“(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.”
According to these definitions “qualification” means “fitness” or
“accomplishment,” and according to examples from classical writers it
means qualities like “piety” and “virtue,” or like “mind.” Obviously
it cannot embrace color, which is a physical condition, insurmountable
in nature. An insurmountable condition is not a _qualification_, but
a _disfranchisement_. As well say that the quality of the hair or the
length of the foot should be a “qualification,” as the color of the
skin. The whole pretension is one of the false glosses fastened upon
the National Constitution by Slavery, which must now be sloughed off.
* * * * *
7. Again, I exhibit the proposition as positively _tying the hands of
Congress in its interpretation of a republican government_, so that,
under the guaranty clause, it must recognize an oligarchy, aristocracy,
caste, and monopoly founded on color, with the tyranny of taxation
without representation, as _republican in character_, which I insist
they are not. At present the hands of Congress are not tied. Congress
is free to act generously, nobly, truly, according to the highest
idea of a republic, discountenancing all inequality of rights and the
tyranny of taxation without representation. Let this pretension find
place in the Constitution, and the guaranty clause will be restricted
in operation. The two clauses taken together, as they must be, will
read substantially: “The United States shall guaranty to every State in
this Union a republican form of government: it being understood that
the denial or abridgment of the elective franchise on account of race
or color, and the tyranny of taxation without representation, are not
inconsistent with a republican government.” In other words the denial
or abridgment of the elective franchise on account of race or color,
and the tyranny of taxation without representation, will be recognized
in the Constitution as republican in character. Of course all attempt
to enforce this guaranty against an oligarchy, aristocracy, caste, and
monopoly founded on color, or against the tyranny of taxation without
representation, will be from this time impossible. The precious power
now existing will be lost forever.
* * * * *
8. Again, I exhibit the proposition as _positively tying the hands of
Congress in completing and consummating the abolition of Slavery_.
By the second clause of the recent Constitutional Amendment Congress
is expressly empowered to “enforce” the abolition of Slavery by
“appropriate legislation.” Accordingly, the Senate, by what is known
as the Civil Rights Bill, has already undertaken to establish equality
of civil rights in all the States and Territories, so that hereafter,
in our courts at least, there shall be no discrimination of color. It
was justly insisted that such “legislation” is needed to “enforce”
the abolition of Slavery, and on this account is constitutional. The
Senate acted accordingly. The bill has passed this body by more than
a two-thirds vote. Obviously by the same title equality in political
rights can be established also under this Amendment, if such equality
shall be deemed important to “enforce” the abolition of Slavery, or, in
other words, to complete and consummate the good work. In the exercise
of a granted power Congress is sole judge of the “means” it employs;
and this conclusion is sustained not only by reason, but by the Supreme
Court of the United States in solemn judgments. You will remember the
familiar precedents, which I insist are decisive. And now, in the face
of these judgments, in the face of reason, and with the authoritative
precedent of the Senate establishing equality of civil rights before
us, it is proposed to insert in the Constitution a provision despoiling
Congress of its power under the Constitutional Amendment, so that
hereafter that Amendment, which should be interpreted generously and to
advance Liberty, will be changed so as to read: “Congress shall have
power to enforce this article by appropriate legislation: it being
understood that it shall not interfere for this purpose with any denial
or abridgment of the elective franchise in any State on account of race
or color.” Thus again will a beneficent power be lost at a moment when
all is needed for the safety and renown of the Republic.
* * * * *
9. Again, I exhibit this proposition as _installing recent rebels to
govern loyal citizens_ under sanction of the Constitution. The ruling
class began and sustained the Rebellion. The citizens you disfranchise
were loyal, and some of them poured out their red blood for the
Republic; and yet we are asked to intrench this ruling class in the
Constitution, so that they can wield unchecked power, while loyal
millions are humbled at their feet. The bare statement offends reason
and conscience.
Pray, who may justly look to the Republic for protection? Is it the
rebel or the loyal? Is it the citizen who has caused all your woes,
and now gnashes his teeth at your triumph,--or is it the citizen who
has watched your flag with sympathetic pride, and now rejoices in your
triumph? Who can hesitate? And yet the proposition before the Senate
gives the palm of power and honor to the rebel class, and fixes this
preëminence in the National Constitution. You cannot say, more than
Cain, “Am I my brother’s keeper?” You are your brother’s keeper; and
you must see that he is saved from cruel oppression.
* * * * *
10. And, lastly, I denounce this proposition as a _compromise of human
rights_, the most questionable of any in our history. Persons out of
the Senate have sought to vindicate it, as other compromises in times
past, by representing it as something which it is not. This is done
by exhibiting one side only of the compromise, and thus calling it
“punitive”; as if in 1850 the admission of California, which was one
side of the compromise, had been exhibited, while the unutterable
atrocity of the Fugitive Slave Bill, which was the other side, had been
concealed from view. The present compromise, like other compromises,
has two sides; in other words, it is a concession for a consideration.
On one side it is conceded that the States may, under the Constitution,
exclude citizens counted by the million from the body politic, and
practise the tyranny of taxation without representation, provided, on
the other side, there is a corresponding diminution of representative
power in the lower House of Congress, without, however, touching
the representative power in the Senate. The glaring feature of this
compromise is the criminal concession, constituting the sacrifice of
brave defenders, and even of a whole race, to whom we owe protection.
The consideration is small. It will be forgotten, when the monstrous
concession looms in history as a landmark of dishonor.
There have been other compromises of human rights in times past. But,
considering the grandeur of the occasion, the promises of the Fathers,
the extent of present obligations, the promptings of gratitude, the
demands of public faith, the exigencies of public security, and
the good name of the Republic, all now involved, I am sure that no
compromise so discreditable and disastrous was ever before proposed. A
feeble prototype may be found in that intolerable treaty known as the
Assiento, from which every Englishman turns with a blush, where, at the
end of an unprecedented war, England bartered all that had been won by
the victories of Marlborough for the privilege of supplying slaves to
the Spanish colonies. The slave-trade received solemn sanction, and
England pocketed the dishonest profits,--just as now a kindred offence
on a grander scale is to receive solemn sanction, and we who sanction
it are to pocket the profits in political power. Do not talk, Sir, of
this measure as “punitive,” unless you mean that it is punitive of
benefactors,--for this is the only character it can bear in history. On
a former occasion I entreated you not to copy the example of Pontius
Pilate, who handed over the Saviour of the world, in whom he found
no fault at all, to be scourged and crucified. It is my duty now to
remind you that you go further than Pontius Pilate. He was a mocker
and a jester;[251] but he received nothing for what he did. You do.
Not content with resolving the Senate into a Prætorium, I feel rather
that you imitate Judas, who betrayed the Saviour for thirty pieces of
silver, and imitate the soldiers who appropriated to themselves the
raiment of the Saviour. Do not answer me with a sneer. Has not the
Saviour himself told us that what we do to the least we do to Him?
Ay, Sir, in offering fellow-citizens to be sacrificed, in betraying
them for less than “thirty” Representatives in Congress, and in
appropriating their political raiment, you do all this to the Saviour
himself. Pardon this necessary plainness. I speak for my country,
which I seek to save from dishonor; I speak for fellow-citizens whom I
would save from outrage; and I speak for that public faith and public
security in which is bound up the welfare of all.
* * * * *
Mr. President, such is the argument for the rejection of this pretended
Amendment. Following it from the beginning, you have seen, first, how
it carries into the Constitution the idea of Inequality of Rights, thus
defiling that unspotted text; secondly, how it is an express sanction
of the acknowledged tyranny of taxation without representation;
thirdly, how it is a concession to State Rights at a moment when we
are recovering from a terrible war waged against us in the name of
State Rights; fourthly, how it is the constitutional recognition of
an oligarchy, aristocracy, caste, and monopoly founded on color;
fifthly, how it petrifies in the Constitution the wretched pretension
of a white man’s government; sixthly, how it assumes, what is false in
Constitutional Law, that color can be a “qualification” for an elector;
seventhly, how it positively ties the hands of Congress in fixing the
meaning of a republican government, so that under the guaranty clause
it will be constrained to recognize an oligarchy, aristocracy, caste,
and monopoly founded on color, together with the tyranny of taxation
without representation, as not inconsistent with such a government;
eighthly, how it positively ties the hands of Congress in completing
and consummating the abolition of Slavery according to the second
clause of the Constitutional Amendment, so that it cannot for this
purpose interfere with the denial of the elective franchise on account
of color; ninthly, how it installs recent rebels in permanent power
over loyal citizens; and, tenthly, how it shows forth its unmistakable
character as a compromise of human rights, the most questionable of any
in our history.
* * * * *
And now the question occurs, What shall be done? To this I answer,
Reject at once the pretended Amendment; show it no favor; give it no
quarter. Let the country see that you are impatient of its presence.
But there are other propositions, in the form of substitutes. For any
one of these I can vote. They may differ in efficiency, but there is
nothing in them immoral or shameful. There is, _first_, the proposition
to found representation on voters instead of population, and,
_secondly_, the proposition to secure equality in political rights by
Constitutional Amendment or by Act of Congress.
* * * * *
The proposition to found representation on voters instead of population
was originally introduced by me during the last Congress. Almost at
the same time I presented a series of resolutions declaring not only
the power, but the duty, of the United States to guaranty republican
governments in the Rebel States on the basis of the Declaration of
Independence, so that the new governments should be founded on the
consent of the governed and the equality of all persons before the law.
Thus, while proposing to found representation on voters, I at the same
time asserted the power of Congress under the Constitution to secure
equality in political rights. The proposition with regard to voters
was much discussed during the recess of Congress. At the beginning of
the present session it seemed to find favor. But at last statistics
were adduced tending to show that it would transfer power from Eastern
States to Western States in proportion to the excess of females over
males in the former; and this abnormal circumstance was made an
argument against it. Since then it has given place to the offensive
attempt now pending.
The proposition to found representation on voters instead of population
may be seen, _first_, in what it does not, and, _secondly_, in what it
does.
Seeing it in what it does not, all will confess that it does not
carry into the Constitution itself the idea of Inequality of Rights,
thus defiling that unspotted text; that it gives no sanction to the
acknowledged tyranny of taxation without representation; that it makes
no concession to State Rights, at a moment when we are recovering from
a terrible war waged against us in the name of State Rights; that it
does not recognize an oligarchy, aristocracy, caste, and monopoly
founded on color; that it does not petrify in the Constitution the
wretched pretension of a white man’s government; that it does not
assume, what is false in Constitutional Law, that color can be a
“qualification” for a voter; that it does not positively tie the
hands of Congress in fixing the meaning of a republican government,
so that under the guaranty clause it will be constrained to recognize
an oligarchy, aristocracy, caste, and monopoly founded on color,
together with the tyranny of taxation without representation, as not
inconsistent with such a government; that it does not positively tie
the hands of Congress in completing and consummating the abolition
of Slavery according to the second clause of the Constitutional
Amendment; that it does not install recent rebels in permanent power
over loyal citizens; that it does not show forth in unmistakable
character as a compromise of human rights, the most questionable of any
in our history. All these things, so offensive to the conscience and
the reason, this proposition avoids. In all these respects it is at
least blameless.
On the other hand, without inflicting any stigma upon the Constitution
or upon the Republic, without abandoning any principle, without making
any concession to the States, without tying the hands of Congress, and
without any compromise of human rights, it does rearrange the basis
of representation so as to accomplish all that is proposed even by
the most sanguine supporters of the other attempt, and it does this
effectually, without the opportunity for evasion afforded by the other
proposition. The alleged inequality in operation, owing to excess of
females over males in certain States, may make you hesitate; but better
take representation founded on voters, even with any such alleged
inequality, than do a grievous wrong. Better wrong yourselves than
wrong others.
Let me confess that I was tempted to this proposition by the conviction
that I was carrying out the cherished idea of Massachusetts embodied
in her own Constitution. According to a recent Amendment, the
representation in both branches of the Legislature is founded on “legal
voters,” and not on population. Here are the words.
“A census of the _legal voters of each city and town_ on the
first day of May shall be taken and returned into the office of
the Secretary of the Commonwealth.… The enumeration aforesaid
shall determine the apportionment of Representatives for the
periods between the taking of the census.
“The House of Representatives shall consist of two hundred and
forty members, which shall be apportioned by the Legislature,
at its first session after the return of each enumeration
as aforesaid, to the several counties of the Commonwealth,
_equally, as nearly as may be, according to their relative
numbers of legal voters_, as ascertained by the next preceding
special enumeration.…
“The Senate shall consist of forty members. The General Court
shall, at its first session after each next preceding special
enumeration, divide the Commonwealth into forty districts
of adjacent territory, _each district to contain, as nearly
as may be, an equal number of legal voters_, according to
the enumeration aforesaid.… Each district shall elect one
Senator.”[252]
Obviously, in adopting this rule, Massachusetts has followed what seems
a correct principle. Representative government is an invention of
modern times. It was unknown in antiquity. Athens was a democracy where
the people met in public assembly for the government of the state:
there was no representative body chosen by the people for this purpose.
The public assembly was practicable in that age, as the state was
small, and the assembly seldom exceeded six thousand citizens,--a large
town meeting, or mass meeting, which Milton has termed “that fierce
democratie.” But where the territory was extensive and the population
scattered and numerous, there could be no assembly of the whole body
of citizens. To meet this precise difficulty the representative system
was devised. By a machinery so obvious that we are astonished it was
not employed in the ancient commonwealths, the people, though scattered
and numerous, are gathered, through their chosen representatives,
into a small and deliberative assembly, where, without tumult or
rashness, they may consider and determine all questions which concern
them. In every representative body properly constituted the people are
practically present.
If, then, the representative body is a substitute for the people
themselves meeting in primary assemblies, it would seem that it must
be founded upon the people who compose the primary assemblies,--in
other words, upon legal voters. Ordinarily there may be little
difference between the proportion of legal voters and the proportion
of population; but, strictly, the representative system is the agent
of legal voters, and therefore the logic of the case is better
satisfied, if it be founded on legal voters rather than on population.
With me this is no new idea. On another occasion, in my own State, I
asserted it. This was in a Convention for revising the Constitution
of Massachusetts, as long ago as 1853. Pardon me, if I read a brief
passage from a speech in that Convention, not from any importance which
I attach to it, but as showing how completely at that time this rule
seemed to me just.
“A practical question arises here, whether this rule should
be applied to the whole body of population, including women,
children, and unnaturalized foreigners, or to those only who
exercise the electoral franchise,--in other words, to voters.
It is probable that the rule would produce nearly similar
results in both cases, as voters, except in few places, would
bear a uniform proportion to the whole population. But it is
easy to determine what the principle of the Representative
system requires. Since its object is to provide a practical
substitute for meetings of the people, it should be founded,
in just proportion, on the numbers of those who, according to
our Constitution, can take part in those meetings,--that is,
upon the qualified voters. The representative body should be a
miniature or abridgment of the electoral body,--in other words,
of those allowed to participate in public affairs.”[253]
In this view I found myself supported by two illustrious names in our
history. Mr. Jefferson, shortly after the victory at Yorktown had
rescued Virginia from invasion and secured national independence,
prepared the draught of a Constitution for his native State, which
expressly provided that “the number of delegates which each county
may send shall be _in proportion to the number of its qualified
electors_, and the whole number of delegates for the State shall be
_proportioned to the whole number of qualified electors in it_.”[254]
This proposition, which is substantially the Rule of Three applied to
voters, was not adopted, but it remains a record of opinion. Some time
afterward, in the debates in the Convention which framed the National
Constitution, Mr. Madison gave his authority to the same conclusion.
“It had been very properly observed that representation was an
expedient by which the meeting of the people themselves was
rendered unnecessary, and _that the representatives ought,
therefore, to bear a proportion to the voters which their
constituents, if convened, would respectively have_.”[255]
Thus representation founded on voters seems commended by authority and
principle. Its adoption would at least give symmetry to our national
system, and make the representative more precisely the embodied
presence of his constituents, while at the same time it would tend to
enlarge the suffrage, and to harmonize sectional pretensions with the
national will, when exerted for human rights. If representation were
founded on voters, the States would care little, if Congress should
annul all inequality in the elective franchise on account of color. The
way would be open to Congress.
* * * * *
There are other propositions to my mind more satisfactory, because they
reach the special necessity of the hour, and provide the only effectual
remedy. Speaking in the name of national justice and for the national
safety, they cannot be put aside with indifference; nor is it wise to
say that any measure of justice is not practical. I refer, of course,
to the propositions, in different forms, to secure that great guaranty,
_equality in political rights_, by Constitutional Amendment, or by Act
of Congress, or by both.
A Constitutional Amendment placing equality of political rights under
the safeguard of a specific text may be superfluous, but it is not
unconstitutional or immoral. It will be supplementary to provisions
already in the Constitution, and in the nature of a declaratory
statute removing all doubts and cavils. It will be like an additional
force in mechanics, or like a reinforcement in the field. It will be
reduplication in a new form. On such an occasion, where such a cause is
in issue, I welcome every alliance; and such I regard the proposition
of the Senator from Missouri [Mr. HENDERSON].
* * * * *
The other proposition, looking to the direct action of Congress under
the National Constitution and existing Amendments, is obviously the
simplest and most practical, inasmuch as it deals with the exigency
promptly, frankly, and according to the necessities of the hour. It
does not undertake to act by indirection; nor does it postpone to an
indefinite future what cannot be postponed without detriment to the
Republic. Refusing to procrastinate, it saves all. Such a proposition
is commended by every argument of reason, humanity, and patriotism.
To say that it is not constitutional is to say that the Constitution
itself is not constitutional; for it is derived from the very heart of
the Constitution, and is filled with all its best life-blood.
Something has been said of the form in which the proposition is
presented. There is the bill of the Senator from Illinois [Mr.
YATES], which he has maintained in a speech of singular originality
and power, that has not been answered, and I do not hesitate to say
cannot be answered. By this bill it is provided that all citizens
in any State or Territory shall be protected in the full and equal
enjoyment and exercise of civil and political rights, including the
right of suffrage. This is founded on the consideration that by the
abolition of Slavery the slave became at once a citizen, subject only
to such disabilities as are common to other citizens, and that by the
second clause of the Constitutional Amendment Congress is empowered to
enforce the abolition of Slavery by appropriate legislation. On this
foundation the Senator places his bill, assuming, that, to complete
the abolition of Slavery, all restrictions, penalties, or deprivations
of right, resulting from Slavery in any State or Territory, must be
made to cease. The proposition that I have had the honor of presenting
is a joint resolution, which, after declaring the duty of Congress
to guaranty a republican form of government in States where the
governments have lapsed, and also the duty to complete the abolition
of Slavery by the removal of all relics of this wrong, proceeds to
provide that there shall be no oligarchy, aristocracy, caste, or
monopoly, nor any denial of rights, civil or political, on account of
race or color, but all persons shall be equal before the law, whether
in the court-room or at the ballot-box.[256] Not doubting the power of
Congress to carry out this principle everywhere within the jurisdiction
of the United States, I content myself for the present by asserting it
only in the lapsed States lately in rebellion, where the twofold duty
to guaranty a republican government and to enforce the abolition of
Slavery is beyond question. To that extent I now urge it.
* * * * *
Both these propositions are opposed as informal and inoperative,
because without machinery or penalty. Such is the objection, if I
understand it. As it has been made, I answer it. Each on its face is
an Act of Congress prohibiting denial of certain rights on account of
color. In this respect each is at least a Congressional interpretation
of the Constitution, and it is by no means clear that it could not be
enforced in the courts. The bill which has already passed the House of
Representatives, striking out the word “white” in the electoral laws of
the District of Columbia, is without machinery or penalty; but it is at
least a Congressional declaration, to be followed, of course, by other
legislation with proper machinery and penalty; and this is the precise
character of the measures presented by the Senator from Illinois and
myself. Objection, if valid at all, must be equally valid against the
bill for enfranchisement in the District of Columbia, and against every
other Congressional declaration without machinery or penalty. It is,
at most, one of form, which I put aside and advance to the substance.
The question is too vast and the times are too serious for a special
demurrer. It must be tried on its merits. The question is on the power
of Congress to establish equality of political rights, at least in the
Rebel States. If Congress has this beneficent power, then exercise it
in such form as shall seem best, with machinery and penalty or without
machinery and penalty; but, in God’s name, exercise it, for the sake of
the country, which suffers from your delay.
Has Congress power to secure equality of political rights, at least in
the Rebel States? I do not at this time raise the question of its power
throughout the United States, but in the Rebel States. If this question
were less transcendent in its relations, or if it could be approached
calmly and without prejudice, in the light of reason, I cannot doubt
the judgment. But you must bring to its determination the same simple
desire for truth, undisturbed by external influences, which would
control a judicial tribunal; for, in the determination of your powers
under the Constitution, you are a judicial tribunal. It will not be
enough to deny the beneficent power, or to mock at those who find it in
the Constitution. You must answer their arguments.
* * * * *
1. I need not dwell on what has been so often discussed and so much
misunderstood; and yet I must remind you of the power of Congress
over the Rebel States from _the necessity of the case_; because, after
the overthrow of legitimate governments, whose members were sworn to
support the Constitution of the United States, there was no other
rule possible for these States than that of Congress,--precisely as
the Territories, according to Chief Justice Marshall, in a famous
judgment, fell under “the power and jurisdiction of the United States”
from the necessity of the case.[257] I do not say that a State becomes
a technical Territory, as that term is understood among us; but I do
say, that, in the lapse of the Rebel States, and in the absence of
legitimate governments with members sworn to support the Constitution,
these States fell under “the power and jurisdiction of the United
States,”--meaning, practically, Congress,--until such time as they are
reorganized according to the requirement of the Constitution. In the
exercise of such a power and jurisdiction thus cast upon it, Congress
must see that all loyal citizens, without distinction of color, take
part in the formation of the new governments.[258]
* * * * *
2. Nor need I dwell on another source of power, found in _the rights
of war_; but this, too, must be made plain. Nobody doubts that the
United States were justified in asserting supremacy in the Rebel States
by force of arms. But the war, when once begun, was subject to all
the conditions of war, according to the rights of war found in the
Law of Nations,--doubly obligatory on us, first, because we belong to
the family of nations, and, secondly, because the Law of Nations is
expressly recognized by the Constitution itself. Now, according to
the rights of war found in the Law of Nations, a conquering power is
justified in requiring not only indemnity for the past, but security
for the future. It depends upon the people of the United States,
represented in Congress, to determine the guaranties of this security.
In support of this conclusion, I ask attention to a familiar authority,
whose statement seems to cover the case. I read from Vattel:--
“The whole right of the conqueror comes from that just
self-defence which comprehends the maintenance and prosecution
of his rights. When, therefore, he has entirely subdued a
hostile nation, he may undoubtedly, in the first place, do
himself justice with regard to that which gave rise to the
war, and indemnify himself for the expenses and damages it has
caused him; he may, according to the exigency of the case,
impose penalties upon the conquered nation by way of example;
he may even, if prudence require, _render it incapable of doing
harm so easily in future_.”[259]
The offending party, when conquered, may be rendered incapable of doing
harm so easily in future. This is according to natural justice. Then
again the same familiar authority says:--
“If the inhabitants have been personally guilty of any criminal
attempt against the conqueror, _he may by way of punishment
deprive them of their rights and franchises_. This, again, he
may do, if the inhabitants have taken up arms against him and
thus directly rendered themselves his enemies. He then owes
them nothing more than what is due from a humane and equitable
conqueror to subjugated enemies.”[260]
Surely, out of this ample power Congress cannot hesitate in requiring
justice to the wards and allies of the Republic through whom the
Rebellion was crushed, especially when without justice to them security
in the future is nothing but a mockery and a phantasmagoria.
* * * * *
3. From these sources of power I pass to that other found in _the
constitutional obligation to guaranty to every State of the Union a
republican form of government_. Here is the text:--
“The United States shall guaranty to every State in this Union
a republican form of government.”
This obligation is peremptory, and not discretionary. It is _shall_,
and not _may_. The United States _must_ do it. Of course, in executing
the guaranty, you must affix a meaning to the term “republican form of
government.” To do this I have in this debate endeavored to show the
essential principles our fathers had at heart when they founded the
Republic. I shall not weary you again with the historic statement. It
is enough, if I present the conclusion. According to the Fathers, all
men are equal in rights, and, as corollaries from this truth, all just
government is founded on the consent of the governed, and taxation
without representation is tyranny. Such was their idea of a republican
government.
