History of Woman Suffrage
Chapter 173 : The Committee cite the language of Mr. Webster, as counsel in United States _vs._ Prim

The Committee cite the language of Mr. Webster, as counsel in United States _vs._ Primrose. We indorse every word in that extract. We do not claim that a citizen of Pennsylvania can go into Virginia and vote in Virginia, being a citizen of Pennsylvania. No person has ever contended for such an absurdity.

We claim that when the citizen of the United States becomes a citizen of Virginia, the State of Virginia has neither right nor power to abridge the privileges of such citizen by denying him entirely the right of suffrage, and thus all political rights.

The authorities cited by the majority of the Committee do not seem to meet the case--certainly do not sustain their theory.

The case of Cooper _vs._ The Mayor of Savannah (4 Geo., 72), involved the question whether a free negro was a citizen of the United States? The Court, in the opinion, says:

Free persons of color have never been recognized as citizens of Georgia; they are not ent.i.tled to bear arms, vote for members of the legislature, or hold any civil office; they have no political rights, but have personal rights, one of which is personal liberty.

That they could not vote, hold office, etc., was held evidence that they were not regarded as citizens.

In the Supreme Court of the United States, in the case of Scott _vs._ Sanford (19 Howard, p. 476), Mr. Justice Daniel, in delivering his opinion, used the following language as to the rights and qualities of citizens.h.i.+p:

For who it may be asked is a citizen? What do the character and status of citizens import? Without fear of contradiction, it does not import the condition of being private property, the subject of individual power and owners.h.i.+p. Upon a principle of etymology alone, the term citizen, as derived from _civitas_, conveys the idea of connection or identification with the State or government, and a partic.i.p.ation in its functions. But beyond this 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.

And in the same case Chief Justice Taney said: "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 inst.i.tutions, 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 const.i.tuent member of this sovereignty." (19 Howard, 404).

In an important case in the Supreme Court of the United States, Chief Justice Jay, in delivering the opinion of the Court, said: "At the Revolution the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves may be so called), and have none to govern but themselves. The citizens of America are equal as fellow-citizens, and joint tenants of the sovereignty." (Chishol _vs._ Georgia, 2 Dallas, 470).

In Conner _vs._ Elliott (18 Howard), Justice Curtis, in declining to give an enumeration of all the "privileges" of the citizen, said, "According to the express words and clear meaning of the clause, no privileges are secured except those that belong to citizens.h.i.+p."

The Supreme Court said, in Corfield _vs._ Coryell, that the elective franchise is such privilege; therefore, according to Justice Curtis, it belongs to citizens.h.i.+p. In a case in the Supreme Court of Kentucky (1 Littell's Ky. Reports, p. 333), the Court say:

No one can, therefore, in the correct sense of the term, be a citizen of a State who is not ent.i.tled upon the terms prescribed by the inst.i.tutions of the State to all the rights and privileges conferred by these inst.i.tutions upon the highest cla.s.s of society.

Mr. Wirt, when Attorney-General of the United States, in an official opinion to be found on p. 508, 1st volume Opinions of Attorney-Generals, came to the conclusion that the negroes were not citizens of the United States, for the reason that they had very few of the "privileges" of citizens, and among the "privileges of citizens" of which they were deprived, that they could not vote at any election.

Webster defines a citizen to be "a person, native or naturalized, who has the privilege of voting for public officers, and who is qualified to fill offices in the gift of the people." Worcester defines the word thus: "An inhabitant of a republic who enjoys the rights of a citizen or freeman, and who has a right to vote for public officers as a citizen of the United States." Bouvier, in his Law Dictionary, defines the term citizen: "One who, under the Const.i.tution and laws of the United States, has a right to vote for Representatives in Congress and other public officers, and who is qualified to fill offices in the gift of the people."

Aristotle defines a citizen to be "one who is a partner in the legislative and judicial power, and who shares in the honors of the State." (Aristotle de Repub., lib. 3, cap. 5, D.) The essential properties of Athenian citizens.h.i.+p consisted in the share possessed by every citizen in the legislature, in the election of magistrates, and in the courts of justice. (See Smith's Dictionary of Greek Antiquities, p. 289). The possession of the _jus suffragii_, at least, if not also of the _jus honorum_, is the principle which governs at this day in defining citizens.h.i.+p in the countries deriving their jurisprudence from the civil law. (Wheaton's International Law, p. 892).

