“In some writing or other of mine, I happened, _currente
calamo_, to drop the phrase, ‘The word _Republic_, as it is
used, may signify anything, everything, or nothing.’ For this
escape I have been pelted, for twenty or thirty years, with as
many stones as ever were thrown at St. Stephen, when St. Paul
held the clothes of the stoners. But the aphorism is literal,
strict, solemn truth. To speak technically, or scientifically,
if you will, there are monarchical, aristocratical, and
democratical republics. The government of Great Britain and
that of Poland are as strictly republics as that of Rhode
Island or Connecticut under their old charters.”[69]
In the latter remark, Mr. Adams simply repeats his treatise, where he
calls England and Poland “monarchical or regal _republics_.”[70]
It is plain that our fathers, when they adopted the “guaranty” of “a
republican form of government,” intended something certain, or which,
if not certain on the face, could be made certain. But this excludes
the authority of incongruous and inconsistent examples. They did not
use words to signify “anything, everything, or nothing”; nor did they
use words which were as applicable to England and Poland as to the
United States. Therefore I cannot err in putting aside examples which,
however they illustrate republican government in times past, are
utterly out of place as a guide to the interpretation of the National
Constitution. Something better must be found: nor is it wanting.
I put aside, also, definitions of European writers and lexicographers
anterior to the National Constitution; for all these have the vagueness
and uncertainty of political truth at that time in Europe. Among these,
none is of higher authority than Montesquieu, who brought to political
science study, genius, and a liberal spirit. But even this great
writer, who profited by all his predecessors, quickens and elevates
without furnishing a satisfactory guide. He taught that “Virtue” was
the inspiring principle of a republic, and by “virtue” he means the
love of country, which, he says, is the love of equality.[71] This is
beautiful, and makes Equality a foremost principle; but, with curious
inconsistency, he includes “democracy” and “aristocracy” under the
term “Republic,”--the former being where the people in mass have the
sovereign power, and the latter “where the sovereign power is in the
hands of _part of the people_.” When defining “democracy,” he expresses
the importance of the suffrage as a fundamental of government,
saying, among other things, that it is as important to regulate _by
whom_ the suffrage shall be given as in a monarchy to know who is
the monarch.[72] But among all these glimpses of truth there is no
definition of “a republican form of government” which can help us in
interpreting the National Constitution. Surely an aristocracy, “where
the sovereign power is in the hands of _part of the people_,” cannot
find a just place in our political system. It may be “a republican form
of government” according to Montesquieu, but it cannot be according to
American institutions.
One of the ablest among the modern predecessors of Montesquieu was
John Bodin, also a Frenchman, who wrote nearly two centuries earlier.
Like the ancient writers, he uses the term “republic” to embrace
monarchy, aristocracy, and democracy, which he calls “three kinds of
republics,”--_tria rerumpublicarum genera_. If the republic is in the
power of one, _penes unum_, it is a monarchy; if in the power of a
few, _penes paucos_, it is an aristocracy; if in the power of all,
_penes universos_, it is a democracy. Proceeding further, he says
that a democracy is “where all or the major part of all the citizens,
_omnes aut major pars omnium civium_, collected together, have the
supreme power.”[73] Here the philosopher plainly follows the rule of
jurisprudence in regard to corporations; but this definition seems to
sanction the exclusion of part of the citizens, less than a majority,
while it is inadequate in other respects. It says nothing of equality
of rights, or of that great touchstone of the republican idea, the
dependence of taxation upon representation.
But in his day the word was general, and not specific, as appears
in other instances. The easy-going and very natural Brantôme, a
contemporary of Bodin, quotes a book of his day which in its title
speaks of “the Republic of France.”[74] This was while the most
unrepublican house of Valois ruled. The great Chancellor l’Hospital
uses the word in the same sense, when in his famous testament he speaks
of yielding to “the necessity of the Republic.”[75] We have also
the authority of Henri Martin, in his admirable History of France,
who says that the word in Bodin “means only the State in its broad
signification.”[76] Plainly, from writers of this period there is
little help in the present inquiry.
