History of Woman Suffrage/Volume 2/Chapter 25
CHAPTER XXV.
TRIALS AND DECISIONS.
Women voting under the XIV. Amendment—Appeals to the Courts—Manila M. Ricker, of New Hampshire, 1870—Nannette B. Gardner, Michigan—Sarah Andrews Spencer, District of Columbia—Ellen Rand Van Valkenburgh, California—Catharine V. Waite, Illinois—Carrie S. Burnham, Pennsylvania—Sarah M. T. Huntingdon, Connecticut—Susan B. Anthony, New York—Virginia L. Minor, Missouri—Judges McKee, Jameson, Sharswood, Cartter—Associate Justice Hunt—Chief Justice Waite—Myra Bradwell—Hon. Matt. H. Carpenter—Supreme Court Decisions—Mrs. Gage's Review.
We have already shown in previous chapters that by a fair interpretation of the XIV. Amendment women were logically secured in their right to vote. Encouraged by the opinions of able lawyers and judges, they promptly made a practical test of this question by registering and voting during the State and Presidential elections of 1871 and '72. This transferred the discussion, for a time, from the platform and halls of legislation to the courts for final adjudication.
The first woman to offer her vote was Manila M. Ricker, of Dover, New Hampshire, a young widow of large property. In March,[1] 1870, the day previous to the election, she made application to the selectmen for registry. No objection being made, and one of the Board, promising to put her name on the check-list, she departed, leaving with them several copies of a speech she had prepared in case of a refusal. On election day she appeared at the polls and offered a straight Republican ticket. It was received by the moderator and her name called, but on examination of the list it was found that the selectman had been false to his promise, and her vote was refused. Extended comments were made by the press of the State, Democrats generally sustaining her, while Republicans were bitter in opposition. Mrs. Ricker in the meantime prepared to sue the selectmen, but being strongly opposed by her republican friends, she silently submitted to the injustice, and thus lost the opportunity of being the first woman to prosecute the authorities for refusing the vote of a citizen on the ground of sex. However, she still enjoys the distinction of being the first woman to cast a vote under the XIV. Amendment, as the following spring she saw that her name was on the registry list, and her vote was received without opposition.
The next case was that of Nannette B. Gardner, in Detroit, Michigan. She registered her name in that city March 25, 1871, and voted,[2] unquestioned, April 3d. April 20th, of the same year, Sara Andrews Spencer and Sarah E. Webster, with seventy other women of the District of Columbia, marched in a body to the polls, but their votes were refused at the election as they had been previously refused registration. They immediately took steps to prosecute the Board of Inspectors, and suit was brought in the Supreme Court of the District at the general term, October, 1871. Albert G. Riddle and Francis Miller, able lawyers of the District, and well known advocates of woman suffrage, were retained by the plaintiffs, and in their defense made the following arguments:
To the declarations the defendants demur, and thereby raise the only questions we desire to have adjudicated. The defendants, by their demurrer, admit all the allegations of the plaintiffs, severally, but say, that as they are women, they are not entitled to vote in the District of Columbia. That the seventh section of the organic Act, the Constitution of the District, provides, "That all male citizens," etc., "shall be entitled to vote," etc., and that this word male excludes women, of course.
To this the plaintiffs reply that the language of the statute does exclude women, but they say that in the presence of the first section of the XIV. Amendment, which confers the elective franchise upon "all persons," this word "male" is as if unwritten, and that the statute, constitutionally, reads, "That all citizens shall be entitled to vote." For we contend, your honors, that although the Congress "has exclusive legislation in all cases over this District it can legislate only, as could the States, from which it was taken. It must legislate in accordance with American ideas, and can exercise no power not granted by the Constitution; and that instrument certainly confers no power to limit the right of suffrage. And so we are at issue....
As the first proposition of my brief, I contend, that under our system the right to vote is a natural right.
Obviously, government is of right or it is an usurpation. If of right, it sprang from some right older than itself; and this older right must have existed in persons (people), in each and all alike, male and female. And having this right, they used it to form for themselves a government. Of course, this supposes that all joined in and consented to the government having the power to dissent; for, to just the extent that a government got itself agoing without the free consent of its people, it is without right. The right of self-government, and from that springs our right to govern others, is a natural right. This is the primary idea of American politics, and the foundation of our Government. This was formulated in the second clause of our great Declaration, and no man has dared to deny it....
It follows, then, if the right of government is a natural right, and to be exercised alone by the ballot, that the right to vote is a natural right. This never has been and never can be successfully controverted....
I will read from the highest American authority upon our politico-constitutional questions, partly in support of my proposition that the right to vote is a natural right, and also to show that the assumed claim of one part of the people to exclude another from all share in the Government has the most doubtful and shadowy foundation in right, and to an American it needs no evidence to show that a portion of the people thus excluded are in a state of vassalage. I read from Story on the Constitution, volume 1st, commencing at
This, remember, was written thirty years ago. Where would Story be now, if living? I beg also to read a single paragraph from the "Spirit of Laws," London edition, vol. I., p. 220:
"All the inhabitants of the several districts ought to have the right to vote at the election of the representatives," etc.
All of the inhabitants, says Montesquieu, ought to have the right to vote. Under such a rule I suppose my learned opponent would contend that a woman could not be an inhabitant, of course. I feel that I ought to apologize for presenting this point to this extent; it is so obvious, and rests on such broad and ample ground, that argument for it is without excuse, and I rest it here. So that if you consider this XIV. Amendment as a grant from the sovereign, then, like all such grants, you must take it most strongly against the grantor, and most favorable to the subject. And if, as I have shown, it is in favor of natural right, then must you construe it most strongly to extend that right. No court needs authority for these propositions.
The second proposition of my brief is, that by the old common law of our English ancestors, the old storehouse of our rights and liberties, as well as the arsenal where we find weapons for their defense, woman always possessed this right of suffrage.
I will show by several English cases, by long usage, and general understanding, by principle and precedent, that the English woman both voted and held office; and I will show that not a single case, that not a single resolution of the House of Commons exists to the contrary; and that in all the now innumerable tomes of the common law, of judicial decision, commentary, or essay, but a single dictum exists to the contrary. And if I thus establish that the construction of the XIV. Amendment, for which I this day contend, is in favor of a common law right, is in accordance with its scope and spirit, every lawyer understands by how much I strengthen my position. And for the satisfaction of the court I am glad to state that this part of my argument will consist entirely of extracts from recent English text-writers, and a reference to two or three old cases. I read first from Mr. Anstey's Notes upon the Reform Act of Great Britain of 1867. The writer in his comment upon the words of the act, "every man of full age," etc., commences by showing that the term man in the act, as in Magna Charta and other statutes, is epicene—means both men and women. And he then goes on to show that to construe this phrase, "every man," to include every woman also, is in strict accordance with the common law from old times to the present. I read from p. 87:
And so again on pages 90 and 91:
Further on, pages 94 and 95;
Three of the returns in question which related to one and the same borough, were, at a period long subsequent, produced before a "Committee of Privilege and Election," presided over by the great parliamentary lawyer, Mr. Hakewell, as evidence for and against the respective parties in an election trial then pending. The question was whether the borough was close or open; that is to say, whether amongst the former returns so produced, those by "Mrs. Copley, as sole inhabitant," showed the suffrage to be limited to the Lord or Lady of Gatton for the time being, or whether those by "Mrs. Copley, et omnes inhabitantes," showed the suffrage to be of a more popular character. No question of sex was raised on either side, and neither the report of the committee which found for the popular right, nor the resolution of the house for giving effect thereto, and for taking the Lord of the Manor's return off the file, contain any allusion to the question of sex.
At that time the House of Commons was not prepared to enter into conflict with the courts of law, and "privilege" had not attained to the height which, amid the excitement of the era of 1688, it was doomed to reach. It was impossible for the Committee of Privileges, in the Gatton case, to deny the female suffrage without coming into collision with the law, which had been declared but a few years previously by the judges. (Holt vs. Lyle and Coates vs. Lyle, 14 Jac., 1 and Catherine vs. Surrey, (Hakewell MSS.,) Append., 7 Mod., 264-5.) "The opinion of the judges," it was said by Sir William Lee, a chief justice of the King's Bench in 1739, "was that a feme-sole, if she has a freehold," in a county (as it seems) "may vote for members of Parliament," and that women when sole had a power to vote.... In Lady Packington's case (she) returns to Parliament; that the sheriff made a precept to her, as lady of the manor, to return two members to Parliament.... In the case of Holt vs. Lyle it is determined that a feme-sole freeholder, in counties, may claim a vote for Parliament men, but, if married, her husband must vote for her.... I only mention what I found in a manuscript by the famous Hakewell. Chief-Justice—Coverture then incapacitated a woman from voting?
Mr. Riddle.—No, your honor; the right to vote attached to the freehold, and by the old law that by marriage vested in the husband.
In the case of Olive vs. Ingram, 7th Mod. Reps., already recited by the author, it was urged that the right of woman suffrage was lost by non-user, which is thus disposed of. I quote from page 97:
The same can not be said of the learned Solicitor General's objection of non-user. "As their claim," he argued, "is at common law, and usage is the only evidence of right at common law, they ought to show it, or else non-user shall be evidence of a waiver of the right, if they ever had any." The reply was conclusive enough. "There was a difference between being exempted and being incapacitated." But there was another and a not less conclusive reply. The franchise was a public, not a private right—omnis libertas regia est, et ad coronam pertinet—[every liberty is royal and pertinent to the crown]—and of such there can be no waiver, for the right implies a duty, and the duty is co-equal and co-extensive with the right.
I now ask your attention to the case of Jane Allen, which came before Mr. Anstey in the Revising Court, a tribunal created by the parliamentary elector's trial bill of 1868, and which sits to revise the registration of voters, under the Act of 1867, and from whom appeals lie to the Court of Common Pleas. The case came up in 1868, and was fully and ably argued, and the Revising Barrister went luminously over the whole ground in an exhaustive opinion when he rendered judgment. I find the case in the Eng. Law Mag. and Law Rev. for 1868, at p. 121:
In re Jane Allen (Parish of St. Giles-in-the-Fields). September 23, 1868.
This was a claim to be entered on the St. Giles' list of occupiers for the borough, under the "Representation of the People Act, 1867," s. 3; the claimant's name, in common with those of all female occupiers, having been omitted by the overseers.
