The Senate having under consideration the bill to admit the
States of North Carolina, South Carolina, Louisiana, Georgia,
and Alabama to representation in Congress, Mr. Sumner said:--
MR. PRESIDENT,--What I have to say to-day will be confined to a
single topic. I shall speak of _the validity and necessity of
fundamental conditions on the admission of States into the body of
the Nation_,--passing in review objections founded on the asserted
equality of States, and also on a misinterpretation of the power to
determine the “qualifications” of electors, and that other power to
make “regulations” for the election of certain officers. Here I shall
encounter the familiar pretensions of another time, no longer put forth
by defiant Slave-Masters, but retailed by conscientious Senators, who
think they are supporting the Constitution, when they are only echoing
the voice of Slavery.
Fundamental conditions on the admission of States are older than our
Constitution; for they appear in the Ordinance for the vast Territory
of the Northwest, adopted anterior to the Constitution itself. In that
Ordinance there are various conditions, of perpetual obligation, as
articles of compact. Among these is the famous prohibition of Slavery.
In the early days of our Nation nobody thought of questioning the
validity of these conditions. Scattered efforts were made to carry
Slavery into some portions of this region, and unquestionably there
were sporadic cases, as in Massachusetts itself; but the Ordinance
stood firm and unimpeached.
One assurance of its authority will be found in the historic fact,
that in 1820, on the admission of Missouri as a State of the Union,
there was a further provision that in all territory of the United
States north of 36° 30´ north latitude, “Slavery and involuntary
servitude, otherwise than in the punishment of crimes, whereof the
parties shall have been duly convicted, shall be and is hereby FOREVER
_prohibited_.”[218] This was the famous Missouri Compromise. Missouri
was admitted as a State without any restriction of Slavery, but all
the outlying territory west and north was subjected to this condition
_forever_. It will be observed that the condition was in no respect
temporary, but that it was “forever,”--thus outlasting any territorial
government, and constituting a fundamental law, irrepealable through
all time. Surely this condition, perpetual in form, would not have
been introduced, had it been supposed to be inoperative,--had it
been regarded as a sham, and not a reality. This statute, therefore,
testifies to the judgment of Congress at that time.
It was only at a later day, and at the demand of Slavery, that the
validity of the great Ordinance of Freedom was called in question. Mr.
Webster, in his memorable debate with Mr. Hayne in 1830, vindicated
this measure in language worthy of the cause and of himself, giving to
it a palm among the laws by which civilization has been advanced, and
asserting its enduring character:--
“We are accustomed, Sir, to praise the lawgivers of antiquity;
we help to perpetuate the fame of Solon and Lycurgus; but
I doubt whether one single law of any lawgiver, ancient or
modern, has produced effects of more distinct, marked, and
lasting character than the Ordinance of 1787.… It fixed forever
the character of the population in the vast regions northwest
of the Ohio, by excluding from them involuntary servitude. It
impressed on the soil itself, while it was yet a wilderness,
an incapacity to sustain any other than freemen. _It laid the
interdict against personal servitude in original compact, not
only deeper than all local law, but deeper also than all local
constitutions._”[219]
Words of greater beauty and power cannot be found anywhere in the
writings or speeches of our American orator. It would be difficult
to declare the perpetual character of this original interdict more
completely. The language is as picturesque as truthful. Deeper than all
local law, deeper than all local constitutions, is this fundamental
law; and such is its essential quality, that the soil which it protects
cannot sustain any other than freemen. Of such a law the orator
naturally proceeded to say:--
“We see its consequences at this moment; and we shall never
cease to see them, perhaps, while the Ohio shall flow. _It was
a great and salutary measure of prevention._”[220]
In these last words the value of such a law is declared. It is for
_prevention_, which is an essential object of all law. In this case
it is the more important, as the evil to be prevented is the most
comprehensive of all.
Therefore, on the authority of Mr. Webster, in harmony with reason
also, do I say, that this original condition was not only perpetual in
character, but beneficent also. It was beneficence in perpetuity.
