“It is true governments cannot be supported without great charge, and it is fit every one who enjoys his share of the protection should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i. e. the consent of the majority,giving it either by themselves or their representatives chosen by them; for, if any one shall claim a power to lay and levy taxes on the people by his own authorityand 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?”[87]
“It is true governments cannot be supported without great charge, and it is fit every one who enjoys his share of the protection should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i. e. the consent of the majority,giving it either by themselves or their representatives chosen by them; for, if any one shall claim a power to lay and levy taxes on the people by his own authorityand 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?”[87]
Here is a plain enunciation of two capital truths: first, that all political society stands only on the consent of the governed; and, secondly, that taxation without representation is an invasion of fundamental right. It was these truths that our fathers embraced in the controversy before them; and these same truths, happily characterized by Hallam as “fertile of great revolutions and perhaps pregnant with more,”[88]are as fertile and as pregnant now as then.
But even this illumination did not begin with these illustrious Englishmen. Two centuries before their testimony, Philippe de Comines, a minister of Louis the Eleventh, in his Memoirs, marking an epoch in historical literature, announced the same principle; so that here France antedates England.
“Is there king or lord on earth who has power, outside his domain [personal estate], to impose a penny upon his subjects,without grant and consent of those who must pay it, unless by tyranny or violence?”[89]
“Is there king or lord on earth who has power, outside his domain [personal estate], to impose a penny upon his subjects,without grant and consent of those who must pay it, unless by tyranny or violence?”[89]
That good man, who excelled so much as teacher, and did so much for scholarship and history, Arnold of Rugby, records a conclusion hardly less important than that of his earlier compatriots.
“It seems to be assumed in modern times that the being born of free parents within the territory of any particular state, and the paying towards the support of its government,conveys a natural claim to the rights of citizenship.”[90]
“It seems to be assumed in modern times that the being born of free parents within the territory of any particular state, and the paying towards the support of its government,conveys a natural claim to the rights of citizenship.”[90]
Others had said there could be taxation only with the consent of the people taxed. The last authority exhibits citizenship associated with contribution to the support of the government. This same political truth appeared in Virginia as early as 1655-6, where, by solemn enactment, repealing a restriction upon suffrage, it was declared “something hard and unagreeable to reason that any persons shall pay equal taxes and yet have no votes in elections.”[91]And it reappears in the famous Declaration of Rights, adopted unanimously June 12, 1776, which announces that men“cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected.”[92]
Sidney and Locke unquestionably exercised more influence over the popular mind, preceding the Revolution, than any other writers. They were constantly quoted, and their names were held in reverence. But their authority has not ceased. As they spoke to our fathers, they now speak to us:Sicut patribus, sic nobis.
The cause of Human Liberty, in this great controversy, found voice in James Otis, a young lawyer of eloquence, learning, and courage, whose early words, like the notes of the morning bugle mingling with the dawn, awakened the whole country. Asked by the merchants of Boston to speak at the bar against Writs of Assistance, issued to enforce ancient Acts of Parliament, he spoke both as lawyer and as patriot, and so doing became a statesman. His speech was the most important, down to that occasion, ever made on this side of the ocean. An earnest contemporary, who was present, says, “No harangue of Demosthenes or Cicero ever had such effects upon this globe as that speech.”[93]It was the harbinger of a new era. For five hours the brilliant orator unfolded the character of these Acts of Parliament; for five hours he held the court-room in rapt and astonished admiration; but his effort ascended into statesmanship, when, after showing that the colonists were without representation in Parliament, he cried out, that, notwithstanding this exclusion, Parliament had undertaken to “impose taxes, and enormous taxes, burdensome taxes, oppressive, ruinous, intolerable taxes”;and then, glowing with generous indignation at this injustice, he launched that thunderbolt of political truth, “Taxation without representation is Tyranny.”[94]From the narrow court-room where he spoke, the thunderbolt passed, smiting and blasting the intolerable pretension. It was the idea of John Locke; but the fervid orator, with tongue of flame, gave to it the intensity of his own genius. He found it in a book of philosophy; but he sent it forth a winged messenger blazing in the sky.