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The Revising Barrister said, p. 132: In the meantime, and dealing with the case according to my own opinion of what the law is, I hold, in the first place, that this incapacity of mere sex, as it is called, did not exist at common law in any constituency; and (on the authority of the cases cited already of Catherine vs. Surrey, Holt vs. Lyle, and Coates vs. Lyle, which show that there is in counties no such incapacity even as to the freehold franchise, even under the acts passed before 1832, greatly narrowing the basis of that suffrage there), that, à fortiori, there was no such incapacity in boroughs of the common right at least, and also of many, perhaps all, of those by custom also, as appears by the valuable records preserved from the time of the Conquest down to our own time, including the Damesday and the Doom Books of the various boroughs. For I find that (although in some boroughs, a later charter or special act of Parliament was to the contrary), where the common right obtained, the woman burgess took her place, and her name was inscribed on the burgess roll with the male burgesses, enjoying the same rights and liable to the same heavy duties—such as watch and ward, scot and lot, and the like, as the burgesses of the male sex. Curiously enough, I see that it has been objected to the right of female suffrage within the last few days, that there is this analogy between the right of franchise and the liability to watch and ward. It is because that analogy exists, that I think that the claim of franchise must surely prevail, it being clear that, under the common law, a woman was liable to the former burthen, as she is still liable to serve as a constable, as an overseer of the poor, and the like offices, and, therefore, was rightfully put upon the burgess roll, and voted in the borough court equally with the male burgess.
But the matter does not rest there. The Rolls of Parliament, which end with the reign of Queen Mary, certainly contain no notice of the right of women to vote at common law, because they contain no entries relating to the right of suffrage at all, and I, therefore, pass them by. But I make this observation upon them, that they do contain not unfrequent notices of the presence of women in Parliament itself. But the returns to the parliamentary writs of the period are more to the purpose. Take, for instance, those relating to the county of York, collected by Prynne for quite another purpose than the present. He had to show that the lords and esquires of that great county, and not the freeholders at. large, had for the long period of time which begun with the reign of Henry IV. and ended with that of Edward IV., alone returned the knights of that shire to Parliament, and among those lords and esquires not a few clearly appear to have been of the female sex. But now I pass to the period of the journal.
It was said by Mr. Bennett [who argued against woman suffrage], that if a single instance could be shown in which a woman had voted, and not simply claimed the right to vote, then cadit questio. But two such cases, Lady Packington's case and Mrs. Copley's case, were admitted by Mr. Bennett himself. I do not think that he explained away the effect of that admission. It was certainly not as a mere returning officer that either of those ladies signed and returned the indenture. It was as a person having or claiming to have, the sole property in the soil of the whole of the populous borough of Aylesbury, that Lady Packington made her return; and during two or three generations the Packington family had, or had claimed to have, precisely that right.•••••••••••••••••
It is thus made broad and clear that the right of woman to the elective franchise was one of the best acknowledged and clearest of common law rights; and that in the whole circle of English authority the ghost of a dictum can alone be raised to question it. So that if the force of its language compels you to construe the XIV. Amendment as authorizing woman to vote, you will have the satisfaction of knowing that it but restores her to her old common law right in the persons of her American daughters.
Third. I am now to deal directly with the Amendments. The first clause of Section I of the XIV Amendment I now read:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
Until this was promulgated there was no absolute standard or rule of citizenship in the United States. Each State made a rule for itself, and its rule was not always clearly expressed, as you will see by these constitutions. Some of them say that the male citizens of the State, being inhabitants, etc., shall vote, yet do not declare in what citizenship shall consist. Others, that citizens of the United States, etc., shall vote, while no person was a citizen of the United States except as he had become a citizen of a State. Many States permitted aliens, on a short residence, to vote, without naturalization, and they, in that indirect way,-became citizens of such State, and hence of the United States. This Amendment puts an end to doubt and cavil, and broadly declares that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside, etc. . . . .
By an unwritten article of the American Constitution—for whoever looks to the written text will not find the whole of the Constitution—persons, no matter where born, or however unnatural they may be, are permitted to become domiciled, gain settlements, hold lands, bring suits, and acquire and enjoy every possible right, privilege, and immunity of native born persons. Nor has Congress, nor has any State ever attempted, by law or ordinance, to discriminate against them, nor will either ever dare to do so, nor could or would such a law be enforced. The unwritten Constitution, by the name of public policy, or without any name, would prevent it. The only possible things which a resident alien may not do, are, he can not vote or hold office. There need be no mistake about this, and it can be reduced to an absolute certainty. What, pray, does the resident alien acquire by the transmuting process of naturalization? What is the sum total of his citizenship? He acquires the right of suffrage, and the right to hold office, and no other thing under the heavens and the Star-Spangled Banner. Does he acquire these rights by virtue of any word or special provision of our naturalization laws, which annexes suffrage to naturalization as its special perquisite? Not a word of it. Nor is there a word in any act of Congress or law of a State that confers suffrage upon the naturalized American as a thing incident to or consequent upon his act of naturalization. He thereby becomes a citizen, and takes up and enjoys its peculiar and distinguishing right. He gets naturalized for that and for no other purpose. Naturalization confers suffrage, then, because suffrage is a property of citizenship.
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Colored male citizens now vote constitutionally and rightfully, although the word "white "stands as before in most of the State constitutions; and yet they vote in spite of it. Some potent alembic has destroyed the force of this word, although the text remains as of old. We are at once referred to the XV. Amendment for a solution. That has conferred the power of voting upon them, and it is superior to the State constitutions and statutes, and executes itself, as is claimed. I concede, your honors, that if the XV. Amendment does confer suffrage, or remove the exclusion so that colored citizens can vote; if they have derived the franchise from that, then the argument is against me. But, if it does confer it, then judgment must go for me. Let us read it:
You see in a moment this does not confer anything. It uses no words of grant or grace, apt or otherwise, nor does it profess to. It expressly recognizes, as an already existing fact, that the citizens of the United States have the right to vote. The right which shall thus be respected is a right peculiar to the citizen—it is not a personal right, but a political right; and a right to vote, the same one mentioned in the second section of the XIV. Amendment—a right not created or conferred by the XV. Amendment. It could not be, for it existed, and, as I have just said, was spoken of in the XIV. Amendment; so that it must be as old as that at the least. This amendment is a solemn mandate to all concerned not to deny this right, 'because it existed, and because it was of the highest value.
Justice Wylie: It is not to be denied for either of the three reasons mentioned.
Mr. Riddle: Yes, your honor, I have not reached that; I am now only showing that it is a right—a citizen right—and older than the XV. Amendment; but, if your honor intends to infer that, because the right can not be denied in any one of those cases, that, therefore, it may be in all others, then you have another instance of a constitutional right to deny a constitutional right; and, without vanity, I have already pulverized that assumption. It is thus absolutely certain that colored male citizens do not claim their admitted right to vote from this XV. Amendment. They had it before, and this came in to protect and secure them in its enjoyment. Whence did they derive it? From the XIV. Amendment? If so, then did women acquire it by the same amendment? Was it an inherent right in them as a part of "the people?" So women are a much larger and more important part of "the people."
The right to vote shall not be denied on account of race, color, or previous condition of servitude, was not used to make the right sacred in male negroes alone, while the rights of all others were left to political caprice, or to be controlled hereafter by these same colored males mayhap; but this amendment was aimed fully at the mischief of the second section of the XIV. Amendment, and there its force is expended. It fossilizes the second section of that amendment. While the broad language of its first section secures, beyond the abridging hand of the States, the great rights it secures —rights which Congress can not abridge on any pretext, for it can exercise no power not granted, and the Constitution confers on it no power to abridge the "privileges or immunities of the citizen" in any instance.
And here I rest this solemn argument. I have brought this cause of woman, and of man as well—of the race—into the presence of the court, surrounded by the severe atmosphere of the law, beyond the reach of chronic ribaldry, and into the region of argument, where it must be estimated by its legal merits. I have applied to it the rules of law. I have pushed away the dead exfoliations that cumber the path; and have gone to the foundations, to the ever fresh and preserving spirit of the rules of the common law, and have sought to apply them with candor. . . . .
Francis Miller following Mr. Riddle, said: May it please the Court; . . . . Clearly the XV. Amendment does not confer any right of suffrage. Clearly, prior to the XIV. Amendment, colored men had no right to vote. The XIII. Amendment, which emancipated them, did not give them the right of suffrage, because the States had the constitutional power to say they should not vote. But between the XIII. and XV. Amendments, in some way or other, the colored man came into possession of this right of suffrage; and the question is, where did he get it? If he did not get it under the XIV. Amendment, by what possible authority are they voting by hundreds of thousands throughout this country? The legislative and constitutional provisions that prohibit their voting still remain unrepealed upon the statute books of many of the States, but yet they do vote. There is no possible, no conceivable, means by which they legally can vote, except by the operation of the XIV. Amendment. It may be said that if that is the case the XV. Amendment was not necessary. Well, admit it was not. It was very well said by Justice Swayne, in the case of the United States vs. Rhodes, in answer to the argument that if the XIII. Amendment conferred certain rights upon the colored man it was unnecessary to pass the Civil Rights Bill; "that it was not necessary, but it was well to do it to prevent doubts and differences of opinion." It is not well to leave any man's rights and liberties subject even to a doubt, and the Congress of the United States had better adopt amendment after amendment than to allow the slightest cloud to rest upon the tenure of the rights of the American citizen....
The Constitution has formulated into law the Declaration of Independence. We were one hundred years coming to it; but we have reached it at last—certainly by recognizing the political rights of the black man—and, as I believe, those of woman; and that is all this Court is called upon here to declare, to wit: that the Declaration of Independence has been enacted into law, and that you will see that that law is enforced.
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If I have established, as I believe I have, that under the first section of the XIV. Amendment women have the right to vote, and there is any particular limitation in the second section that contradicts it, that part of the amendment falls void and useless, so far as its effect upon woman is concerned. There is the declaration of the general principles expressly stated; and, if there is anything contradictory, "the particular and inferior can not defeat the general and superior." (Lieber's Hermeneutics, p. 120.) The great object of that XIV. Amendment, so far as it can be deduced from the words in which it is expressed, is this: that the rights of the citizens of the United States shall not be abridged. If there is anything contradictory of that in the subsequent sections, those sections must fall. But if the second section affects this argument at all, it is because it seems, by implication, to admit that the rights of certain male citizens of the United States can be denied. That is the whole force and effect of it—I mean so far as this argument is concerned. All that can be claimed for it is, that by implication, perhaps, it would permit that to be done. The XV. Amendment comes in and says, in express terms, that that which the second section by implication permits, shall not be done; and by this declaration it strikes out that section, and it is no more in the Constitution now than is that clause of the second section of the first article of the Constitution which permitted States to deny suffrage to any of their citizens—black or white. That section is gone. It is no more a part of the Constitution, because it has been absolutely repealed by the adoption of the XIV. Amendment. Just so this second section of the XIV. Amendment disappeared by the operation of the XV. Amendment.
