Chapter VII: Section 2: Debts and liabilities incurred in aid of rebellion are (3)

Then came the Continental Congress, which at once put forth resolutions, where, after claiming the enjoyment of life, liberty, and property, as natural rights, it was insisted that the colonists could be bound by no law to which they had not consented by representatives. Here was the original programme of James Otis: first, the rights of men, according to Natural Law; and, secondly, the principle that government, including of course taxation, depended on the consent of the governed. “_The foundation_ of English Liberty and _of all free government_,” said these resolutions, “is a right in the people to participate in their legislative council.”[118] In harmony with these resolutions were the several addresses of the Continental Congress,--to the people of Great Britain, to the inhabitants of the Province of Quebec, and to the king himself,--always pleading for Human Rights in the largest sense. The address to the people of Great Britain begins by an appeal for “the rights of men and the blessings of Liberty,” and then insists “that no power on earth has a right to take our property from us without our consent.”[119] The address to the inhabitants of the Province of Quebec, in similar spirit, says: “_The first grand right is that of the people having a share in their own government by their representatives chosen by themselves_, and, in consequence, of being ruled by laws which they themselves approve, not by edicts of men over whom they have no control. This is a bulwark surrounding and defending their property.”[120] And the petition to the king has the same key-note: “Duty to your Majesty, and regard for the preservation of ourselves and our posterity, _the primary obligations of Nature and society_, command us to entreat your royal attention.”[121] Thus constantly, down to the last moment, did our fathers set forth the principles they sought to establish as essential to free government. Thus constantly did they testify to the cause for which I now plead.

Answering voices came back from England, announcing the principles in issue. The right of taxation was asserted; but there were many who disguised the tyranny by assuming that the Colonies were “virtually represented.” Perhaps that spirit of legal technicality which is satisfied by form at the expense of reason was never more strikingly illustrated than in the argument of Sir James Marriott, the Admiralty Judge, who gravely insisted, in the House of Commons, that England “had an undoubted right to tax America, because she was represented by the members for the County of Kent, of which the thirteen provinces were a part or parcel, for in their charters they were to hold of the manor of Greenwich in Kent.”[122] The whole pretension had been scouted by the indignant eloquence of Mr. Pitt, afterward Lord Chatham. “The idea,” said he, “of a _virtual representation_ of America in this House is the most contemptible idea that ever entered into the head of a man. It does not deserve a serious refutation.”[123] As the controversy continued, and especially as those masterly state papers, the addresses of the Continental Congress, reached England, the ministers of the king were put on the defensive. They retained as advocate none other than Samuel Johnson, who, for “small hire,” lent the pen which had written “Rasselas,” “The Vanity of Human Wishes,” and the English Dictionary, to a rancorous attack on the principles of our fathers. Its concentrated venom was all expressed in the title, “Taxation no Tyranny.” Another pamphlet appeared in reply, with the epigram, “Resistance no Rebellion,” embodying the idea, that, where there is taxation without representation, resistance is justifiable; and thus was issue joined at London. This was in 1775. Already the “embattled farmers” had gathered at Lexington and Bunker Hill; already Washington had drawn his sword at Cambridge, as commander-in-chief and generalissimo of the new-born armies; already war had begun. At last, to the defiant watchword, “Taxation no Tyranny,” hurled from London, our fathers returned that other defiant watchword, “Independence.” But they did not turn their backs upon the principles asserted throughout the long controversy. Independence was the means to an end, and that end was nothing less than a Republic, with Liberty and Equality as animating principles, where government stood on the consent of the governed, or, which is the same thing, where there should be no taxation without representation: for here was the distinctive feature of American institutions.

* * * * *

2. The principles heralded through fifteen years of controversy were not forgotten when Independence was declared: and here I come to the national declarations of the Fathers.

It sometimes happens that men fail in support of the cause to which they are pledged, or content themselves with something less than the truth. But not so with our fathers. In declaring Independence they continued loyal to their constant vows. The natural rights of all men, and the consent of the people as the only just foundation of government, which James Otis first announced, which Samuel Adams maintained with severe simplicity, which Patrick Henry vindicated even against the cry of “Treason,” and which had been affirmed by legislative bodies and public meetings, were embodied in the opening words of the Declaration. There they stand, like a sublime overture to the new Republic, interpreting, inspiring, and filling it with transforming power.

“We hold these truths to be _self-evident_: that _all men are
created equal_; that they are endowed by their Creator with
certain unalienable rights; that among these are life, liberty,
and the pursuit of happiness; that to secure these rights
governments are instituted among men, _deriving their just
powers from the consent of the governed_.”

Nor did these declarations proceed from the National Congress alone. The States spoke also in their Bills of Rights.

Foremost is the Equality of All Men. Of course, in a declaration of rights, no such supreme folly was intended as that all men are created equal in form or capacity, bodily or mental,--but simply that they are created equal in rights. This is grandest of the self-evident truths announced, leading and governing all the rest. Life, liberty, and the pursuit of happiness are among inalienable rights; but they are all in subordination to that primal truth. Here is the starting-point of the whole; and the end is like the starting-point. Announcing that governments derive their just powers from the consent of the governed, the Declaration repeats the same proclamation of Equal Rights. Thus is Equality the Alpha and the Omega, wherein all other rights are embraced. Men may not have a natural right to certain things, but most clearly they have a natural right to _impartial laws_, without which justice, being the end and aim of government, must fail. Equality in rights is the first of rights. Because these self-evident truths, beginning with Equality, had been set at nought by Great Britain, in her relations with our fathers, Independence was declared. To these truths, therefore, was the new Government solemnly dedicated, as it assumed its separate and equal station among the powers of the earth. Do you ask for the definition of Republic? Here it is, by patriot lexicographers, whose authority none of us can question.

