Part 4

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Such is the case as presented by the champions. But looking at the National Constitution, we shall be astonished still more at this pretension. On other occasions I have gone over the whole case of Human Rights vs. State Rights under the National Constitution. For the present I content myself with allusions only to the principal points.

It is under the National Constitution that the champions set up their pretension; therefore to the National Constitution I go. And I begin by appealing to the letter, which from beginning to end does not contain one word recognizing “color.” Its letter is blameless; and its spirit is not less so. Surely a power to disfranchise for color must find some sanction in the Constitution. There must be some word of clear intent under which this terrible prerogative can be exercised. This conclusion of reason is reinforced by the positive text of our Magna Charta, the Declaration of Independence, where it is expressly announced that all men are equal in rights, and that just government stands only on the consent of the governed. In the face of the National Constitution, interpreted, first by itself, and then by the Declaration of Independence, how can this pretension prevail?

But there are positive texts of the National Constitution, refulgent as the Capitol itself, which forbid it with sovereign, irresistible power, and invest Congress with all needful authority to maintain the prohibition.

There is that key-stone clause, by which it is expressly declared that “the United States shall guaranty to every State in this Union a republican form of government”; and Congress is empowered to enforce this guaranty. The definition of a republican government was solemnly announced by our fathers, first, in that great battle-cry which preceded the Revolution, “Taxation without representation is tyranny,” and, secondly, in the great Declaration at the birth of the Republic, that all men are equal in rights, and that just government stands only on the consent of the governed. A Republic is where taxation and representation go hand in hand, where all are equal in rights, and no man is excluded from participation in the government. Such is the definition of a republican government, which it is the duty of Congress to maintain. Here is a bountiful source of power, which cannot be called in question. In the execution of the guaranty Congress may--nay, must--require that there shall be no Inequality, Caste, or Oligarchy of the Skin.

I know well the arguments of the champions. They insist that the definition of a Republican Government is to be found in the State Constitutions at the adoption of the National Constitution; and as all these, except Massachusetts, recognized Slavery, they find that the denial of Human Rights is republican. But the champions forget that Slavery was regarded as a temporary exception,--that the slave, who was not represented, was not taxed,--that he was not part of the “body-politic,”--that the difference at that time was not between white and black, but between slave and freeman, precisely as in the days of Magna Charta,--that in most of the States all freemen, without distinction of color, were citizens,--and that, according to the history of the times, there was no State which ventured to announce in its Constitution a discrimination founded on color, except Virginia, Georgia, and South Carolina,--this last the persevering enemy of republican government for successive generations; so that, if we look at the State Constitutions, we find that they also testify to the true definition.

There are words of authority which the champions forget also. They forget Magna Charta, that great title-deed called “the most august diploma and sacred anchor of English liberties,” where, after declaring that “there shall be but _one measure_ throughout the realm,”[44] it is announced in memorable words, that “_no freeman_ shall be disseized of his freehold or liberties but by legal judgment of his peers or by the law of the land,”[45] meaning, of course, the law of the whole land, _in contradistinction to any local law_. The words with which this great guaranty begin still resound: _Nullus liber homo_, “No freeman,” shall be denied the liberties which belong to freemen.

The champions also forget that “The Federalist,” in commending the Constitution, at the time of its adoption, insisted, that, if the slaves became free, they would be entitled to representation. I have quoted the potent words before,[46] and now I quote them again:--

“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.”[47]

The champions also forget, that, in the debates on the ratification of the National Constitution, it was charged by its opponents, and admitted by its friends, that Congress was empowered to correct any inequality of suffrage. I content myself with quoting the weighty words of Madison 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 as unlikely to be abused as any part of the Constitution.”[48]

The champions also forget that Chief Justice Taney, in that very Dred Scott decision where it was ruled that a person of African descent could not be a citizen of the United States, admitted, that, if he were once a citizen, that is, if he were once admitted to be a component part of the body-politic, he would be entitled to the equal privileges of citizenship. Here are some of his emphatic words:--

“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_.”[49]

Thus from every authority, early and late,--from Magna Charta, wrung out of King John at Runnymede,--from Hamilton, writing in “The Federalist,”--from Madison, speaking in the Convention at Richmond,--from Taney, presiding in the Supreme Court of the United States,--is there one harmonious testimony to the equal rights of citizenship.

