Part 14

Looking at the States in their collective character, we find that at the adoption of the National Constitution they refused to recognize any exclusion from the elective franchise on account of race or color. The Fathers knew too well the requirements of a republican government to sanction such exclusion. Recognizing Slavery as a transitory condition, soon to cease, they threw over it a careful oblivion; but they were none the less jealous of the rights of all freemen. _The slave did not pay taxes_, and, so far as he was a person and not property, he was part of the family of his master, by whom he was represented, so that in his case the commanding principle of the Revolution was not disturbed. But, becoming a freeman, the slave stepped at once within the pale of taxation, and therefore necessarily of representation, since the two are inseparable. And this consideration was the guide to our fathers.

The Continental Congress refused point-blank to insert the word “white” in the Articles of Confederation. The question came up, June 25, 1778, on these words: “THE FREE INHABITANTS of each of these States (paupers, vagabonds, and fugitives from justice excepted) shall be entitled to all privileges and immunities of FREE CITIZENS in the several States.” The delegates from South Carolina moved, in behalf of their State, to limit this guaranty to “free WHITE inhabitants.” On the question of inserting the word “white,” eleven States voted,--two in favor of the insertion, one was divided, and eight were against it. South Carolina, not disheartened, made another attempt, by moving to add, after the words “the several States,” the further clause, “according to the law of such States respectively for the government of their own FREE WHITE inhabitants,”--thus seeking again to limit the operation of the guaranty. This proposition was voted down by the same decisive majority of eight to three. And thus did our fathers testify to the right of representation without distinction of color. On other occasions, for successive years, they constantly gave the same testimony.

A resolution of Congress in April, 1783, seconded by the report of a Grand Committee, of which Mr. Jefferson was Chairman, in April, 1784, recommended an Amendment of the Articles of Confederation, whereby the war expenses should be apportioned among the several States according to “the whole number of white and _other free citizens and inhabitants_,”--thus positively embracing colored persons. In the Act for the Temporary Government of the Territory “ceded or to be ceded” to the United States, April 23, 1784, and drawn by Jefferson, the voters are declared to be the “free males of full age,” without distinction of color. In the famous Ordinance for the Government of the Northwestern Territory, drawn by Nathan Dane, of Massachusetts, adopted by the Confederation July 13, 1787, and then reënacted by our Congress after the adoption of the Constitution, the voters are declared to be “free male inhabitants of full age,”--again without distinction of color. Then came successive Acts of Congress for the government of Territories, where the rule in the Ordinance for the Northwestern Territory was followed, and there was no distinction of color. If this rule changed, it was only when the partakers in the Revolution and the authors of the Constitution ceased to exercise influence over public affairs. The testimony of the Fathers was constant, and it is only of this that I speak.

* * * * *

Turning from the States collectively, and looking at them individually, we find the same testimony. By the Constitution of New Hampshire, at the adoption of the National Constitution, the suffrage was vested in “every male inhabitant of each town and parish,” with certain qualifications, but without exclusion on account of color. By the Constitution of Massachusetts the suffrage was vested in “every male inhabitant,” with certain specified qualifications, but without distinction of color. Rhode Island, at the adoption of the Constitution, was under her original colonial charter, which provided for elections by “the major part of the freemen of the respective towns or places,” without distinction of color. Connecticut was likewise under her original colonial charter, which also provided for elections by “the major part of the freemen of the respective towns, cities, and places,” without distinction of color. By the Constitution of New York the suffrage was vested in “every male inhabitant of full age,” with certain specified qualifications, but without distinction of color. By the Constitution of New Jersey it was vested in “all inhabitants of this Colony of full age,” with certain specified qualifications, but without distinction of color. By the Constitution of Pennsylvania it was vested in “every freeman of the full age of twenty-one years,” with certain specified qualifications, but without distinction of color. By the Declaration of Rights prefixed to the Constitution of Delaware it was announced that “every freeman, having sufficient evidence of a permanent common interest with and attachment to the community, hath a right of suffrage,” without distinction of color; and in the Constitution the suffrage was vested in “the freemen and inhabitants of the respective counties,” with certain specified exceptions, but without distinction of color. By the Constitution of Maryland the suffrage was vested in “all freemen above twenty-one years of age,” with certain specified qualifications, but without distinction of color. By the Constitution of North Carolina the suffrage was vested in “all freemen of the age of twenty-one years,” with certain specified qualifications, but without distinction of color; and this rule continued down to 1836, when the Constitution was amended, or rather, let me say, perverted. That eminent citizen, Judge Gaston, of North Carolina, in giving judgment at a later day, said: “It is a matter of universal notoriety, that _free persons, without regard to color, claimed and exercised the franchise_.”[157] To these States I add Tennessee, which was carved out of North Carolina, and followed her benign example. Her Constitution, adopted in 1796, vested the suffrage in “every freeman of the age of twenty-one years,” with certain qualifications, but without distinction of color; and this rule continued down to the perversion of the Constitution in 1834. Mr. Cave Johnson, of Tennessee, once Postmaster General, is reported to have said that he was originally elected to Congress by the votes of colored persons, and I have heard Mr. John Bell make the same confession with regard to himself.

