Part 25

Something has been said of the form in which the proposition is presented. There is the bill of the Senator from Illinois [Mr. YATES], which he has maintained in a speech of singular originality and power, that has not been answered, and I do not hesitate to say cannot be answered. By this bill it is provided that all citizens in any State or Territory shall be protected in the full and equal enjoyment and exercise of civil and political rights, including the right of suffrage. This is founded on the consideration that by the abolition of Slavery the slave became at once a citizen, subject only to such disabilities as are common to other citizens, and that by the second clause of the Constitutional Amendment Congress is empowered to enforce the abolition of Slavery by appropriate legislation. On this foundation the Senator places his bill, assuming, that, to complete the abolition of Slavery, all restrictions, penalties, or deprivations of right, resulting from Slavery in any State or Territory, must be made to cease. The proposition that I have had the honor of presenting is a joint resolution, which, after declaring the duty of Congress to guaranty a republican form of government in States where the governments have lapsed, and also the duty to complete the abolition of Slavery by the removal of all relics of this wrong, proceeds to provide that there shall be no oligarchy, aristocracy, caste, or monopoly, nor any denial of rights, civil or political, on account of race or color, but all persons shall be equal before the law, whether in the court-room or at the ballot-box.[256] Not doubting the power of Congress to carry out this principle everywhere within the jurisdiction of the United States, I content myself for the present by asserting it only in the lapsed States lately in rebellion, where the twofold duty to guaranty a republican government and to enforce the abolition of Slavery is beyond question. To that extent I now urge it.

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Both these propositions are opposed as informal and inoperative, because without machinery or penalty. Such is the objection, if I understand it. As it has been made, I answer it. Each on its face is an Act of Congress prohibiting denial of certain rights on account of color. In this respect each is at least a Congressional interpretation of the Constitution, and it is by no means clear that it could not be enforced in the courts. The bill which has already passed the House of Representatives, striking out the word “white” in the electoral laws of the District of Columbia, is without machinery or penalty; but it is at least a Congressional declaration, to be followed, of course, by other legislation with proper machinery and penalty; and this is the precise character of the measures presented by the Senator from Illinois and myself. Objection, if valid at all, must be equally valid against the bill for enfranchisement in the District of Columbia, and against every other Congressional declaration without machinery or penalty. It is, at most, one of form, which I put aside and advance to the substance. The question is too vast and the times are too serious for a special demurrer. It must be tried on its merits. The question is on the power of Congress to establish equality of political rights, at least in the Rebel States. If Congress has this beneficent power, then exercise it in such form as shall seem best, with machinery and penalty or without machinery and penalty; but, in God’s name, exercise it, for the sake of the country, which suffers from your delay.

Has Congress power to secure equality of political rights, at least in the Rebel States? I do not at this time raise the question of its power throughout the United States, but in the Rebel States. If this question were less transcendent in its relations, or if it could be approached calmly and without prejudice, in the light of reason, I cannot doubt the judgment. But you must bring to its determination the same simple desire for truth, undisturbed by external influences, which would control a judicial tribunal; for, in the determination of your powers under the Constitution, you are a judicial tribunal. It will not be enough to deny the beneficent power, or to mock at those who find it in the Constitution. You must answer their arguments.

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1. I need not dwell on what has been so often discussed and so much misunderstood; and yet I must remind you of the power of Congress over the Rebel States from _the necessity of the case_; because, after the overthrow of legitimate governments, whose members were sworn to support the Constitution of the United States, there was no other rule possible for these States than that of Congress,--precisely as the Territories, according to Chief Justice Marshall, in a famous judgment, fell under “the power and jurisdiction of the United States” from the necessity of the case.[257] I do not say that a State becomes a technical Territory, as that term is understood among us; but I do say, that, in the lapse of the Rebel States, and in the absence of legitimate governments with members sworn to support the Constitution, these States fell under “the power and jurisdiction of the United States,”--meaning, practically, Congress,--until such time as they are reorganized according to the requirement of the Constitution. In the exercise of such a power and jurisdiction thus cast upon it, Congress must see that all loyal citizens, without distinction of color, take part in the formation of the new governments.[258]