As the War of Independence began with a declaration of principles, so it ended with a like declaration. At its successful close, the Continental Congress, in an Address to the States, by the pen of James Madison, thus announced the objects for which it had been waged, and thus supplied another definition of the new government:--

“Let it be remembered that it has ever been the pride and boast
of America, _that the rights for which she contended were
the rights of human nature_. By the blessing of the Author
of these rights on the means exerted for their defence, they
have prevailed against all opposition, and _form the basis_
of thirteen independent States. No instance has heretofore
occurred, nor can any instance be expected hereafter to occur,
in which the _unadulterated forms of Republican Government_ can
pretend to so fair an opportunity of justifying themselves by
their fruits. In this view, the citizens of the United States
are responsible for the greatest trust ever confided to a
political society.”[124]

Such, also, was the sublime sentiment promulgated by Washington from his camp, in a general order, near the same date, announcing the close of the war, where he declares his “rapture” in the national prospects, and the three-fold happiness for all “who have assisted in protecting _the rights of human nature_.”[125] It was for “the rights of human nature” that our fathers went forth to battle, and these rights are proclaimed to “form the basis of thirteen independent States.” But supreme among these is Equality, including of course the equal right of all to a voice in the Government. And this is the Republic which our fathers, with pride and boast, then gave as an example to mankind.

The same spirit appears in the National Constitution, which, by its preamble, asserts practically similar sentiments:--

“We, the people of the United States, in order to form a
more perfect union, _establish justice_, insure domestic
tranquillity, provide for the common defence, promote the
general welfare, and secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this
Constitution for the United States of America.”

Thus was the National Constitution ordained, not to create an oligarchy or aristocracy, not to exclude certain persons from the pale of its privileges, not to organize _inequality of rights_ in any form, but to “establish justice,” which is Equality,--to “insure domestic tranquillity,” which is vain without justice,--to “provide for the common defence,” which is the defence of all,--to “promote the general welfare,” which is the welfare of all,--and to “secure the blessings of liberty” to all the people and their posterity, which is giving to all the complete enjoyment of rights central among which is Equality. Here, then, is another authoritative definition.

Thus has our country testified to its idea of a Republic, not only throughout long days of controversy, but in national declarations, being in themselves monumental acts.

* * * * *

3. From these national declarations I come now to the _Opinions of the Fathers_. Here you see how these same principles have been sustained by eminent characters, whose names are historic, all testifying to the government they founded and upheld. In their weighty words you find a definition, constantly repeated, in harmony with all the promises of the Fathers, whether in controversy or in solemn instruments which are the very title-deeds of the Republic.

* * * * *

I begin with Benjamin Franklin, who saw all questions of Government with a surer instinct than any other person in our history. As early as 1736, while still a young man, he wrote an article, which was published in the Pennsylvania Gazette, containing these words:--

“Popular Governments have not been framed without the wisest
reasons. It seemed highly fitting that the conduct of
magistrates, _created by and for the good of the whole_, should
be made liable to the inspection and animadversion of _the
whole_.”[126]

It is for _the good of the whole_, and not for an odious oligarchy or an aristocratic class, that our patriot speaks, and in these words is foreshadowed the idea of a republican government. But it was in discussions, after Otis had hurled his flaming bolt, that we find a fuller and more precise definition. Here it is, as adopted, if not written, by Franklin:--

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

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

“That they who have no voice nor vote in the electing
of representatives _do not enjoy liberty, but are
absolutely enslaved to those who have votes, and to their
representatives_: for to be enslaved is to have governors
whom _other men have set over us_, and be subject to laws
_made by the representatives of others_, without having
had representatives of our own to give consent in _our_
behalf.”[127]

In these emphatic words is a complete vindication of the _equal right_ of representation, as essential to free government,--so much so, that, where this does not exist, Liberty does not exist.

Jefferson followed Franklin in the same vein, but with greater fervor. The author of the Declaration of Independence could not do otherwise. Constantly he testifies to his idea of a Republic. Thus he wrote to Alexander von Humboldt, under date of June 13, 1817, affirming the rights of the majority as “the first principle of Republicanism,” and assuming the principle of Equal Rights:--

“The first principle of Republicanism is, that the _lex majoris
partis_ is the fundamental law of every society of individuals
_of equal rights_. To consider the will of the society enounced
by the majority of a single vote as sacred as if unanimous is
the first of all lessons in importance, yet the last which
is thoroughly learnt. This law once disregarded, no other
remains but that of force, which ends necessarily in military
despotism.”[128]

In another letter, to John Taylor, of Caroline, dated May 28, 1816, he thus defines a Republic:--

“Indeed, it must be acknowledged that the term _Republic_
is of very vague application in every language. Witness the
self-styled Republics of Holland, Switzerland, Genoa, Venice,
Poland. Were I to assign to this term a precise and definite
idea, I would say, purely and simply, it means _a government
by its citizens in mass_, acting directly and personally,
_according to rules established by the majority_,--and that
every other government is more or less republican in proportion
as it has in its composition more or less of this ingredient of
the direct action of the citizens.”[129]

Here again, while confessing the unquestionable vagueness of the term according to old examples, he assumes that in a republic all citizens must have a voice. And again, in the same letter, he thus indignantly condemns denial of representation:--

“And also that one half of our brethren who fight and pay taxes
are excluded, like Helots, from the rights of representation,
as if society were instituted for the soil, and not for
the men inhabiting it, _or one half of these could dispose
of the rights and the will of the other half without their
consent_.”[130]

Thus did he scout the whole wretched pretension of oligarchy and monopoly by which citizens are deprived of equal rights.

