Volume 13 — THE EQUAL RIGHTS OF ALL: THE GREAT GUARANTY AND PRESENT NECESSITY, FOR THE SAKE OF SECURITY, AND TO MAINTAIN A REPUBLICAN GOVERNMENT.

Speech in the Senate, on the proposed Amendment of the Constitution fixing the Basis of Representation, February 5 and 6, 1866. With Appendix.

Taxation without representation is Tyranny.—The Revolutionary Fathers.

But if any among you thinks that Philip will maintain his power by having occupied forts and havens and the like, this is a mistake.… Impossible is it, impossible, Athenians, to acquire a solid power by injustice and perjury and falsehood. Such things last for once, or for a short period; maybe, they blossom fairly with hope; but in time they are discovered and drop away. As a house, a ship, or the like, ought to have the lower parts firmest, so in human conduct, I ween, the principle and foundation should be just and true.—Demosthenes, Second Olynthiac, tr. Kennedy.

Yet ye say, The way of the Lord is not equal. Hear now, O house of Israel! Is not my way equal? are not your ways unequal?—Ezekiel, xviii. 25.

Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them citizens, and let them vote.—Gouverneur Morris: Debates in the Federal Convention, August 8, 1787: Madison Papers, Vol. III. p. 1264.

He took his ground carefully, and propounded only what he felt sure that Hardy himself would at once accept,—what no man of any worth could possibly take exception to. He meant much more, he said, than this, but for the present purpose it would be enough for him to say, that, whatever else it might mean, Democracy in his mouth always meant that every man should have a share in the government of his country.—Hughes, Tom Brown at Oxford, Vol. II. Chap. XIX.

The Equal Rights of the colored race occupied the constant attention of Congress in different forms. One measure was known as the Civil Rights Bill, securing the right to sue and testify in court, introduced by Mr. Trumbull January 5, and passed April 9, 1866. Others were intended to secure suffrage for colored citizens in the District of Columbia and generally in the Rebel States. The efforts of Mr. Sumner were applicable to all these measures. He insisted always upon the equal title of all to rights of white citizens, whether civil or political, and he wished to act directly. Not doubting the plenary powers of Congress to provide for the equal rights of all, political as well as civil, especially since the Constitutional Amendment prohibiting Slavery, he pressed action by “appropriate legislation.”

Meanwhile the House of Representatives undertook to meet the Suffrage question indirectly, and by a proposition for an Amendment of the Constitution, reported by Hon. Thaddeus Stevens from the Joint Committee on Reconstruction. Proceeding originally from Hon. James G. Blaine, a Representative from Maine, afterwards Speaker, it was known familiarly as “the Blaine Amendment.” After elaborate discussion, the joint resolution containing the Amendment was adopted by the House, January 31st,—Yeas 120, Nays 46,—in the following terms:—

“Representatives shall be apportioned among the several States which may be included within this Union according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed: Provided, That, whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation.”

Mr. Fessenden, of Maine, who was the Senate Chairman of the Joint Committee on Reconstruction, promptly gave notice that he should call for its consideration in the Senate February 5th. This opened the whole subject in all its branches, and Mr. Sumner seized the earliest opportunity to discuss it, beginning the important debate. His speech, after asserting the equal rights of all, vindicated the plenary powers of Congress, especially under the clause requiring the United States to guaranty a republican form of government. Though made on the Constitutional Amendment, it was equally applicable to Mr. Trumbull’s Civil Rights Bill, then pending, as also to the Bill for Enfranchisement in the District of Columbia, and to all measures of Reconstruction.

SPEECH.

MR. PRESIDENT,—I begin by expressing my acknowledgments to the Senator from Maine, who yields the floor to-day, and also my sincere regret that anything should interfere with the opening of this debate by him. It is his right, and I enter upon it now only by his indulgence.

I am not insensible to the responsibility assumed in setting myself against a proposition already adopted in the other House, and having the recommendation of a Committee to which the country looks with such just expectation, and to which, let me say, I look with so much trust. But, after careful reflection, I do not feel that I can do otherwise. Knowing, as I do, the eminent character of the Committee, its intelligence, its patriotism, and the moral instincts by which it is moved, I am at a loss to understand the origin of an attempt which seems to me nothing else than another compromise of Human Rights, as if the country had not already paid enough in costly treasure and more costly blood for such compromises in the past. I had hoped the day of compromise with wrong had gone forever. Ample experience shows that it is the least practical mode of settling questions involving moral principle. A moral principle cannot be compromised.

Here are important words of the Amendment:—

“Provided, That, whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation.”

I may be mistaken, Sir, but I think it difficult to read this proposition without being painfully impressed by the discord and defilement it will introduce into the National Constitution, having among specific objects the guaranty of a republican form of government. The discord appears on the face. The defilement is none the less apparent. Go back, if you please, to the adoption of the Constitution, and you will gratefully acknowledge that the finest saying of the times was when Madison, evidently inspired by the Declaration of Independence, and determined to keep the Constitution in harmony with it, insisted, in well-known words, that it was “WRONG to admit in the Constitution the idea that there could be property in men.”[40] Of all that has come to us from that historic Convention, where Washington sat as President, and Franklin and Hamilton sat as members, there is nothing with so much of imperishable charm. It was wrong to admit in the Constitution the idea that man could hold property in man. In this spirit the Constitution was framed. This offensive idea was not admitted. The text, at least, was kept blameless. And now, after generations have passed, surrounded by the light of Christian truth and in the full blaze of Human Freedom, it is proposed to admit in the Constitution a twin idea of Inequality in Rights, and thus openly set at nought the first principles of the Declaration of Independence, and the guaranty of a republican government itself, while you blot out a whole race politically. For some time we have been carefully expunging from the statute-book the word “white,” and now it is proposed to insert in the Constitution itself a distinction of color. An amendment, according to the dictionaries, is “an improvement,” “a change for the better.” Surely the present proposition is an amendment which, like the crab, goes backward.