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2. Nor need I dwell on another source of power, found in _the rights of war_; but this, too, must be made plain. Nobody doubts that the United States were justified in asserting supremacy in the Rebel States by force of arms. But the war, when once begun, was subject to all the conditions of war, according to the rights of war found in the Law of Nations,--doubly obligatory on us, first, because we belong to the family of nations, and, secondly, because the Law of Nations is expressly recognized by the Constitution itself. Now, according to the rights of war found in the Law of Nations, a conquering power is justified in requiring not only indemnity for the past, but security for the future. It depends upon the people of the United States, represented in Congress, to determine the guaranties of this security. In support of this conclusion, I ask attention to a familiar authority, whose statement seems to cover the case. I read from Vattel:--

“The whole right of the conqueror comes from that just self-defence which comprehends the maintenance and prosecution of his rights. When, therefore, he has entirely subdued a hostile nation, he may undoubtedly, in the first place, do himself justice with regard to that which gave rise to the war, and indemnify himself for the expenses and damages it has caused him; he may, according to the exigency of the case, impose penalties upon the conquered nation by way of example; he may even, if prudence require, _render it incapable of doing harm so easily in future_.”[259]

The offending party, when conquered, may be rendered incapable of doing harm so easily in future. This is according to natural justice. Then again the same familiar authority says:--

“If the inhabitants have been personally guilty of any criminal attempt against the conqueror, _he may by way of punishment deprive them of their rights and franchises_. This, again, he may do, if the inhabitants have taken up arms against him and thus directly rendered themselves his enemies. He then owes them nothing more than what is due from a humane and equitable conqueror to subjugated enemies.”[260]

Surely, out of this ample power Congress cannot hesitate in requiring justice to the wards and allies of the Republic through whom the Rebellion was crushed, especially when without justice to them security in the future is nothing but a mockery and a phantasmagoria.

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3. From these sources of power I pass to that other found in _the constitutional obligation to guaranty to every State of the Union a republican form of government_. Here is the text:--

“The United States shall guaranty to every State in this Union a republican form of government.”

This obligation is peremptory, and not discretionary. It is _shall_, and not _may_. The United States _must_ do it. Of course, in executing the guaranty, you must affix a meaning to the term “republican form of government.” To do this I have in this debate endeavored to show the essential principles our fathers had at heart when they founded the Republic. I shall not weary you again with the historic statement. It is enough, if I present the conclusion. According to the Fathers, all men are equal in rights, and, as corollaries from this truth, all just government is founded on the consent of the governed, and taxation without representation is tyranny. Such was their idea of a republican government.

It is idle to allege against this definition, that there were property “qualifications” in most of the States, by which the number of voters was essentially limited. This is true. But it must not be forgotten that a property “qualification,” unless unreasonably large, is not a disfranchisement. It is a condition, sometimes onerous, but not in its nature insurmountable, as the condition of color, and it is equally applicable to all. And yet it is apparent, from the recorded opinions of the Fathers, that even this “qualification” was regarded as inconsistent with the genius of republican institutions.

It is idle also to allege against this definition the toleration of Slavery. This was sad enough; but the Fathers who tolerated Slavery regarded it as absolutely exceptional. According to the definition of a slave, he has no will of his own, and can give no “consent” to government. Therefore he was not considered as belonging to the “body politic.” But not being represented, he was not taxed, except as property. Indeed, a careful examination of his relations to the government shows how completely in his case the rights of “the people” are left untouched. He was not regarded as one of “the people,” and therefore was not under the safeguard of the rights of “the people.” But all this was changed when he became a freeman. He was then one of “the people,” whose property could not be taken by taxation without representation, and whose consent was essential to government. The difference was not between whites and blacks, but between slaves and freemen. All freemen, without distinction of color, were citizens. Listen, if you please, to the “Federalist,” in an article attributed to each of the three eminent authors of that collection, and which the Senator from Maryland [Mr. JOHNSON] assumed was by Madison, but which is claimed for Hamilton, in the last edition of the “Federalist,” by his son. I quote a second time the important words:--

“It is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is denied to them in the computation of numbers; AND IT IS ADMITTED, THAT, 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.”[261]

Such is the exposition of the actual Constitution by Hamilton. According to him, “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.” But this very hour has sounded. The laws have restored the rights which had been taken away, and it is now your duty to see that the people who have regained their rights are no longer refused an equal share of representation. The opinion of Hamilton on this vital question is still further attested by his saying that the liberty for which our fathers fought was the right of “each individual” to “a share in the government”;[262] that “the electors are to be _the great body of the people_ of the United States”;[263] and still further, by the proposition in his Plan of a Constitution:--