If in the original text of the Constitution there could be any doubt, it was all relieved by the Amendment abolishing Slavery and empowering Congress to enforce this provision. Already Congress, in the exercise of this power, has passed a _Civil Rights Act_. It only remains that it should now pass a _Political Rights Act_, which, like the former, shall help consummate the abolition of Slavery. According to a familiar rule of interpretation, expounded by Chief Justice Marshall in his most masterly judgment, Congress, when intrusted with any power, is at liberty to select the “means” for its execution.[50] The Civil Rights Act came under the head of “means” selected by Congress, and a Political Rights Act will have the same authority. You may as well deny the constitutionality of the one as of the other.

The Amendment abolishing Slavery has been reinforced by another, known as Article XIV., which declares peremptorily that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” and again Congress is empowered to enforce this provision. What can be broader? Colored persons are citizens of the United States, and no State can abridge their privileges or immunities. It is a mockery to say, that, under these explicit words, Congress is powerless to forbid any discrimination of color at the ballot-box. Why, then, were they inscribed in the Constitution? To what end? There they stand, supplying additional and supernumerary power, ample for safeguard against Caste or Oligarchy of the Skin, no matter how strongly sanctioned by any State Government.

But the champions, anxious for State Rights against Human Rights, strive to parry this positive text, by insisting, that, in another provision of this same Amendment, the power over the right to vote is conceded to the States. Mark, now, the audacity and fragility of this pretext. It is true, that, “when the right to vote … is denied to any of the male inhabitants of a State, … or in any way abridged, except for participation in rebellion or other crime,” the basis of representation is reduced in corresponding proportion. Such is the penalty imposed by the Constitution on a State which denies the right to vote, except in a specific case. But this penalty on the State does not in any way, by the most distant implication, impair the plenary powers of Congress to enforce the guaranty of a republican government, the abolition of Slavery, and that final clause guarding the rights of citizens,--three specific powers which are left undisturbed, unless the old spirit of Slavery is once more revived, and Congress is compelled again to wear those degrading chains which for so long a time rendered it powerless for Human Rights.

The pretension, that the powers of Congress, derived from the Constitution and its supplementary texts, were all foreclosed, and that the definition of a republican government was dishonored, merely by the indirect operation of the clause imposing a penalty upon a State, is the last effort of the champions. They are driven to the assumption, that all these beneficent powers have been taken away by indirection, and that a provision evidently temporary and limited can have this overwhelming consequence. They set up a technical rule of law, “_Expressio unius est exclusio alterius_.” It is impossible to see the application of this technicality. Because the basis of representation is reduced in proportion to any denial of the right to vote, therefore, it is argued, the denial of the right to vote is placed beyond the reach of Congress, notwithstanding all its plenary powers from so many sources. It is enough to say of this conclusion, that it is as strong as anything founded on the “argal” of the grave-digger in “Hamlet.” Really, Sir, it is too bad that so great a cause should be treated with such levity.

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Mr. President, I make haste to the conclusion. Unwilling to protract this debate, I open the question in glimpses only. Even in this imperfect way, it is clearly seen, first, that there is nothing, absolutely nothing, in the National Constitution to sustain the pretension of Caste or Oligarchy of the Skin, as set up by certain States,--and, secondly, that there is in the National Constitution a succession and reduplication of powers investing Congress with ample authority to repress any such pretension. In this conclusion, I raise no question on the power of States to regulate the suffrage; I do not ask Congress to undertake any such regulation. I simply propose, that, under the pretence of regulating the suffrage, States shall not exercise a prerogative hostile to Human Rights, without any authority under the National Constitution, and in defiance of its positive texts.

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I am now brought directly to the proposed Amendment of the Constitution. Of course, the question stares us in the face, Why amend what is already sufficient? Why erect a supernumerary column?

So far as I know, two reasons are assigned. The first is, that the power of Congress is doubtful. It is natural that those who do not sympathize strongly with the Equal Rights of All should doubt. Men ordinarily find in the Constitution what is in themselves; so that the Constitution in its meaning is little more than a reflection of their own inner nature. As I am unable to find any ground of doubt, in substance or even in shadow, I shrink from a proposition which assumes that there is doubt. To my mind the power is too clear for question. As well question the obligation of Congress to guaranty a republican form of government, or the abolition of Slavery, or the prohibition upon States to interfere with the rights and privileges of citizenship, each of which is beyond question.

