Part 23

To the application of this principle there have been two replies: first, that in its origin it was a claim of representation for communities only, and not for individuals; and, secondly, that in its nature it embraces women as well as men. And from these two considerations it is argued that it cannot be invoked for the protection of four million people whose only offence is a dark skin. Even if it had been originally a claim for communities only, and not for individuals, it is difficult to see how it can be rejected as a rule in determining the rights of fellow-citizens counted by millions. Our fathers, when they cried out that taxation without representation is tyranny, were not more than two millions and a half. Our fellow-citizens now renewing the same cry are more than four millions, possessing the weight of numbers, if not of organization. But it is a mistake to suppose that the original claim was for communities only, and not for individuals. This is a question of history, to be considered with the gravity of history, and as such I ask attention to it.

In opening this debate, I carried you to that Provincial Court in Massachusetts, where, in assailing Writs of Assistance, James Otis first launched the thunderbolt, “Taxation without representation is tyranny.” You remember how careful he was to insist that without representation there could be no taxation of any kind, direct or indirect, on land or on trade, and that the representation must be substantial, real, and not merely imaginary, or, as it was expressed at that time, “virtual.” In developing this principle, he announced the equal rights of all, without distinction of color. On this ground he stood, when he uttered those memorable words, which the whole country adopted at once with patriotic frenzy, and which I insist you shall not deny in our organic law.

But, to show more precisely the meaning of Otis, I let him be his own interpreter. Again and again he asserts the equality of men. This was his fundamental principle, which on an important occasion he thus expressed: “The first simple principle is equality and the power of the whole.”[230] Nor did he allow this to be limited in application by any distinction of color. John Adams, who was present when the orator first raised his great cry, says: “Nor were the poor negroes forgotten. Not a Quaker in Philadelphia, or Mr. Jefferson, of Virginia, ever asserted the rights of negroes in stronger terms.”[231] Otis, in another form, assailed directly the distinction of color, saying: “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?”[232] Such, then, were his premises,--the equal rights of all, without distinction of color. From these his conclusion was easy:--

“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? If a man is not _his own assessor_, in person or by deputy, his liberty is gone, or lays entirely at the mercy of others.”[233]

Stronger words for universal suffrage could not be employed. His argument is, that, if men are taxed without being represented, they are deprived of essential rights, and the continuance of this deprivation despoils them of every civil right,--thus making the latter depend upon the right of suffrage, which by curious neologism is known as political instead of civil. Then, giving point to his argument, the patriot insists, that, in determining taxation, “a man must be his own _assessor_, in person or by deputy,” without which his liberty is entirely at the mercy of others. Here, again, in different form, is the original thunderbolt; and the claim is made not merely for communities, but for “a man.”

Such a principle naturally encountered opposition at that time, even as now in this Chamber; but Otis was ready at all points. To the argument, that Manchester, Birmingham, and Sheffield, like America, returned no members to Parliament, he flashed forth in reply:--

“If they are not represented, they ought to be. _Every man of a sound mind should have his vote._”

And then again, taking up the reply, he exclaimed:--

“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.”[234]

Thus does he interpret again the flaming words, “Taxation without representation is tyranny.”

But, while thus positive, there is reason to believe that Otis so far yielded to prevailing sentiment, and especially to the opinions of Harrington, whose “Oceana” was much read at that time, as sometimes to recognize property in determining the basis of political power. On one occasion he said that Government could not be “rightfully founded on property alone,” thus seeming to intimate that property might enter into the foundation, although, as he derisively remarks, “the possessor of it may not have much more wit than a mole or a musquash.”[235] But it was doubtless obvious to his clear intelligence that a claim of power founded on property was very different from a claim of power founded on color. Property may be acquired; but color, from its nature, is an insurmountable condition. The original Constitution of Massachusetts recognized property as an element of political power; but it rejected all discrimination founded on color. If, therefore, under the maxim of Otis, there may be discrimination founded on property, most clearly, according to reason and early practice, there can be none founded on color; so that at the present hour his maxim is of vital force as a claim, not merely for the community, but for the individual. Let the country now, as aforetime, take it up and repeat it until it becomes the watchword of patriotism.