“Representatives shall be chosen, except in the first instance, by _the free male citizens and inhabitants_ of the several States comprehended in the Union, all of whom, of the age of twenty-one years and upwards, _shall be entitled to an equal vote_.”[264]

In this proposition, which, though not adopted in terms, may be regarded as the pole-star of our fathers, the distinguished author followed the Continental Congress, which recommended the apportionment of the war expenses among the “free citizens and inhabitants,” without distinction of color.[265]

This rule is in entire conformity with that matured by ancient experience, especially in Greece, where, according to the universal master, Aristotle,--

“The whole body of the inhabitants of a country enjoying the protection of its laws, including the young who are still under the legal age, and the very old who have passed the time of action, and all others under any other species of disability, are in a certain wide and general sense citizens; but the full and complete definition of a _citizen_ is confined to those who participate in the governing power.”[266]

Proving, as I have, that colored persons are citizens, this very definition teaches that they cannot be refused participation in the governing power.

The historian Thirlwall, in his studies of Greek polity, recognized this rule, when he wrote:--

“But a finished democracy, that which fully satisfied the Greek notion, was one in which every attribute of sovereignty might be shared, without respect to rank or property, by _every freeman_.”[267]

In recognizing the right of “every freeman” to the full enjoyment of the elective franchise, our fathers followed the early example.

Curiously enough, we find confirmation of the true principle, where you would little expect it, in that very Dred Scott decision which undertook to blast a race. Chief Justice Taney on that occasion laid down a rule which at this moment is applicable to every “citizen,” without distinction of color:--

“The words, ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing. They both describe the political body, who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the ‘sovereign people’; _and every citizen is one of this people, and a constituent member of this sovereignty_.”[268]

This is strong enough; but Mr. Justice Daniel is still more precise:--

“There is not, it is believed, to be found in the theories of writers on Government, or in any actual experiment heretofore tried, an exposition of the term _citizen_, which has not been understood as conferring _the actual possession and enjoyment, or the perfect right of acquisition and enjoyment, of an entire equality of privileges, civil and political_.”[269]

Thus does that terrible judgment, once a ban to the colored race, now testify to their indisputable rights as “citizens.”

Therefore I cannot hesitate to say, that, when the slaves of our country became “citizens,” they took their place in the “body politic” as a component part of the “people,” entitled to equal rights, and under protection of two guardian principles,--first, that all just government stands on the consent of the governed, and, secondly, that taxation without representation is tyranny; and these rights it is the duty of Congress to guaranty as essential to the idea of a republic. The aspiration of Abraham Lincoln, in his marvellous utterance at Gettysburg, was, that “government of the people, by the people, and for the people should not perish from the earth.” But who will venture to exclude from the “people” millions of citizens?

If governments in the Rebel States are brought to this criterion, they must fail. The departure from the true standard is not merely theoretical, as it might be regarded in States where the disfranchised are few in number, but there is an absolute failure to come within the conditions required. It is not decent to call a State republican, where more than a majority of its “people,” constituting the larger part of the “body politic,” is permanently disfranchised; nor is it decent to call a State republican, where any considerable portion of the “people,” constituting an essential part of the “body politic,” is permanently disfranchised. If in times past such a State could have been treated as republican, it will not do to treat it so now. It lacks the vital elements, and must be treated accordingly. I do not dwell on this point, for it seems absurd to call it in question.

Clearly it is your duty to enforce the guaranty. By your oaths to support the Constitution, you must take care that in all the States where governments have lapsed this guaranty shall be carried out. In performance of this duty you may proceed either by an _enabling act_, establishing in advance the conditions of restoration to “practical relation with the Union,” or by an act directly annulling all constitutions and laws inconsistent with a republican government. The power is in Congress. It has been recognized in formal terms by the Supreme Court; and you are the final judge of the “means” to be employed. To say that you have not the power is to abdicate at a great exigency and renounce the very means of salvation. It is to fling away your arms in the very face of the enemy. It is to spike the Constitution at a moment when its full cannonade is needed for the overthrow of wrong. Clearly the power is yours, and upon your heads will be the fearful responsibility, if you fail to exercise it.

