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, that 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, s-.ys:

"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, oneof which is personal liberty."

That they could not vote, hold office, &c, 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, page 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

8

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 Kentucky Reports, page 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 page 508, first volume Opinions of Attorneys General, 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" thus: "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 thegift 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 x\thenian citizen ship 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, page 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, page 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., torn, v., page 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, whatconstitutes 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, page 48.)

But all such fallacious theories as this are swept away by the fourteenth amendment, which abolishes the theory of different grades of citizenship, or different gradesof 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 fourteenth 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 * * *

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 Constitution, "Contemporary construction is properly resorted to to illustrate and confirm the text." * * * * "Itcan 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 ob

jects 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 juridicial 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 bythe 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 to 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 the rulers and law-makers. Does it, then, "providefor 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 Constitution 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 first section of the fourteenth amendment is in perfect accord with those expressed objects; and even if there were anything in the original text of the Constitution 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 fifteenth 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 Constitution of our country. The law is the reverse—that the fundamental rights of citizens are not to be taken away by implication, and a constitutional provision for the protection of one class can certainly not be used to destroy or impair the same rights in another class.

It is too violent a construction of an amendment which prohibits States from or the United Statesfrom 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 government aristocratic, overthrowing their republican form.

The fifteenth article of amendment to the Constitution 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 constitutions? 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 assume that the affirmative specification excludes all other implications. (2 Story on Constitution, section 449.)

There are numerous instances in the Constitution 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 fifteenth 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 fourteenth amendment which guaranties 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 fifteenth 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 fourteenth 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 fifteenth 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 of the citizens of the country. What we have said in relation to the committee's construction of the effect of the fifteenth amendment applies equally to this.

The object of the first section of this amend ment 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 iu case of denial of that right to that class. While it, to a certain extent, protected that class of citizens, it left the others where the previous provisions of the Constitution placed them. To protect the colored man more fully than was done by that penalty was the object of the fifteenth 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 institution of slavery was recognized in the original Constitution, 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 Constitution 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 Constitution 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 fourteenth amendment the power of the States is conceded to entirely take away the right of suffrage even from that privileged class, the male citizens. And thus this rule of "implication" goes too far, and fritters away all the guarantees of the Constitution 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 class of citizens under the Constitution 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 two, article one, the Constitution 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 qual

ifications 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 classes 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 dis franchise 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 qualification 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 Constitution.

The Constitution 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 domicile, the length of residence necessary to entitle the citizen to vote in a given State or place. These particulars could not be provided in the Constitution 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 Constitution 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 Constitution 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 Constitution 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 cannot assent.

We are told that the acquiescence by the people, since the adoption of the Constitution, in the denial of political rights to women citizens, and the general understanding that such denial was in conformity with the Constitu

tion, 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 tht fourteenth amendment, which is of but recene 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 Constitution, 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 constitutional law, and precedents are not infallible guides toward liberty and the rights of man. * ***** *

It is said by the majority of the committee that "if the right of female citizens to suffrage is vested by the Constitution, 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 one, section five, of Constitution ;) 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 cannot thus invade the prerogatives of the political department.

And it is therefore perfectly proper, in our opinion, for the House to pass 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 one of article fourteen of amendments to the Constitution 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.

Report of the Judiciary Committee of the Senate.

1872, January 25—Mr. Carpenter, from the Committee on Judiciary, to whom was