But Otis was not the only interpreter of this maxim of Liberty. The Legislature of Massachusetts, on repeated occasions, made the same claim. In solemn resolutions, drawn by Samuel Adams, and adopted unanimously, it declared, in substance, that, “by the Law of Nature, no man has a right to impose laws more than to levy taxes upon another”; that “the freeman pays no tax, as the freeman submits to no law, but such as emanates from the body in which he is represented.”[236] Surely this claim is not merely for the community, but for the individual freeman also.

Virginia was not behind Massachusetts. In her Declaration of Rights, drawn by that determined patriot, George Mason, and adopted June 12, 1776, anterior to the Declaration of Independence, is the following emphatic claim:--

“All men having sufficient evidence of permanent common interest with and attachment to the community _have the right of suffrage, and 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.”[237]

Here again the claim is not merely for the community, but for “all men,” and it is set forth thus positively in a Declaration of Rights.

And now listen to Benjamin Franklin. I quote a statement found among his papers, and placed by his excellent editor under date of 1768-9, while the Colonists were echoing the cry, “Taxation without representation is tyranny.”

“That _every man_ of the commonalty, excepting infants, insane persons, and criminals, is of common right, and by the laws of God, a freeman, and entitled to the free enjoyment of liberty.

“_That liberty or freedom, consists in having an actual share in the appointment of those who frame the laws_, and who are to be the guardians of every man’s life, property, and peace; for the _all_ of one man is as dear to him as the _all_ of another, and the poor man has an _equal_ right, but _more_ need, to have representatives in the Legislature than the rich one.

“That they who have no voice nor vote in the electing of representatives _do not enjoy liberty, but are absolutely enslaved to those who have votes and to their representatives_; for to be enslaved is to have governors whom _other men have set over us_, and be subject to laws _made by the representatives of others_, without having had representatives of our own to give consent in our behalf.”[238]

Here is no claim for communities merely, but expressly for “every man,” including especially “the poor man,” and without distinction of color.

This American testimony is fitly crowned by the Declaration of Independence, which, beginning with the proclamation that “all men are created equal,” proceeds to assert that governments “derive their just powers from the consent of the governed.” Here again is no claim for communities, but for “all men”; and this is the most authoritative interpretation of the original claim thundered forth by Otis, and echoed throughout the land. It is idle to show that in certain instances the Fathers failed to apply the sublime principles they declared. Their failure can be no apology for us, on whom the duty is now cast.

But there is still another interpreter. The maxim of Otis was not original with him. It is found in the writings of John Locke, so remarkable for masculine sense and an exalted love of liberty. On a former occasion I adduced his authority, which is plain and positive. Pardon me, if I call attention to it once more. After asserting that Government cannot take the property of any one without his own consent, being the consent of the majority, the philosopher thus expresses himself:--

“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?”[239]

Mr. Hallam, commenting on this text, does not hesitate to say, that it “in some measure seems to charge with usurpation all the established governments of Europe,”--that “neither the Revolution of 1688 nor the administration of William the Third could have borne the test by which Locke has tried the legitimacy of government.”[240]

A later English writer, Mr. Tremenheere, commenting also on this text, sets forth its two propositions as follows: “First, that a political society can only be bound by the act of the majority; second, that taxation without representation is tyranny.”[241] Such are the two propositions this English writer finds in Locke, and which he cites for condemnation. Thus, if we repair with Otis to the very source from which he drew, we find that there was no claim for communities merely, but for the individual man, without distinction of color.

Mr. Bright, our English friend, in one of his admirable speeches,[242] has recently furnished an additional illustration. He has brought to light a resolution from no less an authority than Lord Somers, on an important occasion, kindred to the present, when it was proposed to disfranchise all who were not of the Established Church, as it is now proposed to disfranchise all who are not of a certain color. Speaking for the House of Lords, in conference with the Commons, this great constitutional lawyer insisted:--

“That though the Lords allow that no man hath a place by birthright, or but few such examples in our Government, yet that _giving a vote for a Representative in Parliament is the essential privilege whereby every Englishman preserves his property_, and that whatsoever deprives him of such vote deprives him of his birthright.”[243]

Here again is the very cry of Otis; and you cannot fail to observe that the claim is not for communities merely, but for “every Englishman,” without distinction of color.