Mr. Chase, in his admirable argument before the Supreme Court of the
United States, in the _Vanzandt_ case, is hardly behind Mr. Webster in
homage to this Ordinance, or in a sense of its binding character. In
his opinion it is a compact of perpetual obligation:--
“I know not that history records a sublimer act than this. The
United American States, having just brought their perilous
struggle for freedom and independence to a successful issue,
proceeded to declare the terms and conditions on which their
vacant territory might be settled and organized into States;
and these terms were, not tribute, not render of service, not
subordination of any kind, but _the perpetual maintenance of
the genuine principles of American Liberty, declared to be
incompatible with Slavery_; and that these principles might be
inviolably maintained, they were made _the articles of a solemn
covenant_ between the original States, then the proprietors
of the territory and responsible for its future destiny, and
the people and the States who were to occupy it. Every settler
within the territory, by the very act of settlement, became a
party to this _compact, bound by its perpetual obligations_,
and entitled to the full benefit of its excellent provisions
for himself and his posterity. No subsequent act of the
original States could affect it, without his consent. _No act
of his, nor of the people of the territory, nor of the States
established within it, could affect it, without the consent of
the original States._”[221]
According to these words, which I am sure would not be disowned by
the present Chief Justice of the United States, the Ordinance is a
sublime act, having for its object nothing less than _the perpetual
maintenance of the genuine principles of American Liberty_. In form it
is a compact, unalterable except by the consent of the parties, and
therefore _forever_.
If anything in our history is settled by original authority, supported
by tradition and time, it is the binding character of the Ordinance
for the Government of the Northwest Territory. Nobody presumed to call
it in question, until at last Slavery flung down its challenge to
everything that was settled for Freedom. The great Ordinance, with its
prohibition of Slavery, was not left unassailed.
All this makes a strange, eventful passage of history. The enlightened
civilization of the age was beginning to be felt against Slavery,
when its representatives turned madly round to confront the angel of
light. The madness showed itself by degrees. Point by point it made
itself manifest in Congress. The Slave-Masters forgot morals, history,
and the Constitution. Their manifold pretensions resolved themselves
into three, in which the others were absorbed: first, that Slavery,
instead of an evil to be removed, was a blessing to be preserved;
secondly, that the right of petition could not be exercised against
Slavery; thirdly, that, in all that concerns Slavery, State Rights were
everything, while National Rights were nothing. These three pretensions
entered into Congress, like so many devils, and possessed it. The first
broke forth in eulogies of Slavery, and even in blandishments for the
Slave-Trade. The second broke forth in the “Atherton Gag,” under which
the honest, earnest petitions from the national heart against Slavery,
even in the District of Columbia, were tabled without reference, and
the great Right of Petition, promised by the Constitution, became a
dead letter. The third, beginning with the denial of the power of
the Nation to affix upon new States the perpetual condition of Human
Rights, broke forth in the denial of the power of the Nation over
Slavery in the Territories or anywhere else, even within the national
jurisdiction. These three pretensions all had a common origin, and one
was as offensive and unreasonable as another. The praise of Slavery and
the repudiation of the Right of Petition by the enraged Slave-Masters
were not worse than the pretension of State Rights against the power
of the Nation to prohibit Slavery in the national jurisdiction, or to
affix righteous conditions upon new States.
The first two pretensions have disappeared. These two devils have been
cast out. Nobody dares to praise Slavery; nobody dares to deny the
Right of Petition. The third pretension has disappeared only so far
as it denied the power of the Nation over Slavery in the Territories;
and we are still doomed to hear, in the name of State Rights, the old
cry against conditions upon new States. This devil is not yet entirely
cast out. Pardon me, if I insist upon putting the national rights over
the Territories and the national rights over new States before their
admission in the same category. These rights not only go together, but
they are one and the same. They are not merely companion and cognate,
but they are identical. The one is necessarily involved in the other.
Prohibition in the Territories is prolonged in conditions upon new
States. The Ordinance of 1787, which is the great example, asserts the
_perpetuity_ of all its prohibitions; and this is the rule alike of
law and statesmanship. Vain were its prohibitions, if they fell dead
in presence of State Rights. The pretension is too irrational. The
Missouri Act takes up the rule asserted in the Ordinance, and declares
that in certain Territories Slavery shall be prohibited _forever_. A
territorial existence terminating in State Rights is a short-lived
_forever_. Only by recognizing the power of the Nation over the States
formed out of the Territory can this _forever_ have a meaning above the
prattle of childhood or the vaunt of Bombastes.