Such is the appearance, when you regard it merely in form, without penetrating its substance; but here it is none the less offensive. The case is plain. Still among us are four million citizens robbed of all share in the government of a common country, while, at the same time, according to their means, they are taxed, directly and indirectly, for the support of the Government. Nobody will question the statement. And this bare-faced tyranny of taxation without representation it is now proposed to recognize as not inconsistent with fundamental right and the guaranty of a republican government. Instead of blasting it, you go forward to embrace it as an element of political power.

If you expect to induce the recent slave-master to confer suffrage without distinction of color, you will find the proposition a delusion and a snare. He will do no such thing. Even the bribe offered cannot tempt him. If, on the other hand, you expect to accomplish a reduction of his political power, permit me to say that success is more than doubtful, while the means employed are unworthy. Tricks and evasions are possible, and the cunning slave-master will drive his coach and six through your Amendment, stuffed with all his representatives. Should he cheat you, it will only be a proper return for the endeavor on your part to circumvent him at the expense of fellow-citizens to whom you are bound by every obligation of public faith.

I know not if others will see this uncertainty as I see it; but there are two practical consequences, having direct influence on the times, which all must discern as following at once from the adoption of the so-called Amendment. In the first place, it will be a present renunciation of all power under the Constitution to apply the remedy for a grievous wrong, when the remedy, even according to your own recent example, is actually in your hands. You have already in this Chamber, only last Friday, decreed civil rights without distinction of color.[41] Who can doubt that by the same title you may decree political rights, also, without distinction of color? But, having the power, it is your duty to exercise it. You cannot evade this duty without becoming partakers in wrong. And this brings me to the second practical consequence that must ensue from the adoption of this proposition. You hand over wards and allies, through whom the Republic has been saved, and therefore our saviours, to the control of vindictive enemies, to be taxed and governed without their own consent; and this you do for a consideration “nominated in the bond,” by virtue of which men may do a great wrong, provided they submit, as a quid pro quo, to a proportionate abridgment of political power. Who does not admire the Scottish patriot of whom it was said that he “would lose his life readily to serve his country, but would not do a base thing to save it”?[42] I hope we may act in this spirit. Above all, do not copy the example of Pontius Pilate, who surrendered the Saviour of the World, in whom he found no fault at all, to be scourged and crucified, while he set at large Barabbas, of whom the Gospel says in simple words, “Now Barabbas was a robber.”

I speak with sincere deference for cherished friends from whom I differ; but I submit that the time has come, at last, when we should deal directly, and not indirectly, with the great question before us, and when all compromise of Human Rights should cease, and especially there should be no thought of a three-headed compromise, which, after degrading the Constitution, renounces a beneficent power essential to the safety of the Republic, and, lastly, borrowing an example from Pontius Pilate, turns over a whole race to sacrifice. These objections I present briefly on the threshold, without argument, and advance to the main question which must dominate this whole debate. By way of introduction, I send to the Chair a counter proposition, which I wish read. It is entitled “A joint resolution carrying out the guaranty of a republican form of government in the Constitution of the United States, and enforcing the Constitutional Amendment for the prohibition of Slavery.”

This was the joint resolution introduced February 2d,[43] in anticipation of this debate, but made applicable “anywhere within the limits of the United States or the jurisdiction thereof.” After its reading by the Secretary of the Senate, Mr. Sumner proceeded.

Mr. President,—In opening this great question, I begin by expressing a heartfelt aspiration that the day may soon come, when the States lately in rebellion may be received again into the copartnership of political power and the full fellowship of the Union. But I see too well that it is vain to expect this day, so much longed for, until we have obtained that security for the future which is found only in the Equal Rights of All, at the ballot-box as in the court-room. This is the Great Guaranty without which all other guaranties will fail. This is the sole solution of present troubles and anxieties. This is the only sufficient assurance of peace and reconciliation. To the establishment of this Great Guaranty, as a measure of safety and of justice, I now ask your best attention.

The powers of Congress over this subject are ample as they are beneficent. From four specific fountains they flow, each sufficient, all four swelling into an irresistible current, and tending to one conclusion: first, the necessity of the case, by which, according to analogy of the Territories, disloyal States, having no local government, lapse under the authority of Congress; secondly, the Rights of War, which do not expire or lose their grasp, except with the establishment of all needful guaranties; thirdly, the constitutional injunction to guaranty a republican form of government; and, fourthly, the Constitutional Amendment, by which Congress, in words of peculiar energy, is empowered to “enforce” the abolition of Slavery by “appropriate legislation.” According to the proverb of Catholic Europe, all roads lead to Rome; and so do all these powers lead to the jurisdiction of Congress over this whole subject. No matter which road you take, you arrive at the same point. The first two have already been discussed exhaustively.[44] The two latter have been considered less, and it is on these that I shall speak especially to-day. I propose, with the permission of the Senate, to show the necessity and duty of exercising the jurisdiction of Congress so as to secure that essential condition of a republican government, the Equal Rights of All. And I put aside, at the outset, the metaphysical question, worthy of schoolmen in the Dark Ages, whether certain States are in the Union or out of the Union. That is a question of form, and not of substance,—of words only, and not of facts; for the substance is clear, and the facts are unanswerable. All are agreed, according to the authority of President Lincoln, in his latest utterance before his lamented death, that these States have ceased to be in “practical relation with the Union”;[45] and this is enough to sustain the jurisdiction of Congress, even without the plain words of the Constitution in two separate texts.

The time has passed for phrases, which have been the chief resource in opposition to a just reconstruction. It is not enough to say “a State cannot secede,” “a State cannot get out of the Union,” “Louisiana is a State in the Union.” These are mere words, having no positive meaning, and improper for this debate. So far as they have meaning, they confound law and fact. It is very obvious that a State may, in point of law, be still in the list of States, and yet, in point of fact, its relations to the Union may have ceased through violence, foreign or domestic. In point of law, no man can commit suicide; but in point of fact, men do. The absurdity of denying that a man has committed suicide, because it is unlawful, is equalled by the kindred absurdity of saying that a State cannot do a certain thing, because it is unlawful. Unhappily, in this world, the fact is not always in conformity with the law.

Therefore I put aside all fine-spun theories running into the metaphysics of Constitutional Law. All such subtilties are absolutely futile. They must end in nothing. I found myself on existing facts, which are undeniable. Of these I select two.