Virginia was inconsistent and uncandid. By the Declaration of Rights prefixed to her Constitution it was announced that “ALL MEN, having sufficient evidence of permanent common interest with and attachment to the community, have the right of suffrage,” without distinction of color; and it is added, that they “_cannot be taxed or deprived of their property for public uses without their own consent_ or that of their representatives so elected, nor bound by any law to which they have not in like manner assented for the public good.” This was entirely worthy of the eminent citizens who adorned that State. But a subsequent provision of the Constitution preserved the right of suffrage “as exercised at present”: thus embodying, without naming, the legislative exclusion of free negroes, mulattoes, and Indians, “although such persons be freeholders.” This discreditable manœuvre becomes more notable in view of an incident in the early history of Virginia, curious and important, and also applicable to all the States during their colonial existence. It was on the enactment of a statute in 1723, “that no free negro, mulatto, or Indian whatsoever shall hereafter have any vote at the election of burgesses, or any other election whatsoever,”[158] when the tyranny here manifest was rebuked with unexpected plainness. The legal authority in England, to whom this colonial statute was submitted for review and approval, reported, in admirable words:--

“I cannot see why one freeman should be used worse than another _merely upon account of his complexion_.… To vote at elections of officers, either for a county or parish, &c., is incident to every freeman who is possessed of a certain amount of property.”[159]

Georgia was fitful. By her Constitution of 1777, in existence immediately anterior to the National Constitution, suffrage was confined to “male _white_ inhabitants.” But a Constitution adopted May 6, 1789, and another adopted May 30, 1798, accorded suffrage to “citizens and inhabitants,” with certain specified qualifications, but without the word “white.”

It only remains to speak of South Carolina, the persistent marplot of republican institutions, where, by the Constitution, the suffrage was vested in “every free _white_ man, and no other person,” with certain specified qualifications. This was the only State among the original Thirteen, unless Georgia be grouped with South Carolina, which at that time allowed a color discrimination in its Constitution. It was the only State which, after uniting in a National Declaration that “all men are created equal,” openly and audaciously commenced the example of “a white man’s government.” This apostate idea, which has since played such a part as a disturber of the national peace, was then and there born, as the opposite idea was born in Massachusetts, under the inspiring words of James Otis. And the other States, in their Constitutions, followed this patriot voice. They spoke of “persons,” “inhabitants,” “freemen,” or, better still, “men,” without prefix of “white.” Color was not mentioned. But even in South Carolina, which introduced the discreditable tyranny into her Constitution, this exclusion was more apparent than real. In point of fact, even as late as 1790, when the first census was taken, there were in this State only one thousand eight hundred and one free colored citizens. Of course their exclusion was wrong, mean, and unrepublican; but I do not assert that it was such a case as to justify the interference of the nation to reform it, especially where there was no lapse of the State Government. On the other hand, its sufferance cannot be interpreted as a waiver of the principles for which the Revolution was fought. But even in South Carolina there had been a spasm of virtue. In 1757 there was a “flourishing negro school” at Charleston, and in 1709 we find a complaint that “even negroes” had been admitted to vote. Though denounced as an abuse, the precedent is authenticated by a disgusted inhabitant.[160]

* * * * *

Such are the public acts of the States, collectively and individually, at the adoption of the National Constitution, illustrating with rare harmony the American idea of a Republic, and testifying against any exclusion founded on color. Add to these, that the National Constitution, carefully excepting from the basis of Representation “Indians _not taxed_,” pays open homage to the principle that there can be no taxation without representation; add then that it expressly founds the Government upon “the people,” not only in the preamble, which begins “We the people,” but also in providing that the House of Representatives shall be “chosen by the people of the several States”; add also the crowning fact, that it recognizes no distinction of color, that it treats all with the same impartial justice, that the word “white” does not appear there, and who are we, Sir, who dare foist into this Magna Charta an oligarchical idea which finds no sanction in its republican text?

