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 Const.i.tution, sec. 457.]
Try this question by a consideration of the objects for which the Const.i.tution 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 cla.s.s of citizens, and deprive another cla.s.s of any partic.i.p.ation 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?
Tried by the expressed objects for which the Const.i.tution was established, as declared by the people themselves, this denial to the women citizens of the country of the right and privilege of voting is directly in contravention of these objects, and must, therefore, be contrary to the spirit and letter of the entire instrument. And according to the rule of construction referred to, no "contemporaneous construction, however universal it may be, can be allowed to set aside the expressed objects of the makers, as declared in the instrument." The construction which we claim for the 1st section of the XIV. Amendment, is in perfect accord with those expressed objects; and even if there were anything in the original text of the Const.i.tution at variance with the true construction of that section, the amendment must control. Yet we believe that there is nothing in the original text at variance with what we claim to be the true construction of the amendment.
It is claimed by the majority of the committee that the adoption of the XV. Amendment was by necessary implication a declaration that the States had the power to deny the right of suffrage to citizens for any other reasons than those of race, color, or previous condition of servitude. We deny that the fundamental rights of the American citizen can be taken away by "implication." There is no such law for the construction of the Const.i.tution of our country. The law is the reverse--that the fundamental rights of citizens are not to be taken away by implication, and a const.i.tutional provision for the protection of one cla.s.s can certainly not be used to destroy or impair the same rights in another cla.s.s. It is too violent a construction of an amendment, which prohibits States from, or the United States from, abridging the right of a citizen to vote by reason of race, color, or previous condition of servitude, to say that by implication it conceded to the States the power to deny that right for any other reason. On that theory the States could confine the right of suffrage to a small minority, and make the State governments aristocratic, overthrowing their republican form. The XV. Article of Amendment to the Const.i.tution clearly recognizes the right to vote, as one of the rights of a citizen of the United States. This is the language:
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 is stated, first, the existence of a right. Second, its nature. Whose right is it? The right of citizens of the United States. What is the right? The right to vote. And this right of citizens of the United States, States are forbidden to abridge.
Can there be a more direct recognition of a right? Can that be abridged which does not exist? The denial of the power to abridge the right, recognizes the existence of the right. Is it said that this right exists by virtue of State citizenship, and State laws and Const.i.tutions? Mark the language: "The right of citizens of the United States to vote;" not citizens of States. The right is recognized as existing independent of State citizenship.
But it may be said, if the States had no power to abridge the right of suffrage, why the necessity of prohibiting them? There may not have been a necessity; it may have been done through caution, and because the peculiar condition of the colored citizens at that time rendered it necessary to place their rights beyond doubt or cavil.
It is laid down as a rule of construction by Judge Story that the natural import of a single clause is not to be narrowed so as to exclude implied powers resulting from its character simply because there is another clause which enumerates certain powers which might otherwise be deemed implied powers within its scope, for in such cases we are not to a.s.sume that the affirmative specification excludes all other implications. (2 Story on Const.i.tution, sec. 449.)
There are numerous instances in the Const.i.tution where a general power is given to Congress, and afterward a particular power given, which was included in the former; yet the general power is not to be narrowed, because the particular power is given. On this same principle the fact that by the XV. Amendment the States are specifically forbidden to deny the right of suffrage on account of race, color, or previous condition of servitude, does not narrow the general provision in the XIV. Amendment which guarantees the privileges of all the citizens against abridgment by the States on any account.
The rule of interpretation relied upon by the committee in their construction of the XV. Amendment is, "that the expression of one thing is the exclusion of another," or the specification of particulars is the exclusion of generals. Of these maxims, Judge Story says:
They are susceptible of being applied, and often are ingeniously applied, to the subversion of the text and the objects of the instrument. The truth is, in order to ascertain how far an affirmative or negative provision excludes or implies others, we must look to the nature of the provision, the subject-matter, the objects, and the scope of the instrument; these and these only can properly determine the rule of construction (2 Story, 448).
