Part 15

Admirable words!--in themselves a definition. And here, before closing this testimony, let me call attention to two authorities, contemporary with our fathers, which stand apart,--one English, and the other German. The first is that of Dr. Richard Price, the friend of John Adams, who very early appreciated the American Revolution, and vindicated it before the world. Here is his idea of good government, compendiously expressed:--

“Legitimate government, as opposed to oppression and tyranny, consists only in the dominion of _Equal Laws_ made with _common consent_, or of men over _themselves_; and not in the dominion of communities over communities, or of any men over other men.”[176]

The German was none other than the great thinker, Emanuel Kant, who, in his speculations on Perpetual Peace, says, that to this end every state should be a Republic, which he defines:--

“That form of government where _every citizen_ participates by his representatives in the exercise of the legislative power, and especially in that of deciding on the questions of peace and war.”[177]

The statement of Kant is as simple as Pure Reason, which is the title of his great work. It claims plainly for “every citizen” a share in the government, and is the deliberate conclusion furnished by this eminent philosopher, whose name, rarely quoted in politics, is an unimpeachable authority.

* * * * *

Such is the definition of a republican form of government, as found in the history, declarations, opinions, and public acts of the Fathers of our country, reinforced by the authority of foreign intelligence and the example of France. From this presentation of authorities not to be questioned we pass easily to another stage of the discussion, where the conclusion is the easy and irresistible sequence.

III.

Bringing these lapsed States to the touchstone, we see at once their small title to recognition as republican in form. Authentic figures are not wanting. The census of 1860 discloses the population of the States in question.

+----------------+--------------------+-----------------------+ | | | Colored Population, | | States. | White Population. | Slave and Free, | | | | including Indians. | +----------------+--------------------+-----------------------+ |Alabama | 526,271 | 437,930 | |Arkansas | 324,143 | 111,307 | |Florida | 77,747 | 62,677 | |Georgia | 591,550 | 465,736 | |Louisiana | 357,456 | 350,546 | |Mississippi | 353,899 | 437,406 | |North Carolina | 629,942 | 362,680 | |South Carolina | 291,300 | 412,408 | |Tennessee | 826,722 | 283,079 | |Texas | 420,891 | 183,324 | |Virginia | 1,047,299 | 549,019 | | +--------------------+-----------------------+ | | 5,447,220 | 3,656,112 | +----------------+--------------------+-----------------------+

A glance at this table is enough. Taking the sum total of population in the eleven States, we find 5,447,220 whites to 3,656,112 colored persons; and you are now to decide, whether, in the discharge of imperative duties under the National Constitution, and bound to guaranty a republican form of government, you will disfranchise this latter mass, shutting them out from those Equal Rights promised by our fathers, and from all copartnership in the government of their country. They surpass in numbers, by at least a million, the whole population of the Colonies at the time our fathers raised the cry, “Taxation without Representation is Tyranny”; and now you are to decide whether to strip them of representation, while you subject them to grinding taxation by tariff and excise, acting directly and indirectly, dwarfing into insignificance everything attempted by the British Parliament. Our fathers could not bear a Stamp Act in making which they had no voice, and they braved terrible war with the most formidable power of the globe rather than pay a tax of threepence on tea imposed by a Parliament in which they were unrepresented. Are you ready, Sir, in disregard of this great precedent, and in disregard of all promises and examples of past history, to thrust a single citizen out of all representation in the Government, while you consume his substance with taxation, subject him to Stamp Acts, compel him to pay a duty of twenty-five cents a pound on tea, and then follow him with imposts in all the business of life? Clearly, if you do not recognize his title to representation, you must at least by careful legislation relieve him from this intolerable taxation. Some of the millions you thrust out already contribute largely to the public revenue. How, then, can you deny them representation? Their money is not rejected. Why reject their votes? But if you reject their votes, you cannot take their money. As you detect no color in their money, you ought to detect no color in their votes.

In this denial of the right to vote there is a surpassing tyranny, being nothing less than a confiscation of the highest property the citizen can possess. To take his money is robbery; to appropriate his house or land is spoliation; but house and land are less than the right by which the citizen is assured in all other rights. Lord Chief Justice Holt spoke as became one of England’s greatest magistrates, when he said from the bench: “A right that a man has to give his vote at the election of a person to represent him in Parliament, there to concur to the making of laws which are to bind his liberty and property, is a most transcendent thing and of an high nature.”[178] But this “most transcendent thing” is taken from a whole race on an excuse insulting to them as members of the human family.