The Dutch publicist, Thorbecke, says:

What const.i.tutes the distinctive character of our epoch is the development of the right of citizens.h.i.+p. In its most extended, as well as its most restricted sense, it includes a great many properties. The right of citizens.h.i.+p is the right of voting in the government of the local, provincial, or national community of which one is a member. In this last sense, the right of citizens.h.i.+p signifies a partic.i.p.ation in the right of voting, in the general government, as member of the State. (Rev. & Fr. Etr., tom. v, p. 383).

In a recent work of some research, written in opposition to female suffrage, the author takes the ground that women are not citizens, and urges that as a reason why they can properly be denied the elective franchise, his theory being that if full citizens they would be ent.i.tled to the ballot. He uses the following language:

It is a question about which there may be some diversity of opinion, what const.i.tutes citizens.h.i.+p or who are citizens.

In a loose and improper sense the word citizen is sometimes used to denote any inhabitant of the country, but this is not a correct use of the word. Those, and no others, are properly citizens who were parties to the original compact by which the government was formed, or their successors who are qualified to take part in the affairs of government by their votes in the election of public officers. Women and children are represented by their domestic directors or heads in whose wills theirs is supposed to be included.

They, as well as others not ent.i.tled to vote, are not properly citizens, but are members of the State, fully ent.i.tled to the protection of its laws. A citizen, then, is a person ent.i.tled to vote in the elections. He is one of those in whom the sovereign power of the State resides.

(Jones on Suffrage, p. 48.)

But all such fallacious theories as this are swept away by the XIV. Amendment, which abolishes the theory of different grades of citizens.h.i.+p, or different grades of rights and privileges, and declares all persons born in the country or naturalized in it to be citizens, in the broadest and fullest sense of the term, leaving no room for cavil, and guaranteeing to all citizens the rights and privileges of citizens of the republic. We think we are justified in saying that the weight of authority sustains us in the view we take of this question. But considering the nature of it, it is a question depending much for its solution upon a consideration of the government under which citizens.h.i.+p is claimed. Citizens.h.i.+p in Turkey or Russia is essentially different in its rights and privileges from citizens.h.i.+p in the United States. In the former, citizens.h.i.+p means no more than the right to the protection of his absolute rights, and the "citizen" is a subject; nothing more. Here, in the language of Chief Justice Jay, there are no subjects. All, native-born and naturalized, are citizens of the highest cla.s.s; here all citizens are sovereigns, each citizen bearing a portion of the supreme sovereignty, and therefore it must necessarily be that the right to a voice in the Government is the right and privilege of a citizen as such, and that which is undefined in the Const.i.tution is undefined because it is self-evident.

Could a State disfranchise and deprive of the right to a vote all citizens who have red hair; or all citizens under six feet in height? All will consent that the States could not make such arbitrary distinctions the ground for denial of political privileges; that it would be a violation of the first article of the XIV. Amendment; that it would be abridging the privileges of citizens. And yet the denial of the elective franchise to citizens on account of s.e.x is equally as arbitrary as the distinction on account of stature, or color of hair, or any other physical distinction. These privileges of the citizen exist independent of the Const.i.tution. They are not derived from the Const.i.tution or the laws, but are the means of a.s.serting and protecting rights that existed before any civil governments were formed--the right of life, liberty and property. Says Paine, in his Dissertation upon the Principles of Government:

The right of voting for representatives is the primary right, by which other rights are protected. To take away this right is to reduce man to a state of slavery, for slavery consists in being subject to the will of another; and he that has not a vote in the election of representatives is, in this case. The proposal, therefore, to disfranchise any cla.s.s of men is as criminal as the proposal to take away property.