It is claimed by the committee that the second section of the XIV. Amendment implies that the several States may restrict the right of suffrage as to other than male citizens. We may say of this as we have said of the theory of the committee upon the effect of the XV. Amendment. It is a proposal to take away from the citizens guarantees of fundamental rights, by implication, which have been previously given in absolute terms. The first section includes "all citizens" in its guarantees, and includes all the "privileges and immunities" of citizenship and guards them against abridgment, and under no recognized or reasonable rule of construction can it be claimed that by implication from the provisions of the second section the States may not only abridge but entirely destroy one of the highest privileges of the citizen to one-half the citizens of the country. What we have said in relation to the committee"s construction of the effect of the XV. Amendment applies equally to this. The object of the first section of this amendment was to secure all the rights, privileges, and immunities of all the citizens against invasion by the States. The object of the second section was to fix a rule or system of apportionment for Representatives and taxation; and the provision referred to, in relation to the exclusion of males from the right of suffrage, might be regarded as in the nature of a penalty in case of denial of that right to that cla.s.s. While it, to a certain extent, protected that cla.s.s of citizens, it left the others where the previous provisions of the Const.i.tution placed them. To protect the colored man more fully than was done by that penalty was the object of the XV. Amendment. In no event can it be said to be more than the recognition of an existing fact, that only the male citizens were, by the State laws, allowed to vote, and that existing order of things was recognized in the rule of representation, just as the inst.i.tution of slavery was recognized in the original Const.i.tution, in the article fixing the basis of representation, by the provision that only three-fifths of all the slaves ("other persons") should be counted. There slavery was recognized as an existing fact, and yet the Const.i.tution never sanctioned slavery, but, on the contrary, had it been carried out according to its true construction, slavery could not have existed under it; so that the recognition of facts in the Const.i.tution must not be held to be a sanction of what is so recognized.
The majority of the committee say that this section implies that the States may deny suffrage to others than male citizens. If it implies anything it implies that the States may deny the franchise to all the citizens. It does not provide that they shall not deny the right to male citizens, but only provides that if they do so deny they shall not have representation for them.
So, according to that argument, by the second section of the XIV.
Amendment the power of the States is conceded to entirely take away the right of suffrage, even from that privileged cla.s.s, the male citizens. And thus this rule of "implication" goes too far, and fritters away all the guarantees of the Const.i.tution of the right of suffrage, the highest of the privileges of the citizen; and herein is demonstrated the reason and safety of the rule that fundamental rights are not to be taken away by implication, but only by express provision. When the advocates of a privileged cla.s.s of citizens under the Const.i.tution are driven to implication to sustain the theory of taxation without representation, and American citizenship without political liberty, the cause must be weak indeed.
It is claimed by the majority that by section 2, article 1, the Const.i.tution recognizes the power in States to declare who shall and who shall not exercise the elective franchise. That section reads as follows:
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.
The first clause of this section declares who shall choose the Representatives--mark the language--"Representatives shall be chosen by the people of the States," not by the male people; not by certain cla.s.ses of the people, but by the people; so that the construction sought to be given this section, by which it would recognize the power of the State to disfranchise one half the citizens, is in direct contravention of the first clause of the section, and of its whole spirit, as well as of the objects of the instrument. The States clearly have no power to nullify the express provisions that the election shall be by the people, by any laws limiting the election to a moiety of the people. It is true the section recognizes the power in the State to regulate the qualifications of the electors; but as we have already said, the power to regulate is a very different thing from the power to destroy. The two clauses must be taken together, and both considered in connection with the declared purpose and objects of the Const.i.tution.
The const.i.tution is necessarily confined to the statement of general principles. There are regulations necessary to be made as to the qualifications of voters, as to their proper age, their domicil, the length of residence necessary to ent.i.tle the citizen to vote in a given State or place. These particulars could not be provided in the Const.i.tution but are necessarily left to the States, and this section is thus construed as to be in harmony with itself, and with the expressed objects of the framers of the Const.i.tution and the principles of free government. When the majority of the committee can demonstrate that "the people of the States," and one-half the people of the States, are equivalent terms, or that when the Const.i.tution provides that the Representatives shall be elected by the people, its requirements are met by an election in which less than one-half the adult people are allowed to vote, then it will be admitted that this section to some extent sustains them.
The committee say, that if it had been intended that Congress should prescribe the qualifications of electors, the grant would have given Congress that power specifically. We do not claim that Congress has that power; on the contrary, admit that the States have it; but the section of the Const.i.tution does prescribe who the electors shall be. That is what we claim--nothing more. They shall be "the people;" their qualifications may be regulated by the States; but to the claim of the majority of the committee that they may be "qualified" out of existence, we can not a.s.sent.
