that sovereignty can not be forfeited or renounced. The sovereign
power of this country is perpetually in the politically
organized people of the United States, and can neither be
relinquished nor abandoned by any portion of them. The people in
this republic who confer sovereignty are its citizens: in a
monarchy the people are the subjects of sovereignty. All citizens
of a republic by rightful act or implication confer sovereign
power. All people of a monarchy are subjects who exist under its
supreme shield and enjoy its immunities. The subject of a monarch
takes municipal immunities from the sovereign as a gracious
favor; but the woman citizen of this country has the inalienable
"sovereign" right of self-government in her own proper person.
Those who look upon woman's status by the dim light of the common
law, which unfolded itself under the feudal and military
institutions that establish right upon physical power, can not
find any analogy in the status of the woman citizen of this
country, where the broad sunshine of our Constitution has
enfranchised all.
As sovereignty can not be forfeited, relinquished, or abandoned,
those from whom it flows--the citizens--are equal in conferring
the power, and should be equal in the enjoyment of its benefits
and in the exercise of its rights and privileges. One portion of
citizens have no power to deprive another portion of rights and
privileges such as are possessed and exercised by themselves. The
male citizen has no more right to deprive the female citizen of
the free, public, political, expression of opinion than the
female citizen has to deprive the male citizen thereof.
The sovereign will of the people is expressed in our written
Constitution, which is the supreme law of the land. The
Constitution makes no distinction of sex. The Constitution
defines a woman born or naturalized in the United States, and
subject to the jurisdiction thereof, to be a citizen. It
recognizes the right of citizens to vote. It declares that the
right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on
account of "race, color, or previous condition of servitude."
Women, white and black, belong to races, although to different
races. A race of people comprises all the people, male and
female. The right to vote can not be denied on account of race.
All people included in the term race have the right to vote,
unless otherwise prohibited. Women of all races are white, black,
or some intermediate color. Color comprises all people, of all
races and both sexes. The right to vote can not be denied on
account of color. All people included in the term color have the
right to vote unless otherwise prohibited.
With the right to vote sex has nothing to do. Race and color
include all people of both sexes. All people of both sexes have
the right to vote, unless prohibited by special limiting terms
less comprehensive than race or color. No such limiting terms
exist in the Constitution. Women, white and black, have from time
immemorial groaned under what is properly termed in the
Constitution "previous condition of servitude." Women are the
equals of men before the law, and are equal in all their rights
as citizens. Women are debarred from voting in some parts of the
United States, although they are allowed to exercise that right
elsewhere. Women were formerly permitted to vote in places where
they are now debarred therefrom. The naturalization laws of the
United States expressly provide for the naturalization of women.
But the right to vote has only lately been definitely declared by
the Constitution to be inalienable, under three distinct
conditions--in all of which woman is clearly embraced.
The citizen who is taxed should also have a voice in the subject
matter of taxation. "No taxation without representation" is a
right which was fundamentally established at the very birth of
our country's independence; and by what ethics does any free
government impose taxes on women without giving them a voice upon
the subject or a participation in the public declaration as to
how and by whom these taxes shall be applied for common public
use? Women are free to own and to control property, separate and
free from males, and they are held responsible in their own
proper persons, in every particular, as well as men, in and out
of court. Women have the same inalienable right to life, liberty,
and the pursuit of happiness that men have. Why have they not
this right politically, as well as men?
Women constitute a majority of the people of this country--they
hold vast portions of the nation's wealth and pay a proportionate
share of the taxes. They are intrusted with the most vital
responsibilities of society; they bear, rear, and educate men;
they train and mould their characters; they inspire the noblest
impulses in men; they often hold the accumulated fortunes of a
man's life for the safety of the family and as guardians of the
infants, and yet they are debarred from uttering any opinion by
public vote, as to the management by public servants of these
interests; they are the secret counselors, the best advisers, the
most devoted aids in the most trying periods of men's lives, and
yet men shrink from trusting them in the common questions of
ordinary politics. Men trust women in the market, in the shop, on
the highway and railroad, and in all other public places and
assemblies, but when they propose to carry a slip of paper with a
name upon it to the polls, they fear them. Nevertheless, as
citizens, women have the right to vote; they are part and parcel
of that great element in which the sovereign power of the land
had birth; and it is by usurpation only that men debar them from
this right. The American nation, in its march onward and upward,
can not publicly choke the intellectual and political activity of
half its citizens by narrow statutes. The will of the entire
people is the true basis of republican government, and a free
expression of that will by the public vote of all citizens,
without distinctions of race, color, occupation, or sex, is the
only means by which that will can be ascertained. As the world
has advanced into civilization and culture; as mind has risen in
its dominion over matter; as the principle of justice and moral
right has gained sway, and merely physical organized power has
yielded thereto; as the might of right has supplanted the right
of might, so have the rights of women become more fully
recognized, and that recognition is the result of the development
of the minds of men, which through the ages she has polished, and
thereby heightened the lustre of civilization.
It was reserved for our great country to recognize by
constitutional enactment that political equality of all citizens
which religion, affection, and common sense should have long
since accorded; it was reserved for America to sweep away the
mist of prejudice and ignorance, and that chivalric condescension
of a darker age, for in the language of Holy Writ, "The night is
far spent, the day is at hand, let us therefore cast off the work
of darkness and let us put on the armor of light. Let us walk
honestly as in the day." It may be argued against the proposition
that there still remains upon the statute books of some States
the word "male" to an exclusion; but as the Constitution, in its
paramount character, can only be read by the light of the
established principle, _ita lex Scripta est_, and as the subject
of sex is not mentioned, and the Constitution is not limited
either in terms or by necessary implication in the general rights
of citizens to vote, this right can not be limited on account of
anything in the spirit of inferior or previous enactments upon a
subject which is not mentioned in the supreme law. A different
construction would destroy a vested right in a portion of the
citizens, and this no legislature has a right to do without
compensation, and nothing can compensate a citizen for the loss
of his or her suffrage--its value is equal to the value of life.
Neither can it be presumed that women are to be kept from the
polls as a mere police regulation: it is to be hoped, at least,
that police regulations in their case need not be very active.
The effect of the amendments to the Constitution must be to annul
the power over this subject in the States, whether past, present,
or future, which is contrary to the amendments. The amendments
would even arrest the action of the Supreme Court in cases
pending before it prior to their adoption, and operate as an
absolute prohibition to the exercise of any other jurisdiction
than merely to dismiss the suit. 3 Dall., 382; 6 Wheaton, 405; 9
ib., 868; 3d Circ. Pa., 1832.
And if the restrictions contained in the Constitution as to
color, race or servitude, were designed to limit the State
governments in reference to their own citizens, and were intended
to operate also as restrictions on the federal power, and to
prevent interference with the rights of the State and its
citizens, how, then, can the State restrict citizens of the
United States in the exercise of rights not mentioned in any
restrictive clause in reference to actions on the part of those
citizens having reference solely to the necessary functions of
the General Government, such as the election of representatives
and senators to Congress, whose election the Constitution
expressly gives Congress the power to regulate? S. C., 1847; Fox
vs. Ohio, 5 Howard, 410.
Your memorialist complains of the existence of State laws, and
prays Congress, by appropriate legislation, to declare them, as
they are, annulled, and to give vitality to the Constitution
under its power to make and alter the regulations of the States
contravening the same.
It may be urged in opposition that the courts have power, and
should declare upon this subject. The Supreme Court has the
power, and it would be its duty so to declare the law: but the
court will not do so unless a determination of such point as
shall arise make it necessary to the determination of a
controversy, and hence a case must be presented in which there
can be no rational doubt. All this would subject the aggrieved
parties to much dilatory, expensive and needless litigation,
which your memorialist prays your honorable body to dispense with
by appropriate legislation, as there can be no purpose in special
arguments "_ad inconvenienti_," enlarging or contracting the
import of the language of the Constitution.
_Therefore_, Believing firmly in the right of citizens to freely
approach those in whose hands their destiny is placed under the
Providence of God, your memorialist has frankly, but humbly,
appealed to you, and prays that the wisdom of Congress may be
moved to action in this matter for the benefit and the increased
happiness of our beloved country.
SPEECH OF A. G. RIDDLE,
_In Support of the Woodhull Memorial, before the Judiciary
Committee of the House of Representatives, as Reproduced in the
Convention on the Evening of the same Day._
Mr. RIDDLE spoke as follows: Mr. _Chairman_--(Senator Nye)--I
have always thought that the questions involved in this movement
could be the more effectively presented by ladies; and I have
never appeared in their public discussions unless by special
request, and for some special purpose. I have been asked to bring
to your notice as well as I may this evening the argument: That
the women of these United States are full and complete citizens.
Citizens as fully, broadly, and deeply as it is possible for men
to be, though not permitted to exercise the elective franchise.
As I arise I find between myself and this proposition, two or
three questions, about which I am disposed to tax your patience
for a moment, though there is nothing new to be said. In the
outset, let me say that it is conceded by all, that the right of
self-government, in America at any rate, is a natural right. You
may select with care or at random, any one of the forty or fifty
American constitutions that have been prepared with more or less
pains, and promulgated with solemnity, and you will find there is
not one that has assumed to create and confer this right of
self-government. But they all declare, expressly or impliedly,
that the right to govern is inherent in the people. Now, if these
ladies are a portion of the people, this right resides in them.
There is no new right to be conferred upon them. They are simply
to go into the new exercise of an old franchise; for if the right
of self-government is a natural right, then does it pertain to
every human being alike. Such is the recognized theory of every
American constitution, and such is its practice.