In a state of nature, before governments were formed, each person possessed a natural right to defend his liberty, his life and his property from the aggressions of his fellow men. When he enters into the free government he does not surrender that right, but agrees to exercise it, not by brute force, but by the ballot, by his individual voice in making the laws that dispose of, control and regulate those rights. The right to a voice in the government is but the natural right of protection of one's life, liberty and property, by personal strength and brute force, so modified as to be exercised in the form of a vote, through the machinery of a free government. The right of self-protection, it will not be denied, exists in all equally in a state of nature, and the subst.i.tute for it exists equally in all the citizens after a free government is formed, for the free government is by all and for all.

The people "ordained and established" the Const.i.tution. Such is the preamble. "We, the people." Can it be said that the people acquire their privileges from the instrument that they themselves establish? Does the creature extend rights, privileges and immunities to the creator? No; the people retain all the rights which they have not surrendered; and if the people have not given to the Government the power to deprive them of their elective franchise, they possess it by virtue of citizens.h.i.+p. The true theory of this Government, and of all free governments, was laid down by our fathers in the Declaration of Independence, and declared to be "self-evident." "All men are endowed by their Creator with certain inalienable rights; among these are life, liberty, and the pursuit of happiness. That to secure these rights governments are inst.i.tuted among men, deriving all their just powers from the consent of the governed." Here is the great truth, the vital principle, upon which our Government is founded, and which demonstrates that the right of a voice in the conduct of the government, and the selection of the rulers, is a right and privilege of all citizens. Another of the self-evident truths laid down in that instrument is:

That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to inst.i.tute a new government, laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

How can the people carry out this right without the exercise of the ballot; and is not the ballot then a fundamental right and privilege of the citizen, not given to him by the Const.i.tution, but inherent, as a necessity, from the very nature of the government?

Benjamin Franklin wrote:

That every man of the commonalty, except infants, insane persons, and criminals, is, of common right, and by the laws of G.o.d, a freeman, and ent.i.tled 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; life, property, and peace; for the all of one man is as dear to him as the all of another, and the poor man has an equal right but more need to have representatives in the legislature than the rich one. That they who have no voice nor vote in the electing of representatives do not enjoy liberty, but are absolutely enslaved to those who have votes and to their representatives; for, to be enslaved is to have governors whom other men have set over us, and be subject to laws made by the representatives of others, without having had representatives of our own to give consent in our behalf. (Franklin's Works, vol. 2. p. 372.)

James Madison said:

Under every view of the subject it seems indispensable that the ma.s.s of the citizens should not be without a voice in making the laws which they are to obey, and in choosing the magistrates who are to administer them. (Madison Papers, vol. 3, p. 14.)

Taxation without representation is abhorrent to every principle of natural or civil liberty. It was this injustice that drove our fathers into revolution against the mother country.

The very act of taxing exercised over those who are not represented appears to me to be depriving them of one of their most essential rights as freemen, and if continued, seems to be, in effect, an entire disfranchis.e.m.e.nt of every civil right. For what one civil right is worth a rush after a man's property is subject to be taken from him at pleasure without his consent? If a man is not his own a.s.sessor, in person or by deputy, his liberty is gone, or he is entirely at the mercy of others. (Otis's Rights of the Colonies, p.

58.)

Nor are these principles original with the people of this country. Long before they were ever uttered on this continent they were declared by Englishmen. Said Lord Summers, a truly great lawyer of England:

Amongst all the rights and privileges appertaining unto us, that of having a share in the legislation, and being governed by such laws as we ourselves shall cause, is the most fundamental and essential, as well as the most advantageous and beneficial.

Said the learned and profound Hooker:

By the natural law whereunto Almighty G.o.d hath made all subject, the lawful power of making laws to command whole politic societies of men, belongeth so properly unto the same entire societies, that for any prince or potentate of what kind soever upon earth to exercise the same of himself (or themselves), and not either by express commission immediately received from G.o.d, or else by authority derived at the first from their consent upon whose persons they impose laws, it is no better than mere tyranny! Agreeable to the same just privileges of natural equity, is that maxim for the English const.i.tution, that "Law to bind all must be a.s.sented to by all"; and there can be no legal appearance of a.s.sent without some degree of representation.