The Chief Justice.—There is a very strong implication, is there not, in that Amendment, that you may deny the right of suffrage for other causes.
Mr. Miller.—I do not think there can be any implication by which a citizen may be robbed of a fundamental right. It must be something expressed. I do not believe in any power of taking away the rights of citizens by construction. No human being can be robbed of his God-given rights by implication. You can not take away his property by implication. You can not take away his liberty. I think it is equally true that you can not take away his right of self-government by implication.
Finally, in regard to the construction of this XIV. Amendment, it must be observed that it is remedial in its character, and it must be "construed liberally to carry out the beneficent principles it was intended to embody," Dwarris on Statutory Law, p. 632,) and that "its construction must be extended to other cases within the reason and rule of it." (Lord Mansfield in Atcheson vs. Everett, Cowper, 382, 391.) Lieber's fourteenth rule of construction is:
Let the weak have the benefit of a doubt without defeating the general object of a law. Let mercy prevail, if there be real doubt. (Lieber's Hermeneutics, p. 144.) Now, if mercy must prevail when there is real doubt, still more should justice prevail if there is any doubt. If your honors have any doubt in regard to this decision, I call upon you, not in the name of mercy, but in the name of justice, to give us the benefit of that doubt, and to recognize the right of all human beings to govern themselves.
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Chief Justice Cartter then delivered the opinion of the court, sustaining the demurrer, which is as follows: These cases, involving the same questions, are presented together. As shown by the plaintiffs' brief, the plaintiffs claim the elective franchise under the first section of the XIV. Amendment of the Constitution. The fourth paragraph of the regulations of the Governor and Judges of the District, made registration a condition precedent to the right of voting at the election of April 20th, 1871. The plaintiffs, being otherwise qualified, offered to register, and were refused. They then tendered their ballots at the polls, with evidence of qualification and offer to register, etc., when their ballots were rejected under the seventh section of the act providing a government for the District of Columbia. Mrs. Spencer brings her suit for this refusal of registration, and Mrs. Webster for the rejection of her vote under the second and third sections of the act of May 31, 1870. The seventh section of the organic act above referred to, limits the right to vote to "all male citizens," but it is contended that in the presence of the XIV. Amendment, the word male is without effect, and the act authorizes "all citizens "to exercise the elective franchise. The question involved in the two actions which have been argued, and which, for the purposes of judgment, may be regarded as one, is, whether the plaintiffs have a right to exercise within this jurisdiction, the elective franchise. The letter of the law controlling the subject is to be found in the seventh section of the act of February 21, 1871, entitled, "An Act to provide a government for the District of Columbia," as follows:
And be it further enacted, That all male citizens of the United States, above the age of twenty-one years, who shall have been actual residents of said District for three months prior to the passage of this act, except such as are non compos mentis, and persons convicted of infamous crimes, shall be entitled to vote at said election, in the election district or precinct In which he shall then reside, and shall have so resided for thirty days immediately preceding said election, and shall be eligible to any office within the said district, and for all subsequent elections', twelve months prior residence shall be required to constitute a voter; but the Legislative Assembly shall have no right to abridge or limit the right of suffrage.
It will be seen by the terms of this act that females are not included within its privileges. On the contrary, by implication, they are excluded. We do not understand that it is even insisted in argument that authority for the exercise of the franchise is to be derived from law. The position taken is, that the plaintifis have a right to vote, independent of the law; even in defiance of the terms of the law. The claim, as we understand it, is, that they have an inherent right, resting in nature, and guaranteed by the Constitution in such wise that it may not be defeated by legislation. In virtue of this natural and constitutional right, the plaintiffs ask the court to overrule the law, and give effect to rights lying behind it, and rising superior to its authority.
The Court has listened patiently and with interest to ingenious argument in support of the claim, but have failed to be convinced of the correctness of the position, whether on authority or in reason. In all periods, and in all countries, it may be safely assumed that no privilege has been held to be more exclusively within the control of conventional power than the privilege of voting, each State in turn regulating the subject by the sovereign political will. The nearest approach to the natural right to vote, or govern—two words in this connection signifying the same thing—is to be found in those countries and governments that assert the hereditary right to rule. The assumption of Divine right would be a full vindication of the natural right contended for here, provided it did not involve the hereditary obligation to obey.
Again, in other States, embracing the Republics, and especially our own, including the States which make up the United States, this right has been made to rest upon the authority of political power, defining who may be an elector, and what shall constitute his qualification; most States in the past period declaring property as the familiar basis of a right to vote; others, intelligence; others, more numerous, extending the right to all male persons who have attained the age of majority. While the conditions of the right have varied in several States, and from time to time been modified in the same State, the right has uniformly rested upon the express authority of the political power, and been made to revolve within the limitations of express law.
Passing from this brief allusion to the political history of the question to the consideration of its inherent merits, we do not hesitate to believe that the legal vindication of the natural right of all citizens to vote would, at this stage of popular intelligence, involve the destruction of civil government. There is nothing in the history of the past that teaches us otherwise. There is little in current history that promises a better result. The right of all men to vote is as fully recognized in the population of our large centres and cities as can well be done, short of an absolute declaration that all men shall vote, irrespective of qualifications. The result in these centres is political profligacy and violence verging upon anarchy. The influences working out this result are apparent in the utter neglect of all agencies to conserve the virtue, integrity and wisdom of government, and the appropriation of all agencies calculated to demoralize and debase the integrity of the elector. Institutions of learning, calculated to bring men up to their highest state of political citizenship, and indispensable to the qualifications of the mind and morals of the responsible voter, are postponed to the agency of the dramshop and gambling hell; and men of conscience and capacity are discarded, to the promotion of vagabonds to power. This condition demonstrates that the right to vote ought not to be, and is not, an absolute right. The fact that the practical working of the assumed right would be destructive of civilization is decisive that the right does not exist. . . . . It will be seen by the first clause of the XIV. Amendment, that the plaintiffs, in common with all other persons born in the United States, are citizens thereof, and, if to make them citizens is to make them voters, the plaintiffs may, of right, vote. It will be inferred from what has already been said, that to make a person a citizen is not to make him or her a voter. All that has been accomplished by this Amendment to the Constitution, or by its previous provisions, is to distinguish them from aliens, and make them capable of becoming voters.
In giving expression to my own judgment, this clause does advance them to full citizenship, and clothes them with the capacity to become voters, The provision ends with the declaration of their citizenship. It is a constitutional provision that does not execute itself. It is the creation of a constitutional condition that requires the supervention of legislative power in the exercise of legislative discretion to give it effect. The constitutional capability of becoming a voter created by this Amendment lies dormant, as in the case of an infant, until made effective by legislative action. Congress, the legislative power of this jurisdiction, as yet, has not seen fit to carry the inchoate right into effect, as is apparent in the law regulating the franchise of this District. When that shall have been done, it will be the pleasure of this court to administer the laws they find it. Until this shall be done, the consideration of fitness and unfitness, merit and demerit, are considerations for the law-making power. The demurrer in these cases is sustained.After the reading of the opinion of the Court by Chief Justice Cartter, Mr. Riddle, counsel for the plaintiffs, in open court, prayed an appeal to the Supreme Court of the United States. And that highest tribunal affirmed the decision of Judge Cartter.
This contradictory decision of Judge Cartter averring that the XIV. Amendment clothed women with the capacity to become voters, but did not create them voters, afforded opportunity for criticism and ridicule. The Washington Sunday Morning Herald wittily reported[3] this trial in the Supreme Court of the District of Columbia. On July 21st, 1871, Ellen Rand Van Valkenburg, of Santa Cruz, California, having applied for registration and been refused, brought suit against Albert Brown, of Brown County, who acted as Register upon this occasion. Although later suits exceeded this in interest it was notable for being the first decision under the new amendments.[4]
September 16, 1871, suit was brought by Carrie S. Burnham, an unmarried woman, residing in Philadelphia. She was duly assessed by the canvassers of the Fourteenth Ward of that city as a resident
of the Eleventh Election District of that ward. Two days afterwards she paid her tax, and her name was registered on the canvassers' printed list of legal voters in that division. Having complied with all the laws regulating suffrage in Pennsylvania, she presented her ballot in legal form at the proper time and place at the general election, but her vote was refused. Her argument in the Court of Common Pleas and the opinion of the judge, will be given in the Pennsylvania chapter.
Mrs. Catharine V. Waite, of Illinois, also instituted suit for the refusal of her vote proffered in the fall of 1871, and received an adverse decision, a report of which will be found in the Illinois chapter.
Two years previous to these suits for the recognition of the political rights of women a contest of a different character was commenced in Illinois. Mrs. Myra Bradwell, editor of the Chicago Legal News, in September, 1869, having passed the examination, and received the required certificate of qualification, applied for admission to the bar of that State, which was refused by its Supreme court, on the ground that she was a woman. She made this denial of her civil rights a test case by bringing a writ of error against the State of Illinois in the Supreme Court of the United States. We copy from the Legal News of February 5, 1870:
A WOMAN CAN NOT PRACTICE LAW OR HOLD ANY OFFICE IN ILLINOIS.
Full Report of the Proceedings in the Supreme Court upon the Application of Myra Bradwell to be admitted to the Bar.
Licensing Attorneys.—The following extract from rule 76 shows what is required by the Supreme Court of applicants for admission to the bar:
Ordered, That rules 69 and 70 be rescinded, and applicants for license to practice law in the courts of this State, on presenting to any member of this court a certificate of qualification, signed by the Circuit Judge and State's Attorney of the circuit in which the applicant may reside, setting forth that the applicant has been examined and found qualified, will be a sufficient voucher on which to grant a license.
Certificate of Admission.—The undersigned have examined Mrs. Myra Bradwell as to her qualifications to enter upon the practice of the law, and finding her qualified therefor, recommended that a license should be issued to her.
E. S. Williams, Judge Seventh Judicial Circuit.
Charles H. Reed, State's Attorney.
Chicago, Illinois, August 2, 1869.