John Adams, then a young man just admitted to the bar, was present at the scene, and he dwells on it often with sympathetic delight. There, in the Old Town-House of Boston, sat the five judges of the Province, with Hutchinson as Chief Justice, in robes of scarlet, cambric bands, and judicial wigs; and there, too, in gowns, bands, and tie-wigs, were the barristers. Conspicuous on the wall were full-length portraits of two British monarchs, Charles the Second and James the Second, while in the corners were the likenesses of Massachusetts Governors. In this presence the great oration was delivered. The patriot lawyer had refused compensation. “In such a cause as this,” said he, “I despise a fee.” He spoke for country and for mankind. Firmly he planted himself on the Rights of Man, which he insisted were, by the everlasting Law of Nature, inherent and inalienable; and these rights, he nobly proclaimed, were common to all, without distinction of color. To suppose them surrendered in any other way than byequal rules and general consentwas to suppose men idiot or mad, whose acts are not binding. But he especially flew at two arguments of tyranny: first,that the colonists were “virtually” represented, and, secondly, that there was such a difference between direct and indirect taxation, that, while the former might be questionable, the latter was not. To these two apologies he replied, first, that no such phrase as “virtual representation” was known in Law or Constitution,—that it is altogether subtilty and illusion, wholly unfounded and absurd,—and that we must not be cheated by any such phantom, or other fiction of law or politics, or any monkish trick of deceit and hypocrisy; and then, with the same crushing force, he said, that, in absence of representation, all taxation, whether direct or indirect, whether internal or external, whether on land or trade, was equally obnoxious to the same unhesitating condemnation.[95]The effect was electric. The judges were stunned into silence, and postponed judgment. The people were aroused to a frenzy of patriotism. “American Independence,” says John Adams, in the record of his impressions, “was then and there born; the seeds of patriots and heroes were then and there sown, to defend the vigorous youth. Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against Writs of Assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”[96]But this great birth is inseparably associated with the principle, then and there declared, that “Taxation without representation is Tyranny.”
From this time forward Otis dedicated himself singlyto the cause he had so bravely upheld, and the popular heart clove to him. He became the favorite of his fellow-countrymen. His arguments were repeated, his words were gratefully adopted, and the saying, “Taxation without representation is tyranny,” became a maxim of patriotism. In May, 1761, only a few weeks after this utterance, he was chosen a representative of Boston in the Legislature by an almost unanimous vote. The Crown officers were dismayed by this most significant election, and one of them, speaking with prophetic lamentation, said it would “shake the Province to its foundation”; on which John Adams remarked, many years later, when some of its results were already visible, “That election has shaken two continents, and will shake four.”[97]Of course this was simply because it affirmed and invigorated a practical truth of government by which all the people are confirmed in political power. At his new post of duty, Otis became the acknowledged leader, constant, fervid, eloquent, and, according to his own language, “daring to speak plain English.” While still declaring unhesitating loyalty to the Crown, and even pledging “the last penny and the last drop of blood, rather than that by any backwardness of ours his Majesty’s measures should be embarrassed,” he made haste to announce, in words where humor blends with truth, that “God made all men naturally equal,”—that “the ideas of earthly superiority, preëminence, and grandeur are educational, at least acquired, not innate,”—that “no government has a right to make hobby-horses, asses, and slaves of the subject, Nature having made sufficient of the two former for all the lawful purposes of man, from the harmlesspeasant in the field to the most refined politician in the cabinet, but none of the last, which infallibly proves they are unnecessary.” But the case would have been imperfectly stated, if the patriot representative had not once more cried out against taxation without representation, and warned against the calamities that must follow from this unquestionable tyranny. This early debate is preserved in a pamphlet, printed in 1762, and entitled “A Vindication of the Conduct of the House of Representatives of the Province of the Massachusetts Bay, etc., by James Otis, Esq.,” which, we are told by an eminent authority, contains, in solid substance, all that is found in the Declaration of Rights and Wrongs issued by Congress in 1774, the Declaration of Independence in 1776, and the subsequent writings of those political philosophers who upheld the national cause.[98]Pardon me, if I dwell too minutely on this history. I do it only to illustrate the issue of principle actually made with the mother country.