Unhappily, too many people discern the wrong only when they personally feel its sting. Suppose now the case reversed, and white citizens in South Carolina despoiled of this “most transcendent thing” by the predominance of the colored race, so that “black” instead of “white” marks participation in government. But, if such discrimination is just where the white prevails, it would be equally just where the black prevails, and it would be as constitutional in one case as in the other. Unquestionably a black man’s government is as constitutional as a white man’s government. But the white man could not easily endure the degradation; nor can it be doubted that Congress would promptly insist that it was inconsistent with republican government, and would apply the proper remedy. Failing in this duty, what other discrimination could it arrest? The Anglo-Saxon might exclude the Celt; the Celt might exclude the Anglo-Saxon; both might exclude the German, and the fearful antagonisms of race would have full play. Other battles than the Boyne would be the signal of discord, and other parties than Orangemen would stalk upon the scene.

If, looking at these States together, the case is clear, it becomes clearer when we look at them separately. Begin with Tennessee, which disfranchises 283,079 citizens, being more than a quarter of its whole “people.” Thus violating a distinctive principle of republican government, how can this State be recognized as republican? The question is easier asked than answered. But Tennessee is the least offensive on the list. There is Virginia, which disfranchises 549,019 citizens, being more than a third its whole “people.” There is Alabama, which disfranchises 437,930 citizens, being nearly one half its whole “people.” There is Louisiana, which disfranchises 350,546 citizens, being one half its whole “people.” There is Mississippi, which disfranchises 437,406 citizens, being much more than one half its whole “people.” And there is South Carolina, which disfranchises 412,408 citizens, being nearly three fifths its whole “people.” A republic is a pyramid standing on the broad mass of the people as a base; but here is a pyramid balanced on its apex. To call such a government “republican” is a mockery of sense and decency. A monarch “surrounded by republican institutions,” as at one time was the boast of France, would be less offensive to correct principles, and give more security to Human Rights.

Plainly such a government is not a “democracy,” where all the people assemble and govern in person; nor is it a “republic,” where they assemble and govern by representatives, according to the distinction presented by Madison in the “Federalist.”[179] A representative government is a government by the people, not less than a democracy, provided all the people are represented. Representation is a modern invention of incalculable value to embody the will of the people. A republic, like a democracy, cannot tolerate inequality. Wherever a favored class appears, whether in one or the other, its republican character ceases. It may be an aristocracy or oligarchy, but it is not a democracy or a republic.

It is not difficult to classify our Rebel States. They are aristocracies or oligarchies. Aristocracy, according to etymology, is the government of the best. Oligarchy is the government of the few, being not even aristocracy, but an abuse of aristocracy, as despotism is the abuse of monarchy. Perhaps these States may be characterized in either way; and yet aristocracy, especially in origin, has something respectable, which cannot be attributed to a combination whose single distinctive element is color of the skin.

The eminent French publicist, Bodin, in his definition of aristocracy, says that it exists _where a smaller body of citizens governs the greater_;[180] and this definition has been adopted by others, especially by Montesquieu. But it is not satisfactory. Hallam, whose judgment is of the highest value, after discussing its merits, proposes the following most suggestive substitute:--

“We might better say, that the distinguishing characteristic of an _aristocracy_ is the enjoyment of privileges _which are not communicable to other citizens simply by anything they can themselves do to obtain them_.”[181]

These words completely characterize the aristocracy of color; for this aristocracy is plainly in the enjoyment of privileges not communicable to other citizens by anything they can themselves do to obtain them. Are we not reminded that “the Ethiopian cannot change his skin,” neither can we “make one hair white or black,” and “which of you by taking thought can add one cubit unto his stature”? Aristotle, the great intelligence of Antiquity, whose illumination has reached everywhere, used congenial language, when, in reply to those who would have magistracy and power distributed unequally, according to some rule of personal superiority, he said, “If this is a correct rule, then complexion, or stature, or some similar advantage, might be made the excuse for superiority in civil rights”; and he illustrates the unreasonableness of such a rule by showing, that, in a company of musicians, the best flute is not given to the most noble, but to the artist who will use it best; thus making merit the only qualification, and discarding color, which is accidental and unchangeable.[182]

The famous French founder of the school of Doctrinaires, Royer-Collard, so remarkable for sententious thought, was in the habit of saying that “the sovereignty of Reason is superior to the sovereignty of the people.” But both declare the equal rights of all. The rule of inequality is plainly unreasonable; and what a mockery is that sovereignty of the people which sanctions any denial of equal rights! In different spirit, the consummate French writer, Louis Blanc, devoted to reform, has declared that “the republic is above universal suffrage,”--meaning that even universal suffrage cannot subvert it. But in each is Equality. Universal suffrage openly proclaims this right; and what is the republic without it?