Surely this is enough. But it is said that the claim is as applicable to women as to men, especially where women are tax-payers. To this I reply, that Locke, Somers, Otis, and Franklin, in making the claim, did not give it any such extent, and the question which I submit is simply as to their meaning in the words “Taxation without representation is tyranny.” Clearly their claim was for _men_, believing, as they did, that _women_ were represented through men; and it is hardly candid to embarrass the present debate, involving the rights of an oppressed race, by another question entirely independent. In saying that the claim was for men, I content myself with the authority of Theophilus Parsons, afterward the eminent Chief Justice of Massachusetts, who, in a masterly state-paper, known as the “Essex Result,” which was the prelude to the Constitution of Massachusetts, thus discloses the opinion of the Fathers on this precise point:--

“Every freeman, who hath sufficient discretion, should have a voice in the election of his legislators.… All the members of the State are qualified to make the election, unless they have not sufficient discretion, or are so situated as to have no wills of their own. Persons not twenty-one years old are deemed of the former class, from their want of years and experience.… Women, what age soever they are of, are also considered as not having a sufficient acquired discretion,--not from a deficiency in their mental powers, but from the natural tenderness and delicacy of their minds, their retired mode of life, and various domestic duties. These, concurring, prevent that promiscuous intercourse with the world which is necessary to qualify them for electors. Slaves are of the latter class, and have no wills.”[244]

The reasons assigned for the exclusion of women may be very unsatisfactory; but they show at least that the Fathers, when insisting that taxation and representation must go together, did not regard women, any more than minors, within the sphere of this commanding principle. And here I leave this head of the argument, concluding as I began, that you cannot adopt this pretended Amendment without setting at defiance the great maxim of constitutional liberty which was the rallying cry of our fathers.

* * * * *

3. Continuing the dissection, I exhibit this proposition as a new form of _concession to State Rights_. Such it is plainly on its face; such it is in reality; and the more you examine it, the more complete the concession appears. Already it has been announced as such by those who seek to commend it in quarters of doubtful loyalty. Here, for instance, is a speech of Hon. John E. King, claimant of a seat in Congress from Louisiana, only a few days ago addressed to the Legislature of his State, where, after calling attention to the present attempt, he exults in what seemed to him the prospect of its adoption:--

“The present Congress is proceeding to amend without the eleven States that are unrepresented in that body. _However, there is some good in all this evil._ If this Amendment should pass,--and the speaker said that himself and colleagues had no doubt that it would,--it will settle forever the right of the States to legislate, each for itself, as to who shall be the voters therein.”[245]

Thus, while deprecating Amendments to the Constitution in the absence of the eleven Rebel States, the partisan of State Rights is reconciled to the pending proposition, inasmuch as it is a triumph of this sectional pretension. Alas, that now, at the close of a rebellion in the name of State Rights, we should be considering calmly how to assure this pernicious heresy new support in the Constitution itself!

Let me be understood. I suggest no interference with the just rights of the States. These belong to the harmonies of the Union. But, in the name of Justice, I insist that nothing further shall be done to invest the States with peculiar local power. If not taught by the lessons of the late war, then be taught by the principles avowed at the very beginning of the Government.

The object of the Constitution was to ordain, under authority of the people, a national government possessing unity and power. The Confederation had been merely an agreement “between the States,” styled “a league of firm friendship.” Found to be feeble and inoperative, through the pretension of State Rights, it gave way to the Constitution, which, instead of a “league,” created a “Union” in the name of the people of the United States. Beginning with these inspiring and enacting words, “We, the people,” it was popular and national. Here was no concession to State Rights, but a recognition of the power of the people, from whom the Constitution proceeded. The States are acknowledged; but they are all treated as component parts of the Union in which they are absorbed under the National Constitution, which is the supreme law. There is but one sovereignty, and that is the sovereignty of the people of the United States.

On this very account the adoption of the Constitution was opposed by Patrick Henry and George Mason. The first pronounced: “That this is a consolidated government is demonstrably clear.” “The question turns on that poor little thing, the expression, ‘We, the people,’ instead of ‘the States’ of America.”[246] The second exclaimed: “Whether the Constitution be good or bad, the present clause [‘We, the people’] clearly discovers that it is a national government, and no longer a confederation.”[247] But against this powerful opposition the Constitution was adopted in the name of the people of the United States. Throughout the discussion, State Rights were treated with little favor. Madison said, the States were “only political societies,” and “never possessed the essential rights of sovereignty.”[248] Gerry said, the States had “only corporate rights.”[249] Wilson, the philanthropic member from Pennsylvania, afterward a learned judge of the Supreme Court of the United States, and author of the “Lectures on Law,” said: “Will a regard to State Rights justify the sacrifice of the Rights of Men? If we proceed on any other foundation than the last, our building will neither be solid nor lasting.”[250] Such were the voices at that heroic day. And now, at the end of an unparalleled war to abase State Rights, we are asked to naturalize in the Constitution a new provision confirming to the States an odious pretension, shocking to the moral sense. But its character belongs to another head.