To these may be added his earliest and latest declarations on this important question. The earliest is in his “Notes on Virginia,” written in 1781, where he recognizes “a reciprocation of right” as a presiding principle:--

“When arguing for ourselves, we lay it down as a fundamental,
that laws, to be just, must give _a reciprocation of right_:
that without this they are mere arbitrary rules of conduct,
founded in force, and not in conscience.”[131]

The latest declaration was in 1826, the year of his death. It is in a paper containing some of his most intimate opinions. Here he bears testimony to “_equality_ among our citizens” as “essential to the maintenance of republican government.”[132] These are among his dying words.

* * * * *

Madison was colder in nature than Jefferson; but they were associates in opinion, as in political life. In the debates on the National Constitution the former condemned the denial of rights on account of color:--

“We have seen the mere distinction of color made, in the most
enlightened period of time, a ground of the most oppressive
dominion ever exercised by man over man.”[133]

Speaking directly of the right of suffrage, he uses the following language:--

“_The right of suffrage is certainly one of the fundamental
articles of republican government_, and ought not to be left
to be regulated by the legislature. A gradual abridgment of
this right has been the mode in which _aristocracies_ have been
built on the ruins of popular forms.”[134]

Thus declaring himself against “aristocracies,” he naturally recognized the true idea; and here he was perplexed by the question of a property qualification, and the effort to reconcile it with “the right of suffrage,” which he calls “a fundamental article in republican constitutions.”[135] In another place, he says of “confining the right of suffrage to freeholders”: “It violates _the vital principle_ of free government, that those who are to be bound by laws ought to have a voice in making them; and the violation would be more strikingly unjust as the lawmakers become the minority.”[136] Completely recognizing the great American principle, that just government can stand only on “the consent of the governed,” he is brought to this conclusion:--

“Under every view of the subject, it seems indispensable
that the mass of citizens should not be without a voice in
making the laws which they are to obey, and in choosing the
magistrates who are to administer them.”[137]

In one of the most remarkable chapters of the “Federalist,” Madison gives expansion to this idea in his formal definition of a Republic:--

“If we resort for a criterion to the different principles
on which different forms of government are established, we
may define a Republic to be, or at least may bestow that
name on, _a government which derives all its powers directly
or indirectly from the great body of the people_, and is
administered by persons holding their offices during pleasure,
for a limited period, or during good behavior. _It is essential
to such a government that it be derived from the great body
of the society, not from an inconsiderable proportion_, OR A
FAVORED CLASS OF IT: otherwise a handful of tyrannical nobles,
exercising their oppressions by a delegation of their powers,
might aspire to the rank of republicans, and claim for their
government the honorable title of Republic.”[138]

Thus, in few significant words, does this authority teach that a Republic is a government derived from “the great body of the people,” and not from “a favored class of it.” Better words could not be found for the American definition.

I repeat these two conditions of republican government according to Madison: _First_, the government must be derived from the _great body_ of the people; and, _secondly_, it cannot spring from any _favored class_.

That the colored race should not be excluded from this definition may be justly inferred from his remark, already quoted, that “where Slavery exists the _republican_ theory becomes still more fallacious,”[139] and also from his correspondence at a later day with Lafayette, whose devotion to the great principle of Equal Rights was blazoned before the world. Writing to the latter, November 25, 1820, he said:--

“The Constitutions and laws of the different States are much
at variance in the civic character given to free persons of
color: those of most of the States, not excepting such as have
abolished Slavery, imposing _various disqualifications_, which
_degrade_ them from the rank and rights of white persons.
_All these perplexities develop more and more the dreadful
fruitfulness of the original sin of the African trade._”[140]

“Various disqualifications which degrade them”; “dreadful fruitfulness”: such are some of the terms in which judgment is recorded. Another letter, also to Lafayette, written as late as February 1, 1830, says:--

“Outlets for the freed blacks are alone wanted for a rapid
erasure of the blot [of Slavery] from our _Republican
character_.”[141]

Thus, in his opinion, was the treatment of this unhappy people inconsistent with the “Republican character.”