The great champion of liberty, Granville Sharpe, declared that--

All British subjects, whether in Great Britain, Ireland, or the colonies, are equally free by the laws of nature; they certainly are equally ent.i.tled to the same natural rights that are essential for their own preservation, because this privilege of "having a share in the legislation" is not merely a British right, peculiar to this island, but it is also a natural right, which can not without the most flagrant and stimulating injustice be withdrawn from any part of the British empire by any worldly authority whatsoever. No tax can be levied without manifest robbery and injustice where this legal and const.i.tutional representation is wanting, because the English law abhors the idea of taking the least property from freemen without their consent. It is iniquitous (_iniquum est_, says the maxim) that freemen should not have the free disposal of their own effects, and whatever is iniquitous can never be made lawful by any authority on earth, not even by the united authority of king, lords, and commons, for that would be contrary to the eternal laws of G.o.d, which are supreme.

In an essay upon the "first principles of government," by Priestly, an English writer of great ability, written over a century since, is the following definition of political liberty:

Political liberty I would say, consists in power, which the members of the State reserve to themselves, of arriving at the public offices, or at least of having votes in the nomination of those who fill them. In countries where every member of the society enjoys an equal power of arriving at the supreme offices, and consequently of directing the strength and sentiments of the whole community, there is a state of the most perfect political liberty.

On the other hand, in countries where a man is excluded from these offices, or from the power of voting for the proper persons to fill them, that man, whatever be the form of the government, has no share in the government and therefore has no political liberty at all. And since every man retains and can never be deprived of his natural right of relieving himself from all oppression, that is, from everything that has been imposed upon him without his own consent, this must be the only true and proper foundation of all governments subsisting in the world, and that to which the people who compose them have an inalienable right to bring them back.

It was from these great champions of liberty in England that our forefathers received their inspiration and the principles which they adopted, incorporated into the Declaration of Independence, and made the foundation and framework of our Government. And yet it is claimed that we have a Government which tramples upon these elementary principles of political liberty, in denying to one-half its adult citizens all political liberty, and subjecting them to the tyranny of taxation without representation. It can not be.

When we desire to construe the Const.i.tution, or to ascertain the powers of the Government and the rights of the citizens, it is legitimate and necessary to recur to those principles and make them the guide in such investigation. It is an oft-repeated maxim set forth in the bills of rights of many of the State const.i.tutions that "the frequent recurrence to fundamental principles is necessary for the preservation of liberty and good government." Recurring to these principles, so plain, so natural, so like political axioms, it would seem that to say that one-half the citizens of this republican government, simply and only on account of their s.e.x, can legally be denied the right to a voice in the government, the laws of which they are held to obey, and which takes from them their property by taxation, is so flagrantly in opposition to the principles of free government, and the theory of political liberty, that no man could seriously advocate it.

But it is said in opposition to the "citizen's right" of suffrage that at the time of the establishment of the Const.i.tution, women were in all the States denied the right of voting, and that no one claimed at the time that the Const.i.tution of the United States would change their status; that if such a change was intended it would have been explicitly declared in the Const.i.tution or at least carried into practice by those who framed the Const.i.tution, and, therefore, such a construction of it is against what must have been the intention of the framers.

This is a very unsafe rule of construction. As has been said, the Const.i.tution necessarily deals in general principles; these principles are to be carried out to their legitimate conclusion and result by legislation, and we are to judge of the intention of those who established the Const.i.tution by what they say, guided by what they declare on the face of the instrument to be their object.

It is said by Judge Story, in Story on the Const.i.tution:

Contemporary construction is properly resorted to to ill.u.s.trate and confirm the text.... It can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations.

It is a well-settled rule that in the construction of the Const.i.tution, the objects for which it was established, being expressed in the instrument, should have great influence; and when words and phrases are used which are capable of different constructions, that construction should be given which is the most consonant with the declared objects of the instrument. We go to the preamble to ascertain the objects and purpose of the instrument. Webster defines preamble thus: "The introductory part of a statute, which states the reason and intent of the law." In the preamble, then, more certainly than in any other way, aside from the language of the instrument, we find the intent. Judge Story says: