“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.”[234]
Thus does he interpret again the flaming words, “Taxation without
representation is tyranny.”
But, while thus positive, there is reason to believe that Otis so far
yielded to prevailing sentiment, and especially to the opinions of
Harrington, whose “Oceana” was much read at that time, as sometimes
to recognize property in determining the basis of political power. On
one occasion he said that Government could not be “rightfully founded
on property alone,” thus seeming to intimate that property might enter
into the foundation, although, as he derisively remarks, “the possessor
of it may not have much more wit than a mole or a musquash.”[235] But
it was doubtless obvious to his clear intelligence that a claim of
power founded on property was very different from a claim of power
founded on color. Property may be acquired; but color, from its
nature, is an insurmountable condition. The original Constitution of
Massachusetts recognized property as an element of political power; but
it rejected all discrimination founded on color. If, therefore, under
the maxim of Otis, there may be discrimination founded on property,
most clearly, according to reason and early practice, there can be
none founded on color; so that at the present hour his maxim is of
vital force as a claim, not merely for the community, but for the
individual. Let the country now, as aforetime, take it up and repeat it
until it becomes the watchword of patriotism.
But Otis was not the only interpreter of this maxim of Liberty. The
Legislature of Massachusetts, on repeated occasions, made the same
claim. In solemn resolutions, drawn by Samuel Adams, and adopted
unanimously, it declared, in substance, that, “by the Law of Nature, no
man has a right to impose laws more than to levy taxes upon another”;
that “the freeman pays no tax, as the freeman submits to no law, but
such as emanates from the body in which he is represented.”[236] Surely
this claim is not merely for the community, but for the individual
freeman also.
Virginia was not behind Massachusetts. In her Declaration of Rights,
drawn by that determined patriot, George Mason, and adopted June 12,
1776, anterior to the Declaration of Independence, is the following
emphatic claim:--
“All men having sufficient evidence of permanent common
interest with and attachment to the community _have the right
of suffrage, and 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.”[237]
Here again the claim is not merely for the community, but for “all
men,” and it is set forth thus positively in a Declaration of Rights.
And now listen to Benjamin Franklin. I quote a statement found
among his papers, and placed by his excellent editor under date of
1768-9, while the Colonists were echoing the cry, “Taxation without
representation is tyranny.”
“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.”[238]
Here is no claim for communities merely, but expressly for “every man,”
including especially “the poor man,” and without distinction of color.
This American testimony is fitly crowned by the Declaration of
Independence, which, beginning with the proclamation that “all men
are created equal,” proceeds to assert that governments “derive their
just powers from the consent of the governed.” Here again is no claim
for communities, but for “all men”; and this is the most authoritative
interpretation of the original claim thundered forth by Otis, and
echoed throughout the land. It is idle to show that in certain
instances the Fathers failed to apply the sublime principles they
declared. Their failure can be no apology for us, on whom the duty is
now cast.
But there is still another interpreter. The maxim of Otis was not
original with him. It is found in the writings of John Locke, so
remarkable for masculine sense and an exalted love of liberty. On a
former occasion I adduced his authority, which is plain and positive.
Pardon me, if I call attention to it once more. After asserting that
Government cannot take the property of any one without his own consent,
being the consent of the majority, the philosopher thus expresses
himself:--
“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?”[239]
Mr. Hallam, commenting on this text, does not hesitate to say, that it
“in some measure seems to charge with usurpation all the established
governments of Europe,”--that “neither the Revolution of 1688 nor the
administration of William the Third could have borne the test by which
Locke has tried the legitimacy of government.”[240]
A later English writer, Mr. Tremenheere, commenting also on this text,
sets forth its two propositions as follows: “First, that a political
society can only be bound by the act of the majority; second, that
taxation without representation is tyranny.”[241] Such are the two
propositions this English writer finds in Locke, and which he cites
for condemnation. Thus, if we repair with Otis to the very source from
which he drew, we find that there was no claim for communities merely,
but for the individual man, without distinction of color.
Mr. Bright, our English friend, in one of his admirable speeches,[242]
has recently furnished an additional illustration. He has brought to
light a resolution from no less an authority than Lord Somers, on an
important occasion, kindred to the present, when it was proposed to
disfranchise all who were not of the Established Church, as it is now
proposed to disfranchise all who are not of a certain color. Speaking
for the House of Lords, in conference with the Commons, this great
constitutional lawyer insisted:--
“That though the Lords allow that no man hath a place by
birthright, or but few such examples in our Government, yet
that _giving a vote for a Representative in Parliament is
the essential privilege whereby every Englishman preserves
his property_, and that whatsoever deprives him of such vote
deprives him of his birthright.”[243]
Here again is the very cry of Otis; and you cannot fail to observe that
the claim is not for communities merely, but for “every Englishman,”
without distinction of color.