Take a step further and you find that starting with a recognition
of this pre-existing right of government, Constitution makers
have simply provided the means and machinery by which this right
of government may work itself out. The only means placed in the
hands of the individual citizen by which he may accomplish his
portion of this great task is the ballot, or the _viva voce_
vote. If this right of self-government is a natural right, and if
it can be exercised alone by the ballot, then is the right to the
ballot a natural right, and he who stands up against this
everlasting right of nature, had better look to it, and take
himself out of the way. As this is a political question I may
venture a single word to politicians. We of the masculine gender,
are all of us, more or less politicians; and of all the timid
things in the world the professed politician (a member of
Congress excepted) is the most timid. [Laughter.] He is afraid of
his soul, as if he had one, or one large enough to occasion
apprehension. [Laughter.] I have this thing to say to them, that
when any great idea or great truth finds itself at large in this
lower world, and is obliged to get itself incorporated into the
working processes of a government, if it does not find a
political party ready, willing, and worthy to receive it, it
forthwith makes for itself a new party. [Applause.] And as it
does not create new human beings to form a party of, it must
necessarily gather them from the old parties. Just as the
distinguished Senator (Senator Nye) will recollect the present
Republican party was formed, and against which the two old fossil
parties united, as they always do. Now, this new great idea, if
rejected, will disintegrate these old parties; take that which is
fit, proper, and deserving for its own great mission, leaving the
residuum to unite, and crumble and pulverize together under the
feet of the new.
The right of self-government, as I have said, is a natural right
pertaining to all alike, and is to be exercised by the ballot.
And the right to that is therefore a natural right, as is the
right to wear clothes. Decency and comfort require that clothes
should be worn; but they are artificial wholly. Just so is the
right to vote a natural right, though the vote, or the mode of
voting at least, is an artificial means. This logic can not be
caviled with or gainsaid. The young man and the young woman
outside of political considerations, in every other point of
view, stand before the law on an equality, and what one may do,
so may the other, each may govern him or herself. But not so
politically; when the youth reaches the age of twenty-one the
ballot comes to his hands by due course of law, protecting his
natural right, he having grown to it. Why do you give him the
ballot, pray, or permit him to take it for himself? Simply
because it is the means by which he governs and protects himself.
Nobody would start I suppose the terribly heterodox idea that it
is not necessary for the young man to govern himself with the
ballot. It would be one of those unheard-of atrocities that
nobody would have the hardihood to promulgate in the presence of
masculine associates at all. He is entitled to the right for the
purpose of governing himself. Nobody was born to govern anybody
else--man or woman. It is only because in political associations
people become so united, that a man in order to govern himself is
obliged to govern others, that we get the right to govern others
at all. It grows out of our effort to govern ourselves. As an
essential necessity we are obliged to govern others and to be
governed by them. This is our only warrant for the government of
others.
Now, I pray to know why a young maiden, when she approaches the
same age, may not have accorded to her the same protection of her
natural right that is accorded to the youth, and for the same
purpose. In the name of all womanhood, and of all manhood, I beg
to know why this may not be so? In the name of my own daughters
whose whispered words haunt the chambers of my soul, asking to
know why, if it is necessary for their brother to exercise this
right, it is not necessary for them? Nobody need to argue to a
father that his daughters are not the equals of his sons. I will
never tolerate hearing it said, that my son is born to empire and
sovereignty, while his sisters are born to be hidden away and
yarded up in some solitary desert place, as their proper sphere.
[Applause.] I do not propose to raise and educate my daughters to
keep them cooped up with their feet tied until some masculine
purveyor comes along with his market basket.
Oh! ye opponents of the rights of woman, why not be consistent.
If, as you say, she has not the capacity to choose or exercise
the elective franchise, why not choose for her in everything, and
impose upon her the husband of your choice? Don't you represent
her? You concede that the young woman has abundance of capacity
to choose her lord and master to whom she shall be delivered, and
yet she is not fit to vote for a constable. (Laughter.)
Be consistent, you who oppose us in this movement, and say she
shall not have anything to do with the selection of her husband.
If she is competent at an early age, in the vortex and whirlpool
of life, to select him to whom first, last, and always she shall
belong, may she not once in four years have the privilege of
voting for President without any great hazard? Think of it. Oh!
this terrible old question! We have been mining and drilling in
the earth's crust, and we have got finally to the last question,
or, rather, it has made its way to the surface. This question of
woman's suffrage and woman's right at last comes up for final
argument, and it will work its way along until it is definitely
determined. Indeed, I believe it is already settled.
To return to these constitutions, from which I mean not to wander
again. I said to you that these constitutions of the various
American States have recognized as older than themselves the
right of government. They have furnished the means, which were
also older than themselves, the exercise of the elective
franchise. They have not attempted to create and confer any right
to govern. They simply regulate it; and they are framed upon this
idea, that all people are equally entitled to govern themselves,
women and men, and would all govern themselves if some were not
excluded by the terms and provisions of these, their
constitutions. Take up the whole thirty-five that can be found in
the edition of 1864, and every one of them says that the elective
franchise shall be exercised by the _male_ white citizens. We
have got rid of the "white." We have finally given color to the
Constitution. (Laughter.) And, in getting rid of that "white," we
got rid of more than was probably intended at the time. Good does
get itself done by accident sometimes. It has to when bad men do
it. (Laughter and applause.) Why is this term "male" used in the
constitutions, pray? It was not by accident. Forty or fifty of
them would not use it, except by design. It was because every
mortal man knew when tinkering up a constitution that if he did
not put male in, females would vote. They had the right, and
there had to be a constitutional barrier erected to prevent their
exercise of it. Now, the thing which we have to do is either to
strike out this term "male," which, I trust, ladies (turning to
the ladies on the platform), is not particularly odious anywhere
else, except in the constitution.
Mrs. DAVIS and others--Not at all.
Mr. RIDDLE.--I repeat, that what we have to do is either to get
rid of this word "male," or to convince Congress, the courts, and
the rest of the world, that it is already gotten rid of, which, I
think, is easier. If it remains it can be put out in a very
summary way. It makes no difference in how many constitutions it
is found, nor in how many carefully considered statutes it has
been incorporated, for a single provision in the Constitution of
the United States is of that potency that instantaneously all
constitutions and all statutes are clarified of the exclusive
"male" principle, and that without other change or repeal.
And this brings me to the immediate question to be discussed, the
XIV. Amendment of the Constitution, which stands as the XIV.
Article. And you will understand that when the people or the
legislature speak by constitution or law, and use ordinary
language, that they mean what they say, and nobody can get up and
say they do not mean that, or that they mean something else.
There is nobody that can be heard for a moment to argue against
the plain, obvious, declared, well-ascertained meaning of words.
And when such words are used, it is the end of argument and of
construction. The great object to be achieved, so far as women
are concerned, is to bring them into the possession of the rights
of citizenship. "A person" is one thing, and naturally, "a
citizen" is something a little more. He or she is the creature of
a political compact, having the rights, the privileges, the
franchises of that particular political association, whatever
they are. A very ingenious, and at the same time a very
meritorious writer, recently, in overhauling these English
words--and it is a pretty good thing my honorable friends from
the two Houses of Congress are not to be referred to--but it is a
good thing for the rest of us who use words sometimes carelessly,
to see how Mr. Grant White says some of them should be used, and
what they really do mean. On page 100 of his recent work on
"Words and their Uses," which, so far as I know, has received the
highest commendation of the critics--in speaking of this term
"citizen," and how it is used, or rather how it is misused, says:
Citizen is used by some newspaper writers with what seems
like an affectation of the French usage of _citoyen_ in the
First Republic. For instance, "Gen. A. is a well-known
citizen." "Several citizens carried the sufferer," etc. The
writer might as well have said that the sufferer was carried
off by several church members or several "Freemasons." Now
mark, he says, that "a citizen is a person who has certain
political rights, and the word is properly used only to
imply or suggest the possession of those rights."
That is what we should use the term "citizen" for--apply it to a
naturalized person in possession of certain political franchises,
rights, and privileges. Thanking Mr. Grant White for that, let
us, in its light, read the first clause of the XIV. Amendment,
and see what it does say and mean. "Sec. 1st. All persons;" not
all male persons, nor all white persons, but "all persons born or
naturalized in the United States, subject to the jurisdiction
thereof, _are citizens_ of the United States, and of the States
where they reside." That is what they are. They are citizens.
That is, "persons," are "citizens," which means naturalized
persons, clothed and permeated with, surrounded by, and put in
possession of, citizenship. The term is used in the sense in
which Mr. White uses it. It is no new meaning; no new use of the
word.
Now turn to Webster's Unabridged, where citizen is defined:
"Citizen--a person," [in the United States,]--for he inserts in
brackets the expressive "U. S." to indicate what he
means,--"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 says of "citizen":--"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."
Turn to Bouvier's Law Dictionary, in orthodox sheep skin, and see
what he says a citizen is: "Citizen, one who, under the
Constitution and laws of the United States has a right to vote
for representatives in Congress and other public offices, and who
is qualified to fill offices in the gift of the people."--4th
ed., vol. 1, p. 221.
All known authority concurs in establishing this as the sole,
proper signification of the word citizen; and in this sense, and
in no other, is it used in the XIV. Amendment. I know that the
term is sometimes used--is once used, perhaps, in the
Constitution--to correspond somewhat with the term "inhabitant,"
as thus, "citizens of different States may sue each other in the
courts of the United States," etc. But it was not necessary to
shake the foundations of this great Republic, to formulate and
get adopted this new amendment, for the purpose of stating that
the people who were born and always had lived in the United
States might be inhabitants of them. But it was necessary to say
so, that cavaliers might be estopped from denying that they are
citizens.
But to recur to the further clause of this XIV. Amendment. Let us
see, now, really what the makers and promulgators of it did mean.
"No State shall make or enforce any law"--neither make any new
law, nor enforce any that had already been made--"which shall
abridge the privileges or immunities of citizens of the United
States." Is there any doubt now as to what "citizen" means? He,
or she, or both, are persons in possession, and have by express
declaration all the privileges and the immunities of citizens.
When I stated this before the Judiciary Committee this morning, a
distinguished Representative from Illinois, and a very able
lawyer, stopped me and said, "Mr. Riddle, babies would be
citizens according to that, and would have the privilege of going
straight to the ballot-box, the first thing." (Laughter.) Perhaps
so; but I could not see it then, and can not see it now. All
power is inherent in the people, and it is perfectly competent
for this "all power" to declare at what age and under what
circumstances the citizen shall vote; so that the rule applies
uniformly, and excludes none. One-half of the people were
excluded, and this article removes that exclusion--and that is
all. Apply the gentleman's idea to other provisions of the
Constitution; for instance, to this: "The right of the people to
keep and bear arms shall not be infringed." Would he contend that
therefore every new-born baby might at once grasp a musket? This
might be constitutional, but it would put the infantry on a
war-footing before the commissariat could be mobilized, I fear.
(Laughter and applause.)
Women are not only citizens, but the amendment further says, that
no State shall pass any law or enforce any law which shall
abridge the privileges and immunities of this citizenship. The
privileges--not a part of them. What do we mean when we say the
privileges? For instance, when we say "the ladies," do we not
mean them all? "The Senators," we mean them all. We do not merely
mean the Senator from Nevada (Mr. Nye), however he may have the
right to be spoken of first. (Laughter and applause.) These
terms, "privileges and immunities," are not now used for the
first time in the American Constitution. They are old
acquaintances of ours. They have done service a great while. They
occur in this same Constitution, as will be seen by referring to
the second section of Article IV, on page 38 of Paschal's
admirably annotated Constitution of the United States: "Citizens
of each State shall be entitled to all the privileges and
immunities of citizens in the several States." Precisely, as the
XIV. Amendment has it, but, as Judge Bradley recently said, with
a much more enlarged meaning in the latter. They were old before
the Constitution, and were incorporated into it from the fourth
article of the Old Confederation, which provided, "that the free
inhabitants of each of the States shall be entitled to all the
privileges and immunities of the free citizens of the several
States."
If you would see a comment upon these terms, read the
forty-second number of the _Federalist_, or a tumefied and
diluted edition of it, in Story on the Constitution, which, like
some other of his books, contains some remarks of his own, and
are not always the best things in them. For the benefit of the
Judiciary Committee, made up, as you know, of some of the ablest
lawyers and best men of the country, I procured a judicial
definition of these terms, "privileges, and immunities," although
Mr. Attorney Bates said none exists, and my friend Judge Paschal,
a more learned man, repeated it. I referred them to the case of
Corfield _vs._ Coryell, 4th vol. of the so-called "Washington
Circuit Court Reports," p. 371, where these terms came up, away
back in the old time. Bushrod Washington, the favorite nephew of
our Washington, made the decision, ladies. He was the Washington
who got all of the brains of the family outside of its great
chief; and he put them to a most admirable use. He was one of the
judges of the Supreme Court of the United States, and he
judicially defined the meaning of these "privileges and
immunities," and said that they included such privileges as are
fundamental in their nature. And among them he says, is the right
to EXERCISE THE ELECTIVE FRANCHISE, and to HOLD OFFICES, as
provided for by the laws of the various States. And the great
Chancellor Kent, quoting this case, thus approvingly incorporates
its very language into his text, where it stands unchallenged,
unquestioned, and uncontradicted.
"It was declared in Corfield _vs._ Coryell, that the
privileges and immunities conceded by the Constitution of
the United States to citizens in the several States, were to
be confined to those which were in their nature fundamental,
and belonged of right to the citizens of all free
governments. Such are the rights of protection of life and
liberty, and to acquire and enjoy property, and to pay no
higher impositions than other citizens, and to pass through
or reside in the State at pleasure, and _to enjoy the
elective franchise according_ to the regulations of the law
of the State" (2 Kent Com., p. 71).
Why, the gentlemen of the Upper and of the Lower House, who are
familiar with that decision and with its canonization by Kent,
are not obliged to resort to Webster (not Daniel) and Worcester,
nor to Grant White, nor even to Bouvier's Law Dictionary. They
may overrule them all if they will. But they must go back to
these sometimes forgotten decisions, which rest in the leaves of
these dusty volumes, to these witnesses of the law, who declare
that these expressions, "privileges, and immunities" include the
elective franchise. And the whole people of these United States
have solemnly declared "that all persons are citizens, and no
State shall make or enforce any law to abridge the privileges and
immunities of the citizens." If such authority and such reasoning
were presented to a court on the trial of any other case in the
wide world, save that of women and their rights, an advocate
would be stopped by the court before he had gone half the length
I have in this argument. The court would say that they would hear
from the other side. (Laughter.) But this thing of opposition to
woman's rights does not rest in intelligence so that it can be
grasped in argument. It has no intellectual foundation anywhere.
No logic supports it. No reason or argument sustains it. It
rests upon no foundation of the human understanding; hence, it
can not be combated; for, as Mr. Mills says, the worse it is
beaten in argument the stronger it is fortified in prejudice. Men
seem to think that inasmuch as this thing has always been,
somehow or other, in some way or other, there was somewhere, at
some time some reason for it, which could be shown now if
somebody could only think of it or find it; but, of course,
nobody ever did and nobody ever will. There never was any.
(Laughter.)
One consideration alone is absolutely conclusive of this
argument, and from it escape is impossible. "Persons born or
naturalized in the United States and subject to the jurisdiction
thereof," were already in the full and complete enjoyment of
every privilege and immunity known to our political system,
except the elective franchise and its correlative, the right to
hold office. The only difference between the naturalized and
unnaturalized individual is this right of voting. I pray our
opponents to tell us then what is conferred by this first section
of this wonderful article, if it be not these rights? Nothing
else remained that it could confer; and this view alone silences
cavil, even. If this section does not confer or guarantee the
exercise of the elective franchise, then at infinite pains have
we mined among the foundations of our marvelous structure, and
have deposited there as one of them an utter sham, full of the
emptiness of nothing. Let him escape this who may.
If there can still remain a question of doubt about this, I beg
the attention of the doubters to the further words of the
Constitution, to be found in the XV. Amendment. And here I am met
with the apt inquiry, "Why, Mr. Riddle, if women are a part of
'all persons,' colored men are also a part of the same 'all
persons,' and if women are made citizens and clothed with the
immunities and privileges of citizenship by the XIV. Amendment,
so were colored men; why, then, was it necessary to enact the XV.
Amendment? This fact is fatal to your argument." Well, there was
no necessity for it. It was a stupid piece of business, very
stupid, and when we recover the lost art of blushing, some faces
will color when that XV. Amendment is recalled. But it does us
this good service; it settles the construction of this XIV.
Amendment, as we contend for it, beyond all cavil. The general
impression is, that the XV. Amendment confers the elective
franchise upon the colored man. If it does not, then our opposers
must give it up, for colored men rightfully vote. What does this
article say? That the elective franchise is conferred upon
persons of African descent, or those who have suffered from a
previous condition of servitude? Not a word of it. It does say:
"The right of citizens"--not the right of persons of African
descent--"the right of citizens of the United States to vote,
shall not be denied." That is what it says--"Shall not be denied
or abridged, by the United States or by the several States." That
does not confer suffrage; _it recognizes a right already
conferred_, and says that it shall not be denied or abridged. A
gentleman of the committee this morning took the ground that this
amendment granted the franchise because it declares that the
right to it shall not be denied! This is in effect that when a
thing can not be denied, the lack of power to deny it creates it.
(Laughter.) I confess I could not see it. (Laughter.) I have
thought of it since, and I do not see it now. "Shall not be
denied or _abridged_." How can you abridge a thing that does not
exist? And would the gentleman also contend that a lack of power
to cut off a thing not in existence also creates the thing? This
XV. Article then treats the right of the citizen to vote as
already existing, and it specifies classes, as persons of color,
of certain race, and of previous servitude, as especially having
the right to vote.
Where, when, and how did they get it? Was it by virtue of the
XIV. Amendment? If so, it was because they were a part of the
"all persons" named in it, of whom women are also a much larger
and much more important part. So, past cavil, if the African
received this franchise by the XIV. Article, then did women also
receive it, and more abundantly! If you go back to the starting
point of American politics, and say that the right is inherent in
the colored man, then by the law of nature it is inherent in
woman. I do not care which of these formulas you adopt. Not at
all. In either event it is recognized as existing in a citizen of
the United States. But my learned and subtle friend from Illinois
said to me to-day, "Why, don't you see, Mr. Riddle, that they
have limited the franchise in this XV. Amendment, so that it
shall not be denied in the case of persons of color, and of a
certain race, and previous condition of servitude, and does that
not permit the States to deny it in other cases?" Well, the XV.
Amendment alone would, perhaps, under the artificial rules of
law, but I referred the gentleman immediately, as I refer you
now, back to the XIV. Amendment where the right is conferred, and
where in its great, broad, sweeping language it is declared that
no State shall either enact or enforce any law that abridges the
privileges and immunities of any citizen.
The XV. Amendment in no way changes the XIV., nor does it add an
iota to the privileges and immunities of the citizen. It could
not. It reiterates for the benefit of these classes the
declaration of the XIV.; and as that declares that no State shall
deny the rights of the citizen, this adds to the list the United
States, and its real force is spent in conferring upon Congress
power to legislate in favor of the classes named in it, a power
not granted by the XIV. Well, really, this must be the end of the
argument. And I repeat, you find the XIV. Amendment declares that
all persons are citizens; that they have the privilege and
immunities of citizens, and the XV. declares that among the
privileges and immunities of citizens is the right to suffrage,
because it says in words that that shall not be denied, though
men do deny it. How is the XV. Amendment declaring that it shall
not be denied on account of either race, color, or previous
condition of servitude, to be regarded? It spends its force in
these two things. The XIV. Amendment only denied the power to the
several States to abridge the privileges of citizenship. The XV.
Amendment goes further, and says that neither any State nor the
United States shall do it, using the term "deny" with the term
"abrogate" of the other. It goes further; for the purposes of
these three conditions it confers express power upon Congress to
legislate, while the XIV. Amendment does not. But there is just
one little thing further that I drop for the henpecked to pick
at. There are three classes whose right to vote shall not be
denied according to the XV. Amendment--persons of color, persons
on account of race, and persons who have suffered from previous
condition of servitude. Now, ladies, what is really the legal
status of marriage, so far as the condition of the wife is
concerned?
SUSAN B. ANTHONY.--One of servitude, and of the hardest kind, and
just for board and clothes, at that, too. (Laughter and
applause.)
Mr. RIDDLE.--And they frequently have to make and pay for their
clothes, and board themselves--(renewed laughter)--and not only
themselves, but board also the lord and master, who calls himself
the head of the family. But that is not all of it. It is not
cant; it is not popular phraseology, but it is the language of
the law. The condition of the married woman is that of servitude.
The law calls her husband "baron," and she is simply a
woman--"feme." The law gives her to the man, not the man to her,
nor the two mutually to each other. They become one, and that one
is the husband--such as he is. Her name is blotted out from the
living, or at best it is appended to that of the husband. She
belongs to her master; all that she has belongs to him. All that
she earns is his, because she is his. If she does anything that
binds him, it is simply as his servant. If she makes a contract
that is binding even upon herself, it is because he consents to
it. She does not own anything; she does not own the children that
are born of her. The husband exclusively controls them while
living, and by his will he may, and often does, bequeath to
somebody else the custody and care of them after his death. And
the law which we men make enforces all this to-day. I trust that
most of us are a great deal better than the law. If the wife of a
man should suffer by an accident on a railroad, and suit should
be brought to recover against the company for injury to her
person, the suit brought by the husband would be upon the ground
that his wife was his servant, and he had lost her service. If he
did not, he could not recover.
Mrs. STANTON.--Is such the law in case of a daughter?
Mr. RIDDLE.--So far as that is concerned, where the daughter is a
minor, it is the same as the case of a son a minor; but the wife
is always the servant of the husband; she never graduates from
him; she never becomes of age or arrives at the years of
discretion. (Sotto voce.) If she had, she never would have
entered into that condition. Miss Anthony would say the law
pronounces the state of matrimony to be a condition of servitude
for the wife in express terms. How does the XV. Amendment apply
to her? Here is the previous condition of servitude provided for;
and this XV. Amendment in its effect was but to enforce the XIV.
in favor of persons held in a previous and, of course, a
continuing condition of servitude. Does this really abrogate the
servitude of the wife, and invoke in her favor the action of
Congress? My distinguished brother, Butler, said this morning,
that the clause relative to the previous condition of servitude
applied only to widows. (Laughter.)
But, ladies and gentlemen, aside from badinage, for the subject
is too grave and too solemn, it comes back to this thing. The
Constitution of the United States solemnly declares that every
person born and naturalized in the United States, and within its
jurisdiction, are citizens; and that no State shall pass, or
enforce a law to abrogate the privileges and immunities of
citizenship. We do not need any XVI. Amendment. We need only
intelligent, firm decisive, and deciding--reasonably brave
courts, and to have a question made and brought to their
adjudication. I propose to offer Mrs. Griffing and two or three
other ladies for registration, two or three months hence, when
the time comes, here. (Applause.) If they are not registered, I
propose to try the strength of the Supreme Court of the District
of Columbia, composed of five intelligent gentlemen, and known
not to be conservatives on some questions, whatever they will
prove to be on this, and see whether they will issue a mandamus.
If they won't, I will take the case to the Supreme Court of the
United States, and one of the present judges of that Court, who
is not pre-eminently in favor of what is called woman's rights,
recently passed upon this XIV. Amendment. In the case of the
"Live Stock Dealers" et al. _vs._ "The Crescent City Live Stock
Company," in the circuit court of the United States, at New
Orleans, Judge Bradley, of the Supreme Court of the United
States, said of the XIV. Amendment:
"It is possible that those who framed the article were not
themselves aware of the far-reaching character of its terms.
They may have had in mind but one particular phase of social
and political wrong, which they desired to redress. Yet, if
the amendment, as framed and expressed, does, in fact, bear
a broader meaning, and does extend its protecting shield
over those who were never thought of when it was conceived
and put in form, and does reach such social evils which were
never before prohibited by Constitutional Amendment, it is
to be presumed that the American people, in giving it their
imprimatur, understood what they were doing, and meant to
decree what has, in fact, been done.
"It embraces much more. The 'privileges and immunities'
secured by the original Constitution were only such as each
State gave to its own citizens. Each was prohibited from
discriminating in favor of its own citizens, and against the
citizens of other States.
"But the XIV. Amendment prohibits any State from abridging
the privileges or immunities of the citizens of the United
States, whether its own citizens or any others. It not
merely requires equality of privileges, but it demands that
the privileges and immunities of all citizens shall be
absolutely unabridged, unimpaired."--_Mrs. Bradwell's Legal
News._
What "particular phase of social and political wrong" could have
been in the mind of the clear-seeing judge when he gave forth
these utterances?
Gentlemen and ladies, when I stand in the presence of and
contemplate for a moment this great XIV. Article, the crown of
the now perfected Constitution, I bow with amazed reverence to
it. It shines upon me with the light of a new revelation. And
this argument is great from no effort of mine, but great in its
power of self-enunciation. This article is one of those great
principles that come, Messiah like, to announce themselves. It
needed no forerunner, and it works its own miracles in its own
good time, and will convert all to its own sway, and to its own
purposes. And, I trust that ere long we shall hear from the
committee of the House upon this question, and that we shall get
enlightened and intelligent discussion of it in the House of the
American Representatives.
Here the argument closes, but suffer a word further. It is said
that woman does not want the suffrage. Who says that she does not
want it? Man says so and nobody else. Man asks the question, and
answers it himself. I know it often comes from female lips, but
it is man's answer.
I deny that women have declared that they don't want the ballot.
They have never been asked whether they want it. When we want a
response from men how do we propound the question? We submit it
formally to be voted upon by the ballot. That is the way we
propound a political question to men. How do they answer it? They
answer it by their solemn votes at the ballot box. Propound this
question, and in this solemn way to the women of the United
States. Pass a law to that effect and take a vote, or else
forever stop--close up all gabble on this subject, that women do
not want it. Offer her the chance by which she can speak and see
whether she wants it or not, and let her vote "yes" or "no." Then
from that we will take another start. But don't refuse to let her
answer, and assume to answer for her, and say you represent her.
You barely succeed in misrepresenting men at your best, let alone
this atrocious twaddle about representing women. Let her vote,
and then we can tell whether you have a right to represent her or
not.
We men have made the institutions for men, and for men alone;
never consulted woman. We have said she was nobody, and nowhere,
or, if she was found anywhere she was out of her sphere,
(laughter) and must go back to nowhere immediately, and to
nobody. We have gravely assumed that we understood her nature and
character better than she did herself. It is one of the wondrous
elements of the sexes that they shall perpetually reveal
themselves to each other, and neither shall ever fully comprehend
the other. Let woman speak for herself. Give her a chance to
speak as man speaks, by precisely the same language, and in the
same manner, and then reverently incline your heads, and listen
to what she says.
I have said this great question is up for final argument. My
mission was simply to present to you this dry, but very
interesting question of woman's rights, under the XIV. Amendment.
To my mind, the argument is perfectly invincible. It never can be
met, and never will be, and it will, ultimately work out its own
end.
Thanking you for the kindness with which you have listened to me,
I leave this matter with you.
ADDRESS OF MRS. ISABELLA BEECHER HOOKER.
Mrs. HOOKER said: We are told by men themselves that there are
too many voters already; restriction is what we want, not
enlargement of the suffrage. Let us see how this is, my
friends--let us reason together on this point for a few moments.
The one great propelling power of this Government that moves the
great political engine, and that keeps us alive as a Nation on
the face of the earth, is God's own doctrine of personal liberty
and personal responsibility. That is all we have to go upon. It
is, in fact, fuel and steam. Liberty is the steam, responsibility
puts on the brakes, and then what is the safety-valve, I ask you?
Is it not our election day? Look at it in this way. Every honest
lawyer will tell you that the next best thing to settling a
quarrel between two belligerents is to bring the parties into
court. Because the court-room is a great cooling off place, a
perfect refrigerator. A man who has quarreled with his neighbor
comes into court, and, before the lawyers get through with him,
he wishes he hadn't quarreled. How is it that our courts act in
this way? What do we gain in this? Everything. In old times a
dispute between man and man was settled by
blows--fisticuffs--gradually superseded by the sword, at last by
the pistol; and now we have thrown that out, and established a
system of jurisprudence. Now all these petty grievances must be
settled in court. Private violence must no longer be permitted,
and that is a great march in civilization.