The controversy still continued, when, in 1764, the orator, who by voice and pen had so bravely maintained the cause of his country, put forth another publication, entitled “The Rights of the British Colonies Asserted and Proved.” Mark, if you please, the vigor of the title. The rights of the Colonies are not only “asserted,” but “proved.” Reprinted in London, this pamphlet was read by Lord Mansfield, Chief Justice of England, and was answered by Soame Jenyns, a partisan writer of the Crown. The copy I hold in my hand has the imprint of London, and is marked “Third Edition.” All things considered, it is the most remarkablepamphlet of our country, and one of the most remarkable ever written. Recent events, verifying the truths it so early announced, elevate its place in history. Here are the same vital principles, enforced with learning and eloquence, which Otis announced at the bar, and then again in the debates of the Legislature; and here are not only the truths asserted by our fathers, but the unanswerable arguments by which they were vindicated. Even an abstract would be too long for this debate; but the character of this Defence of the American People, not unlike Milton’s famous “Defensio pro Populo Anglicano,” will appear in a few passages, where, as in gleams, may be discerned theIdea of a Republic.
I do not pause on the assertion, “that every man of a sound mind should have his vote,” or the authority he invokes, when he says, “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,” both of which, sounded by him elsewhere,[99]are important premises. Nor do I dwell on that admirable statement of much in little, “The first simple principle is Equality and the Power of the Whole.”[100]The Equality of All and the Power of All!—the two buttresses of a just government. I come at once to the plain statement of fundamental right.
“The supreme power cannot take from any man any part of his propertywithout his consent in person or by representation.”“Taxes are not to be laid on the peoplebut by their consent in person or by deputation.”[101]
“The supreme power cannot take from any man any part of his propertywithout his consent in person or by representation.”
“Taxes are not to be laid on the peoplebut by their consent in person or by deputation.”[101]
Such are “the first principles of law and justice, and the great barriers of a free state”; and then he adds, “I ask, I want no more.”[102]And these principles he claims for all, without distinction of color.
“The colonists are by the Law of Nature free-born, as indeed all men are, white or black.… Does it follow that ‘tis right to enslave a man because he is black? 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? Can any logical inference in favor of Slavery be drawn from a flat nose, a long or a short face?”[103]
“The colonists are by the Law of Nature free-born, as indeed all men are, white or black.… Does it follow that ‘tis right to enslave a man because he is black? 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? Can any logical inference in favor of Slavery be drawn from a flat nose, a long or a short face?”[103]
Assuming these rights as common to all, whether white or black, he insists that any taxation, whether direct or indirect, without representation, is only another form of Slavery.
“I can see no reason to doubt but that the imposition of taxes, whether on trade, or on land, or houses, or ships, on real or personal, fixed or floating property, in the Colonies, is absolutely irreconcilable with the rights of the colonists, as British subjects,and as men. I say men, for in a state of Nature no man can take my property from me without my consent.If he does, he deprives me of my liberty and makes me a slave.…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 effectan 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?”[104]
“I can see no reason to doubt but that the imposition of taxes, whether on trade, or on land, or houses, or ships, on real or personal, fixed or floating property, in the Colonies, is absolutely irreconcilable with the rights of the colonists, as British subjects,and as men. I say men, for in a state of Nature no man can take my property from me without my consent.If he does, he deprives me of my liberty and makes me a slave.…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 effectan 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?”[104]
Such was the voice of James Otis, who was our John the Baptist. It was he who went before in this greatcontroversy. He first stated the case between the Colonies and the mother country, and first developed the principles in issue. But, though first, he was not long alone. Conspicuous among his followers was Samuel Adams, that austere patriot, always faithful and true, who desired to make Puritan Boston “a Christian Sparta.” He was remarkable for the simplicity, accuracy, and harmony of his style, and on this account often held the pen for the Legislature or the town-meeting. In obedience to the latter, he drew up instructions to the Representatives of Boston, afterward adopted in Faneuil Hall, where, repeating the very arguments of Otis, he says, “If our trade may be taxed, why not our lands, why not the produce of our lands, and everything we possess or make use of?” And then, advancing in the subject, he asks: “If taxes are laid upon us in any shapewithout our having a legal representation where they are laid, are we not reduced from the character of free subjects to the miserable state of tributary slaves?”[105]In proposing this question, he leaves no room to doubt the answer it deserved.
