The History of Woman Suffrage Volume II Part 61

Women are offering their very souls in behalf of mankind. Can men do less than empty their pockets for the good of the race?

And there is one thing more that men can and must do before the reign of justice and equality can be inaugurated. They, being voters, must pledge themselves in their own b.r.e.a.s.t.s, and to one another, that they will vote for such candidates in either party as are in favor of woman suffrage, and for no others. Such proceedings would settle the question in less than a year, and the peaceful working of a new _regime_ would prove the wisdom and patriotism of these faithful souls before the whole world. We confidently believe that there are at least 300,000 voters to-day who desire to share the burdens and responsibilities of government with their mothers, wives, and sisters. Let them combine and speak the sovereign words, "Principle before party,"

and the day is won.

Mrs. Hooker and other ladies united in a memorial, which was presented in the Senate and referred to the Judiciary Committee, asking for a recognition of the rights of women under the XIV. Amendment, and asking further that the advocates of the cause be heard at the bar of the Senate. Mr. Trumbull, the chairman of the committee, was not willing for this; but, at Mrs. Hooker's solicitation, he agreed to lay the subject before the committee, and it was finally agreed that a hearing should be given on Friday morning, January 10th, at 11 o'clock.

_To the Honorable Senate and House of Representatives of the United States in Congress a.s.sembled:_

The undersigned, citizens of the United States, believing that under the present Federal Const.i.tution all women who are citizens of the United States have the right to vote, pray your honorable body to enact a law during the present session that shall a.s.sist and protect them in the exercise of that right.

And they pray further that they may be permitted, in person, and in behalf of the thousands of other women who are pet.i.tioning Congress to the same effect, to be heard upon this memorial before the Senate and House at an early day in the present session. We ask your honorable body to bear in mind that while men are represented on the floor of Congress, and so may be said to be heard there, women who are allowed no vote, and therefore no representation, can not truly be heard except as Congress shall open its doors to us in person.

ELIZABETH CADY STANTON.

ISABELLA BEECHER HOOKER.

ELIZABETH L. BLADEN.

OLYMPIA BROWN.

SUSAN B. ANTHONY.

JOSEPHINE S. GRIFFING.

Hartford, Conn., December 12, 1871.

SENATE OF THE UNITED STATES, COMMITTEE ON THE JUDICIARY,} WASHINGTON, January 10, 1872 }

MADAM: The Committee on the Judiciary, to whom was referred the memorial of yourself and others, asking to be heard before the Senate in behalf of the const.i.tutional right of women to vote, and modified by your letter of this morning, so as to ask that the committee hold a public meeting in the Senate Chamber for that purpose, have concluded that it would not be consistent with the usage and rules of the Senate to admit memorialists to appear and advocate their claims before the Senate, nor for the committee to ask the use of the Senate Chamber for public discussion before them.

The committee would, however, be happy to receive any communication you and the other memorialists may think proper to make, or, if the memorialists prefer to present their views in person, the committee will hear them in its committee-room at 11 o'clock A.M., next Friday morning.

Very respectfully, LYMAN TRUMBULL, _Chairman of the Committee on the Judiciary._

MRS. ISABELLA BEECHER HOOKER.

Accordingly the hearing being granted, at the appointed hour the whole convention adjourned to the Capitol, crowding not only the committee room but the corridors, thousands of eager, expectant women struggling to gain admission. The committee,[148] seated round a large table, manifested a respectful attention to each speaker in turn, complimenting them warmly at the close.

MRS. HOOKER said: _Gentlemen of the Judiciary Committee_--In accordance with your courteous invitation of the 10th, I have the honor to present to you an argument upon the question: Are women ent.i.tled to vote under the United States Const.i.tution, as amended? It is not important to inquire what was the status of woman before the adoption of the XIV. Amendment. By that amendment they are clearly made citizens. No one denies this. The first section of the amendment is as follows:

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.

The whole question is, what is the meaning of the term "citizen"

as here used. The term is familiar to law and politics, and the authorities are very numerous and uncontradicted which make citizenship include the right to vote. These authorities consist of lexicographers, English and American, and legal and political writers. It is said, however, that to give the term a meaning by which women become voters under it is contrary to the actual intent of Congress and the State Legislatures in pa.s.sing the amendment, as, unquestionably, the legislators who voted for it had personally (with, perhaps, a few exceptions) no thought of enfranchising women.

To this it is replied: 1. That the question is not whether they thought of enfranchising women, but whether they used the term as a term of enfranchis.e.m.e.nt at all; for if it would have enfranchised black men, it would have equally enfranchised women, and unquestionably the predominant idea in these legislators was a political benefit, not very precisely measured, to black men.

2. An inquiry as to actual intent in such a case is never admissible. A rule that allowed it would make every law uncertain. An enactment can be construed only by the language in fact used, and where that language is doubtful, by other parts of the same enactment, and by a consideration of the public evil which the law was intended to remedy. The evil to be remedied in this case was the political disadvantage under which black men, made free by the XIII. Amendment, still labored. The object was to give them a positive political benefit. The terms used are such that, necessarily and confessedly, whatever benefit accrues to black men under it accrues equally to women.

It is said, in the next place, that the term "citizen" has acquired a meaning in American usage, legal and political, that does not carry with it the idea of suffrage; and the report of the majority of the Judiciary Committee on the Woodhull memorial places its adverse construction of this amendment entirely on the ground of an American use of the term in its restricted sense.

Such a use of the term undoubtedly exists. Webster recognizes it, and so do some of our political writers. But this meaning is a secondary and lower one, and has not attained such dignity of use as to encroach at all upon the well-established general meaning, and would not be presumed in a law, much less in a const.i.tution.

The American authorities are strongly in favor of the larger meaning.

The term is used in the second section of the original Const.i.tution, article four, which provides that "the citizens of each State shall be ent.i.tled to all privileges and immunities of citizens in the several States." In Corfield _vs._ Coryell, 4 Wash. C. C. R., 380, the court say: "The inquiry is what are the privileges and immunities of citizens in the several States? They may be all comprehended under the following general heads: (Here follows a statement of numerous rights, civil and political, closing as follows:) "To which may be added the elective franchise as regulated and established by the laws or const.i.tution of the State in which it is to be exercised." And in the Dred Scott case, 19 Howard, 476, Mr. Justice Daniel says:

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 the supreme court of Kentucky, 1 Little R., 333, says:

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

These are American authorities, and would seem to settle the question that the term has not acquired a distinctive American meaning variant from the well-established general meaning.

It is said, in the next place, and finally, that the second section of the XIV. Amendment shows clearly that the term "citizen" could not have been used in the sense of full citizenship. This objection is the most serious one that the argument encounters. That section, so far as relates to this subject, is as follows:

When the right to vote is denied to any of the male inhabitants of such State being twenty-one years of age and citizens of the United States, 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.

The consideration of this section is perfectly legitimate in the inquiry as to the meaning of the first section. It is said, with great force, that here is an implied admission that the States retained the power to exclude black men from the right to vote, and it will be asked why, if that right is absolutely conferred by the first section, and is one of the privileges and immunities of citizens which no State may abridge, the amendment does not boldly forbid any such State legislation, instead of merely imposing certain limitations upon the State that should a.s.sume to exercise such right of exclusion.

Two answers have been made by public writers on the subject which are merely specious. One is, that if the second section be construed as admitting the right of a State to exclude certain cla.s.ses of men from the franchise, yet it could not operate as an admission of the right to exclude women. The fallacy here is, that if the citizenship conferred by the first section does not secure against all legislation the right of suffrage to men, it does not secure it to women; the question being merely as to the meaning of the term "citizen" as used, and not as to its application to either s.e.x, as such. The other answer that has been made is, that this second section is repealed by the XV.

Amendment, which forbids the denial of suffrage in the cases where this section seems to allow it; and it is asked, with apparent confidence, whether a law that is repealed can have any further operation whatever. The fallacy here is, that the operation of this second section, so far as it relates to the present question, is wholly in throwing light upon the meaning of the term "citizen," as used in the first section, and this operation is just as perfect after its repeal as before; precisely as a part of a will that has been revoked by a codicil, may yet be read with the rest of the will if it will throw light upon the meaning of the whole.

It is believed, however, that a valid answer can be made to the objection which is founded upon the second section, and that the view here presented will be ultimately sustained by the legal opinion of the country.

1. It is not a necessary inference that the right to exclude from suffrage is admitted by the second section, for this section will bear a construction that is consistent with the enlarged construction which we give to the first section; and it is a well-settled principle that a construction that favors the extension of liberty is itself to be favored, and one which restricts liberty is not to be adopted, except under a necessity.

This second section provides for a penalty, in the reduction of its basis of representation, in every case where a State should deny to any cla.s.s of citizens the right of suffrage. Now, this is not necessarily a concession of the right, but may be regarded as a punishment of the attempt to exercise the so-called right. The matter was practically so much within the power of the States (and the States in view were the disorganized Southern States), that it would be far easier for Congress to enforce the penalty for denying the right of suffrage than for the President to protect that right. It may be regarded as a case, well known to the law, of c.u.mulative remedies. It is precisely as if, in addition to the express prohibition by the Const.i.tution of the making of war by any State, there had been a provision that if any State should make war upon a foreign State, such State should pay the entire expense in which the General Government should become involved by the war. This clearly would be only a penalty and not a concession of the right, the object being to increase and not to diminish the security of the General Government against any attempt of a State to do the act prohibited.

2. The first section of the XIV. Amendment is entirely senseless and idle, except upon the construction which we claim. The term "citizen" means either "voter" or merely "member of the nation,"

as distinguished from an alien. Judge Cartter, in his late opinion in the case of Spencer _vs._ The Board of Registration, in the Supreme Court of the District of Columbia, sees this necessity, and that there is no intermediate status, and holds that the term means merely a person clothed with the civil rights of an inhabitant, as distinguished from an alien. Let it be borne in mind, then, that those who deny the construction which we claim, must make the word citizen mean merely "not an alien." Let it also be borne in mind that by the XIII. Amendment, which abolished slavery, every inhabitant of the land became a free inhabitant, so that nothing is now added to the force of the term "inhabitant" by prefixing to it the term "free." It follows, therefore, that the XIV. Amendment, under the adverse construction claimed, means only that the persons referred to in it are _inhabitants of the land_. Let us see, then, how it will read: "All persons born or naturalized in the United States are inhabitants of the United States and the State wherein they reside." This is sheer nonsense. In the construction of an ordinary law, pa.s.sed by a Legislature in the crowded moments of its last hour, every Court would say that it must, if possible, give the law a construction that will make it have a sensible meaning and effect, and that of two constructions, one of which gives it sense and purpose and the other none, the former is without a question to be preferred. How much more should such a rule be applied to an amendment of a national const.i.tution, deliberately adopted first by Congress and then by three-quarters of the Legislatures of the States?

3. It is a universal rule in the construction of statutes that the construction of an enabling or enlarging statute must be liberal and in the direction of enlargement. This rule is applicable with much greater force to the construction of this amendment, because, in the first place, it is dealing with the most fundamental of all political rights--that of _free citizenship in a democracy_--and is besides an amendment of a const.i.tution, which _is itself the charter of freedom_, and the amendment is made for the very purpose of giving _larger freedom_ than that free const.i.tution originally gave. This rule alone is enough to settle the question of the construction of this amendment, especially as the question is between a construction that shall make it an enlargement of liberty and a construction that shall make it confer nothing that was not before possessed.

The whole question thus far has been considered with reference to the XIV. Amendment alone. The XV. Amendment, though, as we think, conferring no new rights, yet should be briefly noticed. That amendment is as follows: "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." Here it will be seen that the language, in its natural meaning, implies a pre-existing _right to vote_.

It is not pertinent to the creation of a new right, but only to the protection of a right already existing. It is like the case occurring in some of the State const.i.tutions, where it is provided that the right of trial by jury shall not be denied or impaired, in which case it has been held not to confer a new right, but merely to protect, in its then existing form, a right that was enjoyed when the const.i.tution was adopted. This construction of the XV. Amendment, however, though the natural and obvious one, is not a necessary one, since, if there had been no XIV. Amendment, the XV. would undoubtedly be held to create a new right of suffrage. The argument, from the language used, though not without very positive weight, can not be regarded as decisive of the question, and the claim that women are ent.i.tled to vote must rest essentially upon the construction of the XIV.

Amendment.

There is, however, an adverse claim that is made under the XV.

Amendment, which ought to be briefly considered. That claim is that even if the XIV. Amendment gives the right to vote, yet the XV., in prohibiting the denial of the right to vote on account of race, color, or previous condition of servitude, impliedly confers the right to prohibit it on all other grounds. Now, if it has this effect, it does so merely by impliedly repealing that clause of the XIV. Amendment which provides that the rights of citizens shall not be abridged. But it is a well-established rule of law that a repeal by implication is never favored, and will not be sustained unless the implication is a clear and necessary one. Much more would not such a repeal be sustained where the clause claimed to be repealed was a part of a const.i.tution, and was intended as a security for human rights and liberty. The rule that would favor a construction toward liberty of the XIV.

Amendment, would equally forbid a construction toward curtailment of liberty of the XV.

But it will be said that the XV. Amendment becomes without purpose and effect, and really as senseless as we claim the XIV.

Amendment to be under the construction which we oppose, if it is to be regarded as operating only in the way claimed, and not as conferring rights not previously existing. This is a point of some force, and which can be replied to only by the fact that there was an impression upon the minds of the legislators and of the people, that the XIV. Amendment did not confer the right of suffrage. That impression weighs nothing in now determining the meaning of the XIV. Amendment; but it furnishes the explanation that seems to be needed of the pa.s.sage of the XV. Amendment. It was in our view wholly unnecessary, but was generally thought to be necessary. The difference in the two cases is that the XV.

Amendment was pa.s.sed under a supposed necessity, and with, therefore, a complete object; while the XIV. Amendment, under the construction which our opponents give to it, not only conferred nothing, but was believed at the time to confer nothing, and had therefore no purpose whatever. Our view that the XV. Amendment was unnecessary was held by some leading statesmen at the time.

Mr. Sumner in the Senate declared it to be so before its pa.s.sage, and proposed instead of it a mere law of Congress recognizing the right of suffrage and regulating its exercise.

It is at any rate very clear that the construction of the XV.

Amendment, which makes it impliedly allow the denial of suffrage on all other grounds than the three stated, can not be sustained.

Such rights as those with which it deals will never be allowed in a free const.i.tution like ours to be curtailed or restricted by mere implication. If that construction is adopted--and a State may deny the right to vote on all other grounds but race and color and previous servitude--then, of course, a State may deny the right to all naturalized foreigners, although they have already acquired and enjoyed the right, and may also deny the right to vote to persons of a particular height or color of hair or profession. Indeed, to reduce the case to an absurdity, suppose the women are allowed to vote in Ma.s.sachusetts, and, being a great majority over the men, turn around and exclude the men. This would be precisely the ground on which women are now excluded--that of s.e.x; and yet can any one doubt that the const.i.tutional right to vote of men would be sustained?

It is worth noticing that the Act of Congress of May 31, 1870, to carry into effect the provisions of the XIV. and XV. Amendments, is ent.i.tled, "An Act to enforce the right of citizens of the United States to vote in the several States of this Union."