Motion to be Admitted.—Robert Hervey, Esq., of the Chicago Bar, at the September term, kindly, at the request of the applicant, filed her certificate of examination and of character from Judge Jameson of the Superior Court of Chicago; also the following written application prepared by her, and moved the court that she be admitted:
To the Honorable the Judges of the Supreme Court of Illinois: Now comes your petitioner, Myra Bradwell, a resident of Chicago, Ill., over twenty-one years of age, and presents to your honors, under rule 76 of this honorable court, the certificate of the Hon. E. S. Williams, Judge of the Circuit Court for the Seventh District, and the Hon. Charles H. Reed, State's Attorney for the said circuit, stating that they have examined your petitioner and found her qualified to practice law, and recommend that a license issue to her for that purpose, and also a certificate as to character from the Superior Court of Chicago, as required by the statute and the rule aforesaid, and moves your honors that an order of this honorable court may be entered directing a license to be given to your petitioner. Your petitioner suggests that the only question involved in her case is—Does being a woman disqualify her under the laws of Illinois from receiving a license to practice law?—and claims that the Legislature has answered this question in the negative. The first section of chapter eleven of the Revised Statutes, in regard to the admission of attorneys, is as follows:
No person shall be permitted to practice as an attorney or counselor-at-law, or to commence, conduct, or defend any action, suit, or plaint, in which he is not a party concerned, in any court of record within this State, either by using or subscribing his own name or the name of any other person without having previously obtained a license for that purpose from some two of the Justices of the Supreme Court, which license shall constitute the person receiving the same an attorney and counselor-at-law, and shall authorize him to appear in all the courts of record within this State, and there to practice as an attorney and counselor-at-law, according to the laws and customs thereof, for and during his good behavior in said practice, and to demand and receive all such fees as are or hereafter may be established for any services which he shall or may render as an attorney or counselor-at-law in this State.
Your petitioner claims that the pronoun he, not only in this section, but the whole chapter, is used indefinitely for any person, and may refer to either a man or woman.
The Legislature devoted the whole of chapter 90 to construing various expressions and words used in the Revised Statutes, and in section 28 said:
When any party or person is described or referred to by words importing the masculine gender, females as well as males shall be deemed to be included.
It is declared by Act No. 29, appendix to the Revised Statutes, that the several chapters composing the Revised Statutes shall be deemed and taken as one act.
It is evident that if a woman should practice law without a license, recover for her services, and be sued for three times the amount, that under Sec. 11 of Chap. 11 for practicing law without a license, it would be no defense for her to say that the masculine pronoun was used in this section.
Section 3 of our Declaration of Rights, says "that all men have a natural and indefeasible right to worship Almighty God," etc. It will not be contended that women are not included within this provision. The 8th section declares “that no freeman shall be imprisoned or dis- seized of his freehold,” etc., but by the judgment of his peers or the law of the land. Will woman be deprived of the guarantees in this section and the right of trial by jury because the masculine pronoun is used? Under the 11th section no man’s property can be taken or applied to public use without the.consent, etc. Is not the property of a woman as secure under this provision as that of a man? In the chapter upon forcible entry and detainer, the masculine pronoun is used throughout, but no court would hesitate for a moment in holding a woman to be within its provisions if she should wrongfully hold possession of premises.
In the whole Chancery Code of this State, consisting of 53 sections, the word woman, female, she, her, herself, or any other feminine pronouns are not to be found, while in the 5th, 8th, 15th, 18th, 19th, 24th, 25th, 26th, 27th, 28th, 29th, 30th, 31st, 36th, 37th, and 46th, and some others, the masculine pronouns frequently occur. The same construction that would exclude a woman from the provisions of the statute in regard to the admission of attorneys, would place her without the Chancery Code. Yet no respectable attorney would claim because defendants in chancery are represented in the law by masculine pronouns, that a woman could not be made a defendant in chancery.
All of which is respectfully submitted. Myyra Bradwell.
COMMUNICATION FROM THE COURT.
No order having been entered or opinion filed in this case, on the seventh of October the applicant received from the court, through Hon. Norman L. Freeman, Supreme Court Reporter, the following communication :
| State Of Illinois, Supreme Court, Third Grand | |
| Division, Clerk’S Office, Ottawa, Oct. 6, 1869. |
Mrs. Myra Bradwell—Madam: The court instruct me to inform you that they are compelled to deny your application for a license to practice as an attorney-at-law in the courts of this State, upon the ground that you would not be bound by the obligations necessary to be assumed where the relation of attorney and client shall exist, by reason of the disability imposed by your married condition—it being assumed that you are a married woman.
Applications of the same character have occasionally been made by per- sons under twenty-one years of age, and have always been denied upon the same ground that they are not bound by their contracts, being under a legal disability in that regard.
Until such disability shall be removed by legislation, the court regards itself powerless to grant your application.
Very respectfully, your obedient servant, N. L. Freeman.
The applicant, satisfied that under the common law, as modified by our statutes, she could not properly be denied a license to practice law solely upon the ground of her married condition, on the 18th of November filed the following printed argument :
ADDITIONAL BRIEF.
In the Supreme Court of Illinois— Third Grand Divisio—September Term, 1869. [In the matter of the application of Myra Bradwell to obtain a license to practice as an Attorney-at-law.] And now again comes the said Myra Bradwell, it having been suggested to her that the court had assumed that she is a married woman, and therefore queried whether this would not pre vent her from receiving a license, and files this her additional brief.
Your petitioner admits to your honors that she is a married woman (although she believes that fact does not appear in the record), but insists most firmly that under the laws of Illinois it is neither a crime nor a disqualification to be a married woman.
I propose to state very briefly,
1. What is an attorney?
2. Who may act as attorneys?
8. The rights and powers of married women in relation to their business and property under the common law.
4. Their rights and powers as to transacting business under the recent statutes of our State, with reference to their transacting business in their own names and acting as attorneys.
5. The avenues of trade and the professions opened to women by the liberal enactments of the law-makers, and the construction of the courts.
6. How the Legislature has regarded petitioner with reference to her rights to carry on business in her own name and act for herself.
I. What is an Attorney?—An attorney is "one who takes the turn or place of another."—-Webster. "An attorney at-law," says Bouvier, "is an officer in a court of justice who is employed by a party in a cause to manage the same for him." All attorneys are agents. They transact business, and appear for, and in the place of their clients who have not the requisite learning, time, or desire to appear in suits for themselves.
Mr. Story, in his work upon "Agency," and Mr. Bouvier, in his "Institutes," in treating of the different kinds of agents, both speak first of attorneys-at-law. All the elementary writers upon law tell us that attorneys are agents. Without reference to our recent statutes modifying the common law, we will open the books and see who may be attorneys or agents.
II. Who may be Attorneys or Agents.—Mr. Story, in his work on Agency, says, sec. 7:
III. Under the Common Law.—In Cox vs. Kitchin, I Bos. & Pul., 438, where a feme covert represented herself falsely to the tradesman to be a feme sole, and obtained goods on credit, it was held that she rendered herself personally responsible.
In Derry vs. Mazarine, I Ld. Raymond, 147, it was held that the wife of an alien, who was doing business in her own name, in England, was liable as a feme sole. In Hauptman vs. Catlin, 20 N. Y., 248, the Court of Appeals says:
Even before the late statute respecting married women, they were regarded as femes sole in respect to their separate property, and were as to such property liable on their contracts respecting the same, to the same extent and as though they were not under the disability of coverture. It was held by Lord Mansfield and his associates, in Corbett vs. Poelnitz, 1 T. R., 5, that if a husband and wife choose to separate, and the husband allows the wife a separate maintenance, she may contract and be sued as though she were unmarried, and may be held to bail and imprisoned on a ca. sa. without her husband. The court made this innovation on the ground that "the times alter new customs, and new manners arise, which require new exceptions, and a different application of the general rule.
IV. Under the Recent Statutes.—In Conway vs. Smith and Wife, 13 Wis., 125, the court held that "the statute gives to married women, as necessarily incidental to the power of holding property to their own use, the power of making all contracts necessary or convenient to its beneficial enjoyment, and such contracts are to be regarded as valid in law, and may be enforced by legal remedies." Cole, J., dissenting.
In Barton vs. Beer, 35 Barbour, 81, the court, in treating of the liability of a married woman, says:
If she acts as a feme sole, she ought, in justice to the public, to be subjected to all the duties and liabilities of a feme sole.
In Emerson vs. Clayton, 32 Ill., 493, this honorable court held, that a married woman might bring replevin in her own name, for her separate property, against a third party, or even against her own husband, and that the act designed to make and did make a radical and thorough change in the condition of a feme covert; that she is to be regarded as unmarried, so far as her separate property is concerned.
In Pomeroy vs. Manhattan Life Insurance Co., 40 Ill., 398, Walker, C. J., in delivering the opinion of the court, says:
Under the statute she is entitled to the benefits it confers, and must be held liable for her acts performed in pursuance of the authority it confers. If it gives the rights of a sole ownership, it must impose the liabilities incident to such an act.
In Brownell vs. Dixon, 39 Ill., 207. this court not only held, under the act of 1861, that a married woman possessed of separate property might employ "an agent to transact her business", but that she might employ her own husband as such agent.
Relying upon the doctrine laid down in this case, we insist that the power "to employ an agent" carries with it the liability to pay such an agent a reasonable compensation for his services; and that if a married woman employs a man to work on her farm for one day, and agrees to give him two dollars therefor, and fails so to do, that a fair construction of the act of 1861 would allow him to sue her before a justice of the peace, and not drive him to the expense of filing a bill in chancery that would amount to more than a denial of justice.
Now, if under the Act of 1861 she can employ an agent to transact her business, we insist under the Act of 1869, giving the wife her own earnings, and the rights to sue for the same in her own name, free from her husband that she has the right to be employed as an agent, or attorney, or physician, if she is capable, and to agree to do the duties of her profession. It would almost seem that this question is answered by the following extract from the opinion of this honorable court, as delivered by Mr. Justice Lawrence, in Carpenter vs. Mitchell, 2 Legal News, 44:
It may be said that a married woman can not adequately enjoy her separate property unless she can make contracts in regard to it. This is true, and hence her power to make contracts, so far as may be necessary for the use and enjoyment of her property, must be regarded as resulting by implication from the statute. If she owns houses she must be permitted to contract for their repair or rental. If she owns a farm she must be permitted to bargain for its cultivation, and to dispose of its products. We give these as illustrations of the power of contracting which is fairly implied in the law.
It is true, in this opinion the learned Judge confines his remarks strictly to the contracts of the wife made in relation to her separate property, and not in relation to general trade. This case arose before the passage of the Act of 1869. The right of a married woman to bring a suit in her own name is a necessary incident to the law. (Cole vs. Van Riper, 1 Legal News, 41.)
V. The Trades and Professions open to Women.—The doors of many of our universities and law schools are now open to women upon an equality with men. The Government of the United States has employed women in many of its departments, and appointed many, both single and married, to office. Almost every large city in the Union has its regularly-admitted female physicians. The law schools of the nation have now many women in regular attendance, fitting themselves to perform the duties of the profession. The bar itself is not without its women lawyers, both single and married.
Mrs. Arabella A. Mansfield, wife of Prof. J. M. Mansfield, of Mount Pleasant, Iowa, was admitted to the bar of Iowa, upon the unanimous petition of the attorneys of that place, after a very careful examination, not only of the applicant, but of the statutes regulating the admission of attorneys.
The statute of Iowa provides that "any white male person, twenty-one years of age, who is an inhabitant of this State," and who satisfies the court, "that he possesses the requisite learning, and that he is of good moral character, may, by such court, be licensed to practice in all the courts of the State, upon taking the usual oath of office."
The clause construing statutes is as follows:
Words importing the singular number only, may be extended to several persons or things; and words importing the plural number only may be applied to one person, or thing; and words importing the masculine gender only may be extended to females.
In Mrs. Mansfield's case, the court not only held that she could be admitted, notwithstanding the fact that she was a married woman, under the clause of the statute giving a construction to the masculine noun "male," and pronoun "he"; but that the affirmative declaration, that male persons may be admitted, is not an implied denial of the right to females. We know of no instance in the United States, where a woman, whether married or single, who has complied with the statutes of the State in which she lived and applied for admission, that the proper court has refused to grant her license.
VI. How the Legislature have Regarded your Petitioner.—It has been held, in England, that a wife who does business in her own name, with either the express or implied consent of her husband, should be treated as a feme sole, and be sued as such; and, with such consent, could be an administrator, executor, or guardian, in England or America.
The Legislature has, in repeated instances, acknowledged the capability and capacity of your petitioner to transact business, by providing that the Chicago Legal News, edited by her, and containing the decisions rendered by your honors, should be received in evidence in all the courts of this State, and in the following extract from the charter of the Chicago Legal News Company:
And all the real and personal estate of said Myra Bradwell shall be liable for the debts of said company, contracted while she is a stockholder therein, and all stock of said company owned by her, and the earnings thereof, shall be her sole and separate property, the same as if she were an unmarried woman; and she shall have the same right to hold any office or offices in said company, or transact any of its business that a feme sole would have.—Legal News, Edition Laws of 1869, p. 93. Sec. 4, p. 93.
Your petitioner claims that a married woman is not to be classed with an infant since the passage of the Act of 1869. A married woman may sue in her own name for her earnings, an infant can not. A married woman, if an attorney, could be committed for contempt of court the same as any other attorney. If she should collect money and refuse to pay it over, she could be sued for it the same as if she were single. A married woman is liable at law for all torts committed by her, unless done under the real or implied coercion of her husband. Having received a license to practice law as an attorney, and having acted as such, she would be estopped from saying she was not liable as an attorney upon any contract made by her in that capacity.
The fees that a married woman receives for her services as an attorney are just as much her earnings as the dollar that a sewing-woman receives for her day's work, and are just as much protected by the Act of 1869. Is it for the court to say, in advance, that it will not admit a married woman? Should she be admitted, and fail to perform her duty, or to comply with all her contracts as an attorney, could not the court, upon application, strike her name from the roll, or inflict more summary punishment?
Your petitioner has complied with all the provisions of the statutes of the State regulating the admission of attorneys, and asks, as a matter of right and justice, standing as she does upon the law of the land, that she be admitted.
Not a line of written law, or a single decision in our State, can be found disqualifying a married woman from acting as an attorney. This honorable court can send me from its bar, and prevent me from practicing as an attorney, and it is of small consequence; but if, in so doing, your honors say to me: "You can not receive a license to practice as an attorney-at-law in the courts of this State upon the ground that you would not be bound by the obligations necessary to be assumed, where the relation of attorney and client shall exist, by reason of the disability imposed by your married condition"; you, in my judgment, in striking me down, strike a blow at the rights of every married woman in the great State of Illinois who is dependent on her labor for support, and say to her, you can not enter into the smallest contract in relation to your earnings or separate property, that can be enforced against you in a court of law. This result can, in my opinion, only be reached by disregarding the liberal statutes of our State, passed for the sole purpose of extending the rights of married women, and forever removing from our law, relating to their power to contract in regard to their earnings and property, the fossil foot-prints of the feudal system, and following the strictest rules of the common law.
Lord Mansfield, notwithstanding the fact that slaves had been held, bought and sold for years in the streets of London, declared that the moment a slave touched British soil his shackles fell. The same noble lord held that a married woman might under certain circumstances, contract, and sue, and be sued at law, as a single woman, upon the ground that, the reason of the law ceasing, the law itself must cease; and that, as the usages of society alter, the law must adapt itself to the various situations of mankind. Mr. Justice Buller, in speaking of this decision years afterward, declared that "the points there decided were founded in good sense, and adapted to the transactions, the understanding, and the welfare of mankind."
Apply this reasoning in our State, now that the Legislature has removed every claim that the husband had, under the common law, upon the property of the wife, except his life estate in her hands, which only commences with her death, and all difficulty is removed, and the case is clear.
Myra Bradwell.
Applicant, with a view of placing herself in a position to obtain the benefit of the provisions of the Constitution of the United States, and the Civil Rights Bill, applicable to her case, on the second day of January, 1870, filed the following affidavit and points:
In the Supreme Court of Illinois, Third Grand Division—September Term, 1869. [In the matter of the application of Myra Bradwell to obtain a license to practice as an Attorney-at-law]—State of Illinois, County of Cook, ss.: Myra Bradwell, being duly sworn, doth depose and say that she was born in Manchester, in the State of Vermont, and that she was a citizen of said State last named, that she is now a citizen of the United States; that she is and has been for many years last past a resident of Chicago, in said State of Illinois, and further deponent says not.
Myra Bradwell.
Subscribed and sworn to before me this 31st day of December, a.d. 1869.
E. B. Payne, Notary Public. [Seal.]
And now again comes the said Myra Bradwell, and files the following additional points:
VII. Your petitioner claims under the XIV. Amendment to the Constitution of the United States, and the act commonly known as the "Civil Rights Bill," the "full and equal benefit of all laws and proceedings for the security of person and property," and the right to exercise and follow the profession of an attorney-at-law upon the same terms, conditions, and restrictions as are applied to and imposed upon every other citizen of the State of Illinois, and none other.
And that having complied with all the laws of the State, and the rules and regulations of this honorable court, for the admission of attorneys, it is contrary to the true intent and meaning of said Amendment and said "Civil Rights Bill," for your petitioner to be refused a license to practice law, upon the sole ground of her "married condition."
VIII. And your petitioner further claims, that having been born in the State of Vermont, and having been a citizen of the State last named, and of the United States, and having removed to the State of Illinois, where she has resided for many years, that under the second section of the IV. Article of the Constitution of the United States, which is in these words, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," she has guaranteed to her the privileges and immunities which every other citizen of the State of Illinois has, among which may be named the protection of the Government, the right to the enjoyment of life and liberty, to acquire and possess property, to reside in the State, to carry on trade, and the right to follow any professional pursuit under the laws of the State, which must work equally upon all the citizens of the State, and that under this section of the Constitution she has a right to receive a license to practice law upon the same terms and conditions as the most favored citizen of the State of Illinois.
(People vs. Washington, 36 California R., 662. Corfield vs. Coryell, 4 Washington C. R., 381.)
Myra Bradwell.
On last week the court filed an opinion denying the application, for a very carefully prepared copy of which we are indebted to Mr. Freeman:
OPINION OF THE COURT DENYING THE APPLICATION.
[In the matter of the application of Mrs. Myra Bradwell for a license to practice as an Attorney-at-Law.] Opinion of the Court Delivered by Mr. Justice Lawrence.—At the last term of the court Mrs. Myra Bradwell applied for a license as an attorney-at-law, presenting the ordinary certificates of character and qualifications. The license was refused, and it was stated as a sufficient reason, that under the decisions of this court the applicant, as a married woman, would be bound neither by her express contracts, nor by those implied contracts which it is the policy of the law to create between attorney and client. Since the announcement of our decision, the applicant has filed a printed argument in which her right to a license is earnestly and ably maintained. Of the ample qualifications of the applicant we have no doubt, and we put our decision in writing in order that she or other persons interested may bring the question before the next Legislature.
The applicant, in her printed argument, combats the decision of the court in the case of Carpenter vs. Mitchell, June term, 1869, in which we held a married woman was not bound by contracts having no relation to her own property. We are not inclined to go over again the grounds of that decision. It was the result of a good deal of deliberation and discussion in our council chamber, and the confidence of the present members of this court in its correctness can not easily be shaken. We are in accord with all the courts in this country which have had occasion to pass upon a similar question, the Supreme Court of Wisconsin in Conway vs. Smith, 13 Wis., 125, differing from us only on the minor point as to whether, in regard to contracts concerning the separate property of married women, the law side of the court would take jurisdiction. As to the main question, the right of married women to make contracts not affecting their separate property, the position of those who assert such right is, that because the Legislature has expressly removed the common law disabilities of married women in regard to holding property not derived from their husbands, it has therefore, by necessary implication, also removed all their common law disabilities in regard to making contracts, and invited them to enter, equally with men, upon those fields of trade and speculation by which property is acquired through the agency of contracts.
The hiatus between the premise and the conclusion is too wide for us to bridge. It may be desirable that the Legislature should relieve married women from all their common law disabilities. But to say that it has done so in the Act of 1861, the language of which is carefully guarded, and which makes no allusion to contracts, and does not use that or any equivalent term, would be simple misinterpretation. It would be going as far beyond the meaning of that act as that act goes beyond the common law in changing the legal status of women. The act itself is wise and just, and therefore entitled to a liberal interpretation.
This we have endeavored to give it in the cases that have come before us, but we do not intend to decide that the Legislature has gone to a length in its measure of reform for which the language it has carefully used furnishes no warrant.
It is urged, however, that the law of the last session of the Legislature, which gives to married women the separate control of their earnings, must be construed as giving to them the right to contract in regard to their personal services. This act had no application to the case of Carpenter vs. Mitchell, having been passed after that suit was commenced, and we were unmindful of it when considering this application at the last term. Neither do we now propose to consider how far it extends the power of a married woman to contract, since, after further consultation in regard to this application, we find ourselves constrained to hold that the sex of the applicant, independently of coverture; is, as our law now stands, a sufficient reason for not granting this license.
Although an attorney-at-law is an agent, as claimed by the applicant's argument, when he has been retained to act for another, yet he is also much more than an agent. He is an officer of the court, holding his commission in this State, from two of the members of this court, and subject to be disbarred by this court for what our statute calls "mal-conduct in his office." He is appointed to assist in the administration of justice, is required to take an oath of office, and is privileged from arrest while attending courts.
Our statute provides that no person shall be permitted to practice as an attorney or counselor-at-law, without having previously obtained a license for that purpose from two of the justices of the Supreme Court. By the second section of the act, it is provided that no person shall be entitled to receive a license until he shall have obtained a certificate, from the court of some county, of his good moral character, and this is the only express limitation upon the exercise of the power thus intrusted to this court. In all other respects it is left to our discretion to establish the rules by which admission to this office shall be determined. But this discretion is not an arbitrary one, and must be held subject to at least two limitations. One is, that the court should establish such terms of admission as will promote the proper administration of justice; the second, that it should not admit any persons or class of persons who are not intended by the Legislature to be admitted, even though their exclusion is not expressly required by the statute.