We are told that the acquiescence by the people, since the adoption of the Const.i.tution, in the denial of political rights to women citizens, and the general understanding that such denial was in conformity with the Const.i.tution, should be taken to settle the construction of that instrument. Any force this argument may have it can only apply to the original text, and not to the XIV. Amendment, which is of but recent date. But, as a general principle, this theory is fallacious. It would stop all political progress; it would put an end to all original thought, and put the people under that tyranny with which the friends of liberty have always had to contend--the tyranny of precedent.
From the beginning, our Government has been right in theory, but wrong in practice. The Const.i.tution, had it been carried out in its true spirit, and its principles enforced, would have stricken the chains from every slave in the republic long since. Yet, for all this, it was but a few years since declared, by the highest judicial tribunal of the republic, that, according to the "general understanding," the black man in this country had no rights the white man was bound to respect. General understanding and acquiescence is a very unsafe rule by which to try questions of const.i.tutional law, and precedents are not infallible guides toward liberty and the rights of man.
Without any law to authorize it, slavery existed in England, and was sustained and perpetuated by popular opinion, universal custom, and the acquiescence of all departments of the government as well as by the subjects of its oppression. A few fearless champions of liberty struggled against the universal sentiment, and contended that, by the laws of England, slavery could not exist in the kingdom; and though for years unable to obtain a hearing in any British court, the Somerset case was finally tried in the Court of King"s Bench in 1771, Lord Mansfield presiding, wherein that great and good man, after a long and patient hearing, declared that no law of England allowed or approved of slavery, and discharged the negro. And it was then judicially declared that no slave could breathe upon the soil of England, although slavery had up to that time existed for centuries, under the then existing laws. The laws were right, but the practice and public opinion were wrong.
It is said by the majority of the committee that "if the right of female citizens to suffrage is vested by the Const.i.tution, that right can be established in the courts." We respectfully submit that, with regard to the competency and qualification of electors for members of this House, the courts have no jurisdiction. This House is the sole judge of the election return and qualification of its own members (article 1, section 5, of Const.i.tution); and it is for the House alone to decide upon a contest, who are, and who are not, competent and qualified to vote. The judicial department can not thus invade the prerogatives of the political department. And it is therefore perfectly proper, in our opinion, for the House to pa.s.s a declaratory resolution, which would be an index to the action of the House, should the question be brought before it by a contest for a seat. We, therefore, recommend to the House the adoption of the following resolution:
_Resolved, by the House of Representatives_, That the right of suffrage is one of the inalienable rights of citizens of the United States, subject to regulation by the States, through equal and just laws.
That this right is included in the "privileges of citizens of the United States," which are guaranteed by section 1 of article XIV.
of Amendments to the Const.i.tution of the United States; and that women citizens, who are otherwise qualified by the laws of the State where they reside, are competent voters for Representatives in Congress.
WM. LOUGHRIDGE.
BENJ. F. BUTLER.
H. Rep. 22, pt. 2----2.
On January 20, 1871, in the House of Representatives, a bill for the better government of the District of Columbia came up. The Hon. George W. Julian, of Indiana, moved to strike out the word "male" in the section providing who shall vote, and supported his amendment as follows:
The establishment of universal male suffrage throughout the United States was preceded by its establishment in the District of Columbia and in the Territories. Following the same order, I desire that the District of Columbia shall first enjoy the further and full extension of the Democratic principle, by giving the ballot to all the people here, irrespective of s.e.x. I know of no reason why this should not be done. I believe the question of woman"s rights necessarily involves the question of human rights.
The famous maxim of our fathers that "taxation without representation is tyranny" applies not to one-half only, but to the whole people. I am a Democrat in full of all demands, and I can not, therefore, accept as a real democracy, or even a republic, a government "half slave and half free."
Mr. Cook, of Illinois, who had charge of the bill, objected to "c.u.mbering it with such an amendment," and called the previous question, which being sustained, cut off all debate. Mr. Julian then called for the ayes and noes, thus making every man put himself square on the record. The vote stood 55 ayes[141], 117 noes, 65 not voting.
The next day the House met for general debate, and Hon. Aaron A.
Sargent, of California, had an opportunity to express his views of the Amendment, which he had not been able to do the previous day.
