“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]