* * * * *

Here I bring this part of the argument to a close. We have seen the origin of the controversy which led to the Revolution, when Otis, with such solid claim, insisted upon Equal Rights, and then, giving practical effect to the grand demand, sounded the battle-cry, “Taxation without Representation is Tyranny”; we have followed the controversy in its anxious stages, where these principles were constantly asserted and constantly denied, until it broke forth in battle; we have seen these principles adopted as the very frontlet of the Republic, when it assumed its place in the family of nations, and then again when it ordained its Constitution; we have seen them avowed and illustrated in memorable words by the greatest authorities of our history; lastly, we have seen them embodied in public acts of the States collectively and individually; and now, out of this concurring, cumulative, and unimpeachable testimony, constituting a speaking aggregation absolutely without precedent, I offer you the American definition of a Republican form of government. In vain do you cite philosophers or publicists, or the examples of former history. Against these I put the early and constant postulates of the Fathers, the corporate declarations of the Fathers, the avowed opinions of the Fathers, and the public acts of the Fathers, all with one voice proclaiming, first, that all men are equal in rights, and, secondly, that government derives its just powers from the consent of the governed; and here is the American idea of a Republic, which must be adopted in the interpretation of the National Constitution. You cannot reject it. As well reject the Decalogue in determining moral duties, or reject the multiplication-table in determining a question of arithmetic.

Counter to this irresistible conclusion there can be only one suggestion having any seeming plausibility, and this is founded on the contemporary recognition of Slavery. On this point, it is enough, if I remind you, first, that our fathers did not recognize Slavery as a permanent part of our system, but treated it as exceptional and transitory, while they concealed it from view by words which might mean something else; secondly, that the slave was always regarded, legally and politically, as part of the family of his master, according to the nomenclature of Blackstone’s Commentaries, much read at the time, where master and servant are grouped with husband and wife, parent and child, and, as in the case of wife and child, _the slave is represented by the head of the family, who also paid taxes on his account_, so that in his case the cardinal principle of the Revolution, associating representation and taxation together, was not essentially violated; and, thirdly, that by the acts of the Continental Congress, and generally by the State Constitutions, all distinction of color was discarded in determining the elective franchise, and that illustrious expounders of the National Constitution, as if anticipating the very question before us, Alexander Hamilton and James Madison, announced in the “Federalist,” IF THE LAWS WERE TO RESTORE THE RIGHTS WHICH HAVE BEEN TAKEN AWAY, THE NEGROES COULD NO LONGER BE REFUSED AN EQUAL SHARE OF REPRESENTATION WITH THE OTHER INHABITANTS. Such was the understanding, and such the promise, at the adoption of the Constitution. Such was the declared meaning of our fathers, according to the concurrent contemporary testimony of Hamilton and Madison. Therefore, while confessing sorrowfully the terrible inconsistency in recognizing Slavery, and throwing over their shame the mantle which the son of Noah threw over his father, we must reject every argument or inference on this account against the true idea of a Republic, which is none other than a government where all citizens have an _equal voice_. As Washington, by divine example, gave to mankind a new idea of political greatness, so did the Fathers, by inspired teaching, give to mankind a new idea of Government. Do you ask again for authority? I offer it in its many forms. It is the early Vocabulary of James Otis, Samuel Adams, Patrick Henry, and Benjamin Franklin; it is the Dictionary of the Revolution; it is the Lexicon of our National History; it is the Thesaurus of Public Acts. This new idea was the great discovery of our fathers. Rob them of this, and you take their highest title to gratitude. Columbus, venturing into an unknown sea, discovered a New World of Space; but our fathers, venturing likewise, discovered a New World of Public Duty. It is for us, their children, to profit by their discovery.

* * * * *

For determining the meaning of our own Constitution in a momentous requirement without precedent, American authority and example are enough; but I would not have you forget that the conclusion on which I rest is grandly sustained by France. Here I shall be brief.

I cannot begin with a higher name than Montaigne, who, though never defining a Republic, let drop words which, coming from such a master, are invaluable:--

“Popular rule seems to me the most natural and equitable.” “Equality is the first part of equity.”[161]

In the same spirit, Montesquieu, while failing to supply a precise definition, helped to elevate the idea of republican government, when he declared “virtue” its inspiration, and that virtue is the love of equality.[162] A kindred thought is expressed by a publicist of our time, in a remarkable study on Montesquieu, when he says, that “the true principle of democracy is justice.”[163] But justice is equality.

Contemporary with Montesquieu was the Marquis d’Argenson, a minister of Louis the Fifteenth and the friend of Voltaire. In a work written as early as 1739, but not seeing the light till 1764, some time after his death, when it was attributed to Rousseau, this remarkable character gives utterance to words worthy of perpetual memory:--

“It is only necessary to lay aside the most stupid prejudice, to admit that two things are chiefly to be desired for the good of the State: one, that all the citizens shall be equal among themselves; the other, that each shall be the son of his works.”[164]

A government where these two things are assured would be a Republic indeed.

