upon which the one half of every society has thus been systematically excluded by the other half from all right of participating in government, which would not, at the same time, apply to and justify many other exclusions. If it be said, that all men have a natural, equal, and unalienable right to vote, because they are all born free and equal; that they all have common rights and interests entitled to protection, and therefore have an equal right to decide, either personally or by their chosen representatives, upon the laws and regulations, which shall control, measure, and sustain those rights and interests; that they cannot be compelled to surrender, except by their free consent, what, by the bounty and order of Providence, belongs to them in common with all their race; what is there in these considerations, which is not equally applicable to females, as free, intelligent, moral, responsible beings, entitled to equal rights, and interests, and protection, and having a vital stake in all the regulations and laws of society? And if an exception, from the nature of the case, could be felt in regard to persons, who are idiots, infants, and insane; how can this apply to persons, who are of more mature growth, and are yet deemed minors by the municipal law? Who has an original right to fix the time and period of pupilage, or minority? Whence was derived the right of the ancient Greeks and Romans to declare, that women should be deemed never to be of age, but should be subject to perpetual guardianship? Upon what principle of natural law did the Romans, in after times, fix the majority of females, as well as of males, at twentyfive years? Who has a right to say, that in England it shall, for some purposes, be at fourteen, for others, at seventeen, and for all, at twenty-one years; while, in 1 1 Black. Comm. 463, 464. France, a person arrives, for all purposes, at majority, only at thirty years, in Naples at eighteen, and in Holland at twenty-five?1 Who shall say, that one man is not as well qualified, as a voter, at eighteen years of age, as another is at twenty-five, or a third at forty; and far better, than most men are at eighty? And if any society is invested with authority to settle the matter of the age and sex of voters, according to its own view of its policy, or convenience, or justice, who shall say, that it has not equal authority, for like reasons, to settle any other matter regarding the rights, qualifications, and duties of voters? 2 3 § 579. The truth seems to be, that the right of voting, like many other rights, is one, which, whether it has a fixed foundation in natural law or not, has always been treated in the practice of nations, as a strictly civil right, derived from, and regulated by each society, according to its own circumstances and interests. It is difficult, even in the abstract, to conceive how it could have otherwise been treated. The terms and conditions, upon which any society is formed and organized, must essentially depend upon the will of those, who are associated; or at least of those, who constitute a majority, actually controlling the rest. Originally, no man could have any right but to act for himself; and the power to choose a chief magistrate or other officer to exercise dominion or authority over others, as well as himself, could arise only upon a joint consent of the others to such appointment; and their consent might be qualified exactly according to their own interests, or power, or policy. The choice of representatives to act in a legislative capacity is not only a refinement of much later stages of actual association and civilization, but could scarcely occur, until the society had assumed to itself the right to introduce such institutions, and to confer such privileges, as it deemed conducive to the public good, and to prohibit the existence of any other. In point of fact, it is well known, that representative legislative bodies, at least in the form now used, are the peculiar invention of modern times, and were unknown to antiquity. If, then, every well organized society has the right to consult for the common good of the whole, and if, upon the principles of natural law, this right is conceded by the very union of society, it seems difficult to assign any limit to this right, which is compatible with the due attainment of the end proposed. If, therefore, any society shall deem the common good and interests of the whole society best promoted under the particular circumstances, in which it is placed, by a restriction of the right of suffrage, it is not easy to state any solid ground of objection to its exercise of such an authority. At least, if any society has a clear right to deprive females, constituting one half of the whole population, from the right of suffrage, (which, with scarcely an exception, has been uniformly maintained,) it will require some astuteness to find upon what ground this exclusion can be vindicated, which does justify, or at least excuse, many other exclusions.1 Government (to use the pithy language of Mr. Burke) has been deemed a practical thing, made for the happiness of mankind, 2 Id. 171. 1 1 Black. Comm. 463, 464. 31 Black. Comm. 171; 2 Wilson's Law Lect. 130; Montesquieu's Spirit of Laws, B. 11. ch. 6; 1 Tucker's Black. Comm. App. 52, 53. 1 See Paley's Moral Philosophy, B. 6, ch. 7, p. 392; 1 Black. Comm. 171; Montesquieu's Spirit of Laws, B. 11. ch. 6. and not to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians.1 2 § 580. Without laying any stress upon this theoretical reasoning, which is brought before the reader, not so much because it solves all doubts and objections, as because it presents a view of the serious difficulties attendant upon the assumption of an original and unalienable right of suffrage, as originating in natural law, and independent of civil law, it may be proper to state, that every civilized society has uniformly fixed, modified, and regulated the right of suffrage for itself, according to its own free will and pleasure. Every constitution of government in these United States has assumed, as a fundamental principle, the right of the people of the state to alter, abolish, and modify the form of its own government, according to the sovereign pleasure of the people. In fact, the people of each state have gone much farther, and settled a far more critical question, by deciding, who shall be the voters, entitled to approve and reject the constitution framed by a delegated body under their direction. In the adoption of no state constitution has the assent been asked of any but the qualified voters; and women, and minors, and other persons, not recognised as voters by existing laws, have been studiously excluded. And yet the constitution has been deemed entirely obligatory upon them, as well as upon the minority, who voted against it. From this it will be seen, how little, even in the most free of republican governments, any abstract right of suffrage, or any original and indefeasible privilege, has been recognised in practice. If this consideration 1 Burke's Letter to the Sheriffs of Bristol in 1777. 2 See Locke on Government, p. 2, § 149, 227. 1 does not satisfy our minds, it at least will prepare us to presume, that there may be an almost infinite diversity in the established right of voting, without any state being able to assert, that its own mode is exclusively founded in natural justice, or is most conformable to sound policy, or is best adapted to the public security. It will teach us, that the question is necessarily complex and intricate in its own nature, and is scarcely susceptible of any simple solution, which shall rigidly apply to the circumstances and conditions, the interests and the feelings, the institutions and the manners of all nations.1 What may best promote the public weal, and secure the public liberty, and advance the public prosperity in one age or nation, may totally fail of similar results under local, physical, or moral predicaments essentially different. § 581. It would carry us too far from the immediate object of these Commentaries to take a general survey of the various modifications, under which the right of suffrage, either in relation to laws, or magistracy, or even judicial controversies, has appeared in different nations in ancient and modern times. The examples of Greece and Rome, in ancient times, and of England in modern times, will be found most instructive. In England, the qualifications of voters, as also the modes of representation, are various, and framed upon no common principle. The counties are represented by knights, elected by the proprietors of lands, who are freeholders; the boroughs and cities are represented 1 Dr. Lieber's Encyclopædia Americana, art. Constitution. 2 See 3 Adams's Amer. Constitut. Letter 6, p. 263, &c. p. 440, &c. 1 Black. Comm. 171, 172, 173; Montesquieu's Spirit of Laws, Book 11, ch. 13; Id. B. 2, ch. 2. 31 Black. Comm. 172, 173; Paley's Moral Philosophy, B. 6, ch. 7; The Federalist, No. 57. |