Whatever may have been the effect of the acts of Secession in point of law, it is plain that de facto the Rebel States have ceased to take any part in the National Government. All loyal government in those States has been de facto subverted. They are all without magistrates or officers bound by oath to support the National Constitution according to its requirement, so that de facto there are no magistrates or officers of the Union in these States; nor are there any de facto Senators or Representatives in Congress from those States. Such are unquestionable facts, all of which concentre in the great unquestionable fact, that for the time being there are no State Governments in these States which the National Government can recognize as such.

There is another fact equally unquestionable. It is that the Rebel States have been de facto in war against the National Government. Armies have been mustered, battles have been fought, and the whole country has been convulsed by this war. An immense national debt, mourning families, widows and orphans, attest this terrible fact.

Everything has a natural consequence, and the consequence of this condition of things is that necessity which I have announced. These States cannot subsist without legal governments in just correlation with the other States and with the Nation.

Necessity and duty commingle. If what is necessary is not always according to duty, surely duty is always a necessity. On the present occasion they unite in one voice for the Great Guaranty. It is at once necessity and duty. Glancing at the promises of the Fathers, I shall exhibit,—

First, the overruling necessity of the times;

And, secondly, the positive mandate of the Constitution, compelling us to guaranty “a republican form of government,” and thus to determine what is meant by this requirement; all of which has been fortified by continuing Rights of War, and by the Constitutional Amendment authorizing Congress to enforce the abolition of Slavery.

In the life of a nation, as in that of an individual, there are moments when outstanding promises must be performed under peril of ruin and dishonor. Such is the present moment in the life of the Republic. Sacred promises, beginning with our history, are yet unperformed, although the hour has sounded when continued failure on our part will open the door to a long train of woes. And there are yet other promises, recently made, for the national defence against a wicked rebellion, which, like those of earlier date, are also unperformed. But the latter are all included in the former; so that our whole present duty centres in the performance of sacred promises coëval with the national life.

Our fathers solemnly announced the Equal Rights of all men, and that government had no just foundation except in the consent of the governed; and to the support of the Declaration heralding these self-evident truths they pledged their lives, their fortunes, and their sacred honor. Looking at this Declaration now, it is chiefly memorable for the promises it made. Mighty words! Fit utterance for the infant giant then born! Fit device for the great Republic taking its place in the family of kings! Fit lesson for mankind! And now the moment has come when these vows must be fulfilled to the letter. In securing the Equal Rights of the freedman, and his participation in the Government which he is taxed to support, we shall perform the early promises of the Fathers, and at the same time supplementary promises only recently made to the freedman as the condition of alliance and aid against the Rebellion. Failure here is moral and political bankruptcy. It is repudiation of moral and political duties, ending in repudiation of the financial obligations. So are duties to the national freedman linked with obligations to the national creditor, that you cannot repudiate the former without impairing the latter. Whoever disowns any of the promises of the Republic leads the way in repudiation.

But you cannot be thus guilty. Even if indifferent to the vows of the Fathers, necessity, in harmony with the plain injunction of the Constitution, will constrain you. On this there can be no doubt. You must perform these promises; and this brings me to the overruling necessity of the times.

I.

Necessity is a peremptory instructor. It gives the law which no man can disregard. It will not hearken to apology or postponement. With a voice of command it insists that its behests shall be obeyed. And now this very necessity speaks with familiar tones.

Twice already, since Rebel Slavery rose against the Republic, it has spoken, insisting, first, that the slaves should be declared free, and, secondly, that muskets should be put into their hands for the common defence. Yielding to necessity, these two things were done. Reason, humanity, justice were powerless; but necessity was irresistible. And the result testifies how wisely the Republic acted. Without Emancipation, followed by arming the slaves, Rebel Slavery would not have been overcome. With these, victory was easy.

At last the same necessity, which insisted first upon Emancipation and then upon arming the slaves, insists with the same unanswerable force upon admission of the freedman to complete equality before the law, so that there shall be no ban of color in court-room or at the ballot-box, and government shall be fixed on its only rightful foundation, the consent of the governed. Reason, humanity, and justice, all of which are clear for the admission of the freedman, may fail to move you; but you must yield to necessity, now requiring these promises to be performed.

The demand I make stands on necessity. You must grant it, or you will peril the peace of the Republic, and postpone indefinitely the great day of security and reconciliation. Therefore, in the name of that national safety which is the supreme law, I begin my appeal. Whatever is required for the national safety is constitutional. Not only it may be done, but it must be done. Not to do it is to fail in duty. The Republic must be saved.

When I speak of necessity, I mean that overruling compulsion which cannot be disobeyed. In the present case it is compounded of moral duty and the instinct of self-preservation. The moral duty to perform these promises is plain as the Decalogue. The instinct of self-preservation, impelling us to save the Republic, is in harmony with the requirement of moral duty. In denying justice now, you are not only guilty of grievous wrong, but you expose your country to incalculable calamity. The case is too clear for debate.

The irresistible argument for Emancipation was always twofold,—first, its intrinsic justice, and, secondly, its necessity for the safety of the Republic; all of which was expressed by President Lincoln in the closing words of his great Proclamation:—

“And upon this act, sincerely believed to be an act of justice warranted by the Constitution upon military necessity, I invoke the considerate judgment of mankind and the gracious favor of Almighty God.”

But the argument for Enfranchisement, which is nothing but the complement of Emancipation, is the same. Enfranchisement is not only intrinsically just, but necessary to the safety of the Republic. There is no reason, point, or argument once urged for Emancipation which may not be urged now for Enfranchisement. I do not err, when I say that Emancipation itself will fail without Enfranchisement.

By Enfranchisement I mean the establishment of the Equal Rights of All, so that there shall be no exclusion of any kind, civil or political, founded on color, and the promises of the Fathers shall be fulfilled. Such a measure will be, in the words of President Lincoln, “an act of justice warranted by the Constitution upon military necessity.”

As an act of justice, Enfranchisement has a necessity of its own. No individual and no people can afford to be unjust. Such an offence carries a curse, which, sooner or later, must drag its perpetrator to ruin. But here necessity from considerations of justice is completed and intensified by positive requirements of the national safety, plainly involved in the performance of these promises.