Mr. SARGENT: Mr. Speaker, if no other gentleman desires to address the House, I will briefly remark that I was glad on yesterday to have an opportunity to cast my vote in favor of the proposition admitting the women of this District to the right of suffrage. I believe the time is rapidly coming when all men will conclude that it is no longer wise or judicious to exclude one-half of the intelligence, and more than one-half of the virtue of the people from the ballot-box. It is a matter of congratulation that one-third of the members who were present yesterday and voting, recorded their votes for that proposition.
It was a glorious commencement. I will not take up the time of the House with any elaborate discussion of that proposition, but content myself with the remark that I was very glad of the opportunity to cast my vote for it. I trust the work thus commenced will go on until fully successful. But I would like to say further that I do not agree with those gentlemen who allege that the women who advocate this movement are universally, or to any considerable extent, desirous to unsettle family relations, or that they would change the present honored form of union of the s.e.xes. I believe they embrace among their number, and largely embrace, the best and purest women of the land, who will have an influence growing year by year in favor of the recognition of the rights of their s.e.x. So may it be.
During Mr. Sargent"s candidacy for the Senate the following autumn, a California newspaper objected that he was in favor of woman"s suffrage, and called for a denial of the truth of the d.a.m.ning charge.
Mr. Sargent took no notice of it until a week or two later, when a suffrage convention met in San Francisco; he then went before that body and delivered a radical speech in favor of woman"s rights, taking the most advanced grounds. When he was through he remarked to a friend, "They have my views now, and can make the most of them. I would not conceal them to be Senator." This bold stand ended the objection to him on the ground of his favor to woman"s rights. He opened the political campaign in 1874 before an immense audience in Platt"s Hall, San Francisco, by saying, as reported in the papers of the day:
LADIES AND GENTLEMEN, FELLOW-CITIZENS: I trust the time is near at hand when the phrase "fellow-citizens" will not need the explanatory remark, "Ladies and gentlemen." I trust we are nearing the day when our wives and daughters will share with us in the duties and privileges of citizenship, and give expression to their principles and views, not only indirectly by personal influence, but at the ballot-box. I am in favor of this great reform, and hail the day when it shall purify politics by the influence of women exerted directly and legitimately at elections.
The National Woman"s Suffrage a.s.sociation met in Apollo Hall, New York, Anniversary Week, May 11, 1871. The audiences were large and the speakers earnest.[142] Mrs. Griffing, the Corresponding Secretary of the a.s.sociation, thus summed up the closing events of the past year:
It now appears that under the Federal Const.i.tution and its Amendments, woman is ent.i.tled to equal rights of citizenship with man; and as voting is a fundamental right of the citizen in a free government, woman not only may, but should vote. The last Woman Suffrage Convention, held in Washington, January, 1871, called by Paulina W. Davis, J. S. Griffing, and I. B. Hooker, in behalf of the women of the country, contemplated no new issue, proposed only to discuss the XVI. Amendment, and a more thorough system of education for the women of the country, through the issue of a monthly series of tracts. With slight exception, this programme would have been the order of the Convention, as it was the indication of the call, had not the time arrived for the bugle-note, calling all "to the front." Events of the hour at once changed the direction of thought, and inaugurated a line of movement for the practical enfranchis.e.m.e.nt of, and restoration to woman, of her equal rights as an American citizen. A few days previous to the time of holding this Convention, Mrs. Victoria C.
Woodhull, of the City of New York, memorialized Congress for the exercise of the elective franchise, which memorial was read in the House of Representatives by Hon. George W. Julian, early friend of the cause, referred to the Judiciary Committee and ordered to be printed.
This action on the part of Mrs. Woodhull was taken without consultation with, or even knowledge of the movers of the Convention, and by unprecedented energy and great intelligence, pressed upon the attention of both branches of Congress, upon the plea that she was "born upon the soil and was subject to the jurisdiction of the United States," and that as a citizen, she desired a voice in legislation, through the only means in a free government, that of a vote; and on this pivot she based her demand. With some difficulty she obtained permission for a hearing before the Judiciary Committee. Learning this important step taken by Mrs. Woodhull, a stranger to the Convention, a conference was held between the parties, resulting in a friendly agreement, that with consent of the chairman of the Committee, Mrs. I. B. Hooker, on the part of the Convention, should at the same time, through a const.i.tutional lawyer, Hon. A. G. Riddle, ex-member of Congress, defend the memorialists (30,000 women) whose names were already before Congress, asking to exercise the right of the ballot.
