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sex in any clause relating to the electorate; or it may present by a separate proposal the question whether woman shall vote on the same terms as men.
It is inconceivable that the convention should offer the electorate no opportunity to pass upon this question. It would be a gross abuse of delegated authority to decline to submit in some fashion a question so prominent in public discussion. The convention is certain to heed the widespread public opinion that has passed beyond the stage of mere argument and found expression in the constitutions of more than one-fifth of our states and in the proposed amendment to the constitution of this state, already once passed by the legislature and commended for submission in the platforms of our political parties.
The only alternatives which the convention has seriously to consider are whether to incorporate in the body of the constitution a provision enfranchising women, or to submit the question by a separate proposal. The wisdom of choosing the latter course is obvious. The constitution must necessarily deal with too many other matters of grave importance to imperil its ratification by the inclusion of a provision which still provokes wide difference of opinion. The question of the composition of the electorate is one which can most easily be isolated. In those instances where it is deemed best to make other political rights. or duties coincident with the right of suffrage, the constitution may employ the term "elector," leaving for subsequent determination the scope of the term.
Much might be said in favor of a provision vesting the legislature with power to endow women with the right to vote at all elections as it now may confer that right for some elections. Such arguments would be conclusive if the process of amending the state constitution were as difficult as that of amending the constitution of the United States. But in view of the comparative ease of amending the state constitution, and in view of the fact that qualifications for voting are connected with the very foundations of the government, the question seems one for the determination of the highest political authority of the state.
Suggestions have been heard which point to one other conceivable course for the convention. It might submit to the
electorate for its approval a plan to refer the suffrage question to a plebiscite in which both men and women are included. By this plan all the adult governed would be given an opportunity to determine who shall be the governors. This expedient, however, seems less desirable than some plan for the immediate vesting of legal authority in the governed, leaving to the thus newly-constituted electorate the continuing power to impose restrictions upon the exercise of the franchise. Once all the governed possess legal authority, future limitations of that authority will have a basis incomparably firmer than the basis of any existing limitations. The determination of the desirability of any proposed restrictions can be reached with greater wisdom after the benefit of the experience of the actual working of universal adult suffrage. Then only can we know how well grounded are the apprehensions of the modern counterparts of Chancellor Kent.
THE CONSENT OF THE GOVERNED1
Professor of Jurisprudence, Columbia University
HE question whether women shall vote appears to me to be a question of social and political expediency. It is not, I think, to be settled by the citation of any such aphorism as that which bases the powers of government on the consent of the governed. Political aphorisms, even when they are formulated in the interest of progress, are always based upon preceding developments. Like legal maxims, they are always broader than the range of cases they were first framed to cover, and their application to new and different cases is always disputable. To say that they have come to represent social and political "ideals" is to beg the question whether their application should be extended.
The consent of the governed" has meant, historically, the consent of those who were actually or potentially fighting units. Voting was invented, in early communities, to find out whether the rank and file of fighting men would or would not support action proposed by their leaders. That was the whole significance of the weapon-clash in the early Teutonic assembly and also of the more elaborate voting by tablets in the assemblies of the ancient Mediterranean city-states. Whether the modern referendum means anything more is at least a debatable question.
These early assemblies consisted of the active army and the As soon as a young man was armed he became a voter. In the Teutonic assembly and in the earliest Roman assembly the voters appeared with arms in their hands. In the Roman assembly they voted by companies of horse and foot. In a later organization of the Roman assembly, the 1Discussion of woman suffrage at the meeting of the Academy of Political Science, November 20, 1914.
citizens voted by local districts or wards; but so long as all free Romans were held to military duty, they all voted. When the Roman armies became mercenary forces, their commander and paymaster became lord of the Roman world and voting disappeared.
In the medieval and modern history of Europe, the proportion of the population whose consent must be obtained in the operation of government has broadened or narrowed with the right and duty of exercising armed force to protect the frontier, to maintain internal peace, and to secure submission to the law. In the eighth and ninth centuries of the Christian era, when the tribal armies of Western Europe, fighting on foot, were unable to resist the Moorish horsemen and it became necessary to meet this light cavalry with a superior heavy cavalry, knight service became the basis of political power. Those who furnished bodies of knights were the only persons whose consent was important. When at a later period a new and efficient infantry was developed, first in the shape of pikemen, and then, after the invention of gunpowder, in the shape of musketeers, the cities which could equip such forces began to count politically; and when, as in many of the cities, the duty of defending the walls as well as that of maintaining the internal peace was imposed upon all able-bodied male citizens, democratic government reappeared. When, at the close of the middle ages, some of the kings and princes, by taking money in lieu of feudal services and by developing other fiscal rights of the crown, were able to hire and equip bodies of soldiers which replaced the feudal and city troops, they were in a position to dispense with the express consent of any of their subjects. In the nineteenth century, when the hired armies were replaced, first by volunteer armies, then by 'drafted armies, and finally by armies based on universal military training, the manhood suffrage of the early tribe reappeared in Western and Central Europe.
In England the line of political development was somewhat different. Here the monarchy was never able to break the power of the feudal aristocracy so completely as on the continent; and the great landed estates, although freed from feudal
duties, retained the power they had formerly earned by service. Naturally, under these circumstances, the theory develcped that the parliamentary franchise existed to protect property; it was even asserted that the state was based on property; and the gradual widening of the suffrage in the nineteenth century was based on the claim of other economic interests to their share of political power. These English theories we inherited or borrowed, and they were largely invoked in the early part of the last century by those who supported property qualifications and opposed the demand for universal manhood suffrage in the United States.
To-day, however, alike in England and in the United States, suffrage may be regarded as resting, in principle, on the historic basis of armed service that may be exacted; not alone upon the duty of service in foreign or civil war, but also on the duty to maintain the peace and to aid in the enforcement of the law. Under our national and state laws every male citizen within certain age limits may be called upon for such service. This duty is a more defensible basis of suffrage than the protection-of-interest theory. This latter theory assumes that, in some mysterious way, general social interests will be realized through the clash of conflicting class interests. It seems certain, on the contrary, that social interests are effectively secured only through the subordination of class interests to the general good.
It must be conceded that the antiquity of any social or political arrangement affords no conclusive proof of its continued. necessity. In course of time all such arrangements are sure to be superseded or modified. At any given time, however, there is at least a presumption in favor of the existing system. As far as we can judge from history, social progress demands, at any given time, the modification of only a relatively small part of the entire social order. Even in such periods as the late Roman Empire and the old régime in France, the great majority of the existing institutions, laws and customs were well adapted to contemporary conditions; and what was swept