Voltaire, though not professing to define a Republic, taught its dependence _upon equality_:--

“Civil government is _the will of all_, executed by one or by many _in virtue of laws for which all have voted_.” “The republican is undoubtedly the most tolerable of all governments, because it is that which brings men most nearly to natural equality.”[165]

In another place the same illustrious teacher said:--

“The people never desire, and never can desire, anything but Liberty and Equality.”[166]

Advancing in time, the Republic becomes more manifest. Omitting the fervid words of Jean Jacques Rousseau, I adduce Condorcet, whose consecration to truth was sealed by a tragical death:--

“I have ever thought that a Republican Constitution, _having Equality for its basis_, was the only one in conformity with Nature, with reason, and with justice,--the only one which could preserve the liberty of the citizens and the dignity of the human race.”[167]

Belonging to the ancient system of France, and, like Lafayette, with the rank of Marquis, Condorcet, again like Lafayette, not only accepted the Republic, but declared its true basis.

Another French authority, of eminent experience in diplomacy, who wrote coldly and only according to the requirement of reason, Gérard de Rayneval, asserts the same law of Equality:--

“Political Liberty consists in the right to participate in public affairs. This participation is direct or indirect, and it is more or less extended according to the form of government. It is, then, necessarily unequal. For example, _in a Democracy all the citizens participate in the legislative power_. If they delegate it, they have only a very indirect part in it; but all can become delegates or representatives, all can arrive at administrative employments, and all have the right to protest against abuses. In aristocratic republics political liberty is exclusively concentrated in the body of Notables; they alone exercise all the power; subjects have only civil liberty.”[168]

Such, in France, is the voice of political science.

It is also the voice of the French Revolution. The one idea which that great event taught with prevailing influence was the Equal Rights of All, explained and defined by the new-born formula, that “all are equal before the Law.” Napoleon recognized the supremacy of this principle, when, in an official address to the Council of State, he said, “France loves Equality above everything”;[169] and he sought to enforce it, when, in an early proclamation, he declared, “Let there be no head which does not bend under the empire of Equality.”[170] Such is human inconsistency, that shortly afterwards his own ambition refused to bend under this empire, which none the less disowned the sceptre he assumed and the nobles he created. But the great truth, though trampled down, survived in the hearts of the French people, to rise again and resume its heritage.

As the Provisional Government of 1848 proclaimed the Republic, it was careful, after proper deliberation, to proclaim at the same time “universal suffrage,” which Lamartine, standing on the steps of the Hôtel de Ville, and speaking in the name of the Government, said was “the first truth and only basis of every National Republic.”[171] This proclamation was itself submitted to the vote of “all the citizens”; and on the terms of this submission another member of the Government, of solid sense and perfect fidelity, thus expresses himself:--

“By these words--_all the citizens_--the Provisional Government intended to consecrate definitively the fundamental principle of democracy; it intended to proclaim boldly and forever the inalienable, imprescriptible right inherent in each member of society to participate directly in the government of his country; it intended to put in practice really and loyally the great principles hitherto shut up in the domain of the abstract theories of philosophy.”[172]

The same person, M. Garnier-Pagès, who was at once an eminent actor in these scenes and their most authentic historian, thus again dwells on the true idea of a Republic:--

“The Republic, that government of _all by all_, where each has his place, his duty, and his right; the Republic, that is to say, Liberty itself, the liberty to do every act and to give utterance to every thought not prejudicial to others; the Republic, that fraternal ground where are admitted all parties, the representatives of the past as well as of the future, where all minds, all associations, can have free scope.”[173]

This precise definition is fitly crowned by the remarkable words revealing the soul of De Tocqueville:--

“I should, I think, have loved Liberty at all times, but in the times in which we live I feel inclined to adore it.… There is no legislator sufficiently wise and sufficiently powerful to maintain free institutions, _if he does not take Equality for first principle and symbol_. All our contemporaries, then, who would create or assure the independence and dignity of their fellow-men, must show themselves the friends of Equality; and the only worthy way of showing themselves such is to be so. Upon this depends the success of their holy enterprise.”[174]

To the authentic testimony of modern France, in harmony with our own country, I add the definition of a very recent foreign publicist, who, after dwelling on Equality as the idol sentiment of a Republic, says:--

“This shows us the nature and the end of republican government. It is a government founded on the general interest and equality.”[175]