Look at the unhappy freedman blasted by the ban of exclusion. He has always been loyal, and now it is he, and not the Rebel master, who pays the penalty. From the nature of the case, he must be discontented, restless, anxious, smarting with sense of wrong and consciousness of rights denied. He does not work as if taken by the hand and made to feel the grasp of friendship. He is idle, thriftless, unproductive. Industry suffers. Cotton does not grow. Commerce does not thrive. Credit fails; nay, it dies before it is born. On the other hand, his Rebel master, with hands still red with the blood of fellow-countrymen, is encouraged in that assumption of superiority which is part of the Barbarism of Slavery; he dominates as in times past; he is exacting as of old; he is harsh, cruel, and vindictive; he makes the unprotected and trembling freedman suffer for the losses and disappointments of the Rebellion; he continues to insult and prostitute the wife and children, who, ceasing to be chattels, have not ceased to be dependants; he follows the freedman to by-ways and obscure places, where once again he plays master and asserts his ancient title as lord of the lash. Scenes of savage brutality and blood ensue. All this, which reason foretells, the short experience of a few months already confirms. And all this you sanction, when you leave the freedman despoiled of his rights.

But the freedman, though forbearing and slow to anger, will not always submit to outrage. He will resist. Resistance will be organized. And here begins the terrible war of races foreseen by Jefferson, where God, in all His attributes, has none which can take part with the oppressor. The tragedy of San Domingo will be renewed on a wider theatre, with bloodier incidents. Be warned, I entreat you, by this historic example. It was the denial of rights to colored people, upon successive promises, which caused that fearful insurrection. After various vicissitudes, during which the rights of citizenship were conferred on free people of color and then resumed, the slaves at last rose; and here the soul sickens at the recital. Then came Toussaint l’Ouverture, a black of unmixed blood, who placed himself at the head of his race, showing the genius of war, and the genius of statesmanship also. Under his magnanimous rule the beautiful island began to smile once more: agriculture revived; commerce took a new start; the whites were protected in person and property; and a Constitution was adopted acknowledging the authority of France, but making no distinction of race or color. In an evil hour this policy was reversed by a decree of Napoleon Bonaparte. War revived, and the French army was compelled to succumb. The connection of San Domingo with France was broken, and this island became a black republic. All this dreary catalogue of murder, battle, sorrow, and woe began in denial of justice to the colored race. And only recently we have listened to a similar tragedy from Jamaica, thus swelling the terrible testimony. Like causes produce like effects; therefore all this will be ours, if we madly persist in the same denial. The freedmen among us are not unlike the freedmen of San Domingo or Jamaica; they have the same “organs, dimensions, senses, affections, passions,” and, above all, the same sense of wrong, and the same revenge.

To avoid insurrection and servile war, big with measureless calamity, and even to obtain the security essential to industry, agriculture, commerce, and the national credit, you must perform the promises of the Republic, originally made by our fathers, and recently renewed by ourselves. But duty done will not only save you from calamity and give you security; it will also prepare the way for the great triumphs of the future, when through assured peace there shall be tranquillity, prosperity, and reconciliation, all of which it is vain to expect without justice.

The freedman must be protected. To this you are solemnly pledged by the Proclamation of President Lincoln, which, after declaring him “free,” promises to maintain this freedom, not for any limited period, but for all time. But this cannot be, so long as you deny him the shield of impartial laws. Let him be heard in court, and let him vote. Let these rights be guarded sacredly. Beyond even the shield of impartial laws, he will then have the protection which comes from the consciousness of manhood. Clad in the full panoply of citizenship, he will feel at last that he is a man. At present he is only a recent chattel, awaiting your justice to be transmuted into manhood. Would you have him respected in his rights, you must begin by respecting him in your laws. Would you maintain him in freedom, you must begin by maintaining him in the equal rights of citizenship.

And now the national safety is staked on this act of justice. You cannot sacrifice the freedman without endangering the peace of the country and the stability of our institutions. Everything will be kept in jeopardy. The national credit will suffer. Business of all kinds will feel the insecurity. The whole land will gape with volcanic fire, ready to burst forth in fatal flood. The irrepressible conflict will be prolonged. The house will continue divided against itself. From all these things, Good Lord, deliver us! But, under God, there is but one deliverance, and this is through justice.

I have said that the national credit will suffer; but this does not disclose the whole financial calamity. It is idle to suppose that recent rebels, restored to privileges of citizenship, will vote cordially for the national debt incurred in the suppression of their rebellion, or that they will willingly tax themselves for interest on the enormous outlays by which their darling Slavery has been overthrown. The evidence shows them already set against any such contribution. As time advances, and their power is assured, in conjunction with Northern sympathizers, they will openly oppose it; or, if they consent to recognize it, they will impose the condition that the Rebel debt shall be recognized also. All this is inevitable, if you give them the power; it is madness to tempt them. But they will not have the power, if the promises to the freedman are performed. Here again justice to the freedman becomes a necessity.

Sometimes it is said that we must not require justice to the freedman, because justice is still denied to the colored citizen in Connecticut and New York. Idle words, of inconceivable utterance! as if the two cases bore any imaginable resemblance! There are rivers in the North and rivers in the South, but who says that on this account the two regions are alike? The denial of justice to the colored citizens in Connecticut and New York is wrong and mean; but it is on so small a scale that it is not perilous to the Republic, nor is it vital to the protection of the colored citizen and the protection of the national creditor. You are moved to Enfranchisement in Connecticut and New York for justice to a few individuals only; but you are moved to it in the Rebel States for justice to multitudes, also to save the Republic, imperilled by injustice on a gigantic scale, and to supply needful protection to the national freedman and the national creditor. From failure on our part, there is in one case little more than shame, while in the other there is positive danger, involving the fate of the national freedman and the national creditor, to whom we are bound by the most solemn ties. To a good man, injustice, even on a small scale, is not tolerable; he feels the necessity of resisting it; but where the victims are counted by millions, this necessity becomes a transcendent duty, quickened and invigorated by all the instincts of self-preservation. Therefore, I say again, for the national safety, redeem these promises of the Fathers, and your own.