Another reason assigned for a Constitutional Amendment is, its permanent character in comparison with an Act of Congress, which may be repealed. On this head I have no anxiety. Let this beneficent prohibition once find place in our statute-book, and it will be lasting as the National Constitution itself, to which it will be only a legitimate corollary. In harmony with the Declaration of Independence, and in harmony with the National Constitution, it will become of equal significance, and no profane hand will touch its sacred text. It will never be repealed. The elective franchise, once recognized, can never be denied,--once conferred, can never be resumed. The rule of Equal Rights, once applied by Congress under the National Constitution, will be a permanent institution as long as the Republic endures; for it will be a vital part of that Republican Government to which the nation is pledged.

Dismissing the reasons for the Amendment, I turn to those which make us hesitate. There are two. The Amendment admits, that, under the National Constitution as it is, with its recent additions, a Caste and an Oligarchy of the Skin may be set up by a State without any check from Congress; that these ignoble forms of inequality are consistent with republican government; and that the right to vote is not an existing privilege and immunity of citizenship. All this is plainly admitted by the proposed Amendment,--thus despoiling Congress of beneficent powers, and emasculating the National Constitution itself. It is only with infinite reluctance that I consent to any such admission, which, in the endeavor to satisfy ungenerous scruples, weakens all those texts which are so important for Human Rights.

The hesitation to present the Amendment is increased, when we consider the difficulties in the way of its ratification. I am no arithmetician, but I understand that nobody has yet been able to enumerate the States whose votes can be counted on to assure its ratification within any reasonable time. Meanwhile this great question, which cannot brook delay, which for the sake of peace and to complete Reconstruction should be settled at once, is handed over to prolonged controversy in the States. I need not depict the evils which must ensue. A State will become for the time a political caldron, into which will be dropped all the poisoned ingredients of prejudice and hate, while a powerful political party, chanting, like the Witches in “Macbeth,”

“Double, double, toil and trouble; Fire, burn; and, caldron, bubble,”

will use this very Amendment as the pudding-stick with which to stir the bubbling mass. Such a controversy should be avoided, if possible; nor should an agitation so unwelcome and so sterile be needlessly invited. “Let us have peace.”

Of course, if there were no other way of accomplishing the great result, the Amendment should be presented, even with all its delays, uncertainties, and provocations to local strife. But happily all these are unnecessary. The same thing may be accomplished by Act of Congress, without any delay, without any uncertainty, and without any provocation to local strife. The same vote of two thirds required for the presentation of the Amendment will pass the Act over the veto of the President. Once adopted, it will go into instant operation, without waiting for the uncertain concurrence of State Legislatures, and without provoking local strife so wearisome to the country. The States will not be turned into political caldrons, and the Democratic party will have no pudding-stick with which to stir the bubbling mass.

I do not depart from the proprieties of this occasion, when I show how completely the course I now propose harmonizes with the requirements of the political party to which I belong. Believing most sincerely that the Republican party, in its objects, is identical with country and with mankind, so that in sustaining it I sustain these comprehensive charities, I cannot willingly see this agency lose the opportunity of confirming its supremacy. You need votes in Connecticut, do you not? There are three thousand fellow-citizens in that State ready at the call of Congress to take their place at the ballot-box. You need them also in Pennsylvania, do you not? There are at least fifteen thousand in that great State waiting for your summons. Wherever you most need them, there they are; and be assured they will all vote for those who stand by them in the assertion of Equal Rights. In standing by them you stand by all that is most dear in the Republic.

Pardon me,--but, if you are not moved by considerations of justice under the Constitution, then I appeal to that humbler motive which is found in the desire for success. Do this and you will assure the triumph of all that you can most desire. Party, country, mankind, will be elevated, while the Equal Rights of All will be fixed on a foundation not less enduring than the Rock of Ages.

The bill offered by Mr. Sumner as a substitute for the original joint resolution was rejected; and the latter, embodying the proposed Amendment to the Constitution, failed for want of the requisite two-thirds of the votes cast,--these standing, Yeas 31, Nays 27.

CLAIMS ON ENGLAND,--INDIVIDUAL AND NATIONAL.