* * * * *

Hamilton follows with perhaps equal authority. Though approaching political questions from opposite points of view, we find him uniting with Franklin, Jefferson, and Madison. Here is a glimpse of the definition he would supply:--

“As long as offices are _open to all men_ and _no
constitutional rank_ is established, it is pure
republicanism.”[142]

Not for an oligarchy, but for _all_, is a Republic created. Then again he testifies for Equal Rights, and against _partial distinctions_:--

“There can be no truer principle than this, that _every
individual of the community at large has an equal right to the
protection of Government_.… We propose _a free government_. Can
it be so, if _partial distinctions_ are maintained?”[143]

Again he says, in positive words:--

“A share in the sovereignty of the State, which is exercised
by the citizens at large in voting at elections, is one of the
most important rights of the subject, _and in a Republic ought
to stand foremost in the estimation of the law_. It is that
right by which we exist a free people.”[144]

He then exhibits the crowning lesson:--

“The principles of the Revolution taught the inhabitants of
this country to risk their lives and fortunes in asserting
their liberty, or, in other words, _their right to a share in
the government_. That portion of the sovereignty to which each
individual is entitled can never be too highly prized. It is
that for which we have fought and bled.”[145]

More could not be said in the few words. But it is when Hamilton comes to consider the National Constitution and to expound its provisions, that, while recognizing the anomalous condition of Slavery, and exposing what he calls “the compromising expedient of the Constitution” by which “_the slave_ is divested of two fifths of _the man_,” he yet declares “the equal level of free inhabitants,” and announces, “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_.” Here is this important text,--which has additional authority when it is considered that it was attributed also to Madison, and indeed claimed by him, who thus acknowledged the sentiments as his own:--

“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.”[146]

Thus, according to Hamilton, if the slaves are restored to the rights which have been taken away,--in other words, if they become freemen,--they will be on the same _equal level_, and entitled to the same _equal share_ of representation with the other inhabitants. The two ideas of Equality and a Right to Representation, so early and constantly avowed by the Fathers, are here again recognized as essential conditions of government; and this is the true definition of a Republic.

With these great representative names to illustrate the American idea I might close the catalogue. Surely this is sufficient. But there are others, whose authority cannot be disregarded.

* * * * *

Here is the testimony of that inflexible spirit, who had thought and acted much, Samuel Adams, in a letter to his kinsman, John Adams:--

“That the sovereignty _resides in the people_ is a political
doctrine which I have never heard an American politician
seriously deny.… _We, the people_, is the style of the Federal
Constitution. They adopted it; and, conformably to it, they
delegate the exercise of the powers of government to particular
persons, who, after short intervals, resign their powers _to
the people_, and they will reëlect them, or appoint others, as
they think fit.”[147]

Here also is the testimony of another Republican, who signed the Declaration of Independence, Roger Sherman, in a letter to John Adams:--

“What especially denominates it a _Republic_ is its dependence
on the _public_ or _people at large_, without any hereditary
powers. But it is not of so much importance by what appellation
the government is distinguished as to have it well constituted
_to secure the rights and advance the happiness of the
community_.”[148]

There also was John Adams himself, who was the least distinct of all the Fathers on this question; but we find in the Preface to his Defence of the American Constitutions a passage full of prophetic meaning:--

“Thirteen governments, thus founded on _the natural authority
of the people alone_, without a pretence of miracle or mystery,
and which are destined to spread over the northern part of that
whole quarter of the globe, are a great point gained in favor
of _the rights of mankind_.”[149]

Here is a plain assertion that our Thirteen States were founded “on the natural authority of the people alone,” and that they were destined to spread over all North America.

Charles Pinckney, in a speech on the adoption of the Constitution, speaks for South Carolina:--

“The doctrine of representation is the fundamental of a
republic.… As to the United Netherlands, it is such a confusion
of states and assemblies, that I have always been at loss what
species of government to term it. According to my idea of the
word, it is not a republic; for I conceive it as indispensable
in a republic that all authority should flow from the people.…
A republic is _where the people at large_, either collectively
or by representation, form the Legislature.”[150]

Luther Martin, an able representative of Maryland in the Convention, while vindicating a prohibition or tax on the importation of slaves, said:--

“The privilege of importing them was unreasonable; and it
was inconsistent with the principles of the Revolution, and
dishonorable to the American character, to have such a feature
in the Constitution.”[151]

Afterwards, in his address to the Legislature of Maryland, he announced that both in the Committee and in the Convention he was influenced by the argument,--

“that Slavery is inconsistent with _the genius of
republicanism_, and has a tendency to destroy those principles
on which it is supported, _as it lessens the sense of the
Equal Rights of mankind_, and habituates us to tyranny and
oppression.”[152]

Thus was a “sense of the Equal Rights of mankind” one of the principles on which Republicanism rested.

And here is one more word from Virginia: it is Colonel Mason, who always spoke with so much point:--

“The true idea, in his opinion, was, that _every man_, having
evidence of attachment to and permanent common interest
with the society, ought to share in all its rights and
privileges.”[153]

Again we have a plain recognition of the Revolutionary idea.

* * * * *

Here, also, is another authority. I quote a Virginia writer on Government,--John Taylor, of Caroline:--

“The end of the guaranty is ‘a republican form of government.’
The meaning of this expression is not so unsettled here as
in other countries, because we agree in one descriptive
character as essential to the existence of a republican
form of government. _This is representation. We do not
admit a government to be even in its origin republican,
unless it is instituted by representation_; nor do we allow
it to be so, unless its legislation is also founded upon
representation.”[154]

I close this array, illustrative of opinion, with the words of Daniel Webster, in harmony with the rest:--

“Now, fellow-citizens, I will venture to state, in a few
words, what I take these American political principles in
substance to be. They consist, as I think, in the first place,
in the establishment of popular governments on the basis of
representation.… _This representation is to be made as equal as
circumstances will allow._”[155]

Then again, on another occasion, he said:--

“This is the true idea of a State. It is an organized
government, representing _the collected will of the people_, as
far as they see fit to invest that government with power.”[156]

Thus, at every stage, from the opening, when Otis announced the master principle, “Taxation without representation is Tyranny,” all along to Daniel Webster, we find “Representation” an essential element in the American definition of republican government.

