Part 11

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.