There are later definitions to be put aside also. Thus, for instance,
it is often said that a republic is “a government of laws, and not
of men”; and this saying found favor with some among our fathers.[77]
Long before, Aristotle had declared that such a government would be
the kingdom of God.[78] But this condition, though marking an advanced
degree of civilization, and of course essential to a republic,
cannot be recognized as decisive. On its face it is vague from
comprehensiveness. It is enough to say that it would embrace England,
whose government our fathers renounced in order to build a republic.
And still further, it would throw its shield over a government which
“frameth mischief by a law.” This will not do.
There is also a plausible definition by Millar, the learned author of
the work on the British Constitution, who states, hypothetically, that
by Republic may be meant “a government in which there is no king or
hereditary chief magistrate.”[79] But this, again, must be rejected, as
leaving aristocracies and oligarchies in the category of republics.
Sometimes we hear that a government with an elective chief magistrate
is a republic. Here, again, nothing is said of aristocracy or
oligarchy, which coexist with an elective chief magistrate,--as in
Venice, where the elected Doge was surrounded by an oligarchy of
nobles, and in Holland, where the elected Stadtholder was a prince
surrounded by princes. But there are other instances which make this
definition unsatisfactory, if not absurd. The Pope of Rome is an
elective chief magistrate; so also is the Grand Lama; but surely the
States of the Church are not republican, nor is Thibet.
Rejecting the definition founded on the elective character of the
chief magistrate, we must also reject another, founded on “the
sovereignty of more than one man.” It has been said positively, by
an eminent person who has written much on the subject, that “the
strict definition of a republic is that in which the sovereignty
resides in more than one man.”[80] But this strict definition embraces
aristocracies and oligarchies.
I conclude these rejected specimens with that of Dr. Johnson in his
Dictionary, which appeared before American Independence:--
“REPUBLIC. (1.) Commonwealth; state in which the power is
lodged in more than one. (2.) Common interest; the public.”
These definitions are all as little to the purpose as the “vulgar
error,” chronicled by Sir Thomas Browne, “that storks are to be found
and will only live in republics,”[81]--or the saying of Rousseau,
at a later day, that, “were there a nation of gods, it would govern
itself democratically,”[82]--or the remark of John Adams, that “all
good government is republican.”[83] It is evident that we must turn
elsewhere for the illumination we need. If others thus far have failed,
it is because they have looked across the sea instead of at home, and
have searched foreign history and example instead of simply recognizing
the history and example of their own country. They have imported
inapplicable and uncertain definitions, forgetting that the Fathers,
by positive conduct, by solemn utterances, by declared opinions,
and by public acts, all in harmony and constituting one overwhelming
testimony, exhibited their idea of a republican government in a way at
once applicable and certain. They are the natural interpreters of their
own Constitution. Mr. Fox, the eminent English statesman, exclaimed in
debate, that, “if, by a peculiar interposition of Divine power, all
the wisest men of every age and of every country could be collected
into one assembly, he did not believe that their united wisdom would
be capable of forming even a tolerable constitution,”[84]--meaning,
of course, that a constitution must be derived from habits and
convictions, and not from any invention. There is sound sense in the
remark; and it is in this spirit that I turn from a discussion having
only this value, that it shows how little there is in the past to
interpret the meaning of the Fathers.
* * * * *
Every constitution embodies the principles of its framers. It is a
transcript of their minds. If its meaning in any place is open to
doubt, or if words are used which seem to have no fixed signification,
we cannot err in turning to the framers; and their authority increases
in proportion to the evidence they have left on the question. By
“a republican form of government” our fathers plainly intended a
government representing the principles for which they had struggled.
Now, if it appears that through years of controversy they insisted
on certain principles as vital to free government, even to the
extent of encountering the mother country in war,--that afterward,
on solemn occasions, they heralded these principles to the world
as “self-evident truths,”--that also, in declared opinions, they
sustained these principles,--and that in public acts they embodied
these principles,--then is it beyond dispute that these principles must
have entered into the idea of the government they took pains to place
under the guaranty of the nation. But all these things can be shown
unanswerably.
In these words of hypothesis I foreshadow the four different heads
under which these principles may be seen.
_First_, as asserted by the Fathers throughout the long radical
controversy which culminated in war.
_Secondly_, as announced in solemn declarations.
_Thirdly_, as sustained in declared opinions.
_Fourthly_, as embodied in public acts.