The parallel case is this: We in this country--we men, I mean,
for women are nobodies and nowhere when you come to the
discussion of great questions like these, but I use the
conventional we--we in this country are attempting to carry our
ideas of liberty and responsibility into legislation, and we
don't agree--we quarrel bitterly and almost come to blows
again--but election days cool us off, acting like a court-room
itself. We accept their judgment, and go about our business
quietly till next time. Now if we were all Americans, acting
under an intelligent sense of responsibility, everything might be
expected to run smoothly under this regime; but the trouble is
when the foreigner comes in who does not understand our
institutions, who is, perhaps, ignorant, debased, and
superstitious. But the foreigner is, it seems to me, the very man
who needs this safety-valve of the election day more than any
other on the face of the globe. We ourselves could run our own
nationality; but here comes this man from the principalities of
the old world--from Europe we will say, to begin with--and he has
an idea that he is going to be richer, smarter, happier, more on
an equality with every other man than ever he was before. He
comes here, and what does he find? He finds a ladder, reaching
higher into the clouds, perhaps, but the lower rounds are just as
near the earth as over there, and he is on the lowest round
still. He sees his next-door neighbor has more money than he has,
is better educated, and commands the respect of the community, as
he does not, and he is filled with disappointment, and sometimes
with rage. What would he naturally do, with his old world
antecedents and training, when he is thus aggrieved as he
conceives himself to be? Why, burn your barn, break into your
house, steal all he could from you. But what does election day do
for him? On that day he is as good as anybody. He goes to the
polls side by side with the first man in the land, and he rides
in a carriage there, if he is too drunk to walk, and he can vote
the first man in the line, if he chooses. The richest man in the
country must walk behind him and wait for his turn. He drops his
ballot and he is cooled off. He soon begins to get hold a little
of this idea of responsibility that I am speaking of, and after a
while it will come into his head--very slowly, perhaps, for we
are all slow to learn these things--that he has got to work
himself up and get on a par with those intelligent and
influential people who are so powerful in making laws and
customs.
Now, gentlemen, it seems to me if you could disfranchise every
foreigner to-day who was not intelligent, or if you could make
intelligence the test of voting, you would have ten barns burned
where you have one now. I believe it firmly. Being naturally
conservative, as I think all women are, a few years ago I really
thought that ten, even twenty years' residence might be required
of foreigners before they should be allowed to vote. I said they
did not know enough, and so ought to be kept out as long as that.
To-day I am inclined not to limit the time a moment longer than
it is necessary for men to get their naturalization papers out,
and go through the required legal formalities. If
disfranchisement meant annihilation, selfishly, I might be glad
to get rid of this troublesome question in that way, the task of
ruling this country would then be a far easier one than it is;
but it does not mean annihilation. So when gentlemen talk with
me, and say we have too many voters already, I reply, do not
disfranchise these men, enlighten them, for God has sent them
here for a purpose of His own. And I say to you gentlemen the
ballot in the hands of every man is the only thing that saves us
from anarchy to-day, that keeps us alive as a republic--the
ballot in the hands of these ignorant men, and the more ignorant
they are the more they need it, and the more we need they should
have it. And let me say, in passing, that reconstruction at the
South is hindered to-day for the same reason, responsibility is
taken away from a large class of citizens. A disfranchised class
is always a restless class; a class that, if it be not as a whole
given up to deeds of violence, will at least wink at them, when
committed by men either in or out of its own ranks. What the
South needs to-day is ballots, not bullets.
I leave out of the question the ultimate educating power of the
ballot, though I would like to make you an argument upon that
alone. But I say give the poor men, ignorant men the ballot for
purposes of self-defense, and because we could not live in safety
in our homes otherwise. New York is poorly governed, we say,
to-day, and getting to be a pretty dangerous place to live in.
But what would it be if every foreigner and every ignorant man
could not go out on election day, and prove that he was as good
as anybody? That is human nature, and it is human nature, and
plenty of it too, that we have to deal with. And now, let me ask
you, what are these men sent here for and who sent them? We have
got all Europe, and all Asia is coming, and who sends them? When
God put into that good ship _Mayflower_ those two great ribs of
oak, personal liberty and personal responsibility, He knew the
precious freight she was to bear, and all the hopes bound up in
her, and He pledged Himself by both the great eternities, the
past and the future, that that ship should weather all storms and
come safe to port with all she had on board. And what God has
promised He will perform. So I beg of you not to think for a
moment of limiting manhood suffrage.
And if men can not live in this country in safe homes, except
their neighbor men are enfranchised, can they live without
enfranchised women any more? If you can not live in safety with
irresponsible men in your midst, how can you live with
irresponsible women? Much more, how can you grow into the stature
of perfect men in Christ Jesus our Lord; how can you become
perfect legislators, except your mothers are instructed on these
great subjects you are called to legislate upon, that they may
instruct you in their turn? You do not know anything so well as
what your mothers have taught you; but they have not taught you
political economy. It is not their fault that they have not, nor
yours, perhaps. No man nor woman studies a subject profoundly
except he or she is called upon to act upon it. What business man
studies a business foreign to his own? What woman studies a
business foreign to her own? In past ages this woman, in the
providence of God, we will say, has been shut out from political
action, for, so long as the sword ruled and man had to get his
liberty by the sword, so long woman had all she could do to guard
the home, for that was her part of the work; and she did it
bravely and well, you will say. But now men are not fighting for
their liberty with the gun by the door and the Indians outside.
You are fighting for it in halls of legislation, with the spirit
of truth--with spiritual weapons--and woman would be disloyal to
her womanhood if she did not ask to share these heavy
responsibilities with you. And she has really been training
herself all these years she has seemed so indifferent; she has
neglected her duty in part--I confess it freely--it is not your
fault alone, gentlemen, that we are not with you to-day. If we
had been as conscious of our duty and privilege years ago as we
are to-day, if we had known our birthright, we should have stood
by your side, welcome coadjutors, long since. So we will take the
blame of the past alike--we have all been walking very slowly
this path of Christian civilization. But in the greatest conflict
of modern times, you announced great principles and fought for
them on the field, and we stood by them in the home, and we stand
by them still there. And when we come to deliberate with you in
solemn council as to how these principles shall be carried into
legislation, your task will be easier, our opportunities will be
larger, and still our hearts will be where they have ever
been--in our homes.
Forty-first Congress, 3d Session, House of Representatives,
Report, No. 22, Jan. 30, 1871, recommitted to the Committee on
Judiciary and ordered to be printed. Mr. BINGHAM, from the
Committee on the Judiciary, made the following report.
_The Committee on the Judiciary, to whom was referred the
Memorial of Victoria C. Woodhull, having considered the same,
make the following report:_
The Memorialist asks the enactment of a law by Congress which
shall secure to citizens of the United States in the several
States the right to vote "without regard to sex." Since the
adoption of the XIV. Amendment of the Constitution, there is no
longer any reason to doubt that all persons, born or naturalized
in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they
reside, for that is the express declaration of the amendment.
The clause of the XIV. Amendment, "No State shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States," does not, in the opinion of the
Committee, refer to privileges and immunities of citizens of the
United States other than those privileges and immunities embraced
in the original text of the Constitution, article IV., section 2.
The XIV. Amendment, it is believed, did not add to the privileges
or immunities before mentioned, but was deemed necessary for
their enforcement, as an express limitation upon the powers of
the States. It has been judicially determined that the first
eight articles of amendment of the Constitution were not
limitations on the power of the States, and it was apprehended
that the same might be held of the provision of section 2,
article iv.
To remedy this defect of the Constitution, the express
limitations upon the States contained in the first section of the
XIV. Amendment, together with the grant of power in Congress to
enforce them by legislation, were incorporated in the
Constitution. The words "citizens of the United States," and
"citizens of the States," as employed in the XIV. Amendment, did
not change or modify the relations of citizens of the State and
Nation as they existed under the original Constitution.
Attorney-General Bates gave the opinion that the Constitution
uses the the word "citizen," only to express the political
quality of the individual in his relation to the Nation; to
declare that he is a member of the body politic, and bound to it
by the reciprocal obligation of allegiance on the one side and
protection on the other. The phrase "a citizen of the United
States," without addition or qualification, means neither more
nor less than a member of the Nation. (Opinion of
Attorney-General Bates on citizenship.)
The Supreme Court of the United States has ruled that, according
to the express words and clear meaning of the section 2, article
iv. of the Constitution, no privileges are secured by it except
those which belong to citizenship. (Connor _et al._ _vs._ Elliott
_et al._, 18 Howard, 593). In Corfield _vs._ Coryell, 4
Washington Circuit Court Reports, 380, the Court say:
The inquiry is, what are the privileges and immunities of
citizens in the several States? We feel no hesitation in
confining these expressions to those privileges and
immunities which are in their nature fundamental; which
belong of right to the citizens of all free governments; and
which have at all times been enjoyed by the citizens of the
several States which compose this Union, from the time of
their becoming free, independent, and sovereign. What these
fundamental principles are would, perhaps, be more tedious
than difficult to enumerate. They may, however, be all
comprehended under the following general heads: Protection
by the Government; the enjoyment of life and liberty, with
the right to acquire and possess property of every kind, and
to pursue and obtain happiness and safety, subject,
nevertheless, to such restraints as the Government may
justly prescribe for the general good of the whole; the
right of a citizen of one State to pass through or to reside
in any other State, for the purpose of trade, agriculture,
professional pursuits, or otherwise; to claim the benefit of
the writ of _habeas corpus_; to institute and maintain
actions of any kind in the courts of the State; to take,
hold, and dispose of property, either real or personal; and
an exemption from higher taxes or impositions than are paid
by the other citizens of the State, may be mentioned as some
of the particular privileges and immunities of citizens
which are clearly embraced by the general description of
privileges deemed to be fundamental; to which may be added
the elective franchise, as regulated and established by the
laws or Constitution of the State in which it is to be
exercised.... But we can not accede to the proposition which
was insisted on by the counsel, that under this provision of
the Constitution, sec. 2, art. 4, the citizens of the
several States are permitted to participate in all the
rights which belong exclusively to the citizens of any other
particular State.
The learned Justice Story declared that the intention of the
clause--"the citizens of each State shall be entitled, to all the
privileges and immunities of citizens in the several States"--was
to confer on the citizens of each State a general citizenship,
and communicated all the privileges and immunities which a
citizen of the same State would be entitled to under the
circumstances. (Story on the Constitution, vol. 2, p. 605).
In the case of the Bank of the United States _vs._ Primrose, in
the Supreme Court of the United States, Mr. Webster said:
That this article in the Constitution (art. 4, sec. 2) does
not confer on the citizens of each State political rights in
every other State, is admitted. A citizen of Pennsylvania
can not go into Virginia and vote at any election in that
State, though when he has acquired a residence in Virginia,
and is otherwise qualified, is required by the Constitution
(of Virginia), he becomes, without formal adoption as a
citizen of Virginia, a citizen of that State politically.
(Webster's Works, vol. 6, p. 112).
It must be obvious that Mr. Webster was of opinion that the
privileges and immunities of citizens, guaranteed to them in the
several States, did not include the privilege of the elective
franchise otherwise than as secured by the State Constitution.
For, after making the statement above quoted, that a citizen of
Pennsylvania can not go into Virginia and vote, Mr. Webster adds,
"but for the purposes of trade, commerce, buying and selling, it
is evidently not in the power of any State to impose any
hindrance or embarrassment, etc. upon citizens of other States,
or to place them, going there, upon a different footing from her
own citizens." (Ib.) The proposition is clear that no citizen of
the United States can rightfully vote in any State of this Union
who has not the qualifications required by the Constitution of
the State in which the right is claimed to be exercised, except
as to such conditions in the constitutions of such States as deny
the right to vote to citizens resident therein "on account of
race, color, or previous condition of servitude."
The adoption of the XV. Amendment to the Constitution imposing
these three limitations upon the power of the several States, was
by necessary implication, a declaration that the States had the
power to regulate by a uniform rule the conditions upon which the
elective franchise should be exercised by citizens of the United
States resident therein. The limitations specified in the XV.
Amendment exclude the conclusion that a State of this Union,
having a government republican in form, may not prescribe
conditions upon which alone citizens may vote other than those
prohibited. It can hardly be said that a State law which excludes
from voting women citizens, minor citizens, and non-resident
citizens of the United States, on account of sex, minority, or
domicil, is a denial of the right to vote on account of race,
color, or previous condition of servitude.
It may be further added that the 2d section of the XIV.
Amendment, by the provision that "when the right to vote at any
election for the choice of electors of President and
Vice-President of the United States, Representatives in Congress,
or executive and judicial officers of the State, or the members
of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, a
citizen of the United States, or in any way abridged, except for
participation in rebellion or other crime, the basis of
representation therein shall be reduced in the proportion which
the number of such male citizens shall bear to the whole number
of male citizens twenty-one years of age in such State," implies
that the several States may restrict the elective franchise as to
other than male citizens. In disposing of this question effect
must be given, if possible, to every provision of the
Constitution. Article 1, section 2, of the Constitution provides:
That the House of Representatives shall be composed of
members chosen every second year by the people of the
several States, and the electors in each State shall have
the qualifications requisite for electors of the most
numerous branch of the State Legislature.
This provision has always been construed to vest in the several
States the exclusive right to prescribe the qualifications of
electors for the most numerous branch of the State Legislature,
and therefore for Members of Congress. And this interpretation is
supported by section 4, article 1, of the Constitution, which
provides:
That the time, places, and manner of holding elections for
Senators and Representatives shall be prescribed in each
State by the Legislature thereof; but the Congress may at
any time by law make or alter such regulations except as to
the place of choosing Senators.
Now it is submitted, if it had been intended that Congress should
prescribe the qualifications of electors, that the grant would
have read: The Congress may at any time by law make or alter such
regulations, and also prescribe the qualifications of electors,
etc. The power, on the contrary, is limited exclusively to the
time, place, and manner, and does not extend to the
qualification of the electors. This power to prescribe the
qualification of electors in the several States has always been
exercised, and is, to-day, by the several States of the Union;
and we apprehend, until the Constitution shall be changed, will
continue to be so exercised, subject only to express limitations
imposed by the Constitution upon the several States, before
noticed. We are of opinion, therefore, that it is not competent
for the Congress of the United States to establish by law the
right to vote without regard to sex in the several States of this
Union, without the consent of the people of such States, and
against their constitutions and laws; and that such legislation
would be, in our judgment, a violation of the Constitution of the
United States, and of the rights reserved to the States
respectively by the Constitution. It is undoubtedly the right of
the people of the several States so to reform their constitutions
and laws as to secure the equal exercise of the right of suffrage
at all elections held therein under the Constitution of the
United States, to all citizens, without regard to sex; and as
public opinion creates constitutions and governments in the
several States, it is not to be doubted that whenever, in any
State, the people are of opinion that such a reform is advisable,
it will be made.
If however, as is claimed in the memorial referred to, the right
to vote "is vested by the Constitution in the citizens of the
United States without regard to sex," that right can be
established in the courts without further legislation.
The suggestion is made that Congress, by a mere declaratory act,
shall say that the construction claimed in the memorial is the
true construction of the Constitution, or in other words, that by
the Constitution of the United States the right to vote is vested
in citizens of the United States "without regard to sex,"
anything in the constitution and laws of any State to the
contrary notwithstanding. In the opinion of the Committee, such
declaratory act is not authorized by the Constitution nor within
the legislative power of Congress. We therefore recommend the
adoption of the following resolution:
_Resolved_, That the prayer of the petitioner be not
granted, that the memorial be laid on the table, and that
the Committee on the Judiciary be discharged from the
further consideration of the subject.
Forty-first Congress, 3d Session, House of Representatives,
Report No. V., Part 2, Feb. 1, 1871, ordered to be printed.
Mr. LOUGHRIDGE, from the Committee on the Judiciary, submitted
the following as the view of the minority:
_In the matter of the Memorial of Victoria C. Woodhull, referred
by the House to the Committee on the Judiciary, the undersigned,
members of the Committee, being unable to agree to the report of
the Committee, present the following as their views upon the
subject of the Memorial:_
The memorialist sets forth that she is a native born citizen of
the United States, and a resident thereof; that she is of adult
age, and has resided in the State of New York for three years
past; that by the Constitution of the United States she is
guaranteed the right of suffrage; but that she is, by the laws of
the State of New York, denied the exercise of that right; and
that by the laws of different States and Territories the
privilege of voting is denied to all the female citizens of the
United States; and petitions for relief by the enactment of some
law to enforce the provisions of the Constitution, by which such
right is guaranteed.
The question presented is one of exceeding interest and
importance, involving as it does the constitutional rights not
only of the memorialist but of more than one-half of the citizens
of the United States--a question of constitutional law in which
the civil and natural rights of the citizen are involved.
Questions of property or of expediency have nothing to do with
it. The question is not "Would it be expedient to extend the
right of suffrage to women," but, "Have women citizens that right
by the Constitution as it is." A question of this kind should be
met fairly and investigated in that generous and liberal spirit
characteristic of the age, and decided upon principles of
justice, of right, and of law.
It is claimed by many that to concede to woman the right of
suffrage would be an innovation upon the laws of nature, and upon
the theory and practice of the world for ages in the past, and
especially an innovation upon the common law of England, which
was originally the law of this country, and which is the
foundation of our legal fabric. If we were to admit the truth of
this, it is yet no argument against the proposition, if the right
claimed exists, and is established by the Constitution of the
United States. The question is to be decided by the Constitution
and the fundamental principles of our Government, and not by the
usage and dogmas of the past. It is a gratifying fact that the
world is advancing in political science, and gradually adopting
more liberal and rational theories of government. The
establishment of this Government upon the principles of the
Declaration of Independence was in itself a great innovation upon
the theories and practice of the world, and opened a new chapter
in the history of the human race, and its progress toward perfect
civil and political liberty.
But it is not admitted that the universal usage of the past has
been in opposition to the exercise of political power by women.
The highest positions of civil power have from time to time been
filled by women in all ages of the world, and the question of the
right of woman to a voice in government is not a new one by any
means, but has been agitated, and the right acknowledged and
exercised, in governments far less free and liberal than ours. In
the Roman Republic, during its long and glorious career, women
occupied a higher position, as to political rights and
privileges, than in any other contemporaneous government. In
England unmarried women have, by the laws of that country, always
been competent to vote and to hold civil offices, if qualified in
other respects; at least such is the weight of authority. In
"Callis upon Sewers," an old English work, will be found a
discussion of the question as to the right of women to hold
office in England. The learned and distinguished author uses the
following language:
And for temporal governments I have observed women to have
from time to time been admitted to the highest places; for
in ancient Roman histories I find Eudocia and Theodora
admitted at several times into the sole government of the
empire; and here in England our late famous Queen Elizabeth,
whose government was most renowned; and Semiramis governed
Syria; and the Queen of the South, who came to visit
Solomon, for anything that appears to the contrary, was a
sole queen; and to fall a degree lower, we have precedents
that King Richard the First and King Henry the Fifth
appointed by commissions their mothers to be regents of this
realm in their absence in France.
But yet I will descend a step lower; and doth not our law,
temporal and spiritual, admit of women to be executrixes
and administratrixes? And thereby they have the rule or
ordering of great estates, and many times they are
guardianesses in chivalry, and have hereby also the
government of many great heirs in the kingdom and of their
own estates.
So by these cases it appeareth that the common law of this
kingdom submitted many things to their government; yet the
statute of justices of the peace is like to Jethro's counsel
to Moses, for there they speak of men to be justices, and
thereby seemeth to exclude women; but our statute of sewers
is, "Commission of sewers shall be granted by the King to
such person and persons as the lords should appoint." So the
word persons stands indifferently for either sex. I am of
the opinion, for the authorities, reasons and causes
aforesaid, that this honorable countess being put into the
commission of the sewers, the same is warrantable by the
law; and the ordinances and decrees made by her and the
other commissions of sewers are not to be impeached for that
cause of her sex.
And it is said by a recent writer:
Even at present in England the idea of women holding
official station is not so strange as in the United States.
The Countess of Pembroke had the office of sheriff of
Westmoreland and exercised it in person. At the assizes she
sat with the judges on the bench. In a reported case it is
stated by counsel and assented to by the court that a woman
is capable of serving in almost all the offices of the
kingdom.
As to the right of women to vote by the common law of England,
the authorities are clear. In the English Law Magazine for
1868-'69, vol. 26, page 120, will be found reported the case of
the application of JANE ALLEN, who claimed to be entered upon the
list of voters of the Parish of St. Giles, under the reform act
of 1867, which act provides as follows: Every man shall, in and
after the year 1868, be entitled to be registered as a voter, and
when registered to vote for a member or members to serve in
Parliament, who is qualified as follows: 1st. Is of full age and
not subject to any legal incapacity, etc., etc. It was decided by
the court that the claimant had the right to be registered and to
vote; that by the English law, the term man, as used in that
statute, included woman. In that case the common law of England
upon that question was fully and ably reviewed, and we may be
excused for quoting at some length:
And as to what has been said of there being no such adjudged
cases, I must say that it is perfectly clear that not
perhaps in either of three cases reported by Mr. Shaen, but
in those of Catharine _vs._ Surry, Coates _vs._ Lyle, and
Holt _vs._ Lyle, three cases of somewhat greater antiquity,
the right of women freeholders was allowed by the courts.
These three cases were decided by the judges in the reign of
James I. (A. D. 1612). Although no printed report of them
exists, I find that in the case of Olive _vs._ Ingraham,
they were repeatedly cited by the lord Chief Justice of the
King's Bench in the course of four great arguments in that
case, the case being reargued three times (7 Mod., 264), and
the greatest respect was manifested by the whole court for
those precedents. Their importance is all the greater when
we consider what the matter was upon which King James'
judges sitting in Westminster Hall had to decide. It was not
simply the case of a mere occupier, inhabitant, or scot or
lot voter. Therefore the question did not turn upon the
purport of a special custom, or a charter, or a local act of
Parliament, or even of the common right in this or that
borough. But it was that very matter and question which has
been mooted in the dictum of Lord Coke, the freeholder's
franchise in the shire, and upon that the decision in each
case expressly was, that a feme sole shall vote if she hath
a freehold, and that if she be not a feme sole, but a feme
covert having freehold, then her husband during her
coverture shall vote in her right. These, then, are so many
express decisions which at once displace Lord Coke's
unsupported assertion and declare the law so as to constrain
my judgment. It is sometimes said, when reference is made to
precedents of this kind, that they have never been approved
by the bar. But that can not be said of these. Hakewell, the
contemporary of Lord Coke and one of the greatest of all
parliamentary lawyers then living--for even Selden and
Granvil were not greater than Hakewell--left behind him the
manuscript to which I have referred, with his comments on
those cases.
Sir William Lee, Chief Justice, in his judgment in the case of
Olive _vs._ Ingraham, expressly says that he had perused them,
and that they contained the expression of Hakewell's entire
approval of the principles upon which they were decided, and of
the results deduced; and we have the statement of Lord Chief
Justice Lee, who had carefully examined those cases, that in the
case of Holt _vs._ Lyle, it was determined that a feme sole
freeholder may claim a vote for Parliament men; but if married,
her husband must vote for her. In the case of Olive _vs._
Ingraham, Justice Probyn says:
The case of Holt _vs._ Lyle, lately mentioned by our Lord
Chief Justice, is a very strong case; "_They who pay ought
to choose whom they shall pay._" And the Lord Chief Justice
seemed to have assented to that general proposition, as
authority for the correlative proposition, that "women, when
_sole_, had a right to vote." At all events, there is here
the strongest possible evidence that in the reign of James
I., the _feme sole_, being a freeholder of a country, or
what is the same thing, of a county, of a city, or town, or
borough, where, of custom, freeholders had the right to
vote, not only had, but exercised the parliamentary
franchise. If married, she could not vote in respect merely
of her freehold, not because of the incapacities of
coverture, but for this simple reason, that, by the act of
marriage, which is an act of law, the title of the _feme
sole_ freeholder becomes vested for life in the husband. The
qualification to vote was not personal, but real;
consequently, her right to vote became suspended as soon and
for as long as she was married. I am bound to consider that
the question as to what weight is due to the dictum of my
Lord Coke is entirely disposed of by those cases from the
reign of James I. and George II., and that the authority of
the latter is unimpeached by any later authority, as the
cases of Rex. _vs._ Stubles, and Regina _vs._ Aberavon,
abundantly show.
In Anstey's Notes on the New Reform Act of 1867, the authorities
and precedents upon the right of women to vote in England are
examined and summed up, and the author concludes:
It is submitted that the weight of authority is very greatly
in favor of the female right of suffrage. Indeed, the
authority against it is contained in the short and hasty
dictum of Lord Coke, referred to above. It was set down by
him in his last and least authoritative institute, and it is
certain that he has been followed neither by the great
lawyers of his time nor by the judicature. The principles of
the law in relation to the suffrage of females will be found
in Coates _vs._ Lyle, Holt _vs._ Ingraham, and The King
_vs._ Stubles, cases decided under the strict rules for the
construction of statutes.
It can not be questioned that from time whereof the memory of man
runneth not to the contrary, unmarried women have been by the
laws of England competent voters, subject to the freehold
qualification which applied alike to men and women. Married women
could not vote because they were not freeholders; by the common
law their property upon marriage became vested in the husband. So
that it appears that the admission of woman to participation in
the affairs of government would not be so much of an innovation
upon the theories and usage of the past as is by some supposed.
In England the theory was that in property representation, all
property should be represented. Here the theory is that of
personal representation, which of course, if carried out fully,
includes the representation of all property. In England, as we
have seen, the owner of the property, whether male or female was
entitled to representation, no distinction being made on account
of sex. If the doctrine contended for by the majority of the
committee be correct, then this Government is less liberal upon
this question than the government of England has been for
hundreds of years, for there is in this country a large class of
citizens of adult age, and owners in their own right of large
amounts of property, and who pay a large proportion of the taxes
to support the Government, who are denied any representation
whatever, either for themselves or their property--unmarried
women, of whom it can not be said that their interests are
represented by their husbands. In their case, neither the English
nor the American theory of representation is carried out, and
this utter denial of representation is justified upon the ground
alone that this class of citizens are women. Surely we can not be
so much less liberal than our English ancestors! Surely the
Constitution of this Republic does not sanction an injustice so
indefensible as that!
By the XIV. Amendment of the Constitution of the United States,
what constitutes citizenship of the United States, is for the
first time declared, and who are included by the term citizen.
Upon this question, before that time, there had been much
discussion judicial, political, and general, and no distinct and
definite definition of qualification had been settled. The people
of the United States determined this question by the XIV.
Amendment to the Constitution, which declares that--
All persons born or naturalized in the United States and
subject to the jurisdiction thereof are citizens of the
United States, and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the law.
This amendment, after declaring who are citizens of the United
States, and thus fixing but one grade of citizenship, which
insures to all citizens alike all the privileges, immunities and
rights which accrue to that condition, goes on in the same
section and prohibits these privileges and immunities from
abridgment by the States. Whatever these "privileges and
immunities" are, they attach to the female citizen equally with
the male. It is implied by this amendment that they are inherent,
that they belong to citizenship as such, for they are not therein
specified or enumerated.
The majority of the committee hold that the privileges guaranteed
by the XIV. Amendment do not refer to any other than the
privilege embraced in section 2, of article 4, of the original
text. The committee certainly did not duly consider this
unjustified statement. Section 2, of article 4, provides for the
privileges of "citizens of the _States_," while the first section
of the XIV. Amendment protects the privileges of "_citizens of
the United States_." The term citizens of the _States_ and
citizens of the _United States_ are by no means convertible.
A circuit court of the United States seems to hold a different
view of this question from that stated by the committee. In the
case of The Live Stock Association _vs._ Crescent City (1st
Abbott, 396), Justice Bradley, of the Supreme Court of the United
States, delivering the opinion, uses the following language in
relation to the first clause of the XIV. Amendment:
The new prohibition that "no State shall make or enforce any
law which shall abridge the privileges or immunities of
citizens of the United States" is not identical with the
clause in the Constitution which declared that "the citizens
of each State shall be entitled to all the privileges and
immunities of citizens in the several States." It embraces
much more. It is possible that those who framed the article
were not themselves aware of the far-reaching character of
its terms, yet if the amendment does in fact bear a broader
meaning, and does extend its protecting shield over those
who were never thought of when it was conceived and put in
form, and does reach social evils which were never before
prohibited by constitutional enactment, it is to be presumed
that the American people, in giving it their _imprimatur_,
understood what they were doing and meant to decree what in
fact they have decreed. The "privileges and immunities"
secured by the original Constitution were only such as each
State gave to its own citizens, ... but the XIV. Amendment
prohibits any State from abridging the privileges or
immunities of citizens of the United States, whether its own
citizens or any others. It not merely requires equality of
privileges, but it demands that the privileges and
immunities of all citizens shall be absolutely unabridged
and unimpaired.
In the same opinion, after enumerating some "privileges" of the
citizens, such as were pertinent to the case on trial, but
declining to enumerate all, the Court further says:
These privileges can not be invaded without sapping the
foundation of Republican government. A Republican government
is not merely a government of the people, but it is a free
government.... It was very ably contended on the part of the
defendants that the XIV. Amendment was intended only to
secure to all citizens equal capacities before the law. That
was at first our view of it. But it does not so read. The
language is, "No State shall abridge the privileges or
immunities of citizens of the United States." What are the
privileges and immunities of the citizens of the United
States? Are they capacities merely? Are they not also
rights?
The Court in this seems to intimate very strongly that the
amendment was intended to secure the natural rights of citizens,
as well as their equal capacities before the law.