Soon thereafter, Franklin, as agent of Pennsylvania, maintained the same principles in England. But the ministry, hurried on by fatal folly leading to destruction, persevered in their pretension. The Stamp Act was passed, and for the first time in our history papers bore stamps, to swell the revenue of the Crown. Massachusetts remonstrated in formal resolutions, “particularly considered,” wherein it is declared, “That there are certain essential rights of the British Constitution of Government, which are founded in the law of Godand Nature, and are the common rights of mankind,—therefore, … that no man can justly take the property of another without his consent,— … that all acts made by any power whatever, other than the General Assembly of this Province, imposing taxes on the inhabitants, are infringements of our inherent and unalienable rights as men and British subjects, and render void the most valuable declarations of our Charter.”[106]In an address to the Royal Governor, the Legislature, after setting forth the injustice of the Stamp Act, proceeded to say, “We must beg your Excellency to excuse us from doing anything to assist in the execution of it.”[107]The people in town-meetings took up the strain, and all united against the Act. But Massachusetts was not alone.
Virginia, by positive statute, as early as 1655-6 recognized the just principle, as we have already seen;[108]and now a writer of that State, catching the spirit of Otis, declared, in an elaborate pamphlet, that it was “an essential principle of the English Constitution that the subject shall not be taxedwithout his consent”; and then again, quoting the words of another, “All men have natural, and freemen legal rights, which they may justly maintain, and no legislative authority can deprive them of.”[109]The Legislature of Virginia, even before Massachusetts, adopted resolutions kindred in spirit, which were moved by Patrick Henry, and heroicallycarried by his eloquent voice, even against the menacing cry of “Treason.” Thus spoke Virginia, exposing the true issue, and insisting on the inseparability of taxation and representation:—
“Resolved, That the taxation of the people by themselves, orby persons chosen by themselves to represent them, who can only know what taxes the people are able to bear, or the easiest method of raising them, and must themselves be affected by every tax laid on the people,is the only security against a burdensome taxationand the distinguishing characteristic of British freedom, without which the ancient Constitution cannot exist.”[110]
“Resolved, That the taxation of the people by themselves, orby persons chosen by themselves to represent them, who can only know what taxes the people are able to bear, or the easiest method of raising them, and must themselves be affected by every tax laid on the people,is the only security against a burdensome taxationand the distinguishing characteristic of British freedom, without which the ancient Constitution cannot exist.”[110]
Pennsylvania, by her House of Assembly, spoke also to the same effect:—
“Resolved, N. C. D., That this House think it their duty thus firmly to assert with modesty and decency theirinherent rights, that their posterity may learn and know that it was not with their consent and acquiescence thatany taxesshould be levied on them by any persons but their own representatives.”[111]
“Resolved, N. C. D., That this House think it their duty thus firmly to assert with modesty and decency theirinherent rights, that their posterity may learn and know that it was not with their consent and acquiescence thatany taxesshould be levied on them by any persons but their own representatives.”[111]
The controversy proceeded. At the invitation of Massachusetts, moved by Otis, a Congress assembled at New York in October, 1765, having delegates from Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, and South Carolina, which, after a prolonged session, adopted a declaration of colonial rights and grievances, where it is declared:—
“That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxesbe imposed on thembut with their own consent, given personally or by their representatives.“That the people of these Colonies are not, and from their local circumstances cannot be, represented in the House of Commons in Great Britain.”[112]
“That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxesbe imposed on thembut with their own consent, given personally or by their representatives.