* * * * *

4. From authoritative opinions I pass to _public acts_, which testify to the true idea of republican government. These are of two classes: first, by the United States, in their collective character; and, secondly, by the States individually.

* * * * *

Looking at the States in their collective character, we find that at the adoption of the National Constitution they refused to recognize any exclusion from the elective franchise on account of race or color. The Fathers knew too well the requirements of a republican government to sanction such exclusion. Recognizing Slavery as a transitory condition, soon to cease, they threw over it a careful oblivion; but they were none the less jealous of the rights of all freemen. _The slave did not pay taxes_, and, so far as he was a person and not property, he was part of the family of his master, by whom he was represented, so that in his case the commanding principle of the Revolution was not disturbed. But, becoming a freeman, the slave stepped at once within the pale of taxation, and therefore necessarily of representation, since the two are inseparable. And this consideration was the guide to our fathers.

The Continental Congress refused point-blank to insert the word “white” in the Articles of Confederation. The question came up, June 25, 1778, on these words: “THE FREE INHABITANTS of each of these States (paupers, vagabonds, and fugitives from justice excepted) shall be entitled to all privileges and immunities of FREE CITIZENS in the several States.” The delegates from South Carolina moved, in behalf of their State, to limit this guaranty to “free WHITE inhabitants.” On the question of inserting the word “white,” eleven States voted,--two in favor of the insertion, one was divided, and eight were against it. South Carolina, not disheartened, made another attempt, by moving to add, after the words “the several States,” the further clause, “according to the law of such States respectively for the government of their own FREE WHITE inhabitants,”--thus seeking again to limit the operation of the guaranty. This proposition was voted down by the same decisive majority of eight to three. And thus did our fathers testify to the right of representation without distinction of color. On other occasions, for successive years, they constantly gave the same testimony.

A resolution of Congress in April, 1783, seconded by the report of a Grand Committee, of which Mr. Jefferson was Chairman, in April, 1784, recommended an Amendment of the Articles of Confederation, whereby the war expenses should be apportioned among the several States according to “the whole number of white and _other free citizens and inhabitants_,”--thus positively embracing colored persons. In the Act for the Temporary Government of the Territory “ceded or to be ceded” to the United States, April 23, 1784, and drawn by Jefferson, the voters are declared to be the “free males of full age,” without distinction of color. In the famous Ordinance for the Government of the Northwestern Territory, drawn by Nathan Dane, of Massachusetts, adopted by the Confederation July 13, 1787, and then reënacted by our Congress after the adoption of the Constitution, the voters are declared to be “free male inhabitants of full age,”--again without distinction of color. Then came successive Acts of Congress for the government of Territories, where the rule in the Ordinance for the Northwestern Territory was followed, and there was no distinction of color. If this rule changed, it was only when the partakers in the Revolution and the authors of the Constitution ceased to exercise influence over public affairs. The testimony of the Fathers was constant, and it is only of this that I speak.

* * * * *

Turning from the States collectively, and looking at them individually, we find the same testimony. By the Constitution of New Hampshire, at the adoption of the National Constitution, the suffrage was vested in “every male inhabitant of each town and parish,” with certain qualifications, but without exclusion on account of color. By the Constitution of Massachusetts the suffrage was vested in “every male inhabitant,” with certain specified qualifications, but without distinction of color. Rhode Island, at the adoption of the Constitution, was under her original colonial charter, which provided for elections by “the major part of the freemen of the respective towns or places,” without distinction of color. Connecticut was likewise under her original colonial charter, which also provided for elections by “the major part of the freemen of the respective towns, cities, and places,” without distinction of color. By the Constitution of New York the suffrage was vested in “every male inhabitant of full age,” with certain specified qualifications, but without distinction of color. By the Constitution of New Jersey it was vested in “all inhabitants of this Colony of full age,” with certain specified qualifications, but without distinction of color. By the Constitution of Pennsylvania it was vested in “every freeman of the full age of twenty-one years,” with certain specified qualifications, but without distinction of color. By the Declaration of Rights prefixed to the Constitution of Delaware it was announced that “every freeman, having sufficient evidence of a permanent common interest with and attachment to the community, hath a right of suffrage,” without distinction of color; and in the Constitution the suffrage was vested in “the freemen and inhabitants of the respective counties,” with certain specified exceptions, but without distinction of color. By the Constitution of Maryland the suffrage was vested in “all freemen above twenty-one years of age,” with certain specified qualifications, but without distinction of color. By the Constitution of North Carolina the suffrage was vested in “all freemen of the age of twenty-one years,” with certain specified qualifications, but without distinction of color; and this rule continued down to 1836, when the Constitution was amended, or rather, let me say, perverted. That eminent citizen, Judge Gaston, of North Carolina, in giving judgment at a later day, said: “It is a matter of universal notoriety, that _free persons, without regard to color, claimed and exercised the franchise_.”[157] To these States I add Tennessee, which was carved out of North Carolina, and followed her benign example. Her Constitution, adopted in 1796, vested the suffrage in “every freeman of the age of twenty-one years,” with certain qualifications, but without distinction of color; and this rule continued down to the perversion of the Constitution in 1834. Mr. Cave Johnson, of Tennessee, once Postmaster General, is reported to have said that he was originally elected to Congress by the votes of colored persons, and I have heard Mr. John Bell make the same confession with regard to himself.

Virginia was inconsistent and uncandid. By the Declaration of Rights prefixed to her Constitution it was announced that “ALL MEN, having sufficient evidence of permanent common interest with and attachment to the community, have the right of suffrage,” without distinction of color; and it is added, that they “_cannot be taxed or deprived of their property for public uses without their own consent_ or that of their representatives so elected, nor bound by any law to which they have not in like manner assented for the public good.” This was entirely worthy of the eminent citizens who adorned that State. But a subsequent provision of the Constitution preserved the right of suffrage “as exercised at present”: thus embodying, without naming, the legislative exclusion of free negroes, mulattoes, and Indians, “although such persons be freeholders.” This discreditable manœuvre becomes more notable in view of an incident in the early history of Virginia, curious and important, and also applicable to all the States during their colonial existence. It was on the enactment of a statute in 1723, “that no free negro, mulatto, or Indian whatsoever shall hereafter have any vote at the election of burgesses, or any other election whatsoever,”[158] when the tyranny here manifest was rebuked with unexpected plainness. The legal authority in England, to whom this colonial statute was submitted for review and approval, reported, in admirable words:--

“I cannot see why one freeman should be used worse than another
_merely upon account of his complexion_.… To vote at elections
of officers, either for a county or parish, &c., is incident
to every freeman who is possessed of a certain amount of
property.”[159]

Georgia was fitful. By her Constitution of 1777, in existence immediately anterior to the National Constitution, suffrage was confined to “male _white_ inhabitants.” But a Constitution adopted May 6, 1789, and another adopted May 30, 1798, accorded suffrage to “citizens and inhabitants,” with certain specified qualifications, but without the word “white.”

It only remains to speak of South Carolina, the persistent marplot of republican institutions, where, by the Constitution, the suffrage was vested in “every free _white_ man, and no other person,” with certain specified qualifications. This was the only State among the original Thirteen, unless Georgia be grouped with South Carolina, which at that time allowed a color discrimination in its Constitution. It was the only State which, after uniting in a National Declaration that “all men are created equal,” openly and audaciously commenced the example of “a white man’s government.” This apostate idea, which has since played such a part as a disturber of the national peace, was then and there born, as the opposite idea was born in Massachusetts, under the inspiring words of James Otis. And the other States, in their Constitutions, followed this patriot voice. They spoke of “persons,” “inhabitants,” “freemen,” or, better still, “men,” without prefix of “white.” Color was not mentioned. But even in South Carolina, which introduced the discreditable tyranny into her Constitution, this exclusion was more apparent than real. In point of fact, even as late as 1790, when the first census was taken, there were in this State only one thousand eight hundred and one free colored citizens. Of course their exclusion was wrong, mean, and unrepublican; but I do not assert that it was such a case as to justify the interference of the nation to reform it, especially where there was no lapse of the State Government. On the other hand, its sufferance cannot be interpreted as a waiver of the principles for which the Revolution was fought. But even in South Carolina there had been a spasm of virtue. In 1757 there was a “flourishing negro school” at Charleston, and in 1709 we find a complaint that “even negroes” had been admitted to vote. Though denounced as an abuse, the precedent is authenticated by a disgusted inhabitant.[160]

* * * * *

Such are the public acts of the States, collectively and individually, at the adoption of the National Constitution, illustrating with rare harmony the American idea of a Republic, and testifying against any exclusion founded on color. Add to these, that the National Constitution, carefully excepting from the basis of Representation “Indians _not taxed_,” pays open homage to the principle that there can be no taxation without representation; add then that it expressly founds the Government upon “the people,” not only in the preamble, which begins “We the people,” but also in providing that the House of Representatives shall be “chosen by the people of the several States”; add also the crowning fact, that it recognizes no distinction of color, that it treats all with the same impartial justice, that the word “white” does not appear there, and who are we, Sir, who dare foist into this Magna Charta an oligarchical idea which finds no sanction in its republican text?

* * * * *

Here I bring this part of the argument to a close. We have seen the origin of the controversy which led to the Revolution, when Otis, with such solid claim, insisted upon Equal Rights, and then, giving practical effect to the grand demand, sounded the battle-cry, “Taxation without Representation is Tyranny”; we have followed the controversy in its anxious stages, where these principles were constantly asserted and constantly denied, until it broke forth in battle; we have seen these principles adopted as the very frontlet of the Republic, when it assumed its place in the family of nations, and then again when it ordained its Constitution; we have seen them avowed and illustrated in memorable words by the greatest authorities of our history; lastly, we have seen them embodied in public acts of the States collectively and individually; and now, out of this concurring, cumulative, and unimpeachable testimony, constituting a speaking aggregation absolutely without precedent, I offer you the American definition of a Republican form of government. In vain do you cite philosophers or publicists, or the examples of former history. Against these I put the early and constant postulates of the Fathers, the corporate declarations of the Fathers, the avowed opinions of the Fathers, and the public acts of the Fathers, all with one voice proclaiming, first, that all men are equal in rights, and, secondly, that government derives its just powers from the consent of the governed; and here is the American idea of a Republic, which must be adopted in the interpretation of the National Constitution. You cannot reject it. As well reject the Decalogue in determining moral duties, or reject the multiplication-table in determining a question of arithmetic.

Counter to this irresistible conclusion there can be only one suggestion having any seeming plausibility, and this is founded on the contemporary recognition of Slavery. On this point, it is enough, if I remind you, first, that our fathers did not recognize Slavery as a permanent part of our system, but treated it as exceptional and transitory, while they concealed it from view by words which might mean something else; secondly, that the slave was always regarded, legally and politically, as part of the family of his master, according to the nomenclature of Blackstone’s Commentaries, much read at the time, where master and servant are grouped with husband and wife, parent and child, and, as in the case of wife and child, _the slave is represented by the head of the family, who also paid taxes on his account_, so that in his case the cardinal principle of the Revolution, associating representation and taxation together, was not essentially violated; and, thirdly, that by the acts of the Continental Congress, and generally by the State Constitutions, all distinction of color was discarded in determining the elective franchise, and that illustrious expounders of the National Constitution, as if anticipating the very question before us, Alexander Hamilton and James Madison, announced in the “Federalist,” 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. Such was the understanding, and such the promise, at the adoption of the Constitution. Such was the declared meaning of our fathers, according to the concurrent contemporary testimony of Hamilton and Madison. Therefore, while confessing sorrowfully the terrible inconsistency in recognizing Slavery, and throwing over their shame the mantle which the son of Noah threw over his father, we must reject every argument or inference on this account against the true idea of a Republic, which is none other than a government where all citizens have an _equal voice_. As Washington, by divine example, gave to mankind a new idea of political greatness, so did the Fathers, by inspired teaching, give to mankind a new idea of Government. Do you ask again for authority? I offer it in its many forms. It is the early Vocabulary of James Otis, Samuel Adams, Patrick Henry, and Benjamin Franklin; it is the Dictionary of the Revolution; it is the Lexicon of our National History; it is the Thesaurus of Public Acts. This new idea was the great discovery of our fathers. Rob them of this, and you take their highest title to gratitude. Columbus, venturing into an unknown sea, discovered a New World of Space; but our fathers, venturing likewise, discovered a New World of Public Duty. It is for us, their children, to profit by their discovery.

* * * * *

For determining the meaning of our own Constitution in a momentous requirement without precedent, American authority and example are enough; but I would not have you forget that the conclusion on which I rest is grandly sustained by France. Here I shall be brief.

I cannot begin with a higher name than Montaigne, who, though never defining a Republic, let drop words which, coming from such a master, are invaluable:--

“Popular rule seems to me the most natural and equitable.”
“Equality is the first part of equity.”[161]

In the same spirit, Montesquieu, while failing to supply a precise definition, helped to elevate the idea of republican government, when he declared “virtue” its inspiration, and that virtue is the love of equality.[162] A kindred thought is expressed by a publicist of our time, in a remarkable study on Montesquieu, when he says, that “the true principle of democracy is justice.”[163] But justice is equality.

Contemporary with Montesquieu was the Marquis d’Argenson, a minister of Louis the Fifteenth and the friend of Voltaire. In a work written as early as 1739, but not seeing the light till 1764, some time after his death, when it was attributed to Rousseau, this remarkable character gives utterance to words worthy of perpetual memory:--

“It is only necessary to lay aside the most stupid prejudice,
to admit that two things are chiefly to be desired for the
good of the State: one, that all the citizens shall be equal
among themselves; the other, that each shall be the son of his
works.”[164]

A government where these two things are assured would be a Republic indeed.

Voltaire, though not professing to define a Republic, taught its dependence _upon equality_:--

“Civil government is _the will of all_, executed by one
or by many _in virtue of laws for which all have voted_.”
“The republican is undoubtedly the most tolerable of all
governments, because it is that which brings men most nearly to
natural equality.”[165]

In another place the same illustrious teacher said:--

“The people never desire, and never can desire, anything but
Liberty and Equality.”[166]

Advancing in time, the Republic becomes more manifest. Omitting the fervid words of Jean Jacques Rousseau, I adduce Condorcet, whose consecration to truth was sealed by a tragical death:--

“I have ever thought that a Republican Constitution, _having
Equality for its basis_, was the only one in conformity with
Nature, with reason, and with justice,--the only one which
could preserve the liberty of the citizens and the dignity of
the human race.”[167]

Belonging to the ancient system of France, and, like Lafayette, with the rank of Marquis, Condorcet, again like Lafayette, not only accepted the Republic, but declared its true basis.

Another French authority, of eminent experience in diplomacy, who wrote coldly and only according to the requirement of reason, Gérard de Rayneval, asserts the same law of Equality:--

“Political Liberty consists in the right to participate in
public affairs. This participation is direct or indirect,
and it is more or less extended according to the form of
government. It is, then, necessarily unequal. For example, _in
a Democracy all the citizens participate in the legislative
power_. If they delegate it, they have only a very indirect
part in it; but all can become delegates or representatives,
all can arrive at administrative employments, and all have the
right to protest against abuses. In aristocratic republics
political liberty is exclusively concentrated in the body of
Notables; they alone exercise all the power; subjects have only
civil liberty.”[168]

Such, in France, is the voice of political science.