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4. From this power in the Constitution I pass to another, also in the Constitution, supplied by the _second clause of the Constitutional Amendment_. It is there provided that Congress shall “enforce” the abolition of Slavery by “appropriate legislation.” Here, according to all rules of interpretation and the judgments of the Supreme Court, Congress is empowered to do what in its discretion seems best to this end. It may adopt any “means” which seem “appropriate.” It may select any weapon in the arsenal. I do not stop to cite judgments of the Court, or to dwell on this power. The case is clear, and I challenge contradiction. As the grant is recent, it is not open to any suggestion of loss or waiver by desuetude or non-user. It is fresh as the abolition of Slavery itself, and at this moment is just as vital. You may as well deny the one as the other.

Here, even at the cost of repetition, allow me to remind you that already, during the present session, the Senate, in pursuance of this power, has undertaken to pass “a bill to _protect all persons in the United States in their civil rights_, and furnish the means of their vindication.” The declared object of the bill, in its very title, is the protection of all persons in the United States in their civil rights; and this object is carried out by the following provision:--

“There shall be no discrimination in civil rights or immunities among the inhabitants of _any State or Territory of the United States_ on account of race, color, or previous condition of slavery.”

The bill proceeds to provide machinery and penalties for the enforcement of this prohibition. Mark, if you please, that this is not merely in the Rebel States, nor even in the States where Slavery was recently abolished, but everywhere throughout the United States. All this is done by virtue of that very clause of the Constitutional Amendment which I adduce. It is done by Congress, in the exercise of its discretion, in order to “enforce” the abolition of Slavery. It is the “means” which Congress adopts. It is the weapon which Congress selects from the arsenal. But surely, if Congress, in order to “enforce” the abolition of Slavery, can secure all persons throughout the United States in _civil rights_, it can, out of the same abundant power, secure all persons throughout the United States in _political rights_; and this is precisely what is proposed by the bill of the Senator from Illinois. My own proposition, as I now present it, aims for the present at securing _political rights_ throughout the Rebel States; but the irresistible argument is the same in each case. Each is to “enforce” the abolition of Slavery.

I do not stop to exhibit the elective franchise as essential to the security of the freedman, without which he will be the prey of Slavery in some new form, and cannot rise to the stature of manhood. In opening this debate I presented the argument fully. Suffice it to say, that Emancipation will fail in beneficence, if you do not assure to the former slave all the rights of the citizen. Until you do this, your work will be only _half done_, and the freedman only _half a man_.

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Such, Sir, are four sources of power,--each ample: first, the necessity of the case, as with Territories, where there is no other jurisdiction; secondly, the rights of war, under which all needful safeguards for the future may be required; thirdly, the duty to guaranty to every State in the Union a republican form of government; and, fourthly, the authority to “enforce” the abolition of Slavery by “appropriate legislation.” Out of each and all Congress may derive its power. It only remains that it should act as becomes the representatives of the American people.

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Mr. President, as I am about to close, allow me to remind you once more, that, from the nature of the case and from the character of your obligations, the work of Emancipation must be completed by the National Government. It cannot be left to become the sport of sectional prejudice or wayward passion. It began with you, and it is for you to give it that final assurance to be found only in Enfranchisement. It is for you to “maintain” the former slave in the liberty he received at your hands. Such a duty cannot be renounced or delegated. It must be sacredly performed by the National Government, according to its original pledge in the Proclamation of Emancipation, and according to all the suggestions of reason. Humanity, too, joins in the cry. You cannot consent that the child Emancipation, born of your breath, shall be surrendered to the custody of enemies. Take it in your arms, I entreat you, and nurse it into strength. Be instructed by the examples of history, teaching that the masters of slaves cannot be trusted to legislate for them,--a conclusion announced by the best English statesmen, speaking from their experience, in words which I have often quoted. I refer to the concurring voice of Edmund Burke, George Canning, and Henry Brougham. Thus, by testimony as well as by reason, in harmony with the national pledge, we are admonished that the work must be done by the Nation.

Do not say that you have not the power, when the will only is needed. It is the part of a good judge to amplify his jurisdiction: _Boni judicis est ampliare jurisdictionem_. Such is an approved maxim of law, handed down from early days. Kindred in character are other maxims, which enjoin the duty of inclining always in favor of Liberty, to the extent of catching at anything, even a twine thread, by which to save it. But on this occasion the good Congress need not amplify its jurisdiction. Enough, if it enforces what plainly exists. It need not catch at any twine thread to save Liberty. The great cables of the Constitution, with mighty anchors, are at command.