These Constitutions show the grandeur of the principle, and how it was explained and illustrated. The Constitution of 1791, in its first article, declares that "Men are born and continue free and equal in their rights." This great declaration was explained in the sixth article: "The law is the expression of the general will.... It ought to be the same for all, whether it protect or punish. All citizens, being equal in its eyes, are equally admissible to all dignities, places, and public employments, according to their capacity, and without other distinction than their virtues and talents." At the close of the Declaration of Rights there is this further explanation: "The National Assembly, wishing to establish the French Constitution on the principles which it has just acknowledged and declared, abolishes irrevocably the institutions which bounded liberty and equality of rights. There is no longer nobility, or peerage, or hereditary distinctions, or distinction of orders, or feudal rule, or patrimonial jurisdictions, or any titles, denominations, or prerogatives thence derived, or any orders of chivalry, or any corporations or decorations for which proofs of nobility were required, or which supposed distinctions of birth, or any other superiority than that of public functionaries in the exercise of their functions.... There is no longer, for any part of the nation, or for any individual, any privilege or exception to the common right of all Frenchmen."[19] These diffuse articles all begin and end in the equality of men.
In fitful mood, another Declaration of Rights was brought forward by Condorcet. February 15, 1793. Here are fresh inculcations of Equality. Article First places Equality among the natural, civil, and political rights of man. Article Seventh declares: "Equality consists in this, that each individual can enjoy the same rights." Article Eighth: "The law ought to be equal for all, whether it recompense or punish, whether it protect or repress." Article Ninth: "All citizens are admissible to all public places, employments, and functions. Free people know no other motives of preference in their choice than talents and virtues." Article Twenty-third: "Instruction is the need of all, and society owes it equally to all its members." Article Thirty-second: "There is oppression, when a law violates the natural, civil, and political rights which it ought to guaranty. There is oppression, when the law is violated by the public functionaries in its application to individual cases."[20] Here again is the same constant testimony, reinforced by the accompanying report explaining the Constitution, where it is said: "All hereditary political power is at the same time an evident violation of natural equality and an absurd institution, since it supposes the inheritance of qualities proper for the discharge of a public function. Every exception to the common law made in favor of an individual is a blow struck at the rights of all." And in another part of the same report, "the sovereignty of the people, equality among men, the unity of the Republic," are declared to have been "the guiding principles always present in the formation of the Constitution."[21]
Next came the Constitution of June, 1793, announcing, in its second article, that the natural and imprescriptible rights of men are "Equality, liberty, security, property." In the next article we learn precisely what is meant by Equality, when it says, "All men are equal by nature and before the law."[22] So just and captivating was this definition, which we encounter here for the first time, that it held its place through all the political vicissitudes of France, under the Directory, the Consulate, the Empire, the Restoration, and the Constitutional Government of Louis Philippe. It was a conquest which, when achieved, was never abandoned. Every Charter and Constitution certified to it. The Charter of Louis Philippe testifies as follows: "Frenchmen are equal before the law, whatever may be their titles and ranks."[23] Nor was its use confined to France. It passed into other constitutions, and Napoleon, who so often trampled on the rights of Equality, dictated to the Poles the declaration, that all persons are equal before the law. Thus the phrase is not only French, but Continental, although never English.
While recognizing this particular form of speech as more specific and satisfactory than the statement that all men are born equal, it is impossible not to be reminded that it finds a prototype in the ancient Greek language, where, according to Herodotus, "the government of the many has the most beautiful name of all, [Greek: isonomia], isonomy" which may be defined Equality before the Law.[24] Thus, in an age when Equality before the Law was practically unknown, this remarkable language, by its comprehensiveness and flexibility, supplied a single word, not found in modern tongues, to express an idea practically recognized only in modern times. Such a word in our own language, as the substitute for Equality, might have superseded criticism to which this declaration is exposed.
EQUALITY UNDER CONSTITUTION OF MASSACHUSETTS AND DECLARATION OF INDEPENDENCE.
The way is now prepared to consider the nature of Equality, as secured by the Constitution of Massachusetts. The Declaration of Independence, which followed the French Encyclopedia and the political writings of Rousseau, announces among self-evident truths, "that all 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." The Constitution of Massachusetts repeats the same truth in a different form, saying, in its first article: "All men are born free and equal, and have certain natural essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties." Another article explains what is meant by Equality, saying: "No man, nor corporation or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man being born a magistrate, lawgiver, or judge is absurd and unnatural." This language, in its natural signification, condemns every form of inequality in civil and political institutions.
These declarations, though in point of time before the ampler declarations of France, may be construed in the light of the latter. Evidently, they seek to declare the same principle. They are declarations of Rights; and the language employed, though general in character, is obviously limited to those matters within the design of a declaration of Rights. And permit me to say, it is a childish sophism to adduce any physical or mental inequality in argument against Equality of Rights.
Obviously, men are not born equal in physical strength or in mental capacity, in beauty of form or health of body. Diversity or inequality in these respects is the law of creation. From this difference springs divine harmony. But this inequality is in no particular inconsistent with complete civil and political equality.
The equality declared by our fathers in 1776, and made the fundamental law of Massachusetts in 1780, was Equality before the Law. Its object was to efface all political or civil distinctions, and to abolish all institutions founded upon birth. "All men are created equal," says the Declaration of Independence. "All men are born free and equal," says the Massachusetts Bill of Rights. These are not vain words. Within the sphere of their influence, no person can be created, no person can be born, with civil or political privileges not enjoyed equally by all his fellow-citizens; nor can any institution be established, recognizing distinction of birth. Here is the Great Charter of every human being drawing vital breath upon this soil, whatever may be his condition, and whoever may be his parents. He may be poor, weak, humble, or black,—he may be of Caucasian, Jewish, Indian, or Ethiopian race,—he may be of French, German, English, or Irish extraction; but before the Constitution of Massachusetts all these distinctions disappear. He is not poor, weak, humble, or black; nor is he Caucasian, Jew, Indian, or Ethiopian; nor is he French, German, English, or Irish; he is a Man, the equal of all his fellow-men. He is one of the children of the State, which, like an impartial parent, regards all its offspring with an equal care. To some it may justly allot higher duties, according to higher capacities; but it welcomes all to its equal hospitable board. The State, imitating the divine justice, is no respecter of persons.