The whole pretension against the proposed condition is in the name of
State Rights; but it cannot be doubted that it may be traced directly
to Slavery. Shall the pretension be allowed to prevail, now that
Slavery has disappeared? The principal has fallen; why preserve the
incident? The wrong guarded by this pretension has yielded; why should
not the pretension yield also? Asserting, as I now do, the validity and
necessity of the proposed condition, I would not seem indifferent to
the rights of the States in those proper spheres appointed for them.
Unquestionably States have rights under the Constitution, which we
are bound to respect,--nay, more, which are a source of strength and
advantage. It is through the States that the people everywhere govern
themselves, and our Nation is saved from a central domination. Here
is the appointed function of the States. They supply the machinery of
local self-government for the convenience of life, while they ward off
the attempts of an absorbing imperialism. _But there can be no State
Rights against Human Rights._ Because a State, constituting part of a
Nation dedicated to Human Rights, may govern itself and supply the
machinery of local self-government, _it does not follow that such a
State may deny Human Rights within its borders_. State Rights, when
properly understood, are entirely consistent with the maintenance of
Human Rights by the Nation. The State is not humbled, when it receives
the mandate of the Nation to do no wrong; nor can the Nation err, when
it asserts everywhere within its borders the imperialism of Human
Rights. Against this righteous supremacy all pretensions of States must
disappear, as darkness before the King of Day.
The song of State Rights has for its constant refrain the asserted
_Equality of the States_. Is it not strange that words so constantly
employed as a cover for pretensions against Human Rights cannot be
found in the Constitution? It is true, that, by the Laws of Nations,
all sovereign States, great or small, are equal; but this principle
has been extended without authority to States created by the Nation
and made a part of itself. There is but one active provision in the
Constitution which treats the States as equal, and this provision shows
how this very Equality may be waived. Every State, large or small,
has two Senators, and the Constitution places this Equality of States
under its safeguard by providing that “no State, _without its consent_,
shall be deprived of its _equal suffrage_ in the Senate.” But this very
text contains what lawyers might call a “negative pregnant,” being a
negation of the right to change this rule, with an affirmation that
it may be changed. The State, _with its consent_, may be deprived of
its equal suffrage in the Senate. And this is the whole testimony of
the Constitution to that Equality of States which is now asserted in
derogation of all compacts or conditions. It is startling to find how
constantly the obvious conclusions from the text of the Constitution
have been overlooked. Even in the contemplation of the Constitution
itself, a State may waive its equal suffrage in the Senate, so as to be
represented by a single Senator only. Of course, all this must depend
on its own consent, in concurrence with the Nation. Nothing is said of
the manner in which this consent may be given by the State or accepted
by the Nation. But if this important limitation can in any way be made
the subject of agreement or compact, pray, Sir, where will you stop?
What other power or prerogative of the State may not be limited also,
especially where there is nothing in the Constitution against any such
limitation? All this I adduce simply by way of illustration. There is
no question now of any limitation, in the just sense of this term. A
condition in favor of Human Rights cannot be a limitation on a State or
on a citizen.
If we look further, and see how the Senatorial equality of States
obtained recognition in the Constitution, we shall find new occasion
to admire that facility which has accorded to this concession so
powerful an influence; and here the record is explicit. The National
Convention had hardly assembled, when the small States came forward
with their pretensions. Not content with suffrage in the Senate, they
insisted upon equal suffrage in the House of Representatives. They had
in their favor the rule of the Continental Congress, and also of the
Confederation, under which each State enjoyed one vote. Assuming to be
independent sovereignties, they had likewise in their favor the rule of
International Law. Against these pretensions the large States pleaded
the simple rule of justice; and here the best minds concurred. On this
head the debates of the Convention are interesting. At an early day we
find Mr. Madison moving “that the equality of suffrage established by
the Articles of Confederation ought not to prevail in the _National_
Legislature.”[222] This proposition, so consistent with reason, was
seconded by Gouverneur Morris, and, according to the report, “being
generally relished,” was about being adopted, when Delaware, by one
of her voices on the floor, protested, saying, that, in case it
were adopted, “it might become the duty of her deputies to retire
from the Convention.”[223] Such was the earliest cry of Secession.