Surely this is enough. But it is said that the claim is as applicable
to women as to men, especially where women are tax-payers. To this I
reply, that Locke, Somers, Otis, and Franklin, in making the claim, did
not give it any such extent, and the question which I submit is simply
as to their meaning in the words “Taxation without representation is
tyranny.” Clearly their claim was for _men_, believing, as they did,
that _women_ were represented through men; and it is hardly candid to
embarrass the present debate, involving the rights of an oppressed
race, by another question entirely independent. In saying that the
claim was for men, I content myself with the authority of Theophilus
Parsons, afterward the eminent Chief Justice of Massachusetts, who,
in a masterly state-paper, known as the “Essex Result,” which was
the prelude to the Constitution of Massachusetts, thus discloses the
opinion of the Fathers on this precise point:--
“Every freeman, who hath sufficient discretion, should have
a voice in the election of his legislators.… All the members
of the State are qualified to make the election, unless they
have not sufficient discretion, or are so situated as to
have no wills of their own. Persons not twenty-one years old
are deemed of the former class, from their want of years and
experience.… Women, what age soever they are of, are also
considered as not having a sufficient acquired discretion,--not
from a deficiency in their mental powers, but from the natural
tenderness and delicacy of their minds, their retired mode of
life, and various domestic duties. These, concurring, prevent
that promiscuous intercourse with the world which is necessary
to qualify them for electors. Slaves are of the latter class,
and have no wills.”[244]
The reasons assigned for the exclusion of women may be very
unsatisfactory; but they show at least that the Fathers, when insisting
that taxation and representation must go together, did not regard
women, any more than minors, within the sphere of this commanding
principle. And here I leave this head of the argument, concluding as I
began, that you cannot adopt this pretended Amendment without setting
at defiance the great maxim of constitutional liberty which was the
rallying cry of our fathers.
* * * * *
3. Continuing the dissection, I exhibit this proposition as a new form
of _concession to State Rights_. Such it is plainly on its face; such
it is in reality; and the more you examine it, the more complete the
concession appears. Already it has been announced as such by those who
seek to commend it in quarters of doubtful loyalty. Here, for instance,
is a speech of Hon. John E. King, claimant of a seat in Congress from
Louisiana, only a few days ago addressed to the Legislature of his
State, where, after calling attention to the present attempt, he exults
in what seemed to him the prospect of its adoption:--
“The present Congress is proceeding to amend without the
eleven States that are unrepresented in that body. _However,
there is some good in all this evil._ If this Amendment should
pass,--and the speaker said that himself and colleagues had no
doubt that it would,--it will settle forever the right of the
States to legislate, each for itself, as to who shall be the
voters therein.”[245]
Thus, while deprecating Amendments to the Constitution in the absence
of the eleven Rebel States, the partisan of State Rights is reconciled
to the pending proposition, inasmuch as it is a triumph of this
sectional pretension. Alas, that now, at the close of a rebellion in
the name of State Rights, we should be considering calmly how to assure
this pernicious heresy new support in the Constitution itself!
Let me be understood. I suggest no interference with the just rights
of the States. These belong to the harmonies of the Union. But, in the
name of Justice, I insist that nothing further shall be done to invest
the States with peculiar local power. If not taught by the lessons
of the late war, then be taught by the principles avowed at the very
beginning of the Government.
The object of the Constitution was to ordain, under authority of
the people, a national government possessing unity and power. The
Confederation had been merely an agreement “between the States,”
styled “a league of firm friendship.” Found to be feeble and
inoperative, through the pretension of State Rights, it gave way to
the Constitution, which, instead of a “league,” created a “Union” in
the name of the people of the United States. Beginning with these
inspiring and enacting words, “We, the people,” it was popular and
national. Here was no concession to State Rights, but a recognition
of the power of the people, from whom the Constitution proceeded. The
States are acknowledged; but they are all treated as component parts of
the Union in which they are absorbed under the National Constitution,
which is the supreme law. There is but one sovereignty, and that is the
sovereignty of the people of the United States.