The substance of the last limitation is simply that this important trust reposed in us should be exercised in conformity with the designs of the power creating it.
Whether, in the existing social relations between men and women, it would promote the proper administration of justice, and the general well-being of society, to permit women to engage in the trial of cases at the bar, is a question opening a wide field of discussion upon which it is not necessary for us to enter. It is sufficient to say that, in our opinion, the other implied limitation upon our power, to which we have above referred, must operate to prevent our admitting women to the office of attorney-at-law. If we were to admit them, we should be exercising the authority conferred upon us in a manner which, we are fully satisfied, was never contemplated by the Legislature.
Upon this question it seems to us neither this applicant herself, nor any unprejudiced and intelligent person, can entertain the slightest doubt. It is to be remembered that at the time this statute was enacted we had, by express provision, adopted the common law of England; and, with three exceptions, the statutes of that country passed prior to the fourth year of James the First, so far as they were applicable to our condition.
It is to be also remembered that female attorneys-at-law were unknown in England, and a proposition that a woman should enter the courts of Westminster Hall in that capacity, or as a barrister, would have created hardly less astonishment than one that she should ascend the bench of Bishops, or be elected to a seat in the House of Commons. It is to be further remembered, that when our act was passed, that school of reform which claims for women participation in the making and administering of the laws had not then arisen, or, if here and there a writer had advanced such theories, they were regarded rather as abstract speculations than as an actual basis for action.
That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth. It may have been a radical error, and we are by no means certain it was not, but that this was the universal belief certainly admits of no denial. A direct participation in the affairs of government, in even the most elementary form, namely, the right of suffrage, was not then claimed, and has not yet been conceded, unless recently in one of the newly-settled Territories of the West.
In view of these facts, we are certainly warranted in saying, that when the Legislature gave to this court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended equally to men and women.
Neither has there been any legislation since that period which would justify us in presuming a change in the legislative intent. Our laws to-day in regard to women, are substantially what they have always been, except in the change wrought by the acts of 1861 and 1869, giving to married women the right to control their own property and earnings.
Whatever, then, may be our individual opinions as to the admission of women to the bar, we do not deem ourselves at liberty to exercise our power in a mode never contemplated by the Legislature, and inconsistent with the usages of courts of the common law from the origin of the system to the present day.
But it is not merely an immense innovation in our own usages as a court that we are asked to make. This step, if taken by us, would mean that in the opinion of this tribunal, every civil office in this State may be filled by women—that it is in harmony with the spirit of our Constitution and laws that women should be made governors, judges, and sheriffs. This we are not yet prepared to hold.
In our opinion, it is not the province of a court to attempt, by giving a new interpretation to an ancient statute, to introduce so important a change in the legal position of one-half the people. Courts of justice were not intended to be made the instruments of pushing forward measures of popular reform. If it be desirable that those offices which we have borrowed from the English law, and which from their origin some centuries ago down to the present time, have been filled exclusively by men, should also be made accessible to women, then let the change be made, but let it be made by that department of the Government to whom the Constitution has intrusted the power of changing the laws. The great body of our law rests merely upon ancient usage. The right of a husband in this State to the personal property of his wife, before the act of 1861, rested simply upon such usage, yet who could have justified this court if, prior to the passage of that act, it had solemnly decided that it was unreasonable that the property of the wife should vest in the husband, and this usage should no longer be recognized? Yet was it not as unreasonable that a woman by marriage should lose the title of her personal property, as it is that she should not receive from us a license to practice law? The rule in both cases, until the law of 1861, rested upon the same common law usage and could have pleaded the same antiquity. In the one case it was never pretended that this court could properly overturn the rule, and we do not see how we could be justified should we disregard it in the other. The principle can not be too strictly and conscientiously observed, that each of the three departments of the Government should avoid encroachment upon the other, and that it does not belong to the judiciary to attempt to inaugurate great social or political reforms. The mere fact that women have never been licensed as attorneys-at-law is, in a tribunal where immemorial usage is as much respected as it is and ought to be in courts of justice, a sufficient reason for declining to exercise our discretion in their favor, until the propriety of their participating in the offices of State and the administration of public affairs shall have been recognized by the law-making department of the Government—that department to which the initiative in great measures of reform properly belongs. For us to attempt, in a matter of this importance, to inaugurate a practice at variance with all the precedents of the law we are sworn to administer, would be an act of judicial usurpation deserving of the gravest censure. If we could disregard, in this matter, the authority of those unwritten usages which make the great body of our law, we might do so in any other, and the dearest rights of person and property would become a matter of mere judicial discretion.
But it is said the 28th section of chapter 90 of the Revised Statutes of 1845 provides that, whenever any person is referred to in the statute by words importing the masculine gender, females as well as males shall be deemed to be included. But the 36th section of the same chapter provides that this rule of construction shall not apply where there is anything in the subject or context repugnant to such construction. That is the case in the present instance.
In the view we have taken of this question the argument drawn by the applicant from the Constitution of the United States has no pertinency.
In conclusion we would add that, while we are constrained to refuse this application, we respect the motive which prompts it, and we entertain a profound sympathy with those efforts which are being so widely made to reasonably enlarge the field for the exercise of woman's industry and talent. While those theories which are popularly known as "woman's rights" can not be expected to meet with a very cordial acceptance among the members of a profession which, more than any other, inclines its followers, if not to stand immovable upon the ancient ways, at least to make no hot haste in measures of reform, still all right-minded men must gladly see new spheres of action opened to woman, and greater inducements offered her to seek the highest and widest culture. There are some departments of the legal profession in which she can appropriately labor.
Whether, on the other hand, to engage in the hot strifes of the Bar, in the presence of the public, and with momentous verdicts the prizes of the struggle would not tend to destroy the deference and delicacy with which it is the pride of our ruder sex to treat her, is a matter certainly worthy of her consideration. But the important question is, what effect the presence of women as barristers in our courts would have upon the administration of justice, and the question can be satisfactorily answered only in the light of experience.
If the Legislature shall choose to remove the existing barriers and authorize us to issue licenses equally to men and women, we shall cheerfully obey, trusting to the good sense and sound judgment of women themselves to seek those departments of the practice in which they can labor without reasonable objection.
Application denied.
The opinion will be best understood by reading our arguments first, and knowing all the points made before the court. We have not the space to review the opinion in this issue, but shall do so at some future day, and will simply say now, that what the decision of the Supreme Court of the United States in the Dred Scott case was to the rights of negroes as citizens of the United States, this decision is to the political rights of women in Illinois—annihilation.
CAN A WOMAN PRACTICE LAW OR HOLD ANY OFFICE IN ILLINOIS?
On pp. 145, 146, and 147 of this volume, we gave the proceedings in full in the Supreme Court of this State upon our application to be admitted to practice law, including the opinion of Judge Lawrence, the present learned Chief-Justice of that tribunal, denying the application on the sole ground that a woman could not be admitted to the bar or hold any office in Illinois. As soon after this opinion was announced as we could obtain a certified copy of the record, we placed it in the hands of the Hon. Matt. H. Carpenter, one of the ablest constitutional lawyers in the nation, with a view of obtaining a writ of error from the Supreme Court of the United States. Mr. Carpenter prepared and presented our petition for a writ of error, together with the record. The following is the indorsement upon the record, allowing the writ of error from the Supreme Court of the United States:
August 16, 1870.Sam. F. Miller, Asso. Jus. Sup. Court U. S.
CITATION TO THE STATE OF ILLINOIS TO APPEAR AT WASHINGTON.
The United States of America to the State of Illinois:—The State of Illinois is hereby cited and admonished to appear and be at the Supreme Court of the United States to be holden at Washington City in the District of Columbia, on the first Monday of December next, pursuant to a writ of error filed in the clerk's office of the Supreme Court of the State of Illinois, wherein Myra Bradwell is plaintiff in error, and the State of Illinois is defendant in error, to show cause, if any there be, why the judgment in the said writ of error mentioned should not be corrected, and speedy justice should not be done to the parties in that behalf.
Witness the Honorable Salmon P. Chase, Chief-Justice of the Supreme Court of the United States this 16th day of August, a.d. 1870.
Sam. F. Miller, Asso. Jus. Sup. Court U. S.
WRIT OF ERROR.
United States of America, ss. :
[ Seal ] The President of the United States, To the Honorable the Judges of the Supreme Court of the State of Illinois—Greeting:
Because, in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said Supreme Court of the State of Illinois, before you, or some of you, being the highest court of law or equity of the said State in which a decision could be had in the said suit in the matter of the application of Myra Bradwell, of Cook County, Illinois, for a license to practice law in the courts of said State, wherein was drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision was against their validity; or wherein was drawn in question the validity of a statute of, or an authority exercised under, said State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision was in favor of such their validity; or wherein was drawn in question the construction of a clause of the Constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision was against the title, right, privilege, or exemption, specially set up or claimed under such clause of the said Constitution, treaty, statute, or commission, a manifest error hath happened, to the great damage of the said Myra Bradwell, as by her complaint appears. We being willing that error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you have the same at Washington on the first Monday of December next, in the said Supreme Court, to be then and there held, that the record and proceedings aforesaid being inspected, the said Supreme Court may cause further to be done therein to correct that error what of right, and according to the laws and custom of the United States, should be done. Witness the Honorable Salmon P. Chase, Chief-Justice of the said Supreme Court, the first Monday of December, in the year of our Lord one thousand eight hundred and sixty-nine. D. W. MIDDLETON, Clerk of the Supreme Court of the V. S.
Sam. F. Miller, Asso. Jus. Sup. Court, U. S.
While these suits for the recognition of the political rights of women were pending, a contest of a different character took place in Illinois. Mrs. Myra Bradwell, editor of the Chicago Legal News applied for admission to the bar of that State, and was refused. She made this denial of her civil rights a test case by bringing suit against the State of Illinois in the Supreme Court of the United States. The case was argued for the plaintiff in the December term, 1871, by the Hon. Matt. H. Carpenter, of Wisconsin, an eminent republican United States Senator. In addressing the Court Mr. Carpenter said:
By the rules of this court no person can be admitted to practice at the bar without service for a fixed term in the highest court of the State in which such person resides. Consequently a denial of admission in the highest court of the State is an insurmountable obstacle to admission to the bar of this court. This record, therefore, presents the broad question, whether a married woman, being a citizen of the United States and of a State, and possessing the necessary qualifications, is entitled by the Constitution of the United States to be admitted to practice as an attorney and counselor-at-law in the courts of the State in which she resides. This is a question not of taste, propriety, or politeness, but of civil right. Before proceeding to discuss this question, it may be well to distinguish it from the question of the right of female citizens to participate in the exercise of the elective franchise. The great problem of female suffrage, the solution of which lies in our immediate future, naturally enough, from its transcendent importance, draws to itself, in prejudiced minds, every question relating to the civil rights of women; and it seems to be feared that doing justice to woman's rights in any particular would probably be followed by the establishment of the right of female suffrage, which, it is assumed, would overthrow Christianity, defeat the ends of modern civilization, and upturn the world.