“That the people of these Colonies are not, and from their local circumstances cannot be, represented in the House of Commons in Great Britain.”[112]
At last the Stamp Act was repealed. But the pretension of taxation was suspended rather than abandoned. A ministerial partisan continued to urge the scheme in unscrupulous language:—
“All countries unaccustomed to taxes are at first violently prepossessed against them, though the price which they give for their liberty: like an ox untamed to the yoke, they show at first a very stubborn neck, but by degrees become docile and yield a willing obedience.… America must be taxed.”[113]
“All countries unaccustomed to taxes are at first violently prepossessed against them, though the price which they give for their liberty: like an ox untamed to the yoke, they show at first a very stubborn neck, but by degrees become docile and yield a willing obedience.… America must be taxed.”[113]
As time advanced, the old audacity was revived, and, under the lead of the reckless Charles Townshend, taxes were imposed by Parliament on tea, glass, lead, paper, and painters’ colors. The old opposition in the Colonies was revived also, and taxation without representation was again denounced. Committees of correspondence were established, and the work of organization began. The whole country was in a fever. Massachusetts, as in times past, did not hesitate to proclaim the true principle. At a town-meeting of Boston in 1772, there was a declaration of rights, “which no man or body of men, consistently with their own rights as men and citizens or members of society, can for themselves give up or take away from others”; and here we meet again familiar words:—
“The supreme power cannot justly take from any man any part of his property without his consent in person or by his representatives.”[114]
“The supreme power cannot justly take from any man any part of his property without his consent in person or by his representatives.”[114]
Against all Parliamentary taxation, as often as it showed itself, this impenetrable buckler was lifted. But the mother country was perverse. Ship-loads of tea arrived. At Boston the tea was thrown into the dock. The Colonies entered into an agreement of non-importation. Then came troops, and the Boston Port Bill, by which this harbor was vindictively closed against commerce. The whole country, including even South Carolina, made common cause with Massachusetts. Gadsden exclaimed, “Massachusetts sounded the trumpet, but to Carolina is it owing that it was attended to.”[115]And Virginia exclaimed, “We will never be taxed but by our own representatives.This is the great badge of Freedom.… Whether the people in Boston were warranted by justice, when they destroyed the tea, we know not; but this we know, that the Parliament, by their proceedings, have made us and all North America parties in the present dispute.”[116]Meanwhile more troops arrived. All things portended strife; and yet the colonists did not ask for independence. They only asked for rights, insisting always that there should be no taxation without representation. “The patriots of this Province,” said John Adams in 1774, “desire nothing new; they wish only to keep their old privileges. They were for one hundred and fifty years allowed to tax themselves, andgovern their internal concerns as they thought best. Parliament governed their trade as they thought fit. This plan they wish may continue forever.”[117]Thus stood the two parties face to face.
Then came the Continental Congress, which at once put forth resolutions, where, after claiming the enjoyment of life, liberty, and property, as natural rights, it was insisted that the colonists could be bound by no law to which they had not consented by representatives. Here was the original programme of James Otis: first, the rights of men, according to Natural Law; and, secondly, the principle that government, including of course taxation, depended on the consent of the governed. “The foundationof English Liberty andof all free government,” said these resolutions, “is a right in the people to participate in their legislative council.”[118]In harmony with these resolutions were the several addresses of the Continental Congress,—to the people of Great Britain, to the inhabitants of the Province of Quebec, and to the king himself,—always pleading for Human Rights in the largest sense. The address to the people of Great Britain begins by an appeal for “the rights of men and the blessings of Liberty,” and then insists “that no power on earth has a right to take our property from us without our consent.”[119]The address to the inhabitants of the Province of Quebec, in similar spirit, says: “The first grand right is that of the people having a share in their own government by their representatives chosen by themselves, and, in consequence, of being ruled by laws which they themselves approve, not by edicts of men over whom they have no control.This is a bulwark surrounding and defending their property.”[120]And the petition to the king has the same key-note: “Duty to your Majesty, and regard for the preservation of ourselves and our posterity,the primary obligations of Nature and society, command us to entreat your royal attention.”[121]Thus constantly, down to the last moment, did our fathers set forth the principles they sought to establish as essential to free government. Thus constantly did they testify to the cause for which I now plead.
