94] From the narrow court-room where he spoke, the thunderbolt passed, smiting and blasting the intolerable pretension. It was the idea of John Locke; but the fervid orator, with tongue of flame, gave to it the intensity of his own genius. He found it in a book of philosophy; but he sent it forth a winged messenger blazing in the sky.

John Adams, then a young man just admitted to the bar, was present at the scene, and he dwells on it often with sympathetic delight. There, in the Old Town-House of Boston, sat the five judges of the Province, with Hutchinson as Chief Justice, in robes of scarlet, cambric bands, and judicial wigs; and there, too, in gowns, bands, and tie-wigs, were the barristers. Conspicuous on the wall were full-length portraits of two British monarchs, Charles the Second and James the Second, while in the corners were the likenesses of Massachusetts Governors. In this presence the great oration was delivered. The patriot lawyer had refused compensation. “In such a cause as this,” said he, “I despise a fee.” He spoke for country and for mankind. Firmly he planted himself on the Rights of Man, which he insisted were, by the everlasting Law of Nature, inherent and inalienable; and these rights, he nobly proclaimed, were common to all, without distinction of color. To suppose them surrendered in any other way than by _equal rules and general consent_ was to suppose men idiot or mad, whose acts are not binding. But he especially flew at two arguments of tyranny: first, that the colonists were “virtually” represented, and, secondly, that there was such a difference between direct and indirect taxation, that, while the former might be questionable, the latter was not. To these two apologies he replied, first, that no such phrase as “virtual representation” was known in Law or Constitution,--that it is altogether subtilty and illusion, wholly unfounded and absurd,--and that we must not be cheated by any such phantom, or other fiction of law or politics, or any monkish trick of deceit and hypocrisy; and then, with the same crushing force, he said, that, in absence of representation, all taxation, whether direct or indirect, whether internal or external, whether on land or trade, was equally obnoxious to the same unhesitating condemnation.[95] The effect was electric. The judges were stunned into silence, and postponed judgment. The people were aroused to a frenzy of patriotism. “American Independence,” says John Adams, in the record of his impressions, “was then and there born; the seeds of patriots and heroes were then and there sown, to defend the vigorous youth. Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against Writs of Assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”[96] But this great birth is inseparably associated with the principle, then and there declared, that “Taxation without representation is Tyranny.”

From this time forward Otis dedicated himself singly to the cause he had so bravely upheld, and the popular heart clove to him. He became the favorite of his fellow-countrymen. His arguments were repeated, his words were gratefully adopted, and the saying, “Taxation without representation is tyranny,” became a maxim of patriotism. In May, 1761, only a few weeks after this utterance, he was chosen a representative of Boston in the Legislature by an almost unanimous vote. The Crown officers were dismayed by this most significant election, and one of them, speaking with prophetic lamentation, said it would “shake the Province to its foundation”; on which John Adams remarked, many years later, when some of its results were already visible, “That election has shaken two continents, and will shake four.”[97] Of course this was simply because it affirmed and invigorated a practical truth of government by which all the people are confirmed in political power. At his new post of duty, Otis became the acknowledged leader, constant, fervid, eloquent, and, according to his own language, “daring to speak plain English.” While still declaring unhesitating loyalty to the Crown, and even pledging “the last penny and the last drop of blood, rather than that by any backwardness of ours his Majesty’s measures should be embarrassed,” he made haste to announce, in words where humor blends with truth, that “God made all men naturally equal,”--that “the ideas of earthly superiority, preëminence, and grandeur are educational, at least acquired, not innate,”--that “no government has a right to make hobby-horses, asses, and slaves of the subject, Nature having made sufficient of the two former for all the lawful purposes of man, from the harmless peasant in the field to the most refined politician in the cabinet, but none of the last, which infallibly proves they are unnecessary.” But the case would have been imperfectly stated, if the patriot representative had not once more cried out against taxation without representation, and warned against the calamities that must follow from this unquestionable tyranny. This early debate is preserved in a pamphlet, printed in 1762, and entitled “A Vindication of the Conduct of the House of Representatives of the Province of the Massachusetts Bay, etc., by James Otis, Esq.,” which, we are told by an eminent authority, contains, in solid substance, all that is found in the Declaration of Rights and Wrongs issued by Congress in 1774, the Declaration of Independence in 1776, and the subsequent writings of those political philosophers who upheld the national cause.[98] Pardon me, if I dwell too minutely on this history. I do it only to illustrate the issue of principle actually made with the mother country.

The controversy still continued, when, in 1764, the orator, who by voice and pen had so bravely maintained the cause of his country, put forth another publication, entitled “The Rights of the British Colonies Asserted and Proved.” Mark, if you please, the vigor of the title. The rights of the Colonies are not only “asserted,” but “proved.” Reprinted in London, this pamphlet was read by Lord Mansfield, Chief Justice of England, and was answered by Soame Jenyns, a partisan writer of the Crown. The copy I hold in my hand has the imprint of London, and is marked “Third Edition.” All things considered, it is the most remarkable pamphlet of our country, and one of the most remarkable ever written. Recent events, verifying the truths it so early announced, elevate its place in history. Here are the same vital principles, enforced with learning and eloquence, which Otis announced at the bar, and then again in the debates of the Legislature; and here are not only the truths asserted by our fathers, but the unanswerable arguments by which they were vindicated. Even an abstract would be too long for this debate; but the character of this Defence of the American People, not unlike Milton’s famous “Defensio pro Populo Anglicano,” will appear in a few passages, where, as in gleams, may be discerned the _Idea of a Republic_.

I do not pause on the assertion, “that every man of a sound mind should have his vote,” or the authority he invokes, when he says, “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,” both of which, sounded by him elsewhere,[99] are important premises. Nor do I dwell on that admirable statement of much in little, “The first simple principle is Equality and the Power of the Whole.”[100] The Equality of All and the Power of All!--the two buttresses of a just government. I come at once to the plain statement of fundamental right.

“The supreme power cannot take from any man any part of his
property _without his consent in person or by representation_.”

“Taxes are not to be laid on the people _but by their consent
in person or by deputation_.”[101]

Such are “the first principles of law and justice, and the great barriers of a free state”; and then he adds, “I ask, I want no more.”[102] And these principles he claims for all, without distinction of color.

“The colonists are by the Law of Nature free-born, as indeed
all men are, white or black.… Does it follow that ‘tis right
to enslave a man because he is black? 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? Can any logical inference in favor of Slavery be
drawn from a flat nose, a long or a short face?”[103]

Assuming these rights as common to all, whether white or black, he insists that any taxation, whether direct or indirect, without representation, is only another form of Slavery.

“I can see no reason to doubt but that the imposition of taxes,
whether on trade, or on land, or houses, or ships, on real
or personal, fixed or floating property, in the Colonies, is
absolutely irreconcilable with the rights of the colonists,
as British subjects, _and as men_. I say men, for in a state
of Nature no man can take my property from me without my
consent. _If he does, he deprives me of my liberty and makes
me a slave.…_ 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?”[104]

Such was the voice of James Otis, who was our John the Baptist. It was he who went before in this great controversy. He first stated the case between the Colonies and the mother country, and first developed the principles in issue. But, though first, he was not long alone. Conspicuous among his followers was Samuel Adams, that austere patriot, always faithful and true, who desired to make Puritan Boston “a Christian Sparta.” He was remarkable for the simplicity, accuracy, and harmony of his style, and on this account often held the pen for the Legislature or the town-meeting. In obedience to the latter, he drew up instructions to the Representatives of Boston, afterward adopted in Faneuil Hall, where, repeating the very arguments of Otis, he says, “If our trade may be taxed, why not our lands, why not the produce of our lands, and everything we possess or make use of?” And then, advancing in the subject, he asks: “If taxes are laid upon us in any shape _without our having a legal representation where they are laid_, are we not reduced from the character of free subjects to the miserable state of tributary slaves?”[105] In proposing this question, he leaves no room to doubt the answer it deserved.

Soon thereafter, Franklin, as agent of Pennsylvania, maintained the same principles in England. But the ministry, hurried on by fatal folly leading to destruction, persevered in their pretension. The Stamp Act was passed, and for the first time in our history papers bore stamps, to swell the revenue of the Crown. Massachusetts remonstrated in formal resolutions, “particularly considered,” wherein it is declared, “That there are certain essential rights of the British Constitution of Government, which are founded in the law of God and Nature, and are the common rights of mankind,--therefore, … that no man can justly take the property of another without his consent,-- … that all acts made by any power whatever, other than the General Assembly of this Province, imposing taxes on the inhabitants, are infringements of our inherent and unalienable rights as men and British subjects, and render void the most valuable declarations of our Charter.”[106] In an address to the Royal Governor, the Legislature, after setting forth the injustice of the Stamp Act, proceeded to say, “We must beg your Excellency to excuse us from doing anything to assist in the execution of it.”[107] The people in town-meetings took up the strain, and all united against the Act. But Massachusetts was not alone.

Virginia, by positive statute, as early as 1655-6 recognized the just principle, as we have already seen;[108] and now a writer of that State, catching the spirit of Otis, declared, in an elaborate pamphlet, that it was “an essential principle of the English Constitution that the subject shall not be taxed _without his consent_”; and then again, quoting the words of another, “All men have natural, and freemen legal rights, which they may justly maintain, and no legislative authority can deprive them of.”[109] The Legislature of Virginia, even before Massachusetts, adopted resolutions kindred in spirit, which were moved by Patrick Henry, and heroically carried by his eloquent voice, even against the menacing cry of “Treason.” Thus spoke Virginia, exposing the true issue, and insisting on the inseparability of taxation and representation:--

“_Resolved_, That the taxation of the people by themselves,
or _by persons chosen by themselves to represent them_, who
can only know what taxes the people are able to bear, or the
easiest method of raising them, and must themselves be affected
by every tax laid on the people, _is the only security against
a burdensome taxation_ and the distinguishing characteristic of
British freedom, without which the ancient Constitution cannot
exist.”[110]

Pennsylvania, by her House of Assembly, spoke also to the same effect:--

“_Resolved, N. C. D._, That this House think it their duty thus firmly to assert with modesty and decency their _inherent rights_, that their posterity may learn and know that it was not with their consent and acquiescence that _any taxes_ should be levied on them by any persons but their own representatives.”[111]

The controversy proceeded. At the invitation of Massachusetts, moved by Otis, a Congress assembled at New York in October, 1765, having delegates from Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, and South Carolina, which, after a prolonged session, adopted a declaration of colonial rights and grievances, where it is declared:--

“That it is inseparably essential to the freedom of a people,
and the undoubted right of Englishmen, that no taxes be
imposed on them _but with their own consent, given personally
or by their representatives_.

“That the people of these Colonies are not, and from their
local circumstances cannot be, represented in the House of
Commons in Great Britain.”[112]

At last the Stamp Act was repealed. But the pretension of taxation was suspended rather than abandoned. A ministerial partisan continued to urge the scheme in unscrupulous language:--

“All countries unaccustomed to taxes are at first violently
prepossessed against them, though the price which they give for
their liberty: like an ox untamed to the yoke, they show at
first a very stubborn neck, but by degrees become docile and
yield a willing obedience.… America must be taxed.”[113]

As time advanced, the old audacity was revived, and, under the lead of the reckless Charles Townshend, taxes were imposed by Parliament on tea, glass, lead, paper, and painters’ colors. The old opposition in the Colonies was revived also, and taxation without representation was again denounced. Committees of correspondence were established, and the work of organization began. The whole country was in a fever. Massachusetts, as in times past, did not hesitate to proclaim the true principle. At a town-meeting of Boston in 1772, there was a declaration of rights, “which no man or body of men, consistently with their own rights as men and citizens or members of society, can for themselves give up or take away from others”; and here we meet again familiar words:--

“The supreme power cannot justly take from any man any part
of his property without his consent in person or by his
representatives.”[114]

Against all Parliamentary taxation, as often as it showed itself, this impenetrable buckler was lifted. But the mother country was perverse. Ship-loads of tea arrived. At Boston the tea was thrown into the dock. The Colonies entered into an agreement of non-importation. Then came troops, and the Boston Port Bill, by which this harbor was vindictively closed against commerce. The whole country, including even South Carolina, made common cause with Massachusetts. Gadsden exclaimed, “Massachusetts sounded the trumpet, but to Carolina is it owing that it was attended to.”[115] And Virginia exclaimed, “_We will never be taxed but by our own representatives._ This is the great badge of Freedom.… Whether the people in Boston were warranted by justice, when they destroyed the tea, we know not; but this we know, that the Parliament, by their proceedings, have made us and all North America parties in the present dispute.”[116] Meanwhile more troops arrived. All things portended strife; and yet the colonists did not ask for independence. They only asked for rights, insisting always that there should be no taxation without representation. “The patriots of this Province,” said John Adams in 1774, “desire nothing new; they wish only to keep their old privileges. They were for one hundred and fifty years allowed to tax themselves, and govern their internal concerns as they thought best. Parliament governed their trade as they thought fit. This plan they wish may continue forever.”[117] Thus stood the two parties face to face.