In a case in the Supreme Court of Georgia, in 1869, the question
was before the court whether a negro was competent to hold office
in the State of Georgia. The case was ably argued on both sides,
Mr. Akerman, the present Attorney General of the United States,
being of counsel for the petitioner. Although the point was made
and argued fully, that the right to vote and hold office were
both included in the privileges and immunities of citizens, and
were thus guaranteed by the XIV. Amendment, yet that point was
not directly passed upon by the court, the court holding that
under the laws and constitution of Georgia, the negro citizen had
the right claimed. In delivering the opinion, Chief Justice Brown
said:
It is necessary to the decision of this case to inquire what
are the "privileges and immunities" of a citizen, which are
guaranteed by the XIV. Amendment to the Constitution of the
United States. Whatever they may be, they are protected
against all abridgment by legislation.... Whether the
"privileges and immunities" of the citizens embrace
political rights, including the right to hold office, I need
not now inquire. If they do, that right is guaranteed alike
by the Constitution of the United States and of Georgia, and
is beyond the control of the legislature.
In the opinion of Justice McKay, among other propositions, he
lays down the following:
2d. The rights of the people of this State, white and black,
are not granted to them by the constitution thereof; the
object and effect of that instrument is not to _give_, but
to restrain, deny, regulate and guarantee rights, and all
persons recognized by that constitution as citizens of the
State have _equal, legal and political rights_ except as
_otherwise expressly declared_.
3d. It is the settled and uniform sense of the word
"citizen," when used in reference to the citizens of the
separate States of the United States, and to their rights as
such citizens, that it describes a person entitled to every
right, _legal and political_, enjoyed by any person in that
State, unless there he some express exceptions made by
positive law covering the particular persons, whose rights
are in question.
In the course of the argument of this case, Mr. Akerman used the
following language upon the point, as to whether citizenship
carried with it the right to hold office:
It may be profitable to inquire how the term (citizen) has
been understood in Georgia.... It will be seen that men whom
Georgians have been accustomed to revere believed that
citizenship in Georgia carried with it the right to hold
office in the absence of positive restrictions.
The majority of the committee having started out with the
erroneous hypothesis that the term "privileges of citizens of the
United States," as used in the XIV. Amendment, means no more than
the term "privileges of citizens," as used in section 2 of
article 4, discuss the question thus:
The right of suffrage was not included in the privileges of
citizens as used in section 2, article 4, therefore that
right is not included in the privileges of citizens of the
United States, as used in the XIV. Amendment.
Their premise being erroneous their whole argument fails. But if
they were correct in their premise, we yet claim that their
second position is not sustained by the authorities, and is shown
to be fallacious by a consideration of the principles of free
government. We claim that from the very nature of our Government,
the right of suffrage is a fundamental right of citizenship, not
only included in the term "privileges of citizens of the United
States," as used in the XIV. Amendment, but also included in the
term as used in section 2, of article 4, and in this we claim we
are sustained both by the authorities and by reason. In Abbott
_vs._ Bayley, (6 Pick., 92,) the Supreme Court of Massachusetts
says:
"The privileges and immunities" secured to the people of
each State, in every other State, can be applied only to the
case of a removal from one State into another. By such
removal they become citizens of the adopted State without
naturalization, and have a right to sue and be sued as
citizens; and yet this privilege is qualified and not
absolute, for they can not enjoy the right of suffrage or
eligibility to office without such term of residence as
shall be prescribed by the constitution and laws of the
State into which they shall remove.
This case fully recognizes the right of suffrage as one of the
"privileges of the citizen," subject to the right of the State to
regulate as to the term of residence--the same principle was laid
down in the case of Corfield _vs._ Coryell in the Supreme Court
of the United States. Justice Washington, in delivering the
opinion of the court, used the following language:
"The privileges and immunities conceded by the Constitution
of the United States to citizens in the several States," are
to be confined to those which are in their nature
fundamental, and belong of right to the citizens of all free
governments. Such are the rights of protection of life and
liberty, and to acquire and enjoy property, and to pay no
higher impositions than other citizens, and to pass through
or reside in the State at pleasure, and to enjoy the
elective franchise as regulated and established by the laws
or constitution of the State in which it is to be exercised.
And this is cited approvingly by Chancellor Kent. (2 Kent, sec.
72).
This case is cited by the majority of the Committee, as
sustaining their view of the law, but we are unable so to
understand it. It is for them an exceedingly unfortunate
citation.
In that case the court enumerated some of the "privileges of
citizens," such as are "in their nature fundamental and belong of
right to the citizens of all free governments" (mark the
language), and among those rights, place the "right of the
elective franchise" in the same category with those great rights
of life, liberty, and property. And yet the Committee cite this
case to show that this right is not a fundamental right of the
citizen! But it is added by the Court that the right of the
elective franchise "is to be enjoyed as regulated and established
by the State in which it is to be exercised." These words are
supposed to qualify the right, or rather take it out of the list
of fundamental rights, where the Court had just placed it. The
Court is made to say by this attempt in the same sentence, "the
elective franchise is a fundamental right of the citizen, and it
is not a fundamental right." It is a "fundamental right,"
provided the State sees fit to grant the right. It is a
"fundamental right of the citizen," but it does not exist, unless
the laws of the State give it. A singular species of "fundamental
rights!" Is there not a clear distinction between the regulation
of a right and its destruction? The State may regulate the right,
but it may not destroy it.
What is the meaning of "regulate" and "establish?" Webster says:
Regulate--to put in good order. Establish--to make stable or
firm. This decision then is, that "the elective franchise is a
fundamental right of the citizen of all free governments, to be
enjoyed by the citizen, under such laws as the State may enact to
regulate the right and make it stable or firm." Chancellor Kent,
in the section referred to, in giving the substance of this
opinion, leaves out the word establish, regarding the word
regulate as sufficiently giving the meaning of the Court. This
case is, in our opinion, a very strong one against the theory of
the majority of the Committee.
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 entitled 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 citizenship:
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
ownership. 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 participation 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 institutions, form the sovereignty,
and who hold the power and conduct the Government through their
representatives. They are what we familiarly call the sovereign
people, and every citizen is one of this people, and a
constituent member of this sovereignty." (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
citizenship."
The Supreme Court said, in Corfield _vs._ Coryell, that the
elective franchise is such privilege; therefore, according to
Justice Curtis, it belongs to citizenship. 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 entitled upon the terms
prescribed by the institutions of the State to all the
rights and privileges conferred by these institutions upon
the highest class 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 Constitution 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 citizenship 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
citizenship in the countries deriving their jurisprudence from
the civil law. (Wheaton's International Law, p. 892).
The Dutch publicist, Thorbecke, says:
What constitutes the distinctive character of our epoch is
the development of the right of citizenship. In its most
extended, as well as its most restricted sense, it includes
a great many properties. The right of citizenship 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 citizenship signifies a participation 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 entitled to the ballot. He uses the
following language:
It is a question about which there may be some diversity of
opinion, what constitutes citizenship 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 entitled to vote, are not
properly citizens, but are members of the State, fully
entitled to the protection of its laws. A citizen, then, is
a person entitled 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
citizenship, 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 citizenship is
claimed. Citizenship in Turkey or Russia is essentially different
in its rights and privileges from citizenship in the United
States. In the former, citizenship 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 class; 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 Constitution 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 sex 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 Constitution. They are not derived from the
Constitution or the laws, but are the means of asserting 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 class 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
substitute 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 Constitution. 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 citizenship. 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 instituted 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 institute 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 Constitution,
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 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; 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 mass 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 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? If a man is not his own assessor, 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 God 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 God, 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 constitution, that "Law to bind all must be
assented to by all"; and there can be no legal appearance of
assent 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 entitled 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 constitutional
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 God, 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 Constitution, 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
constitutions 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 sex, 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 Constitution, women
were in all the States denied the right of voting, and that no
one claimed at the time that the Constitution of the United
States would change their status; that if such a change was
intended it would have been explicitly declared in the
Constitution or at least carried into practice by those who
framed the Constitution, 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
Constitution 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 Constitution 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 Constitution:
Contemporary construction is properly resorted to to
illustrate 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
Constitution, 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:
The importance of examining the preamble for the purpose of
expounding the language of a statute has been long felt and
universally conceded in all juridical discussion. It is an
admitted maxim ... that the preamble is a key to open the
mind of the matters as to the mischiefs to be remedied and
the objects to be accomplished by the statute.... It is
properly resorted to where doubts or ambiguities arise upon
the words of the enacting part, for if they are clear and
unambiguous, there seems little room for interpretation,
except in cases leading to an obvious absurdity or a direct
overthrow of the intention expressed in the preamble. [Story
on the Constitution, sec. 457.]
Try this question by a consideration of the objects for which the
Constitution was established, as set forth in the preamble, "to
establish justice." Does it establish justice to deprive of all
representation or voice in the Government one-half of its adult
citizens, and compel them to pay taxes to and support a
government in which they have no representation? Is "taxation
without representation" justice established? "To insure domestic
tranquillity." Does it insure domestic tranquillity to give all
the political power to one class of citizens, and deprive another
class of any participation in the government? No. The sure means
of tranquillity is to give "equal political rights to all," that
all may stand "equal before the law."
"To provide for the common defense." We have seen that the only
defense the citizen has against oppression and wrong is by his
voice and vote in the selection of rulers and law makers. Does
it, then, "provide for the common defense," to deny to one half
the adult citizens of the republic that voice and vote?
"To secure the blessings of liberty to ourselves and our
posterity." As has been already said, there can be no political
liberty to any citizen deprived of a voice in the government.
This is self-evident; it needs no demonstration. Does it, then,
"secure the blessings of liberty to ourselves and our posterity,"
to deprive one half the citizens of adult age of this right and
privilege?