Gouverneur Morris, while observing that the valuable assistance
of those members could not be lost without real concern, gave his
testimony, that “the change proposed was so fundamental an article in
a _National_ Government that it could not be dispensed with.”[224]
Mr. Madison followed, saying, very justly, that, “whatever reason
might have existed for the equality of suffrage when the Union was a
Federal one _among sovereign States_, it must cease when a _National_
government should be put into the place.”[225] Franklin, in similar
spirit, reminded the Convention that the equal suffrage of the States
“was submitted to originally by Congress under a conviction of its
impropriety, inequality, and injustice.”[226] This is strong language
from the wise old man, but very true. Elbridge Gerry, after depicting
the States as “intoxicated with the idea of their sovereignty,” said
that “the injustice of allowing each State an equal vote was long
insisted on. He voted for it; but it was against his judgment, and
under the pressure of public danger and the obstinacy of the lesser
States.”[227] Against these overwhelming words of Madison, Morris,
Franklin, and Gerry, the delegates from Delaware pleaded nothing
more than that, without an equal suffrage, “Delaware would have
about one ninetieth for its share in the general councils, whilst
Pennsylvania and Virginia would possess one third of the whole”;[228]
and New Jersey, by her delegates, pleaded also “that it would not be
safe for Delaware to allow Virginia sixteen times as many votes” as
herself.[229] On the part of the small States, the effort was for power
disproportioned to size. On the part of the large States there was a
protest against the injustice and inequality of these pretensions,
especially in a government national in its character. The question was
settled by the great compromise of the Constitution, according to which
representation in the House of Representatives was proportioned to
population, while each State was entitled to an equal suffrage in the
Senate. To this extent the small States prevailed, and the Senate ever
since has testified to the equality of States; or rather, according to
the language of the “Federalist” on this very point, it has been “a
palladium to the residuary sovereignty of the States.”[230] Thus, by
the pertinacity of the small States, was this concession extorted from
the Convention, in defiance of every argument of justice and equity,
and contrary to the judgment of the best minds; and now it is exalted
into a universal rule of Constitutional Law, before which justice and
equity must hide their faces.
This protracted and recurring conflict in the Convention is
compendiously set forth by our great authority, Judge Story, when he
says:--
“It constituted one of the great struggles between the large
and the small States, which was constantly renewed in the
Convention, and impeded it in every step of its progress in
the formation of the Constitution. The struggle applied to
the organization of each branch of the Legislature. The small
States insisted upon an equality of vote and representation in
each branch, and the large States upon a vote in proportion to
their relative importance and population.… The small States at
length yielded the point as to an equality of representation
in the House, and acceded to a representation proportionate to
the Federal numbers. But they insisted upon an equality in the
Senate. To this the large States were unwilling to assent, and
for a time the States were on this point equally divided.”[231]
This summary is in substantial harmony with my own abstract of the
debates. I present it because I would not seem in any way to overstate
the case. And here let me add most explicitly, that I lend no voice to
any complaint against the small States; nor do I suggest any change in
the original balances of our system. I insist only that the victory
achieved in the Constitution by the small States shall not be made the
apology for a pretension inconsistent with Human Rights. And now, for
the sake of a great cause, the truth must be told.
It must not be disguised that this pretension has another origin,
outside the Constitution. This is in the Ordinance of 1787, where it
is positively provided that any State formed out of the Northwest
Territory “shall be admitted, by its delegates, into the Congress of
the United States _on an equal footing with the original States in all
respects whatever_.” Next after the equal suffrage in the Senate stands
this provision with its talismanic phrase, _equal footing_. New States
are to be admitted on an _equal footing_ with the original States in
all respects whatever. This language is strong; but nobody can doubt
that it must be read in the light of the Ordinance where it appears.
Read in this light, its meaning cannot be questioned. By the Ordinance
there are no less than six different articles of compact, “forever
unalterable, unless by common consent,” constituting so many perpetual
safeguards: the first perpetuating religious liberty; the second
perpetuating _Habeas Corpus_, trial by jury, and judicial proceedings
according to the course of the Common Law; the third perpetuating
schools and the means of education; the fourth perpetuating the title
of the United States in the soil without taxation, the freedom of
the rivers as highways, and the liability of the people for a just
proportion of the national debt; the fifth perpetuating the right of
the States to be admitted into the Union on an _equal footing_ with
the original States; and then, next in order, the sixth perpetuating
freedom,--being that immortal condition which is the golden bough of
this mighty oak,--that “there shall be neither slavery nor involuntary
servitude in the said Territory.” Now it is clear that subjection
to these perpetual conditions was not considered in any respect
inconsistent with that “equal footing” which was stipulated. Therefore,
even assuming that States, when admitted, shall be on an “equal
footing” with others, there can be no hindrance to any conditions by
Congress kindred to those which were the glory of the Ordinance.
To all who, borrowing a catchword from Slavery, assert the Equality of
States in derogation of fundamental conditions, I oppose the plain text
of the Constitution, which contains no such rule, except in a single
instance, and there the equality may be waived; and I oppose also the
Ordinance of 1787, which, while requiring that new States shall be
admitted on an “equal footing” with other States, teaches by its own
great example that this requirement is not inconsistent with conditions
of all kinds, and especially in favor of Human Rights. The Equality of
States on the lips of Slave-Masters was natural, for it was a plausible
defence against the approaches of Freedom; but this unauthorized
phrase, which has deceived so many, must be rejected now, so far at
least as it is employed against the Equal Rights of All. As one of the
old garments of Slavery, it must be handed to the flames.
From this review it is easy to see that we approach the present
question without any impediment or constraint in the Constitution.
Not a provision, not a clause, not a sentence, not a phrase in
the Constitution can be made an apology even for the present
objection,--absolutely nothing; and here I challenge reply. Without
any support in the Constitution, its partisans borrow one of the
worst pretensions of Slavery, and utter it now as it was uttered by
Slave-Masters. Once more we hear the voice of Slavery crying out in
familiar tones, that conditions cannot be imposed on new States.
Alas that Slavery, which we thought had been slain, is not entirely
dead! Again it stalks into this Chamber, like the majesty of buried
Denmark,--“in the same figure, like the king that’s dead,”--and
then, like this same ghost, it cries out, “Swear!” and then again,
“Swear!”--and Senators pledged to Freedom take up the old pretension
and swear it anew. For myself, I insist not only that Slavery shall be
buried out of sight, but that all its wretched pretensions hostile to
Human Rights shall be buried with it.
* * * * *
The conditions upon new States are of two classes: _first_, those that
_may_ be required; _secondly_, those that _must_ be required.
The first comprehends those conditions which the Nation may consider
it advisable to require, before admitting a new member into the
partnership of government. The Constitution, in positive words, leaves
to the Nation a discretion with regard to the admission of new States.
The words are: “New States _may_ be admitted by the Congress into the
Union,”--thus plainly recognizing a latitude under which any conditions
not inconsistent with the Constitution may be required, as by a firm on
the admission of a new partner. All this is entirely reasonable; but
I do not stop to dwell on it, for the condition which I have at heart
does not come under this head.
A fundamental condition in favor of Human Rights is of that essential
character that it _must_ be required. Not to require it is to abandon
a plain duty; so it seems to me. I speak with all deference to others,
but I cannot see it otherwise.
The Constitution declares that “the United States shall guaranty to
every State in this Union _a republican form of government_.” These are
grand words, perhaps the grandest in the Constitution, hardly excepting
the Preamble, which is so full of majestic meaning and such a fountain
of national life. Kindred to the Preamble is this supreme obligation
imposed on the United States to guaranty a republican government. There
it is. You cannot avoid this duty. Called to its performance, you
must supply a practical definition of a republican government. This
again you cannot avoid. By your oaths, by all the responsibilities
of your position, you must say what in your judgment is a republican
government, and you must so decide as not to discredit our fathers and
not to give an unworthy example to mankind. Happily the definition
is already of record in our history. Our fathers gave it to us, as
amid the thunders of Sinai, when they put forth their Declaration of
Independence. There it stands in the very front of our Great Charter,
embodied in two simple, self-evident truths,--first, that all men are
equal in rights, and, secondly, that all just government is founded
only on the consent of the governed,--the two together making an
axiomatic definition which proves itself. Its truth is like the sun;
blind is he who cannot see it. And this is the definition bequeathed as
a freehold by our fathers. Though often assailed, even by Senators, it
is none the less true. So have I read of savages who shot their arrows
at the sun. Clearly, then, that is a republican government where all
have equal rights and participate in the government. I know not if
anything need be added; I am sure that nothing can be subtracted.
The Constitution itself sets the example of imposing conditions upon
the States. Positively it says, no State shall enter into any treaty,
alliance, or confederation; no State shall grant letters of marque
and reprisal; no State shall coin money; no State shall emit bills
of credit. Again it says, no State shall, without the consent of
Congress, lay any duty of tonnage, or keep troops or ships of war in
time of peace. All these are conditions in the text of the Constitution
so plain and intelligible as to require no further elucidation. To
repeat them on the admission of a State would be superfluous. It is
different, however, with that highest condition of all, that the State
shall be republican. This requires repetition and elucidation, so as to
remove all doubt of its application, and to vitalize it by declaring
what is meant by a republican government.
* * * * *
Here I might close this argument; but there are two hostile pretensions
which must be exposed: the first founded on a false interpretation of
“qualifications,” being nothing less than the impossible assumption,
that, because the States may determine the “qualifications” of
electors, therefore they can make color a criterion of the electoral
franchise; and the second founded on a false interpretation of the
asserted power of the States “to regulate suffrage,” being nothing
less than the impossible assumption that under the power to regulate
suffrage the rights of a whole race may be annihilated. These two
pretensions are of course derived from Slavery. They are hatched from
the eggs that the cuckoo bird has left behind. Strange that Senators
will hatch them!
1. By the Constitution it is provided that “the electors in each State
shall have the _qualifications_ requisite for electors of the most
numerous branch of the State Legislature.” On this clause Senators
build the impossible pretension that a State cannot be interrupted
in its disfranchisement of a race. Here is the argument: Because a
State may determine the _qualifications_ of electors, _therefore_ it
may deprive a whole race of equal rights and of participation in the
Government. Logically speaking, here are most narrow premises for the
widest possible conclusion. On the mere statement, the absurdity is
so unspeakable as to recall the kindred pretension of Slavery, that,
because commerce is lawful, therefore commerce in human flesh is lawful
also. If the consequences were not so offensive, this “argal” might be
handed over to consort with that of the Shakespearean grave-digger.
But the argument is not merely preposterous, it is insulting to the
human understanding, and a blow at human nature itself. If I use
strong language, it is because such a proclamation of tyranny requires
it. Admitting that the States may determine the “qualifications” of
electors, what then? Obviously it must be according to the legitimate
meaning of this word. And here, besides reason and humanity, two
inexhaustible fountains, we have two other sources of authority:
first, the Constitution, in which the word appears, and, secondly, the
dictionaries of the English language, out of both of which we must
condemn the intolerable pretension.
The Constitution, where we find this word, follows the Declaration
of Independence, and refuses to recognize any distinction of color.
Search, and you will confess that there is no word of “color”
in its text; nor is there anything there on which to found any
disfranchisement of a race. The “qualifications” of different officers,
as President, Vice-President, Senators, and Representatives, are
named; but “color” is not among these. The Constitution, like the Ten
Commandments and the Beatitudes, embraces all alike within its mandates
and all alike within its promises. There are none who must not obey
it; there can be none who may not claim its advantages. By what title
do you exclude a race? The Constitution gives no such title; you can
only find it in yourselves. The fountain is pure; it is only out of
yourselves that the waters of bitterness proceed.
The dictionaries of our language are in harmony with the Constitution.
Look at “Qualification” in Webster or Worcester, the two best
authorities of our time, and you will find that the word means
“fitness,” “capability,” “accomplishment,” “the condition of being
qualified”; but it does not mean “color.” It embraces age, residence,
character, education, and the payment of taxes,--in short, all those
conditions which, when honestly administered, are in the nature of
_regulation_, not of _disfranchisement_. The English dictionaries
most used by the framers of the Constitution were Bailey and Johnson.
According to Bailey, who was the earliest, this important word is thus
defined:--
“(1.) _That which fits any person or thing for any particular
purpose._”
“(2.) _A particular faculty or endowment, an accomplishment._”
According to Johnson, who is the highest authority, it is thus
defined:--
“(1.) _That which makes any person or thing fit for anything._”
EXAMPLE.--“It is in the power of the prince to make piety and
virtue become the fashion, if he would make them necessary
_qualifications_ for preferment.--SWIFT.”
“(2.) _Accomplishment._”
EXAMPLE.--“Good _qualifications_ of mind enable a magistrate
to perform his duty, and tend to create a public esteem of
him.--ATTERBURY.”
By these definitions this word means “fitness,” or “accomplishment,”
and, according to the well-chosen examples from Swift and Atterbury,
it means qualities like “piety” and “virtue,” or like faculties “of
mind,” all of which are more or less within the reach of every human
being. But it is impossible to extend this list so as to make “color”
a quality,--absolutely impossible. Color is a physical condition
affixed by the God of Nature to a large portion of the human race,
and insurmountable in its character. Age, education, residence,
property,--all these are subject to change; but the Ethiopian
cannot change his skin. On this last distinctive circumstance I
take my stand. _An insurmountable condition is not a qualification,
but a disfranchisement._ Admit that a State may determine the
“qualifications” of electors, it cannot, under this authority,
arbitrarily exclude a whole race.
Try this question by examples. Suppose South Carolina, where the blacks
are numerous, should undertake to exclude the whites from the polls on
account of “color”; would you hesitate to arrest this injustice? You
would insist that a government sanctioning such a denial of rights,
under whatever pretension, could not be republican. Suppose another
State should gravely declare that _all with black eyes_ should be
excluded from the polls, and still another should gravely declare that
_all with black hair_ should be excluded from the polls, I am sure
that you would find it difficult to restrain the mingled derision
and indignation which such a pretension must excite. But this fable
pictures your conduct. All this is now gravely done by States; and
Senators gravely insist that such exclusion is proper in determining
the “qualifications” of electors.
2. Like unto the pretension founded on a misinterpretation of
“qualifications” is that other founded on a misinterpretation of
the asserted power of a State to make “regulations.” Listen to this
pretension. Assuming that a State may _regulate_ the elections without
the intervention of Congress, it is insisted that it may disfranchise a
race. Because a State may regulate the elective franchise, _therefore_
it may destroy this franchise. Surely it is one thing to regulate,
and quite another thing to destroy. The power to regulate cannot
involve any such conclusion of tyranny. To every such wretched result,
howsoever urged, there is one sufficient reply,--_Non sequitur_.
According to the Constitution, “the _times, places, and manner_ of
holding elections for Senators and Representatives shall be prescribed
in each State by the Legislature thereof; but the Congress may at any
time by law make or alter such _regulations_, except as to the places
of choosing Senators.” Here is the text of this portentous power
to blast a race. In these simple words no such power can be found,
unless the seeker makes the Constitution a reflection of himself. The
times, places, and manner of holding elections are referred to the
States,--nothing more; and even these may be altered by Congress. Being
matters of form and convenience only, in the nature of _police_, they
are justly included under the head of “regulations,” like the sword and
uniform of the army. Do we not familiarly speak of a _regulation_ sword
and a _regulation_ sash? Who will dare to say that under this formal
power of _regulation_ a whole race may be despoiled of equal rights
and of all participation in the Government? This very pretension was
anticipated by Mr. Madison, and condemned in advance. Here are his
decisive words in the Virginia Convention:--
“Some States might regulate the elections on the principles of
equality, and others might regulate them otherwise.… Should the
people of any State by any means be deprived of the right of
suffrage, _it was judged proper that it should be remedied by
the General Government_.”[232]
Thus was it expressly understood, at the adoption of the Constitution,
that Congress should have the power to prevent any State, under the
pretence of regulating the suffrage, from depriving the people of this
right, or from interfering with the principle of _Equality_.