It is sometimes asserted that the National Constitution expressly reserves to the States the power of determining who shall vote, because it declares that “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.” But this assumption proceeds on the fatal error, that, at any time under the Constitution, which makes no distinction of color, there can be any such oligarchical distinction as a “qualification” founded on color. Even assuming that in a period of peace this might be done, yet, beyond all doubt, at the present moment, from the necessity of the case, from the Rights of War, from the Constitutional clause of guaranty, and from the Constitutional Amendment, Congress, by its quadruple powers, is completely authorized to do all it thinks best for the national security and the national faith in the Rebel States. As well question Farragut in the maintop of his steamer, Sherman in his march across Georgia, or Grant in the field before Richmond, as question the authority of Congress in the present crisis. But, if the authority exists, it must be exercised.

II.

And this brings me to the next form of this necessity and duty, as they appear in the guaranty clause of the Constitution. It is expressly declared that “the United States shall guaranty to every State in this Union a republican form of government.” These words, when properly understood, leave no alternative. They speak to us with no uncertain voice. But they must be understood. The Rebel States, while providing constitutional safeguards for property in man, and, according to the vaunt of their Vice-President, making Slavery the corner-stone of the new Government, yet follow our Constitution in the formal guaranty of a republican form of government.[46] Defiantly they assume that Slavery is not inconsistent with such a government. To this degrading assumption we must reply, not only for the national cause, but that republican governments may not suffer.

The magnitude of the question before us is seen in the postulate with which I begin. Assuming that there has been a lapse of government in any State, so as to impose upon the United States the duty of executing this guaranty, then do I insist that it is a bounden duty to see that such State has a “republican form of government,” and, in the discharge of this bounden duty, we must declare that a State, which, in the foundation of its government, sets aside “the consent of the governed,” which imposes taxation without representation, which discards the principle of Equal Rights, and lodges power exclusively with an Oligarchy, Aristocracy, Caste, or Monopoly, cannot be recognized as a “republican form of government,” according to the requirement of American institutions. Even if it may satisfy some definition handed down from antiquity or invented in monarchical Europe, it cannot satisfy the solemn injunction of our Constitution. For this question I now ask a hearing. Nothing in the present debate can equal it in importance. Its correct determination will be an epoch for our country and for mankind.

Believe me, Sir, this is no question of theory or abstraction. It is a practical question, which you are summoned to decide. Here is the positive text of the Constitution, and you must affix its meaning. You cannot evade it, you cannot forget it, without abandonment of duty. Others in vision or aspiration have dwelt on the idea of a Republic, and they have been lifted in soul. You must consider it not merely in vision or aspiration, but practically, as legislators, seeking a precise definition, to the end that the constitutional “guaranty” may be performed. Your powers and duties are involved in this definition. The character of the Government founded by our fathers is also involved in it.

There is another consideration not to be forgotten. In affixing the proper meaning to the text, and determining what is a “republican form of government,” you act as a court in the last resort, from which there is no appeal. You are sole and exclusive judges. You may decide as you please. Rarely in history has such an opportunity been offered to the statesman. You may raise the name of Republic to majestic heights of justice and truth, or you may let it drag low down in the depths of wrong and falsehood. You may make it fulfil the idea of John Milton, when he said that “a commonwealth ought to be but as one huge Christian personage, one mighty growth and stature of an honest man, as big and compact in virtue as in body”;[47] or you may let it shrink into the ignoble form of a pretender, with the name of Republic, but without its soul.

Before considering this vital question, it is proper to regard the origin of this “guaranty,” and see how it obtained place in the Constitution. Perhaps there was no clause more cordially welcomed; nor does it appear that it was subjected to any serious criticism in the National Convention or in any State Convention. It is not found in the Articles of Confederation; but we learn from the “Federalist”[48] that the want of this provision was felt as a capital defect in the plan of the Confederation. Mr. Madison, in a private record, made in advance of the National Convention, and which has only recently seen the light, enumerates among defects of the Confederation what he calls “want of guaranty to the States of their Constitutions and laws against internal violence”; and he then proceeds to anticipate danger from Slavery, which could be counteracted only by such “guaranty.” Showing why this was needed, he says, that, “according to republican theory, right and power, being both vested in the majority, are held to be synonymous; according to fact and experience, a minority may, in an appeal to force, be an overmatch for the majority”; and he remarks, in words which furnish a key to the “guaranty” afterwards adopted, “Where Slavery exists, the republican theory becomes still more fallacious,”—thus showing, that, at its very origin, it was regarded as a check upon Slavery.[49]

Hamilton was not less positive than Madison. In his sketch of a Constitution, communicated to Madison, and preserved by him,[50] this “guaranty” is found; and in the elaborate brief of his argument on the Constitution, it is specified as one of its “miscellaneous advantages.” The last words of this remarkable paper are “guaranty of republican governments.”[51] Randolph, of Virginia, in his sketch of a Constitution, proposed the “guaranty,” and, in a speech setting forth the evils of the old system, he said of the remedy, that “the basis must be the republican principle.”[52] Colonel Mason, of Virginia, taking up the same strain, said, that, though the people might be unsettled on some points, they were settled as to others, among which he put foremost “an attachment to republican government.”[53]

The proposition in its earliest form was, “that a republican government, and the territory of each State, except in the instance of a voluntary junction of government and territory, ought to be guarantied by the United States to each State.”[54] This was afterward altered so as to read, “that a republican Constitution and its existing laws ought to be guarantied to each State by the United States.” Gouverneur Morris thought that the proposition in this form was “very objectionable,” and he added, that “he should be very unwilling that such laws as exist in Rhode Island should be guarantied.” On discussion, it was amended, at the motion of Mr. Wilson, the learned and philosophical delegate from Pennsylvania, afterward of the Supreme Court of the United States, so as to read, “that a republican form of government shall be guarantied to each State, and that each State shall be protected against foreign and domestic violence,” and in this form it was unanimously adopted.[55] Afterward it underwent modification in the Convention and in the Committees of Detail and Revision, until it received the final form it now has in the Constitution:[56]—

“The United States shall guaranty to every State in this Union a republican form of government, and shall protect each of them against invasion, and, on application of the Legislature, or of the Executive, when the Legislature cannot be convened, against domestic violence.”