It is also the voice of the French Revolution. The one idea which that great event taught with prevailing influence was the Equal Rights of All, explained and defined by the new-born formula, that “all are equal before the Law.” Napoleon recognized the supremacy of this principle, when, in an official address to the Council of State, he said, “France loves Equality above everything”;[169] and he sought to enforce it, when, in an early proclamation, he declared, “Let there be no head which does not bend under the empire of Equality.”[170] Such is human inconsistency, that shortly afterwards his own ambition refused to bend under this empire, which none the less disowned the sceptre he assumed and the nobles he created. But the great truth, though trampled down, survived in the hearts of the French people, to rise again and resume its heritage.

As the Provisional Government of 1848 proclaimed the Republic, it was careful, after proper deliberation, to proclaim at the same time “universal suffrage,” which Lamartine, standing on the steps of the Hôtel de Ville, and speaking in the name of the Government, said was “the first truth and only basis of every National Republic.”[171] This proclamation was itself submitted to the vote of “all the citizens”; and on the terms of this submission another member of the Government, of solid sense and perfect fidelity, thus expresses himself:--

“By these words--_all the citizens_--the Provisional Government
intended to consecrate definitively the fundamental principle
of democracy; it intended to proclaim boldly and forever the
inalienable, imprescriptible right inherent in each member
of society to participate directly in the government of his
country; it intended to put in practice really and loyally the
great principles hitherto shut up in the domain of the abstract
theories of philosophy.”[172]

The same person, M. Garnier-Pagès, who was at once an eminent actor in these scenes and their most authentic historian, thus again dwells on the true idea of a Republic:--

“The Republic, that government of _all by all_, where each has
his place, his duty, and his right; the Republic, that is to
say, Liberty itself, the liberty to do every act and to give
utterance to every thought not prejudicial to others; the
Republic, that fraternal ground where are admitted all parties,
the representatives of the past as well as of the future, where
all minds, all associations, can have free scope.”[173]

This precise definition is fitly crowned by the remarkable words revealing the soul of De Tocqueville:--

“I should, I think, have loved Liberty at all times, but in the
times in which we live I feel inclined to adore it.… There is
no legislator sufficiently wise and sufficiently powerful to
maintain free institutions, _if he does not take Equality for
first principle and symbol_. All our contemporaries, then, who
would create or assure the independence and dignity of their
fellow-men, must show themselves the friends of Equality; and
the only worthy way of showing themselves such is to be so.
Upon this depends the success of their holy enterprise.”[174]

To the authentic testimony of modern France, in harmony with our own country, I add the definition of a very recent foreign publicist, who, after dwelling on Equality as the idol sentiment of a Republic, says:--

“This shows us the nature and the end of republican government.
It is a government founded on the general interest and
equality.”[175]

Admirable words!--in themselves a definition. And here, before closing this testimony, let me call attention to two authorities, contemporary with our fathers, which stand apart,--one English, and the other German. The first is that of Dr. Richard Price, the friend of John Adams, who very early appreciated the American Revolution, and vindicated it before the world. Here is his idea of good government, compendiously expressed:--

“Legitimate government, as opposed to oppression and tyranny,
consists only in the dominion of _Equal Laws_ made with _common
consent_, or of men over _themselves_; and not in the dominion
of communities over communities, or of any men over other
men.”[176]

The German was none other than the great thinker, Emanuel Kant, who, in his speculations on Perpetual Peace, says, that to this end every state should be a Republic, which he defines:--

“That form of government where _every citizen_ participates by
his representatives in the exercise of the legislative power,
and especially in that of deciding on the questions of peace
and war.”[177]

The statement of Kant is as simple as Pure Reason, which is the title of his great work. It claims plainly for “every citizen” a share in the government, and is the deliberate conclusion furnished by this eminent philosopher, whose name, rarely quoted in politics, is an unimpeachable authority.

* * * * *

Such is the definition of a republican form of government, as found in the history, declarations, opinions, and public acts of the Fathers of our country, reinforced by the authority of foreign intelligence and the example of France. From this presentation of authorities not to be questioned we pass easily to another stage of the discussion, where the conclusion is the easy and irresistible sequence.

III.

Bringing these lapsed States to the touchstone, we see at once their small title to recognition as republican in form. Authentic figures are not wanting. The census of 1860 discloses the population of the States in question.

+----------------+--------------------+-----------------------+
| | | Colored Population, |
| States. | White Population. | Slave and Free, |
| | | including Indians. |
+----------------+--------------------+-----------------------+
|Alabama | 526,271 | 437,930 |
|Arkansas | 324,143 | 111,307 |
|Florida | 77,747 | 62,677 |
|Georgia | 591,550 | 465,736 |
|Louisiana | 357,456 | 350,546 |
|Mississippi | 353,899 | 437,406 |
|North Carolina | 629,942 | 362,680 |
|South Carolina | 291,300 | 412,408 |
|Tennessee | 826,722 | 283,079 |
|Texas | 420,891 | 183,324 |
|Virginia | 1,047,299 | 549,019 |
| +--------------------+-----------------------+
| | 5,447,220 | 3,656,112 |
+----------------+--------------------+-----------------------+