Kindred to this statement of Mr. Madison is that other contemporary
testimony which will be found in the “Federalist,” where the
irrepealable rights of citizens are recognized without distinction of
color. This explicit language cannot be too often quoted. Here it is:--
“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_.”[233]
This testimony is as decisive as it is authentic. Consider that it was
given in explanation and vindication of the Constitution. Consider that
the Constitution was commended for adoption by the assertion, that, on
the termination of Slavery, “the negroes could no longer be refused an
_equal share_ of representation with the other inhabitants.” In the
face of this assurance, how can it be now insisted, that, under the
simple power to regulate the suffrage, a State may deny to a whole race
that “equal share of representation” which was promised? Thus from
every quarter we are brought to the same inevitable conclusion.
Therefore I dismiss the pretension founded on the power to make
_regulations_, as I dismiss that other founded on the power to
determine _qualifications_. Each proceeds on a radical misconception.
Admit that a State may determine _qualifications_; admit that a State
may make _regulations_; it cannot follow, by any rule of logic or law,
that, under these powers, either or both, it may disfranchise a race.
The pretension is too lofty. No such enormous prerogative can be wrung
out of any such moderate power. As well say, that, because a constable
or policeman may keep order in a city, therefore he may inflict the
penalty of death,--or, because a father may impose proper restraint
upon a child, therefore he may sell him into slavery. We have read
of an effort to extract sunbeams out of cucumbers; but the present
effort to extract a cruel prerogative out of the simple words of the
Constitution is scarcely less absurd.
* * * * *
I conclude as I began, in favor of requiring conditions from States on
their admission into the Nation; and I insist that it is our especial
duty, in every possible way, by compact and by enactment, to assure
among these conditions the Equal Rights of All, and the participation
of every citizen in the government over him, without which the State
cannot be republican. For the present I confine myself to the question
of conditions on the admission of States, without considering the
broader obligation of Congress to make Equal Rights coextensive with
the Nation, and thus to harmonize our institutions with the principles
of the Declaration of Independence. That other question I leave to
another occasion.
Meanwhile I protest against the false glosses originally fastened
upon the Constitution by Slavery, and, now continued, often in
unconsciousness of their origin, perverting it to the vilest uses of
tyranny. I protest against that exaggeration of pretension which out
of a power to make “regulations” and to determine “qualifications” can
derive an unrepublican prerogative. I protest against that pretension
which would make the asserted Equality of States the cover for a denial
of the Equality of Men. The one is an artificial rule, relating to
artificial bodies; the other is a natural rule, relating to natural
bodies. The one is little more than a legal fiction; the other is
a truth of Nature. Here is a distinction which Alexander Hamilton
recognized, when, in the debates of the Convention, he nobly said:--
“As States are a collection of individual men, which ought we
to respect most,--the rights of the people composing them,
or of the artificial beings resulting from the composition?
Nothing could be more preposterous or absurd than to sacrifice
the former to the latter.”[234]
High above States, as high above men, are those commanding principles
which cannot be denied with impunity. They will be found in the
Declaration of Independence, expressed so clearly that all can read
them. Though few, they are mighty. There is no humility in bending to
their behests. As man rises in the scale of being while walking in
obedience to the Divine will, so is a State elevated by obedience to
these everlasting truths. Nor can we look for harmony in our country
until these principles bear unquestioned sway, without any interdict
from the States. That unity for which the Nation longs, with peace and
reconciliation in its train, can be assured only through the Equal
Rights of All, proclaimed by the Nation everywhere within its limits,
and maintained by the national arm. Then will the Constitution be
filled and inspired by the Declaration of Independence, so that the
two shall be one, with a common life, a common authority, and a common
glory.