Thus stands the “guaranty.” If further reason be required for its introduction into the Constitution, it will be found in the prophetic language of the “Federalist”:—

“It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the General Government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers?”[57]

The very crisis anticipated has arrived. “The caprice of particular States,” and “the ambition of enterprising leaders” have done their worst. And now the “guaranty” must be performed, not only for the sake of individual States, but for the sake of the Union to which they all belong, and to advance the declared objects of the Constitution, specified in its preamble.

The text of this great contract is worthy of study. No stronger or more comprehensive words could be employed, whether we regard the object, the party guarantying, or the party guarantied. The express object is “a republican form of government.” This is plain. The party guarantying is not merely the Executive or some specified branch of the National Government, but “the United States,” or, in other words, the Nation. The Republic, which is the impersonation of all, guaranties “a republican form of government”; and every branch of the National Government must sustain the guaranty, including especially Congress, where is the collected will of the people. The obligation is not less broad, when we consider the party guarantied. Here there can be no evasion. The guaranty is not merely for the advantage of individual States, but for the common defence and the general welfare. It is a guaranty to each in the interest of all, and therefore a guaranty to all. And such is the solidarity of States in the Union, that the good of all is involved in the good of each. For each and all, then, this guaranty must be performed, when the casus fœderis arrives. As guarantor, the Republic, according to a familiar principle, is to act on default of the party guarantied; and then the duty is fixed in all its amplitude.

The testimony is complete. This clause was no hasty or accidental amendment, creeping into the Constitution by stealth or compromise, obscure in language and open to various interpretation, but a solemn act, couched in few, lucid, unmistakable words; and its precise purpose was just what so plainly appears,—to keep all the States truly “republican,” and make the whole numerous people, in the development of the future, homogeneous and one. By these words the Nation is not only empowered, but commanded, to perform the great guaranty. Power and duty here concur. Mr. Webster was right, when he called this provision “a very stringent article, drawing after it the most important consequences, and all of them good consequences.”[58]

The question, then, returns, What is “a republican form of government,” according to the requirement of the National Constitution? Mark, if you please, that it is not the meaning of this term according to Plato and Cicero, not even according to examples of history, nor according to definitions of monarchical writers or lexicographers,—but what is “a republican form of government” according to the requirements of the National Constitution? Of course these important words were not introduced and unanimously adopted without purpose. They must be interpreted so as to have real meaning. Any interpretation rendering them insignificant must be discarded as irrational and valueless, if not dishonest. They cannot be treated as a phrase only, nor a dead letter, nor an empty figure-head. Nor can they be treated as profession and nothing more, so that the Constitution shall merely seem to be republican, reversing the old injunction, “To be rather than to seem,”—Esse quam videri. They must be treated as real. Thus interpreted, they become at once a support of Human Rights and a balance-wheel to our whole political system.

In determining their signification, I begin by putting aside what is vague, unsatisfactory, and inapplicable, in order to bring the inquiry directly to American institutions.

I put aside all illustration derived from the speculations of ancient philosophers, because, on careful examination, it appears that the term “Republic,” as used by them, was so absolutely different from any idea among us as to exclude their definition from the debate. This captivating term is of Roman origin. It is the same as “commonwealth,” and means the public interest. As originally employed, it was not a specific term, describing a particular form of government, but a general term, embracing all governments, whether kingly, aristocratic, democratic, or mixed. Its equivalent in Greece was “polity,” being the general term for all governments. Therefore the definition of a Republic, according to these ancients, is simply the definition of an organized government, whether kingly, aristocratic, democratic, or mixed. Following this definition, the words of the Constitution are only the guaranty of an organized government, without determining its character. This, of course, leaves open the very question under consideration.

While the ancient nomenclature cannot be cited in determining the definition of a Republic, we may be encouraged by it in demanding that all government, whatever name it bears, shall be designed to establish justice and secure the general welfare. Thus, Plato, who commenced these interesting speculations, likens government to a just man, delighting in justice always, however treated by others; and the philosopher insists that every man is a government to himself as every community is a government to itself. His ideal commonwealth appears in a good man, and this analogy testifies to the government he conceived. Aristotle, in a different vein, and with more precision, opens by declaring that “every state is a certain community” or “partnership.”[59] This idea appears again when he says, “Nothing more characterizes a complete citizen than having a share in the judicial and executive part of the government.”[60] In various places he speaks of “the common good” as a special object,—as, “when the One, the Few, or the Many govern for the common good, theirs must be called a good government”[61]; and he defines a democracy as “where the freemen and the poor, being the majority, are masters of the government.”[62] The same ideas find new fervor and expansion, when Cicero says, “A republic is the interest of the people. But by the people I do not mean every assemblage of men, gathered together anyhow, but a body of men associated through agreement in right and community of interest.”[63] And then again, in another place, the Roman philosopher says, “Only in a state where the power of the people is supreme has Liberty any abode, and, where not equal, it is not really Liberty.”[64] But all these requirements or aspirations are applicable to any government, of whatever form; and it is well known that Cicero recorded his preference for a government tempered by admixture of the three different kinds; so that we are not advanced in our definition, unless we insist that our Republic should have all the virtues accorded to the ideal commonwealth. And yet there are two principles which all these philosophers teach: the first is justice; and the second is the duty of seeking the general welfare.

I next put aside the examples of history, as absolutely fallacious and inapplicable. In all ages, governments have been called Republics. Tacitus speaks of Rome under the tyranny of the Empire as the Republic; and Marcus Aurelius, while Emperor, pledges himself to the Republic. Indeed, there is hardly a government, from that of the great hunter Nimrod down to insulted and partitioned Poland, which has not been called Republic. In 1773, only a few years before the adoption of the National Constitution, Russia, Austria, and Prussia, after dividing Poland, undertook to establish fundamental laws for this conquered country, where was this declaration:—

“The government of Poland shall be forever free, independent, and of a republican form: the true principle of said government consisting in the strict execution of its laws, and the equilibrium of the three estates, namely, the king, the senate, and the equestrian order.”[65]

But a government thus composed cannot be recognized in this debate as “of a republican form.”