To show that our Rebel States are aristocracies or oligarchies might suffice. But we must not forget, that, born of Slavery, they have the spirit of that iniquity, so that they are essentially of a low type. Founded on color of the skin, they are, beyond question, the most senseless and disgusting of all history. Would you learn to what they must incline? Listen to the frank words of the Venetian master, the famous Father Paul, while, in a state refined by art and elevated by glory, he counsels the privileged class how to use their powers. “If a noble,” says he, “injure a plebeian, justify him by all possible means; but should that be found quite impossible, punish more in appearance than in reality. If a plebeian insult a noble, punish him with the greatest severity, that the commonalty may know how perilous it is to insult a noble.”[183] Such is the terrible rule announced in a document which taught how to make the power of Venice perpetual. But this same spirit predominates still in the Rebel States. It rages there with more revolting cruelty than Venice ever witnessed. And such is the government now claiming recognition as “republican.”

The pretension is hateful on another ground. It is nothing less than a caste, which is irreligious as well as unrepublican. A caste exists only in defiance of the first principles of Christianity and the first principles of a republic. It is heathenism in religion and tyranny in government. The Brahmins and the Sudras in India, from generation to generation, have been separated, as the two races are still separated in these States. If a Sudra presumed to sit on a Brahmin’s carpet, he was punished with banishment. But our recent Rebels undertake to play the part of Brahmins, and exclude citizens, with better title than themselves, from essential rights, simply on the ground of caste, which, according to its Portuguese origin (_casta_), is only another term for race.

But the pretension is yet otherwise hostile to good government. Here is a monopoly on a gigantic scale and with an unprecedented field, in a country which sets its face against all monopolies as unequal and immoral. If any monopoly deserves unhesitating judgment, it must be that which absorbs the rights of others and engrosses political power. How vain to condemn the petty monopoly of commerce, while allowing this vast, all-embracing monopoly of Human Rights!

Clearly, most clearly, and beyond all question, such a government is not “republican in form.” Call it oligarchy, call it aristocracy, call it caste, call it monopoly; but never call it a republic.

IV.

Of course such a government can exist only in defiance of the National Constitution, and it is _the duty of Congress_ to interfere against it.

The guaranty is by the United States; therefore Congress must perform it; and, in the discharge of this eminent duty, it must affix the true meaning to the requirement, declaring what is a republican government, and supplying the long-sought definition. Here Congress is sole and final arbiter, binding all other branches of Government. Let a State make office hereditary,--let it shut from the courts all who have not the “blue blood” of ancient ancestry,--let it accord to a favored class controlling power and influence,--let it apply any discrimination on account of race or color, whether against Anglo-Saxons, Celts, or Germans, whether against black or white,--let it do any of these things, all so plainly inconsistent with constitutional requirement, and the legislative power of the nation must recall the State from its aberration, and bring it home to the republican standard.

President Johnson, in his recent annual message, says:--

“In case of the usurpation of the government of a State by one man or an _oligarchy_, it becomes a duty of the United States to make good the guaranty to that State of a republican form of government.”

The President forgets to mention an aristocracy, and does not add, what is true, that the authority bound to make good the guaranty is the sole judge of the exigency. To this end everything centres in Congress, whose powers are commensurate with the occasion. In aid of the guaranty are those other words providing that Congress “shall have power to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States.” Under this ample provision there is a duty to be performed, by any means that seem best. The jurisdiction is complete, and it is in Congress. If any authority were needed for this proposition, it would be found in the words of Chief Justice Taney himself, speaking for the Supreme Court of the United States:--

“The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guaranty to every State in the Union a republican form of government, and shall protect each of them against invasion, and, on the application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence.