Answering voices came back from England, announcing the principles in issue. The right of taxation was asserted; but there were many who disguised the tyranny by assuming that the Colonies were “virtually represented.” Perhaps that spirit of legal technicality which is satisfied by form at the expense of reason was never more strikingly illustrated than in the argument of Sir James Marriott, the Admiralty Judge, who gravely insisted, in the House of Commons, that England “had an undoubted right to tax America, because she was represented by the members for the County of Kent, of which the thirteen provinces were a part or parcel, for in their charters they were to hold of the manor of Greenwich in Kent.”[122]The whole pretension had been scouted by the indignant eloquence of Mr. Pitt, afterward Lord Chatham. “The idea,” said he, “of avirtual representationof America in this House is the most contemptible idea that ever entered into the head of a man. It does not deserve a serious refutation.”[123]As the controversy continued, and especially as those masterly state papers, the addresses of the Continental Congress, reached England, the ministers of the king were put on the defensive. They retained as advocate none other than Samuel Johnson, who, for “small hire,” lent the pen which had written “Rasselas,” “The Vanity of Human Wishes,” and the English Dictionary, to a rancorous attack on the principles of our fathers. Its concentrated venom was all expressed in the title, “Taxation no Tyranny.” Another pamphlet appeared in reply, with the epigram, “Resistance no Rebellion,” embodying the idea, that, where there is taxation without representation, resistance is justifiable; and thus was issue joined at London. This was in 1775. Already the “embattled farmers” had gathered at Lexington and Bunker Hill; already Washington had drawn his sword at Cambridge, as commander-in-chief and generalissimo of the new-born armies; already war had begun. At last, to the defiant watchword, “Taxation no Tyranny,” hurled from London, our fathers returned that other defiant watchword, “Independence.” But they did not turn their backs upon the principles asserted throughout the long controversy. Independence was the means to an end, and that end was nothing less than a Republic, with Liberty and Equality as animating principles, where government stood on the consent of the governed, or, which is the same thing, where there should be no taxation without representation: for here was the distinctive feature of American institutions.
2. The principles heralded through fifteen years of controversy were not forgotten when Independence wasdeclared: and here I come to the national declarations of the Fathers.
It sometimes happens that men fail in support of the cause to which they are pledged, or content themselves with something less than the truth. But not so with our fathers. In declaring Independence they continued loyal to their constant vows. The natural rights of all men, and the consent of the people as the only just foundation of government, which James Otis first announced, which Samuel Adams maintained with severe simplicity, which Patrick Henry vindicated even against the cry of “Treason,” and which had been affirmed by legislative bodies and public meetings, were embodied in the opening words of the Declaration. There they stand, like a sublime overture to the new Republic, interpreting, inspiring, and filling it with transforming power.
“We hold these truths to beself-evident: thatall men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted among men,deriving their just powers from the consent of the governed.”
“We hold these truths to beself-evident: thatall men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted among men,deriving their just powers from the consent of the governed.”
Nor did these declarations proceed from the National Congress alone. The States spoke also in their Bills of Rights.
Foremost is the Equality of All Men. Of course, in a declaration of rights, no such supreme folly was intended as that all men are created equal in form or capacity, bodily or mental,—but simply that they are created equal in rights. This is grandest of the self-evident truths announced, leading and governing all the rest. Life, liberty, and the pursuit of happiness areamong inalienable rights; but they are all in subordination to that primal truth. Here is the starting-point of the whole; and the end is like the starting-point. Announcing that governments derive their just powers from the consent of the governed, the Declaration repeats the same proclamation of Equal Rights. Thus is Equality the Alpha and the Omega, wherein all other rights are embraced. Men may not have a natural right to certain things, but most clearly they have a natural right toimpartial laws, without which justice, being the end and aim of government, must fail. Equality in rights is the first of rights. Because these self-evident truths, beginning with Equality, had been set at nought by Great Britain, in her relations with our fathers, Independence was declared. To these truths, therefore, was the new Government solemnly dedicated, as it assumed its separate and equal station among the powers of the earth. Do you ask for the definition of Republic? Here it is, by patriot lexicographers, whose authority none of us can question.