* * * * *
1. I begin with _the principles asserted by our fathers throughout
the protracted controversy that preceded the Revolution_. If Senators
ask why our fathers struggled so long in controversy with the mother
country, and then went forth to battle, they will find that it was to
establish the very principles for which I now contend. To secure the
natural rights of men, and especially to vindicate the controlling
maxim that there can be no taxation without representation, they fought
with argument and then with arms. Had these been conceded, there would
have been no Lexington or Bunker Hill, and the Colonies would have
continued yet longer under transatlantic rule. The first object was
not independence, but the establishment of these principles; and when
at last independence began, it was because these principles could be
secured in no other way. Therefore the triumph of independence was the
triumph of these principles, which necessarily entered into and became
the animating soul of the Republic then and there born. The evidence is
complete, and, if I dwell on it with minuteness, it is because of its
decisive character.
The great controversy opened with the pretension of Parliament to tax
the Colonies, first disclosed to Benjamin Franklin as early as 1754. It
was at the time a profound secret; but the patriot philosopher, whose
rare intelligence embraced the natural laws of government not less than
those of science, in a few masterly sentences exposed the injustice of
taxation without representation.[85] For a moment the Ministry shrank
back; but at last, when the power of France had been humbled, and the
Colonies were no longer needed as allies in war, George Grenville,
blind to principle and only seeing an increase of revenue, renewed
the irrational claim. The Colonies were to be taxed by the Parliament
in which they had no representation. Two millions and a half of
people--for such was the population then--were to pay taxes without
voice in determining them. The men of that day listened to the tidings
with dismay. In this ministerial outrage they saw the overthrow of
their liberties, whether founded on natural rights or on the rights of
British subjects. In their conclusions they were confirmed by two names
of authority in British history, Algernon Sidney and John Locke, each
of whom solemnly asserted the liberties now in danger. One had borne
his testimony on the scaffold, the other in exile.
Sidney, in his Discourses on Government, did not hesitate to say, that
“God leaves to man the choice of forms in government,”--and then
again, that “all just magistratical power is from the people.”[86] Such
words were calculated to strengthen the sentiment of human freedom.
But it was Locke who gave formal expression to the very principles now
assailed. In a famous passage of his work on Civil Government, inspired
and tempered by his exile in Holland, this eminent Englishman bore his
testimony.
“It is true governments cannot be supported without great
charge, and it is fit every one who enjoys his share of the
protection should pay out of his estate his proportion for the
maintenance of it. But still it must be with his own consent,
i. e. the consent of the majority, _giving it either by
themselves or their representatives chosen by them_; for, if
any one shall claim a power to lay and levy taxes on the people
by his own authority _and without such consent of the people_,
he thereby invades the fundamental law of property and subverts
the end of government; for what property have I in that which
another may by right take, when he pleases, to himself?”[87]
Here is a plain enunciation of two capital truths: first, that all
political society stands only on the consent of the governed; and,
secondly, that taxation without representation is an invasion of
fundamental right. It was these truths that our fathers embraced in the
controversy before them; and these same truths, happily characterized
by Hallam as “fertile of great revolutions and perhaps pregnant with
more,”[88] are as fertile and as pregnant now as then.
But even this illumination did not begin with these illustrious
Englishmen. Two centuries before their testimony, Philippe de Comines,
a minister of Louis the Eleventh, in his Memoirs, marking an epoch
in historical literature, announced the same principle; so that here
France antedates England.
“Is there king or lord on earth who has power, outside his
domain [personal estate], to impose a penny upon his subjects,
_without grant and consent of those who must pay it_, unless by
tyranny or violence?”[89]
That good man, who excelled so much as teacher, and did so much for
scholarship and history, Arnold of Rugby, records a conclusion hardly
less important than that of his earlier compatriots.
“It seems to be assumed in modern times that the being born of
free parents within the territory of any particular state, and
the paying towards the support of its government, _conveys a
natural claim to the rights of citizenship_.”[90]
Others had said there could be taxation only with the consent of the
people taxed. The last authority exhibits citizenship associated with
contribution to the support of the government. This same political
truth appeared in Virginia as early as 1655-6, where, by solemn
enactment, repealing a restriction upon suffrage, it was declared
“something hard and unagreeable to reason that any persons shall pay
equal taxes and yet have no votes in elections.”[91] And it reappears
in the famous Declaration of Rights, adopted unanimously June 12,
1776, which announces that men “cannot be taxed or deprived of their
property for public uses without their own consent or that of their
representatives so elected.”[92]
Sidney and Locke unquestionably exercised more influence over the
popular mind, preceding the Revolution, than any other writers. They
were constantly quoted, and their names were held in reverence. But
their authority has not ceased. As they spoke to our fathers, they now
speak to us: _Sicut patribus, sic nobis_.