At the adoption of the Constitution, the most competent persons, who disagreed on other things, agreed in discarding these examples. Alexander Hamilton and John Adams met here on common ground. The former, in the Brief of his Argument, exhibits the various forms of government to which the term “Republic” has been applied.

“A Republic, a word used in various senses. Has been applied to aristocracies and monarchies. (1.) To Rome under the Kings. (2.) To Sparta, though a Senate for life. (3.) To Carthage, though the same. (4.) To United Netherlands, though Stadtholder, hereditary nobles. (5.) To Poland, though aristocracy and monarchy. (6.) To Great Britain, though monarchy, &c.”[66]

John Adams, in his Defence of the American Constitutions, written immediately anterior to the National Constitution, concurs with Hamilton.

“But, of all the words in all languages, perhaps there has been none so much abused in this way as the words Republic, Commonwealth, and Popular State. In the Rerum-Publicarum Collectio, of which there are fifty and odd volumes, and many of them very incorrect, France, Spain, and Portugal, the four great Empires, the Babylonian, Persian, Greek, and Roman, and even the Ottoman, are all denominated Republics.”[67]

In his old age the patriarch expressed himself in the same sense, and with equal force.

“The customary meanings of the words Republic and Commonwealth have been infinite. They have been applied to every government under heaven: that of Turkey, and that of Spain, as well as that of Athens and of Rome, of Geneva and San Marino.”[68]

And then again he said:—

“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]

Pennsylvania, by her House of Assembly, spoke also to the same effect:—

“Resolved, N. C. D., That this House think it their duty thus firmly to assert with modesty and decency their inherent rights, that their posterity may learn and know that it was not with their consent and acquiescence that any taxes should be levied on them by any persons but their own representatives.”[111]

The controversy proceeded. At the invitation of Massachusetts, moved by Otis, a Congress assembled at New York in October, 1765, having delegates from Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, and South Carolina, which, after a prolonged session, adopted a declaration of colonial rights and grievances, where it is declared:—

“That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them but with their own consent, given personally or by their representatives.

“That the people of these Colonies are not, and from their local circumstances cannot be, represented in the House of Commons in Great Britain.”[112]

At last the Stamp Act was repealed. But the pretension of taxation was suspended rather than abandoned. A ministerial partisan continued to urge the scheme in unscrupulous language:—

“All countries unaccustomed to taxes are at first violently prepossessed against them, though the price which they give for their liberty: like an ox untamed to the yoke, they show at first a very stubborn neck, but by degrees become docile and yield a willing obedience.… America must be taxed.”[113]

As time advanced, the old audacity was revived, and, under the lead of the reckless Charles Townshend, taxes were imposed by Parliament on tea, glass, lead, paper, and painters’ colors. The old opposition in the Colonies was revived also, and taxation without representation was again denounced. Committees of correspondence were established, and the work of organization began. The whole country was in a fever. Massachusetts, as in times past, did not hesitate to proclaim the true principle. At a town-meeting of Boston in 1772, there was a declaration of rights, “which no man or body of men, consistently with their own rights as men and citizens or members of society, can for themselves give up or take away from others”; and here we meet again familiar words:—

“The supreme power cannot justly take from any man any part of his property without his consent in person or by his representatives.”[114]

Against all Parliamentary taxation, as often as it showed itself, this impenetrable buckler was lifted. But the mother country was perverse. Ship-loads of tea arrived. At Boston the tea was thrown into the dock. The Colonies entered into an agreement of non-importation. Then came troops, and the Boston Port Bill, by which this harbor was vindictively closed against commerce. The whole country, including even South Carolina, made common cause with Massachusetts. Gadsden exclaimed, “Massachusetts sounded the trumpet, but to Carolina is it owing that it was attended to.”[115] And Virginia exclaimed, “We will never be taxed but by our own representatives. This is the great badge of Freedom.… Whether the people in Boston were warranted by justice, when they destroyed the tea, we know not; but this we know, that the Parliament, by their proceedings, have made us and all North America parties in the present dispute.”[116] Meanwhile more troops arrived. All things portended strife; and yet the colonists did not ask for independence. They only asked for rights, insisting always that there should be no taxation without representation. “The patriots of this Province,” said John Adams in 1774, “desire nothing new; they wish only to keep their old privileges. They were for one hundred and fifty years allowed to tax themselves, and govern their internal concerns as they thought best. Parliament governed their trade as they thought fit. This plan they wish may continue forever.”[117] Thus stood the two parties face to face.

Then came the Continental Congress, which at once put forth resolutions, where, after claiming the enjoyment of life, liberty, and property, as natural rights, it was insisted that the colonists could be bound by no law to which they had not consented by representatives. Here was the original programme of James Otis: first, the rights of men, according to Natural Law; and, secondly, the principle that government, including of course taxation, depended on the consent of the governed. “The foundation of English Liberty and of all free government,” said these resolutions, “is a right in the people to participate in their legislative council.”[118] In harmony with these resolutions were the several addresses of the Continental Congress,—to the people of Great Britain, to the inhabitants of the Province of Quebec, and to the king himself,—always pleading for Human Rights in the largest sense. The address to the people of Great Britain begins by an appeal for “the rights of men and the blessings of Liberty,” and then insists “that no power on earth has a right to take our property from us without our consent.”[119] The address to the inhabitants of the Province of Quebec, in similar spirit, says: “The first grand right is that of the people having a share in their own government by their representatives chosen by themselves, and, in consequence, of being ruled by laws which they themselves approve, not by edicts of men over whom they have no control. This is a bulwark surrounding and defending their property.”[120] And the petition to the king has the same key-note: “Duty to your Majesty, and regard for the preservation of ourselves and our posterity, the primary obligations of Nature and society, command us to entreat your royal attention.”[121] Thus constantly, down to the last moment, did our fathers set forth the principles they sought to establish as essential to free government. Thus constantly did they testify to the cause for which I now plead.

Answering voices came back from England, announcing the principles in issue. The right of taxation was asserted; but there were many who disguised the tyranny by assuming that the Colonies were “virtually represented.” Perhaps that spirit of legal technicality which is satisfied by form at the expense of reason was never more strikingly illustrated than in the argument of Sir James Marriott, the Admiralty Judge, who gravely insisted, in the House of Commons, that England “had an undoubted right to tax America, because she was represented by the members for the County of Kent, of which the thirteen provinces were a part or parcel, for in their charters they were to hold of the manor of Greenwich in Kent.”[122] The whole pretension had been scouted by the indignant eloquence of Mr. Pitt, afterward Lord Chatham. “The idea,” said he, “of a virtual representation of America in this House is the most contemptible idea that ever entered into the head of a man. It does not deserve a serious refutation.”[123] As the controversy continued, and especially as those masterly state papers, the addresses of the Continental Congress, reached England, the ministers of the king were put on the defensive. They retained as advocate none other than Samuel Johnson, who, for “small hire,” lent the pen which had written “Rasselas,” “The Vanity of Human Wishes,” and the English Dictionary, to a rancorous attack on the principles of our fathers. Its concentrated venom was all expressed in the title, “Taxation no Tyranny.” Another pamphlet appeared in reply, with the epigram, “Resistance no Rebellion,” embodying the idea, that, where there is taxation without representation, resistance is justifiable; and thus was issue joined at London. This was in 1775. Already the “embattled farmers” had gathered at Lexington and Bunker Hill; already Washington had drawn his sword at Cambridge, as commander-in-chief and generalissimo of the new-born armies; already war had begun. At last, to the defiant watchword, “Taxation no Tyranny,” hurled from London, our fathers returned that other defiant watchword, “Independence.” But they did not turn their backs upon the principles asserted throughout the long controversy. Independence was the means to an end, and that end was nothing less than a Republic, with Liberty and Equality as animating principles, where government stood on the consent of the governed, or, which is the same thing, where there should be no taxation without representation: for here was the distinctive feature of American institutions.

2. The principles heralded through fifteen years of controversy were not forgotten when Independence was declared: and here I come to the national declarations of the Fathers.

It sometimes happens that men fail in support of the cause to which they are pledged, or content themselves with something less than the truth. But not so with our fathers. In declaring Independence they continued loyal to their constant vows. The natural rights of all men, and the consent of the people as the only just foundation of government, which James Otis first announced, which Samuel Adams maintained with severe simplicity, which Patrick Henry vindicated even against the cry of “Treason,” and which had been affirmed by legislative bodies and public meetings, were embodied in the opening words of the Declaration. There they stand, like a sublime overture to the new Republic, interpreting, inspiring, and filling it with transforming power.

“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.”

Nor did these declarations proceed from the National Congress alone. The States spoke also in their Bills of Rights.

Foremost is the Equality of All Men. Of course, in a declaration of rights, no such supreme folly was intended as that all men are created equal in form or capacity, bodily or mental,—but simply that they are created equal in rights. This is grandest of the self-evident truths announced, leading and governing all the rest. Life, liberty, and the pursuit of happiness are among inalienable rights; but they are all in subordination to that primal truth. Here is the starting-point of the whole; and the end is like the starting-point. Announcing that governments derive their just powers from the consent of the governed, the Declaration repeats the same proclamation of Equal Rights. Thus is Equality the Alpha and the Omega, wherein all other rights are embraced. Men may not have a natural right to certain things, but most clearly they have a natural right to impartial laws, without which justice, being the end and aim of government, must fail. Equality in rights is the first of rights. Because these self-evident truths, beginning with Equality, had been set at nought by Great Britain, in her relations with our fathers, Independence was declared. To these truths, therefore, was the new Government solemnly dedicated, as it assumed its separate and equal station among the powers of the earth. Do you ask for the definition of Republic? Here it is, by patriot lexicographers, whose authority none of us can question.

As the War of Independence began with a declaration of principles, so it ended with a like declaration. At its successful close, the Continental Congress, in an Address to the States, by the pen of James Madison, thus announced the objects for which it had been waged, and thus supplied another definition of the new government:—

“Let it be remembered that it has ever been the pride and boast of America, that the rights for which she contended were the rights of human nature. By the blessing of the Author of these rights on the means exerted for their defence, they have prevailed against all opposition, and form the basis of thirteen independent States. No instance has heretofore occurred, nor can any instance be expected hereafter to occur, in which the unadulterated forms of Republican Government can pretend to so fair an opportunity of justifying themselves by their fruits. In this view, the citizens of the United States are responsible for the greatest trust ever confided to a political society.”[124]

Such, also, was the sublime sentiment promulgated by Washington from his camp, in a general order, near the same date, announcing the close of the war, where he declares his “rapture” in the national prospects, and the three-fold happiness for all “who have assisted in protecting the rights of human nature.”[125] It was for “the rights of human nature” that our fathers went forth to battle, and these rights are proclaimed to “form the basis of thirteen independent States.” But supreme among these is Equality, including of course the equal right of all to a voice in the Government. And this is the Republic which our fathers, with pride and boast, then gave as an example to mankind.

The same spirit appears in the National Constitution, which, by its preamble, asserts practically similar sentiments:—

“We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Thus was the National Constitution ordained, not to create an oligarchy or aristocracy, not to exclude certain persons from the pale of its privileges, not to organize inequality of rights in any form, but to “establish justice,” which is Equality,—to “insure domestic tranquillity,” which is vain without justice,—to “provide for the common defence,” which is the defence of all,—to “promote the general welfare,” which is the welfare of all,—and to “secure the blessings of liberty” to all the people and their posterity, which is giving to all the complete enjoyment of rights central among which is Equality. Here, then, is another authoritative definition.

Thus has our country testified to its idea of a Republic, not only throughout long days of controversy, but in national declarations, being in themselves monumental acts.

3. From these national declarations I come now to the Opinions of the Fathers. Here you see how these same principles have been sustained by eminent characters, whose names are historic, all testifying to the government they founded and upheld. In their weighty words you find a definition, constantly repeated, in harmony with all the promises of the Fathers, whether in controversy or in solemn instruments which are the very title-deeds of the Republic.