On this very account the adoption of the Constitution was opposed
by Patrick Henry and George Mason. The first pronounced: “That this
is a consolidated government is demonstrably clear.” “The question
turns on that poor little thing, the expression, ‘We, the people,’
instead of ‘the States’ of America.”[246] The second exclaimed:
“Whether the Constitution be good or bad, the present clause [‘We,
the people’] clearly discovers that it is a national government, and
no longer a confederation.”[247] But against this powerful opposition
the Constitution was adopted in the name of the people of the United
States. Throughout the discussion, State Rights were treated with
little favor. Madison said, the States were “only political societies,”
and “never possessed the essential rights of sovereignty.”[248]
Gerry said, the States had “only corporate rights.”[249] Wilson, the
philanthropic member from Pennsylvania, afterward a learned judge of
the Supreme Court of the United States, and author of the “Lectures on
Law,” said: “Will a regard to State Rights justify the sacrifice of the
Rights of Men? If we proceed on any other foundation than the last, our
building will neither be solid nor lasting.”[250] Such were the voices
at that heroic day. And now, at the end of an unparalleled war to abase
State Rights, we are asked to naturalize in the Constitution a new
provision confirming to the States an odious pretension, shocking to
the moral sense. But its character belongs to another head.
* * * * *
4. Proceeding with the dissection, I now exhibit the proposition,
not only as a concession to State Rights, which is admitted by a
Louisiana supporter, but, if unhappily adopted, as the _constitutional
recognition of an Oligarchy, Aristocracy, Caste, and Monopoly founded
on color_. All this appears on the face; and as you examine it, the
intolerable consequence becomes still more apparent. Thus far we have
been saved from such shame. The proposition before us assumes that
the elective franchise may be denied or abridged constitutionally on
account of race or color, and thus sanctions the usurpation,--thereby
investing those who deny or abridge it with exclusive political
control, without regard to number, though they may be a minority
or even a small fraction of the people. What, Sir, is this rancid
pretension, if it be not an oligarchy, aristocracy, caste, and monopoly
founded on color, under sanction of the Constitution? It is all these
together, having beyond question the distinctive features of each and
the distinctive discredit of each,--therefore odious in government,
odious in religion, odious in economy, and altogether constituting an
outrageous indecency.
It is idle to say that this is done already in the States. It may be
done _in fact_. But now you propose to give this criminal fact the
support of the Constitution, and lift it into perpetual vigor.
The country has been harassed and degraded for generations by the Slave
Power, which was nothing but an oligarchy, aristocracy, caste, and
monopoly; and now, when this power has been overcome in battle, it is
proposed to inaugurate it anew, with slight change of name, but with
the same field of action, and the same malignant spirit to wield its
energies. By your concession it tyrannized before, and now by your
concession it will tyrannize again. The citizens it once trampled on as
slaves it will continue to trample on as outcasts, and it will set up
your permission emblazoned in the Constitution itself.
* * * * *
5. Proceeding with this proposition, I exhibit it as petrifying in the
Constitution the wretched _pretension of a white man’s government_. At
this moment, when we are striking the word “white” from the national
statutes, when this word has disappeared even from Post-Office laws,
when, by a vote of the House of Representatives, it has been condemned
in the laws regulating the elective franchise in the District of
Columbia, it is proposed to insert an equivalent in the Constitution
itself. To exhibit this shame is surely enough to make you turn away
from it. Do not say that this is not proposed. What is the concession
that the elective franchise may be denied or abridged “on account of
race or color” but an insertion of the word “white” in the National
Constitution? In that text, as it still stands, from beginning to end,
from the preamble to the signature of George Washington, or the last
word of the last Amendment, there is no recognition of “color.” For the
sake of decency, keep it so.
* * * * *
6. Proceeding still further with the proposition, I exhibit it as
assuming, what is false in Constitutional Law, _that color can be a
qualification for an elector_. The Constitution says that “the electors
in each State shall have the _qualifications_ requisite for electors
of the most numerous branch of the State Legislature.” Of course this
leaves open the question, What is meant by “qualifications”? But this
word must be interpreted in the light of the Constitution, which knows
no “color,” and again in the light of the Declaration of Independence,
which knows no “color,” and yet again in the light of common sense,
which refuses to recognize “color” as a “qualification,” in any just
sense of the term. Consult the dictionaries of the day, and you will
find it means “fitness,” “ability,” “accomplishment,” “the state of
being qualified”; but it does not mean “color.” It is applicable to
the conditions of age, residence, character, education, property, and
the payment of taxes; but it cannot be applicable to “color.” The
English dictionaries most in vogue at the time of our fathers were
those of Bailey and Johnson. According to Bailey, who was the earliest,
“qualification” is defined:--
“(1.) That which fits any person or thing for any particular
purpose.”
“(2.) A particular faculty or endowment, an accomplishment.”