As the War of Independence began with a declaration of principles, so it ended with a like declaration. At its successful close, the Continental Congress, in an Address to the States, by the pen of James Madison, thus announced the objects for which it had been waged, and thus supplied another definition of the new government:—
“Let it be remembered that it has ever been the pride and boast of America,that the rights for which she contended were the rights of human nature. By the blessing of the Author of these rights on the means exerted for their defence, they have prevailed against all opposition, andform the basisof thirteen independent States. No instance hasheretofore occurred, nor can any instance be expected hereafter to occur, in which theunadulterated forms of Republican Governmentcan pretend to so fair an opportunity of justifying themselves by their fruits. In this view, the citizens of the United States are responsible for the greatest trust ever confided to a political society.”[124]
“Let it be remembered that it has ever been the pride and boast of America,that the rights for which she contended were the rights of human nature. By the blessing of the Author of these rights on the means exerted for their defence, they have prevailed against all opposition, andform the basisof thirteen independent States. No instance hasheretofore occurred, nor can any instance be expected hereafter to occur, in which theunadulterated forms of Republican Governmentcan pretend to so fair an opportunity of justifying themselves by their fruits. In this view, the citizens of the United States are responsible for the greatest trust ever confided to a political society.”[124]
Such, also, was the sublime sentiment promulgated by Washington from his camp, in a general order, near the same date, announcing the close of the war, where he declares his “rapture” in the national prospects, and the three-fold happiness for all “who have assisted in protectingthe rights of human nature.”[125]It was for “the rights of human nature” that our fathers went forth to battle, and these rights are proclaimed to “form the basis of thirteen independent States.” But supreme among these is Equality, including of course the equal right of all to a voice in the Government. And this is the Republic which our fathers, with pride and boast, then gave as an example to mankind.
The same spirit appears in the National Constitution, which, by its preamble, asserts practically similar sentiments:—
“We, the people of the United States, in order to form a more perfect union,establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
“We, the people of the United States, in order to form a more perfect union,establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
Thus was the National Constitution ordained, not to create an oligarchy or aristocracy, not to exclude certain persons from the pale of its privileges, not to organizeinequality of rightsin any form, but to “establish justice,” which is Equality,—to “insure domestic tranquillity,” which is vain without justice,—to “provide for the common defence,” which is the defence of all,—to “promote the general welfare,” which is the welfare of all,—and to “secure the blessings of liberty” to all the people and their posterity, which is giving to all the complete enjoyment of rights central among which is Equality. Here, then, is another authoritative definition.
Thus has our country testified to its idea of a Republic, not only throughout long days of controversy, but in national declarations, being in themselves monumental acts.
3. From these national declarations I come now to theOpinions of the Fathers. Here you see how these same principles have been sustained by eminent characters, whose names are historic, all testifying to the government they founded and upheld. In their weighty words you find a definition, constantly repeated, in harmony with all the promises of the Fathers, whether in controversy or in solemn instruments which are the very title-deeds of the Republic.
I begin with Benjamin Franklin, who saw all questions of Government with a surer instinct than any other person in our history. As early as 1736, while still a young man, he wrote an article, which was published in the Pennsylvania Gazette, containing these words:—
“Popular Governments have not been framed without the wisest reasons. It seemed highly fitting that the conduct ofmagistrates,created by and for the good of the whole, should be made liable to the inspection and animadversion ofthe whole.”[126]
“Popular Governments have not been framed without the wisest reasons. It seemed highly fitting that the conduct ofmagistrates,created by and for the good of the whole, should be made liable to the inspection and animadversion ofthe whole.”[126]
It is forthe good of the whole, and not for an odious oligarchy or an aristocratic class, that our patriot speaks, and in these words is foreshadowed the idea of a republican government. But it was in discussions, after Otis had hurled his flaming bolt, that we find a fuller and more precise definition. Here it is, as adopted, if not written, by Franklin:—
“Thatevery manof 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 theallof one man is as dear to him as theallof another; and the poor man has anequalright, butmoreneed, to have representatives in the Legislature than the rich one.“That they who have no voice nor vote in the electing of representativesdo not enjoy liberty, but are absolutely enslaved to those who have votes, and to their representatives: for to be enslaved is to have governors whomother men have set over us, and be subject to lawsmade by the representatives of others, without having had representatives of our own to give consent inourbehalf.”[127]
“Thatevery manof 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 theallof one man is as dear to him as theallof another; and the poor man has anequalright, butmoreneed, to have representatives in the Legislature than the rich one.