* * * * *

4. Proceeding with the dissection, I now exhibit the proposition, not only as a concession to State Rights, which is admitted by a Louisiana supporter, but, if unhappily adopted, as the _constitutional recognition of an Oligarchy, Aristocracy, Caste, and Monopoly founded on color_. All this appears on the face; and as you examine it, the intolerable consequence becomes still more apparent. Thus far we have been saved from such shame. The proposition before us assumes that the elective franchise may be denied or abridged constitutionally on account of race or color, and thus sanctions the usurpation,--thereby investing those who deny or abridge it with exclusive political control, without regard to number, though they may be a minority or even a small fraction of the people. What, Sir, is this rancid pretension, if it be not an oligarchy, aristocracy, caste, and monopoly founded on color, under sanction of the Constitution? It is all these together, having beyond question the distinctive features of each and the distinctive discredit of each,--therefore odious in government, odious in religion, odious in economy, and altogether constituting an outrageous indecency.

It is idle to say that this is done already in the States. It may be done _in fact_. But now you propose to give this criminal fact the support of the Constitution, and lift it into perpetual vigor.

The country has been harassed and degraded for generations by the Slave Power, which was nothing but an oligarchy, aristocracy, caste, and monopoly; and now, when this power has been overcome in battle, it is proposed to inaugurate it anew, with slight change of name, but with the same field of action, and the same malignant spirit to wield its energies. By your concession it tyrannized before, and now by your concession it will tyrannize again. The citizens it once trampled on as slaves it will continue to trample on as outcasts, and it will set up your permission emblazoned in the Constitution itself.

* * * * *

5. Proceeding with this proposition, I exhibit it as petrifying in the Constitution the wretched _pretension of a white man’s government_. At this moment, when we are striking the word “white” from the national statutes, when this word has disappeared even from Post-Office laws, when, by a vote of the House of Representatives, it has been condemned in the laws regulating the elective franchise in the District of Columbia, it is proposed to insert an equivalent in the Constitution itself. To exhibit this shame is surely enough to make you turn away from it. Do not say that this is not proposed. What is the concession that the elective franchise may be denied or abridged “on account of race or color” but an insertion of the word “white” in the National Constitution? In that text, as it still stands, from beginning to end, from the preamble to the signature of George Washington, or the last word of the last Amendment, there is no recognition of “color.” For the sake of decency, keep it so.

* * * * *

6. Proceeding still further with the proposition, I exhibit it as assuming, what is false in Constitutional Law, _that color can be a qualification for an elector_. The Constitution says that “the electors in each State shall have the _qualifications_ requisite for electors of the most numerous branch of the State Legislature.” Of course this leaves open the question, What is meant by “qualifications”? But this word must be interpreted in the light of the Constitution, which knows no “color,” and again in the light of the Declaration of Independence, which knows no “color,” and yet again in the light of common sense, which refuses to recognize “color” as a “qualification,” in any just sense of the term. Consult the dictionaries of the day, and you will find it means “fitness,” “ability,” “accomplishment,” “the state of being qualified”; but it does not mean “color.” It is applicable to the conditions of age, residence, character, education, property, and the payment of taxes; but it cannot be applicable to “color.” The English dictionaries most in vogue at the time of our fathers were those of Bailey and Johnson. According to Bailey, who was the earliest, “qualification” is defined:--

“(1.) That which fits any person or thing for any particular purpose.”

“(2.) A particular faculty or endowment, an accomplishment.”

According to Johnson, who is the highest authority, it is defined:--

“(1.) That which makes any person or thing fit for anything.”

“EXAMPLE.--It is in the power of the prince to make piety and virtue become the fashion, if he would make them necessary _qualifications_ for preferment.--SWIFT.”

“(2.) Accomplishment.”

“EXAMPLE.--Good _qualifications_ of mind enable a magistrate to perform his duty, and tend to create a public esteem of him.--ATTERBURY.”