While I do not believe that female suffrage has been secured by the existing amendments to the Constitution of the United States, neither do I look upon that result as at all to be dreaded. It is not, in my opinion, a question of woman's rights merely, but, in a far greater degree, a question of man's rights. When God created man, he announced the law of his being, that it was not well for him to be alone, and so He created woman to be his helpmate and companion. Commencing with the barbarism of the East, and journeying through the nations toward the bright light of civilization in the West, it will everywhere be found that, just in proportion to the equality of women with men in the enjoyment of social and civil rights and privileges, both sexes are proportionately advanced in refinement and all that ennobles human nature. In our own country, where women are received on an equality with men, we find good order and good manners prevailing. Because women frequent railroad cars and steamboats, markets, shops, and post-offices, those places must be, and are, conducted with order and decency. The only great resorts from which woman is excluded by law are the election places; and the violence, rowdyism, profanity, and obscenity of the gathering there in our largest cities are sufficient to drive decent men, even, away from the polls. If our wives, sisters, and daughters were going to the polls, we should go with them, and good order would be observed, or a row would follow, which would secure order in the future. I have more faith in female suffrage, to reform the abuses of our election system in the large cities, than I have in the penal election laws to be enforced by soldiers and marines. Who believes that, if ladies were admitted to seats in Congress, or upon the bench, or were participating in discussions at the bar, such proceedings would thereby be rendered less refined, or that less regard would be paid to the rights of all?
But whether women should be admitted to the right of suffrage, is one thing; whether this end has already been accomplished, is quite another. The XIV. Amendment forbids the States to make or enforce any law which shall abridge "the privileges or immunities" of a citizen. But whether the right to vote is covered by the phrase "privileges and immunities," was much discussed under the provisions of the old Constitution; and at least one of the earliest decisions drew a distinction between "privileges and immunities" and political rights. On the other hand, Mr. Justice Washington, in a celebrated case, expressed the opinion, that the right to vote and hold office was included in this phrase. But in neither of the cases was this point directly involved, and both opinions are obiter dicta in relation to it.
But the XIV. and XV. Amendments seem to settle this question against the right of female suffrage. These amendments seem to recognize the distinction at first pointed out between "privileges and immunities," and the right to vote. The XIV. Amendment declares, 
Of course, women, as well as men, are included in this provision, and recognized as citizens. This Amendment further declares:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
If the privileges and immunities of a citizen can not be abridged, then, of course, the privileges and immunities of all citizens must be the same. The second section of this Amendment provides that
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians, not taxed. But when the right to vote at any election, etc., is denied to any of the male inhabitants, being twenty-one years of age, etc., the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
It can not be denied, that the right or power of a State to exclude a portion of its male citizens from the right to vote, is recognized by this second section; from which it follows, that the right to vote is not one of the "privileges or immunities" which the first section declares shall not be abridged by any State. The right of female suffrage is also inferentially denied by that provision of the second section, above quoted, which provides that when a State shall deny the right to vote to any male citizen,
The basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens in such State.
In the first place, it is to be observed that the basis of representation in a State, which is the whole number of persons—male and female, adults and infants—is only to be reduced when the State shall exclude a portion "of the male inhabitants of such State." The exclusion of female inhabitants, and infants under the age of twenty-one years, does not effect a reduction of the basis of representation in such State. And, again, when a State does exclude a portion of its male inhabitants, etc., the basis of representation in such State is not reduced in the proportion which the number of such excluded males bears to the number of persons—male and female—in such State; but only
In the proportion which the number of such (excluded) male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
This provision assumes that females are no part of the voting population of a State. The XV. Amendment is equally decisive. It recognizes the right—that is, power—of any State to exclude a portion of its citizens from the right to vote, and only narrows this right in favor of a particular class. Its language is:
The right of citizens of the United States to vote shall not be denied or abridged, etc., on account of race, color, or previous condition of servitude
This amendment was wholly unnecessary upon the theory that the XIV. Amendment had established or recognized the right of every citizen to vote. It recognizes the right of a State to exclude a portion of its citizens, and only restrains that power so far as to provide that citizens shall not be excluded on account of race, color, or previous condition of servitude. In every other case, the power of exclusion recognized by the XIV. Amendment is untouched by the XV. It is also worthy of notice that, throughout the XIV. and XV. Amendments, voting is not treated as, or denominated a privilege, and evidently was not intended to be, nor regarded as included in the "privileges or immunities" of a citizen, which no State can abridge for any cause whatever. I have taken this pains to distinguish between the "privileges and immunities" of a citizen, and the "right" of a citizen to vote, not because I feared that this court would deny one, even if the other would follow, but to quiet the fears of the timid and conservative.
I come now to the narrower and precise question before the court: Can a female citizen, duly qualified in respect of age, character, and learning, claim, under the XIV. Amendment, the privilege of earning a livelihood by practicing at the bar of a judicial court? It was provided by the original Constitution:
The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.
Under this provision each State could determine for itself what the privileges and immunities of its citizens should be. A citizen emigrating from one State to another carried with him, not the privileges and immunities he enjoyed in his native State, but was entitled, in the State of his adoption, to such privileges and immunities as were enjoyed by the class of citizens to which he belonged by the laws of such adopted State. A white citizen of one State, where no property qualification for voting was required, emigrating to a State which required such qualification, must conform to it before he could claim the right to vote. A colored citizen, authorized to hold property in Massachusetts, emigrating to South Carolina, where all colored persons were excluded from such right, derived no aid, in this respect, from the Constitution of the United States, but was compelled to submit to all the incapacities laid by the laws of that State upon free persons of color born and residing therein. A married woman, a citizen of the State of Wisconsin, where by law she was capable of holding separate estate, and making contracts concerning the same, emigrating to a State where the common law in this regard prevailed, could not buy and sell property in her own name, or contract in reference thereto.
But the XIV. Amendment executes itself in every State of the Union. Whatever are the privileges and immunities of a citizen in the State of New York, such citizen, emigrating, carries them with him into any other State of the Union. It utters the will of the United States in every State, and silences every State constitution, usage, or law which conflicts with it. If to be admitted to the bar, on attaining the age and learning required by law, be one of the privileges of a white citizen in the State of New York, it is equally the privilege of a colored citizen in that State; and if in that State, then in any State. If no State may "make or enforce any law" to abridge the privileges of a citizen, it must follow that the privileges of all citizens are the same. We have already seen that the right to vote is not one of those privileges which are declared to be common to all citizens, and which no State may abridge; but that it is a political right, which any State may deny to a citizen, except on account of race, color, or previous condition of servitude. It therefore only remains to determine whether admission to the bar belongs to that class of privileges which a State may not abridge, or that class of political rights as to which a State may discriminate between its citizens.
In discussing this subject, we are compelled to use the words "privileges and immunities" and the word "rights" in the precise sense in which they are employed in the Constitution. In popular language, and even in the general treatises of law writers, the words "rights" and "privileges" are used synonymously. Those privileges which are secured to a man by the law are his rights; and the great charter of England declares that the ancient privileges enjoyed by Englishmen, are the undoubted rights of Englishmen. But, as we have seen, the XIV. and XV. Amendments distinguish between privileges and rights; and it must be confessed that it is paradoxical to say, as the XIV. Amendment clearly does, that the "privileges" of a citizen shall not be abridged, while his "right" to vote may be. But a judicial construction of the Constitution is wholly different from a mere exercise in philology. The question is not whether certain words were aptly employed—but the context must be searched to ascertain the sense in which such words were used.
It is evident that there are certain "privileges and immunities" which belong to a citizen of the United States as such; otherwise it would be nonsense for the XIV. Amendment to prohibit a State from abridging them; and it is equally evident from the XIV. Amendment that the right to vote is not one of those privileges. And the question recurs whether admission to the bar, the proper qualification being possessed, is one of the privileges which a State may not deny. In Cummings vs. Missouri, 4 Wall., 321, this court say:
In France, deprivation or suspension of civil rights, or some of them—and among these of the right of voting, of eligibility to office, of taking part in family councils, of being guardian or trustee, of bearing arms, and of teaching or being employed in a school or seminary of learning—are punishments prescribed by her code. The theory upon which our political institutions rest is, that all men have certain inalienable rights—that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of these rights all are equal before the law. Any deprivation or extension of any of these rights for past conduct is punishment, and can be in no otherwise defined.
No broader or better enumeration of the privileges which pertain to American citizenship could be given. "Life, liberty, and the pursuit of happiness; and, in the pursuit of happiness, all avocations, all honors, all positions, are alike open to every one; and in the protection of these rights all are equal before the law." In ex parte Garland (4 Wall., 378) this court say:
It is now well settled that the courts, in admitting attorneys to, and in expelling them from, the bar, act judicially, and that such proceedings are subject to review on writ of error or appeal, as the case may be. (Ex parte Cooper, 22 N. Y., 67. Strother vs. Missouri, 1 Mo., 605. Ex parte Secomb, 19 How., 9. Ex parte Garland, 4 Wall., 378.)
From these cases the conclusion is irresistible, that the profession of the law, like the clerical profession and that of medicine, is an avocation open to every citizen of the United States. And while the Legislature may prescribe qualifications for entering upon this pursuit, they can not, under the guise of fixing qualifications, exclude a class of citizens from admission to the bar. The Legislature may say at what age candidates shall be admitted; may elevate or depress the standard of learning required. But a qualification, to which a whole class of citizens never can attain, is not a regulation of admission to the bar, but is, as to such citizens, a prohibition. For instance, a State Legislature could not, in enumerating the qualifications, require the candidate to be a white citizen. This would be the exclusion of all colored citizens, without regard to age, character, or learning. Such an act would abridge the rights of all colored citizens, by denying them admission into one of the avocations which this court has declared is alike open to every one. I presume it will be admitted that such an act would be void. I am certain this court would declare it void. And I challenge the most astute mind to draw any distinction between such an act and a custom, usage, or law of a State, which denies this privilege to all female citizens without regard to age, character, or learning. If the Legislature may, under pretense of fixing qualifications, declare that no female citizen shall be permitted to practice law, they may as well declare that no colored citizen shall practice law. It should be borne in mind that the only provision in the Constitution of the United States which secures to colored male citizens the privilege of admission to the bar, or the pursuit of the other ordinary avocations of life, is that provision that
No State shall make or enforce any law which shall abridge the privileges or immunities of a citizen.