“That they who have no voice nor vote in the electing of representativesdo not enjoy liberty, but are absolutely enslaved to those who have votes, and to their representatives: for to be enslaved is to have governors whomother men have set over us, and be subject to lawsmade by the representatives of others, without having had representatives of our own to give consent inourbehalf.”[127]
In these emphatic words is a complete vindication of theequal rightof representation, as essential to free government,—so much so, that, where this does not exist, Liberty does not exist.
Jefferson followed Franklin in the same vein, but with greater fervor. The author of the Declaration of Independence could not do otherwise. Constantly he testifies to his idea of a Republic. Thus he wrote to Alexander von Humboldt, under date of June 13, 1817, affirming the rights of the majority as “the first principle of Republicanism,” and assuming the principle of Equal Rights:—
“The first principle of Republicanism is, that thelex majoris partisis the fundamental law of every society of individualsof equal rights. To consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt. This law once disregarded, no other remains but that of force, which ends necessarily in military despotism.”[128]
“The first principle of Republicanism is, that thelex majoris partisis the fundamental law of every society of individualsof equal rights. To consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt. This law once disregarded, no other remains but that of force, which ends necessarily in military despotism.”[128]
In another letter, to John Taylor, of Caroline, dated May 28, 1816, he thus defines a Republic:—
“Indeed, it must be acknowledged that the termRepublicis of very vague application in every language. Witness the self-styled Republics of Holland, Switzerland, Genoa, Venice, Poland. Were I to assign to this term a precise and definite idea, I would say, purely and simply, it meansa government by its citizens in mass, acting directly and personally,according to rules established by the majority,—and that every other government is more or less republican in proportion as it has in its composition more or less of this ingredient of the direct action of the citizens.”[129]
“Indeed, it must be acknowledged that the termRepublicis of very vague application in every language. Witness the self-styled Republics of Holland, Switzerland, Genoa, Venice, Poland. Were I to assign to this term a precise and definite idea, I would say, purely and simply, it meansa government by its citizens in mass, acting directly and personally,according to rules established by the majority,—and that every other government is more or less republican in proportion as it has in its composition more or less of this ingredient of the direct action of the citizens.”[129]
Here again, while confessing the unquestionable vagueness of the term according to old examples, he assumes that in a republic all citizens must have avoice. And again, in the same letter, he thus indignantly condemns denial of representation:—
“And also that one half of our brethren who fight and pay taxes are excluded, like Helots, from the rights of representation, as if society were instituted for the soil, and not for the men inhabiting it,or one half of these could dispose of the rights and the will of the other half without their consent.”[130]
“And also that one half of our brethren who fight and pay taxes are excluded, like Helots, from the rights of representation, as if society were instituted for the soil, and not for the men inhabiting it,or one half of these could dispose of the rights and the will of the other half without their consent.”[130]
Thus did he scout the whole wretched pretension of oligarchy and monopoly by which citizens are deprived of equal rights.
To these may be added his earliest and latest declarations on this important question. The earliest is in his “Notes on Virginia,” written in 1781, where he recognizes “a reciprocation of right” as a presiding principle:—
“When arguing for ourselves, we lay it down as a fundamental, that laws, to be just, must givea reciprocation of right: that without this they are mere arbitrary rules of conduct, founded in force, and not in conscience.”[131]
“When arguing for ourselves, we lay it down as a fundamental, that laws, to be just, must givea reciprocation of right: that without this they are mere arbitrary rules of conduct, founded in force, and not in conscience.”[131]
The latest declaration was in 1826, the year of his death. It is in a paper containing some of his most intimate opinions. Here he bears testimony to “equalityamong our citizens” as “essential to the maintenance of republican government.”[132]These are among his dying words.
Madison was colder in nature than Jefferson; but they were associates in opinion, as in political life. In the debates on the National Constitution the former condemned the denial of rights on account of color:—