Mrs. Woodhull spoke with power and marvelous effect, as though conscious of a right unjustly withheld, and feeling a duty, she was forbidden to do. Under the supreme law of the land, the Const.i.tution, and the XIV. and XV. Amendments thereto, she asked equal protection to person, property, and full citizenship; in response to this, the key-note, Mr. Riddle followed with an unanswerable legal argument, sweeping away all laws of the United States, and of any State, restricting woman in the right to vote, as directly opposed to the supreme law of the land, as pointed out in the XIV. and XV. Amendments to the Federal Const.i.tution, which he showed to be consonant with both the letter and spirit of that instrument. He also suggested that the immediate action of woman, as a citizen, might be found the most speedy method of triumph. The result of this hearing, in the printed reports of Judge Bingham and the majority, and of Judge Loughridge and Hon.
B. F. Butler, the minority of the Judiciary Committee, is already before the country, and marks well the beginning of the end.
It was now clearly seen by the leaders of the movement that the agitation of woman"s wrongs and oppressions was no longer a necessary part of the discussion. That in the statute books, and above all, in the heart of G.o.d, a record of this was made, and that henceforth woman"s citizenship and full enfranchis.e.m.e.nt must be declared. That under the supreme law of the land her right to person, property, children, and full and equal citizenship must be p.r.o.nounced and admitted; and, finally, her duty to vote, and through her highest capabilities, to a.s.sume a share of the responsibility of the State, as she has already of the home, are hereafter to be the legitimate theme of discussion till woman is emanc.i.p.ated. These events and this decision indicated an immediate want of a National Woman Suffrage and Educational Committee, to carry forward measures for the speedy execution of the work, and upon consultation with the experienced and wise men and women of the Convention, and with the approval of all well-wishers who were present, a committee, consisting of Mrs. I.
B. Hooker (Chairwoman), J. S. Griffing (Secretary), Mrs. M. B.
Bowen (Treasurer), Susan B. Anthony, Paulina Wright Davis, and Ruth Carr Dennison, was organized in the City of Washington, D.
C., and the machinery set in operation to accomplish what is now known as the work of that committee. For the temporary use of this committee a part of the House of Education and Labor Committee-room, through the marked kindness of Hon. Mr. Arnell, Chairman of the Committee, was granted; afterward, the beautiful, artistic House Agriculture Committee-room, also used for the Committee on Manufactures, was generously proffered by the chairmen of both, Hon. Mr. Morrell and Gen. Smith, and is still retained.
Books are now opened for signatures to the new Declaration and Pledge,[143] and the autographs of all women ready to exercise the elective franchise. Thousands of tracts, const.i.tutional arguments of Mr. Riddle and Mrs. Woodhull, report of the minority Judiciary Committee, and an address to the women of the United States, are being sent to the whole country, carrying conviction to the weak, force to the active, and hastening the consummation of a triumph worthy of the struggle and undying faith of all who have n.o.bly borne their part in this history. The names of the earnest women who took part in this Convention, and who partic.i.p.ated in the inauguration of the new issue, are recorded in the books of the Committee; and now, only the funds--generous and prompt contributions--are needed to respond to the call from all the States and Territories for knowledge--either by voice or pen--to complete a reconstruction of the government "of the people, for the people and by the people," without arms, court-martial, or bloodshed.
In this connection Mrs. Belva A. Lockwood"s very able memorial to Congress asking suffrage for the women of the District should be mentioned. It was a well-sustained argument, showing the writer to be mistress of her subject. Mrs. Lockwood is an efficient, earnest, honest worker. She presented to Congress a large pet.i.tion, fully equal in numbers to the one presented by Mrs.
Dahlgren and Sherman, whose anti-suffrage pet.i.tion and memorial against it formed one of the peculiar features of the work of last winter. Mrs. H. C. Spencer, of Washington, answered Mrs.
Dahlgren"s pamphlet with a most admirable one ent.i.tled "Problems," which has already had an extensive circulation, and is more earnestly called for than any other, with the exception of Mrs. Woodhull"s const.i.tutional argument, and Mr. Riddle"s on the same question. The meetings were held daily in the committee-room during the entire session, and the interchange of thought was often very interesting and encouraging.