The cause of Human Liberty, in this great controversy, found voice in
James Otis, a young lawyer of eloquence, learning, and courage, whose
early words, like the notes of the morning bugle mingling with the
dawn, awakened the whole country. Asked by the merchants of Boston
to speak at the bar against Writs of Assistance, issued to enforce
ancient Acts of Parliament, he spoke both as lawyer and as patriot,
and so doing became a statesman. His speech was the most important,
down to that occasion, ever made on this side of the ocean. An earnest
contemporary, who was present, says, “No harangue of Demosthenes or
Cicero ever had such effects upon this globe as that speech.”[93] It
was the harbinger of a new era. For five hours the brilliant orator
unfolded the character of these Acts of Parliament; for five hours he
held the court-room in rapt and astonished admiration; but his effort
ascended into statesmanship, when, after showing that the colonists
were without representation in Parliament, he cried out, that,
notwithstanding this exclusion, Parliament had undertaken to “impose
taxes, and enormous taxes, burdensome taxes, oppressive, ruinous,
intolerable taxes”; and then, glowing with generous indignation at
this injustice, he launched that thunderbolt of political truth,
“Taxation without representation is Tyranny.”[94] From the narrow
court-room where he spoke, the thunderbolt passed, smiting and blasting
the intolerable pretension. It was the idea of John Locke; but the
fervid orator, with tongue of flame, gave to it the intensity of his
own genius. He found it in a book of philosophy; but he sent it forth a
winged messenger blazing in the sky.
John Adams, then a young man just admitted to the bar, was present at
the scene, and he dwells on it often with sympathetic delight. There,
in the Old Town-House of Boston, sat the five judges of the Province,
with Hutchinson as Chief Justice, in robes of scarlet, cambric bands,
and judicial wigs; and there, too, in gowns, bands, and tie-wigs, were
the barristers. Conspicuous on the wall were full-length portraits of
two British monarchs, Charles the Second and James the Second, while
in the corners were the likenesses of Massachusetts Governors. In
this presence the great oration was delivered. The patriot lawyer had
refused compensation. “In such a cause as this,” said he, “I despise a
fee.” He spoke for country and for mankind. Firmly he planted himself
on the Rights of Man, which he insisted were, by the everlasting
Law of Nature, inherent and inalienable; and these rights, he nobly
proclaimed, were common to all, without distinction of color. To
suppose them surrendered in any other way than by _equal rules and
general consent_ was to suppose men idiot or mad, whose acts are not
binding. But he especially flew at two arguments of tyranny: first,
that the colonists were “virtually” represented, and, secondly, that
there was such a difference between direct and indirect taxation,
that, while the former might be questionable, the latter was not.
To these two apologies he replied, first, that no such phrase as
“virtual representation” was known in Law or Constitution,--that it is
altogether subtilty and illusion, wholly unfounded and absurd,--and
that we must not be cheated by any such phantom, or other fiction
of law or politics, or any monkish trick of deceit and hypocrisy;
and then, with the same crushing force, he said, that, in absence of
representation, all taxation, whether direct or indirect, whether
internal or external, whether on land or trade, was equally obnoxious
to the same unhesitating condemnation.[95] The effect was electric. The
judges were stunned into silence, and postponed judgment. The people
were aroused to a frenzy of patriotism. “American Independence,” says
John Adams, in the record of his impressions, “was then and there
born; the seeds of patriots and heroes were then and there sown, to
defend the vigorous youth. Every man of a crowded audience appeared
to me to go away, as I did, ready to take arms against Writs of
Assistance. Then and there was the first scene of the first act of
opposition to the arbitrary claims of Great Britain. Then and there the
child Independence was born.”[96] But this great birth is inseparably
associated with the principle, then and there declared, that “Taxation
without representation is Tyranny.”