SPEECH ON THE JOHNSON-CLARENDON TREATY, IN EXECUTIVE SESSION OF THE SENATE, APRIL 13, 1869.

MR. PRESIDENT,--A report recommending that the Senate do not advise and consent to a treaty with a foreign power, duly signed by the plenipotentiary of the nation, is of rare occurrence. Treaties are often reported with amendments, and sometimes without any recommendation; but I do not recall an instance, since I came into the Senate, where such a treaty has been reported with the recommendation which is now under consideration. The character of the treaty seemed to justify the exceptional report. The Committee did not hesitate in the conclusion that it ought to be rejected, and they have said so.

I do not disguise the importance of this act; but I believe that in the interest of peace, which every one should have at heart, the treaty must be rejected. A treaty, which, instead of removing an existing grievance, leaves it for heart-burning and rancor, cannot be considered a settlement of pending questions between two nations. It may seem to settle them, but does not. It is nothing but a snare. And such is the character of the treaty now before us. The massive grievance under which our country suffered for years is left untouched; the painful sense of wrong planted in the national heart is allowed to remain. For all this there is not one word of regret, or even of recognition; nor is there any semblance of compensation. It cannot be for the interest of either party that such a treaty should be ratified. It cannot promote the interest of the United States, for we naturally seek justice as the foundation of a good understanding with Great Britain; nor can it promote the interest of Great Britain, which must also seek a real settlement of all pending questions. Surely I do not err, when I say that a wise statesmanship, whether on our side or on the other side, must apply itself to find the real root of evil, and then, with courage tempered by candor and moderation, see that it is extirpated. This is for the interest of both parties, and anything short of it is a failure. It is sufficient to say that the present treaty does no such thing, and that, whatever may have been the disposition of the negotiators, the real root of evil remains untouched in all its original strength.

I make these remarks merely to characterize the treaty and prepare the way for its consideration.

THE PENDING TREATY.

If we look at the negotiation which immediately preceded the treaty, we find little to commend. You have it on your table. I think I am not mistaken, when I say that it shows a haste which finds few precedents in diplomacy, but which is explained by the anxiety to reach a conclusion before the advent of a new Administration. Mr. Seward and Mr. Reverdy Johnson unite in this unprecedented activity, using the Atlantic cable freely. I should not object to haste, or to the freest use of the cable, if the result were such as could be approved; but, considering the character of the transaction, and how completely the treaty conceals the main cause of offence, it seems as if the honorable negotiators were engaged in huddling something out of sight.

The treaty has for its model the Claims Convention of 1853. To take such a convention as a model was a strange mistake. This convention was for the settlement of outstanding claims of American citizens on Great Britain, and of British subjects on the United States, which had arisen since the Treaty of Ghent in 1814. It concerned individuals only, and not the nation. It was not in any respect political; nor was it to remove any sense of national wrong. To take such a convention as the model for a treaty which was to determine a national grievance of transcendent importance in the relations of two countries marked on the threshold an insensibility to the true nature of the difference to be settled. At once it belittled the work to be done.

An inspection of the treaty shows how from beginning to end it is merely for the settlement of individual claims on both sides, putting the two batches on an equality, so that the sufferers by the misconduct of England may be counterbalanced by British blockade-runners. It opens with a preamble, which, instead of announcing the unprecedented question between the two countries, simply refers to individual claims that have arisen since 1853,--the last time of settlement,--some of which are still pending and remain unsettled. Who would believe that under these words of commonplace was concealed the unsettled difference which has already so deeply stirred the American people, and is destined, until finally adjusted, to occupy the attention of the civilized world? Nothing here gives notice of the real question. I quote the preamble, as it is the key-note to the treaty:--

“Whereas claims have at various times since the exchange of the ratifications of the convention between Great Britain and the United States of America, signed at London on the 8th of February, 1853, been made upon the Government of her Britannic Majesty on the part of citizens of the United States, and upon the Government of the United States on the part of subjects of her Britannic Majesty; and whereas _some of such claims are still pending and remain unsettled_; her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and the President of the United States of America, being of opinion that a speedy and equitable settlement of all such claims will contribute much to the maintenance of the friendly feelings which subsist between the two countries, have resolved to make arrangements for that purpose by means of a convention.”[51]