But there is still another interpreter. The maxim of Otis was not original with him. It is found in the writings of John Locke, so remarkable for masculine sense and an exalted love of liberty. On a former occasion I adduced his authority, which is plain and positive. Pardon me, if I call attention to it once more. After asserting that Government cannot take the property of any one without his own consent, being the consent of the majority, the philosopher thus expresses himself:—
“For, if any one shall claim a power to lay and levy taxes on the people by his own authority and without such consent of the people, he thereby invades the fundamental law of property and subverts the end of government; for what property have I in that which another may by right take, when he pleases, to himself?”[239]
Mr. Hallam, commenting on this text, does not hesitate to say, that it “in some measure seems to charge with usurpation all the established governments of Europe,”—that “neither the Revolution of 1688 nor the administration of William the Third could have borne the test by which Locke has tried the legitimacy of government.”[240]
A later English writer, Mr. Tremenheere, commenting also on this text, sets forth its two propositions as follows: “First, that a political society can only be bound by the act of the majority; second, that taxation without representation is tyranny.”[241] Such are the two propositions this English writer finds in Locke, and which he cites for condemnation. Thus, if we repair with Otis to the very source from which he drew, we find that there was no claim for communities merely, but for the individual man, without distinction of color.
Mr. Bright, our English friend, in one of his admirable speeches,[242] has recently furnished an additional illustration. He has brought to light a resolution from no less an authority than Lord Somers, on an important occasion, kindred to the present, when it was proposed to disfranchise all who were not of the Established Church, as it is now proposed to disfranchise all who are not of a certain color. Speaking for the House of Lords, in conference with the Commons, this great constitutional lawyer insisted:—
“That though the Lords allow that no man hath a place by birthright, or but few such examples in our Government, yet that giving a vote for a Representative in Parliament is the essential privilege whereby every Englishman preserves his property, and that whatsoever deprives him of such vote deprives him of his birthright.”[243]
Here again is the very cry of Otis; and you cannot fail to observe that the claim is not for communities merely, but for “every Englishman,” without distinction of color.
Surely this is enough. But it is said that the claim is as applicable to women as to men, especially where women are tax-payers. To this I reply, that Locke, Somers, Otis, and Franklin, in making the claim, did not give it any such extent, and the question which I submit is simply as to their meaning in the words “Taxation without representation is tyranny.” Clearly their claim was for men, believing, as they did, that women were represented through men; and it is hardly candid to embarrass the present debate, involving the rights of an oppressed race, by another question entirely independent. In saying that the claim was for men, I content myself with the authority of Theophilus Parsons, afterward the eminent Chief Justice of Massachusetts, who, in a masterly state-paper, known as the “Essex Result,” which was the prelude to the Constitution of Massachusetts, thus discloses the opinion of the Fathers on this precise point:—
“Every freeman, who hath sufficient discretion, should have a voice in the election of his legislators.… All the members of the State are qualified to make the election, unless they have not sufficient discretion, or are so situated as to have no wills of their own. Persons not twenty-one years old are deemed of the former class, from their want of years and experience.… Women, what age soever they are of, are also considered as not having a sufficient acquired discretion,—not from a deficiency in their mental powers, but from the natural tenderness and delicacy of their minds, their retired mode of life, and various domestic duties. These, concurring, prevent that promiscuous intercourse with the world which is necessary to qualify them for electors. Slaves are of the latter class, and have no wills.”[244]
The reasons assigned for the exclusion of women may be very unsatisfactory; but they show at least that the Fathers, when insisting that taxation and representation must go together, did not regard women, any more than minors, within the sphere of this commanding principle. And here I leave this head of the argument, concluding as I began, that you cannot adopt this pretended Amendment without setting at defiance the great maxim of constitutional liberty which was the rallying cry of our fathers.