“_Under this article of the Constitution, it rests with Congress to decide what government is the established one in a State. For, as the United States guaranty to each State a republican government, Congress must necessarily decide what government is established in the State, before it can determine whether it is republican or not._”[184]

In the exercise of this power two courses are open. One is to impose an irrepealable condition upon the unrepublican States, requiring them, before recognition, to re-form their governments to the satisfaction of Congress. The other, and more direct, is by Act of Congress, in performance of the guaranty, and according to the plenary authority “for carrying into execution the powers vested by the Constitution in the Government of the United States,” to provide all needful safeguards in the unrepublican States, and especially to place the Equal Rights of All under the guardianship of National Law.

Against the exercise of this power there are but two arguments. First, that the Constitution, by providing that “the electors in each State shall have the _qualifications_ requisite for electors of the most numerous branch of the State Legislature,” has reserved to each State the power of excluding citizens merely on account of color, even though constituting more than a majority of the population. The other argument is, that, since certain States at the North have disfranchised the few colored persons within their borders, the United States are so far constrained by this example that they cannot protect the millions of freedmen in the Rebel States from disfranchisement, and cannot save the Republic from the peril of crying injustice. I know not which of these two arguments is the least reasonable, or rather, which is the most reprehensible. They are both unreasonable, and both reprehensible. They both do violence to the true principles of the National Constitution, if not to common sense.

It is true, that, according to the text of the Constitution, each State may determine the “qualifications” of electors; but this can have no application to an exigency like the present, where, at the close of a prolonged and desperate rebellion, the United States are obliged to guaranty to certain States a republican form of government. In the performance of this guaranty, the United States will look only at the essential elements of such a government, nor more nor less, without regard to State laws. But I am unwilling to rest the argument here. Even assuming that there has been no lapse of State governments, so as to bring the guaranty into operation,--assuming that we are in a condition of assured peace,--then I utterly deny that the power to determine the “qualifications” of electors can give any power to disfranchise actual citizens. It is “qualifications” only which the States can determine,--meaning by this limited term those requirements of personal condition regarded as essential to the security of the franchise. These “qualifications” cannot be in nature permanent or insurmountable. Color cannot be a “qualification,” any more than size, or quality of hair. A permanent or insurmountable “qualification” is equivalent to deprivation of suffrage; in other words, it is the tyranny of taxation without representation, and this tyranny, I insist, is not intrusted to any State. This is the very ground taken by Mr. Madison, when defending the National Constitution in the Virginia Convention.

“Some States might regulate the elections on the principles of _Equality_, and others might regulate them otherwise.… Should the people of any State, by any means, be deprived of the right of suffrage, _it was judged proper that it should be remedied by the General Government_.… If the elections be regulated properly by the State Legislatures, the Congressional control will very probably never be exercised. The power appears to me satisfactory, and unlikely to be abused as any part of the Constitution.”[185]

With these decisive words from a chief framer of the National Constitution, backed by the reason of the case, I dismiss this objection to the little consideration it deserves. And I dismiss to the same indifference the other objection, that our hands are tied because certain Northern States have done a wrong and mean thing. Pray, Sir, how can the failure of these States affect the power of Congress in a great exigency under the National Constitution? Duty here is identical with power. No matter if the power has been long dormant, it is none the less vital. It is like the slumbering statute which Cicero describes as a sword in the scabbard, _tanquam gladius in vagina_. It only remains that it be drawn forth.

* * * * *

This duty is fortified by the Constitutional Amendment, which, after providing for the abolition of Slavery, empowers Congress to “enforce” it by “appropriate legislation,” thus heaping Ossa upon Pelion. Clearly, under these words, Congress may do what in its discretion seems “appropriate” to this end, and there is no power to call its action in question. On this point the authority of the Supreme Court, in the weighty judgment of Chief Justice Marshall, is explicit.

“The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select _any appropriate means_, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception.…

“Let the end be legitimate, let it be within the scope of the Constitution, and _all means_ which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”[186]

These words of the Chief Justice are reinforced by a kindred declaration from another great authority, Mr. Justice Story, speaking also for the Supreme Court, on an important occasion.

“The Constitution unavoidably deals in general language.… The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence.… Hence its powers are expressed in general terms, leaving to the Legislature from time to time _to adopt its own means to effectuate legitimate objects_.”[187]