From this time forward Otis dedicated himself singly to the cause he
had so bravely upheld, and the popular heart clove to him. He became
the favorite of his fellow-countrymen. His arguments were repeated,
his words were gratefully adopted, and the saying, “Taxation without
representation is tyranny,” became a maxim of patriotism. In May, 1761,
only a few weeks after this utterance, he was chosen a representative
of Boston in the Legislature by an almost unanimous vote. The Crown
officers were dismayed by this most significant election, and one of
them, speaking with prophetic lamentation, said it would “shake the
Province to its foundation”; on which John Adams remarked, many years
later, when some of its results were already visible, “That election
has shaken two continents, and will shake four.”[97] Of course this
was simply because it affirmed and invigorated a practical truth of
government by which all the people are confirmed in political power. At
his new post of duty, Otis became the acknowledged leader, constant,
fervid, eloquent, and, according to his own language, “daring to
speak plain English.” While still declaring unhesitating loyalty to
the Crown, and even pledging “the last penny and the last drop of
blood, rather than that by any backwardness of ours his Majesty’s
measures should be embarrassed,” he made haste to announce, in words
where humor blends with truth, that “God made all men naturally
equal,”--that “the ideas of earthly superiority, preëminence, and
grandeur are educational, at least acquired, not innate,”--that “no
government has a right to make hobby-horses, asses, and slaves of the
subject, Nature having made sufficient of the two former for all the
lawful purposes of man, from the harmless peasant in the field to the
most refined politician in the cabinet, but none of the last, which
infallibly proves they are unnecessary.” But the case would have been
imperfectly stated, if the patriot representative had not once more
cried out against taxation without representation, and warned against
the calamities that must follow from this unquestionable tyranny. This
early debate is preserved in a pamphlet, printed in 1762, and entitled
“A Vindication of the Conduct of the House of Representatives of the
Province of the Massachusetts Bay, etc., by James Otis, Esq.,” which,
we are told by an eminent authority, contains, in solid substance,
all that is found in the Declaration of Rights and Wrongs issued by
Congress in 1774, the Declaration of Independence in 1776, and the
subsequent writings of those political philosophers who upheld the
national cause.[98] Pardon me, if I dwell too minutely on this history.
I do it only to illustrate the issue of principle actually made with
the mother country.
The controversy still continued, when, in 1764, the orator, who by
voice and pen had so bravely maintained the cause of his country, put
forth another publication, entitled “The Rights of the British Colonies
Asserted and Proved.” Mark, if you please, the vigor of the title.
The rights of the Colonies are not only “asserted,” but “proved.”
Reprinted in London, this pamphlet was read by Lord Mansfield, Chief
Justice of England, and was answered by Soame Jenyns, a partisan
writer of the Crown. The copy I hold in my hand has the imprint of
London, and is marked “Third Edition.” All things considered, it is
the most remarkable pamphlet of our country, and one of the most
remarkable ever written. Recent events, verifying the truths it so
early announced, elevate its place in history. Here are the same vital
principles, enforced with learning and eloquence, which Otis announced
at the bar, and then again in the debates of the Legislature; and here
are not only the truths asserted by our fathers, but the unanswerable
arguments by which they were vindicated. Even an abstract would be too
long for this debate; but the character of this Defence of the American
People, not unlike Milton’s famous “Defensio pro Populo Anglicano,”
will appear in a few passages, where, as in gleams, may be discerned
the _Idea of a Republic_.
I do not pause on the assertion, “that every man of a sound mind should
have his vote,” or the authority he invokes, when he says, “Lord Coke
declares that it is against Magna Charta and against the franchises of
the land, for freemen to be taxed but by their own consent,” both of
which, sounded by him elsewhere,[99] are important premises. Nor do I
dwell on that admirable statement of much in little, “The first simple
principle is Equality and the Power of the Whole.”[100] The Equality of
All and the Power of All!--the two buttresses of a just government. I
come at once to the plain statement of fundamental right.
“The supreme power cannot take from any man any part of his
property _without his consent in person or by representation_.”
“Taxes are not to be laid on the people _but by their consent
in person or by deputation_.”[101]
Such are “the first principles of law and justice, and the great
barriers of a free state”; and then he adds, “I ask, I want no
more.”[102] And these principles he claims for all, without distinction
of color.
“The colonists are by the Law of Nature free-born, as indeed
all men are, white or black.… Does it follow that ‘tis right
to enslave a man because he is black? Will short, curled hair,
like wool, instead of Christian hair, as ’tis called by those
whose hearts are as hard as the nether millstone, help the
argument? Can any logical inference in favor of Slavery be
drawn from a flat nose, a long or a short face?”[103]
Assuming these rights as common to all, whether white or black,
he insists that any taxation, whether direct or indirect, without
representation, is only another form of Slavery.
“I can see no reason to doubt but that the imposition of taxes,
whether on trade, or on land, or houses, or ships, on real
or personal, fixed or floating property, in the Colonies, is
absolutely irreconcilable with the rights of the colonists,
as British subjects, _and as men_. I say men, for in a state
of Nature no man can take my property from me without my
consent. _If he does, he deprives me of my liberty and makes
me a slave.…_ The very act of taxing, exercised over those who
are not represented, appears to me to be depriving them of one
of their most essential rights as freemen, and, if continued,
seems to be in effect _an entire disfranchisement of every
civil right_. For what one civil right is worth a rush, after
a man’s property is subject to be taken from him at pleasure,
without his consent?”[104]
Such was the voice of James Otis, who was our John the Baptist. It was
he who went before in this great controversy. He first stated the
case between the Colonies and the mother country, and first developed
the principles in issue. But, though first, he was not long alone.
Conspicuous among his followers was Samuel Adams, that austere patriot,
always faithful and true, who desired to make Puritan Boston “a
Christian Sparta.” He was remarkable for the simplicity, accuracy, and
harmony of his style, and on this account often held the pen for the
Legislature or the town-meeting. In obedience to the latter, he drew
up instructions to the Representatives of Boston, afterward adopted in
Faneuil Hall, where, repeating the very arguments of Otis, he says, “If
our trade may be taxed, why not our lands, why not the produce of our
lands, and everything we possess or make use of?” And then, advancing
in the subject, he asks: “If taxes are laid upon us in any shape
_without our having a legal representation where they are laid_, are we
not reduced from the character of free subjects to the miserable state
of tributary slaves?”[105] In proposing this question, he leaves no
room to doubt the answer it deserved.
Soon thereafter, Franklin, as agent of Pennsylvania, maintained the
same principles in England. But the ministry, hurried on by fatal folly
leading to destruction, persevered in their pretension. The Stamp Act
was passed, and for the first time in our history papers bore stamps,
to swell the revenue of the Crown. Massachusetts remonstrated in formal
resolutions, “particularly considered,” wherein it is declared, “That
there are certain essential rights of the British Constitution of
Government, which are founded in the law of God and Nature, and are
the common rights of mankind,--therefore, … that no man can justly take
the property of another without his consent,-- … that all acts made by
any power whatever, other than the General Assembly of this Province,
imposing taxes on the inhabitants, are infringements of our inherent
and unalienable rights as men and British subjects, and render void the
most valuable declarations of our Charter.”[106] In an address to the
Royal Governor, the Legislature, after setting forth the injustice of
the Stamp Act, proceeded to say, “We must beg your Excellency to excuse
us from doing anything to assist in the execution of it.”[107] The
people in town-meetings took up the strain, and all united against the
Act. But Massachusetts was not alone.
Virginia, by positive statute, as early as 1655-6 recognized the just
principle, as we have already seen;[108] and now a writer of that
State, catching the spirit of Otis, declared, in an elaborate pamphlet,
that it was “an essential principle of the English Constitution that
the subject shall not be taxed _without his consent_”; and then again,
quoting the words of another, “All men have natural, and freemen legal
rights, which they may justly maintain, and no legislative authority
can deprive them of.”[109] The Legislature of Virginia, even before
Massachusetts, adopted resolutions kindred in spirit, which were moved
by Patrick Henry, and heroically carried by his eloquent voice, even
against the menacing cry of “Treason.” Thus spoke Virginia, exposing
the true issue, and insisting on the inseparability of taxation and
representation:--
“_Resolved_, That the taxation of the people by themselves,
or _by persons chosen by themselves to represent them_, who
can only know what taxes the people are able to bear, or the
easiest method of raising them, and must themselves be affected
by every tax laid on the people, _is the only security against
a burdensome taxation_ and the distinguishing characteristic of
British freedom, without which the ancient Constitution cannot
exist.”[110]