It is idle to allege against this definition, that there were property
“qualifications” in most of the States, by which the number of voters
was essentially limited. This is true. But it must not be forgotten
that a property “qualification,” unless unreasonably large, is not
a disfranchisement. It is a condition, sometimes onerous, but not
in its nature insurmountable, as the condition of color, and it is
equally applicable to all. And yet it is apparent, from the recorded
opinions of the Fathers, that even this “qualification” was regarded as
inconsistent with the genius of republican institutions.
It is idle also to allege against this definition the toleration of
Slavery. This was sad enough; but the Fathers who tolerated Slavery
regarded it as absolutely exceptional. According to the definition
of a slave, he has no will of his own, and can give no “consent”
to government. Therefore he was not considered as belonging to the
“body politic.” But not being represented, he was not taxed, except
as property. Indeed, a careful examination of his relations to the
government shows how completely in his case the rights of “the people”
are left untouched. He was not regarded as one of “the people,” and
therefore was not under the safeguard of the rights of “the people.”
But all this was changed when he became a freeman. He was then one of
“the people,” whose property could not be taken by taxation without
representation, and whose consent was essential to government. The
difference was not between whites and blacks, but between slaves and
freemen. All freemen, without distinction of color, were citizens.
Listen, if you please, to the “Federalist,” in an article attributed
to each of the three eminent authors of that collection, and which the
Senator from Maryland [Mr. JOHNSON] assumed was by Madison, but which
is claimed for Hamilton, in the last edition of the “Federalist,” by
his son. I quote a second time the important words:--
“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.”[261]
Such is the exposition of the actual Constitution by Hamilton.
According to him, “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.” But this very hour has
sounded. The laws have restored the rights which had been taken away,
and it is now your duty to see that the people who have regained their
rights are no longer refused an equal share of representation. The
opinion of Hamilton on this vital question is still further attested
by his saying that the liberty for which our fathers fought was the
right of “each individual” to “a share in the government”;[262] that
“the electors are to be _the great body of the people_ of the United
States”;[263] and still further, by the proposition in his Plan of a
Constitution:--
“Representatives shall be chosen, except in the first instance,
by _the free male citizens and inhabitants_ of the several
States comprehended in the Union, all of whom, of the age of
twenty-one years and upwards, _shall be entitled to an equal
vote_.”[264]
In this proposition, which, though not adopted in terms, may be
regarded as the pole-star of our fathers, the distinguished author
followed the Continental Congress, which recommended the apportionment
of the war expenses among the “free citizens and inhabitants,” without
distinction of color.[265]
This rule is in entire conformity with that matured by ancient
experience, especially in Greece, where, according to the universal
master, Aristotle,--
“The whole body of the inhabitants of a country enjoying the
protection of its laws, including the young who are still under
the legal age, and the very old who have passed the time of
action, and all others under any other species of disability,
are in a certain wide and general sense citizens; but the full
and complete definition of a _citizen_ is confined to those who
participate in the governing power.”[266]
Proving, as I have, that colored persons are citizens, this very
definition teaches that they cannot be refused participation in the
governing power.
The historian Thirlwall, in his studies of Greek polity, recognized
this rule, when he wrote:--
“But a finished democracy, that which fully satisfied the Greek
notion, was one in which every attribute of sovereignty might
be shared, without respect to rank or property, by _every
freeman_.”[267]
In recognizing the right of “every freeman” to the full enjoyment of
the elective franchise, our fathers followed the early example.
Curiously enough, we find confirmation of the true principle, where
you would little expect it, in that very Dred Scott decision which
undertook to blast a race. Chief Justice Taney on that occasion laid
down a rule which at this moment is applicable to every “citizen,”
without distinction of color:--
“The words, ‘people of the United States’ and ‘citizens’
are synonymous terms, and mean the same thing. They both
describe the political body, who, according to our republican
institutions, form the sovereignty, and who hold the power and
conduct the government through their representatives. They are
what we familiarly call the ‘sovereign people’; _and every
citizen is one of this people, and a constituent member of this
sovereignty_.”[268]