If this provision does not open all the professions, all the avocations, all the methods by which a man may pursue happiness, to the colored as well as the white man, then the Legislatures of the States may exclude colored men from all the honorable pursuits of life, and compel them to support their existence in a condition of servitude. And if this provision does protect the colored citizen, then it protects every citizen, black or white, male or female. Why may a colored citizen buy, hold, and sell land in any State of the Union? Because he is a citizen of the United States, and that is one of the privileges of a citizen. Why may a colored citizen be admitted to the bar? Because he is a citizen, and that is one of the avocations open to every citizen; and no State can abridge his right to pursue it. Certainly no other reason can be given.
Now, let us come to the case of Myra Bradwell. She is a citizen of the United States, and of the State of Illinois, residing therein; she has been judicially ascertained to be of full age, and to possess the requisite character and learning. Indeed, the court below, in their opinion, found in the record, page 9, say: "Of the ample qualifications of the applicant we have no doubt." Still, admission to the bar was denied the petitioner, not upon the ground that she was not a citizen; not for want of age or qualifications; not because the profession of the law is not one of those avocations which are open to every American citizen as matter of right, upon complying with the reasonable regulations prescribed by the Legislature: but upon the sole ground that inconvenience would result from permitting her to enjoy her legal rights in this, to wit, that her clients might have difficulty in enforcing the contracts they might make with her, as their attorney, because of her being a married woman.
Now, with entire respect to that court, it is submitted that this argument ab inconvenienti, which might have been urged with whatever force belongs to it, against adopting the XIV. Amendment in the full scope of its language, is utterly futile to resist its full and proper operation, now that it has been adopted. Concede, for argument, that the XIV. Amendment ought to have read thus:
No State shall make or enforce any law which shall abridge the privileges or immunities of any citizens except married women;
yet that exception is not found in the sweeping provision of this amendment. It is provided that citizens may be disfranchised for treason; but it is nowhere provided that a citizen shall be disfranchised for being a married woman. The opinion of the court below puts a limitation upon this unlimited constitutional provision. If this court shall approve this exception, in the very teeth of the unambiguous language of the Constitution, where may we expect judicial legislation to stop? Can this court say that married women have no rights that are to be respected? Can this court say that, when the XIV. Amendment speaks of all persons, etc., and declares them to be citizens, it means all male persons and unmarried females? Or can this court say that, when the XIV. Amendment declares "the privileges of no citizen shall be abridged," it means that the privileges of no male citizen or unmarried female citizen shall be abridged? This would be bold dealing with the constitutional provision. It would be excluding a large proportion of the citizens of the United States from privileges which the Constitution declares shall be the inheritance of every citizen alike.
But it is respectfully submitted that the court below erred in holding that a married woman, admitted to the bar under the XIV. Amendment, would not be liable on contracts, express or implied, between her and her clients. In Wisconsin, when the Legislature passed the act protecting married women in the enjoyment of their separate estate, our court, upon ing that can not be gainsaid, held that the Legislature must have intended all the natural and logical results of the act in question; and, therefore, that the contracts of a married woman, relating to her separate estate, were as binding as if made by a feme sole. It is submitted that, for still stronger reasons, the great innovation of the XIV. Amendment should be carried to its logical conclusion, and that it sweeps away the principles of the common law, as it does the express provisions of State constitutions and statutes.
But again: Mrs. Bradwell, admitted to the bar, becomes an officer of the court, subject to its summary jurisdiction. Any malpractice or unprofessional conduct towards her client would be punishable by fine, imprisonment, or expulsion from the bar, or by all three. Her clients would, therefore, not be compelled to resort to actions at law against her. But if the courts of Illinois should refuse to exercise this summary jurisdiction, and should hold that actions at law could not be maintained on contracts between her and her clients, it might result that she would not be as generally employed as she otherwise would be. But that is no reason why she should be prohibited from appearing and trying causes for clients who are willing to rely upon her integrity and honor.
But let it not be supposed that, in trying to answer as to the inconveniences imagined by the court below, I am at all departing from the broad ground of constitutional right upon which I rest this cause. I maintain that the XIV. Amendment opens to every citizen of the United States, male or female, black or white, married or single, the honorable professions as well as the servile employments of life; and that no citizen can be excluded from any one of them. Intelligence, integrity, and honor are the only qualifications that can be prescribed as conditions precedent to an entry upon any honorable pursuit or profitable avocation, and all the privileges and immunities which I vindicate to a colored citizen, I vindicate to our mothers, our sisters, and our daughters. The inequalities of sex will undoubtedly have their influence, and be considered by every client desiring to employ counsel.
There may be cases in which a client's rights can only be rescued by an exercise of the rough qualities possessed by men. There are many cases in which the telling sympathy and the silver voice of woman would accomplish more than the severity and sternness of man could achieve. Of a bar composed of men and women of equal integrity and learning, women might be more or less frequently retained, as the taste or judgment of clients might dictate. But the broad shield of the Constitution is over them all, and protects each in that measure of success which his or her individual merits may secure.
2. The second section of the fourth article is inapplicable, because plaintiff is a citizen of the State of whose action she complains, and that section only guarantees privileges and immunities to citizens of other States, in that State. 3. Nor is the right to practice law in the State courts a privilege or immunity of a citizen of the United States, within the meaning of the first section of the XIV. Article of Amendment of the Constitution of the United States.
4. The power of a State to prescribe the qualifications for admission to the bar of its own courts is unaffected by the XIV. Amendment, and this court can not inquire into the reasonableness or propriety of the rules it may prescribe.Mr. Justice Miller delivered the opinion of the Court.
The plaintiff in error, residing in the State of Illinois, made application to the judges of the Supreme Court of that State for a license to practice law. She accompanied her petition with the usual certificate from an inferior court of her good character, and that on due examination she had been found to possess the requisite qualifications. Pending this application she also filed an affidavit, to the effect "that she was born in the State of Vermont; that she was (had been) a citizen of that State; that she is now a citizen of the United States, and has been for many years past a resident of the city of Chicago, in the State of Illinois." And with this affidavit she also filed a paper claiming that, under the foregoing facts, she was entitled to the license prayed for by virtue of the second section of the fourth article of the Constitution of the United States, and of the XIV. Article of Amendment of that instrument.
The statute of Illinois on this subject enacts that no person shall be permitted to practice as an attorney or counselor-at-law, or to commence, conduct, or defend any action, suit, or plaint, in which he is not a party concerned, in any court of record within this State, either by using or subscribing his own name or the name of any other person, without having previously obtained a license for that purpose from some two of the justices of the Supreme Court, which license shall constitute the person receiving the same an attorney and counselor-at-law, and shall authorize him to appear in all the courts of record within this State, and there to practice as an attorney and counselor-at-law, according to the laws and customs thereof.
The Supreme Court denied the application, apparently upon the ground that it was a woman who made it. The record is not very perfect, but it may be fairly taken that the plaintiff asserted her right to a license on the grounds, among others, that she was a citizen of the United States, and that having been a citizen of Vermont at one time, she was, in the State of Illinois, entitled to any right granted to citizens of the latter State. The court having overruled these claims of right, founded on the clauses of the Federal Constitution before referred, those propositions may be considered as properly before this court.
As regards the provision of the Constitution that citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, the plaintiff in her affidavit has stated very clearly a case to which it is inapplicable. The protection designed by that clause, as has been repeatedly held, has no application to a citizen of the State whose laws are complained of. If the plaintiff was a citizen of the State of Illinois, that provision of the Constitution gave her no protection against its courts or its legislation. The plaintiff seems to have seen this difficulty, and attempts to avoid it by stating that she was born in Vermont. While she remained in Vermont that circumstance made her a citizen of that State. But she states, at the same time, that she is a citizen of the United States, and that she is now, and has been for many years past, a resident of Chicago, in the State of Illinois.
The XIV. Amendment declares that citizens of the United States are citizens of the State within which they reside; therefore plaintiff was, at the time of making her application, a citizen of the United States and a citizen of the State of Illinois. We do not here mean to say that there may not be a temporary residence in one State, with intent to return to another, which will not create citizenship in the former. But plaintiff states nothing to take her case out of the definition of citizenship of a State as defined by the first section of the XIV. Amendment.
In regard to that amendment counsel for plaintiff in this court truly says that there are certain privileges and immunities which belong to a citizen of the United States as such; otherwise it would be nonsense for the XIV. Amendment to prohibit a State from abridging them, and he proceeds to argue that admission to the bar of a State of a person who possesses the requisite learning and character is one of those which a State may not deny. In this latter proposition we are not able to concur with counsel. We agree with him that there are privileges and immunities belonging to citizens of the United States, in that relation and character, and that it is these, and these alone, which a State is forbidden to abridge. But the right to admission to practice in the courts of a State is not one of them. The right in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any State, or in any case, to depend on citizenship at all. Certainly many prominent and distinguished lawyers have been admitted to practice, both in the State and Federal Courts, who were not citizens of the United States or of any State. But, on whatever basis this right may be placed, so far as it can have any relation to citizenship at all, it would seem that, as to the courts of a State, it would relate to citizenship of the State, and as to Federal Courts, it would relate to citizenship of the United States.
The opinion just delivered in the Slaughter-house Cases from Louisiana renders elaborate argument in the present case unnecessary; for, unless we are wholly and radically mistaken in the principles on which those cases are decided, the right to control and regulate the granting of license to practice law in the courts of a State is one of those powers which are not transferred for its protection to the Federal Government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license. It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is sufficient to say they are conclusive of the present case.
The judgment of the State court is, therefore, affirmed.
D. W. Middleton, C. S. C. U. S.
Mr. Justice Bradley gave the following: I concur in the judgment of the court in this case by which the judgment of the Supreme Court of Illinois is affirmed, but not for the reasons specified in the opinion just read.
The claim of the plaintiff, who is a married woman, to be admitted to practice as an attorney and counselor-at-law, is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood. The Supreme Court of Illinois denied the application on the ground that, by the common law, which is the basis of laws of Illinois, only men were admitted to the bar, and the Legislature had not made any change in this respect, but had simply provided no person should be admitted to practice as attorney or counselor without having previously obtained a license for that purpose from two justices of the Supreme Court, and that no person should receive a license without first obtaining a certificate from the court of some county of his good moral character. In other respects it was left to the discretion of the court to establish the rules by which admission to the profession should be determined. The court, however, regarded itself as bound by at least two limitations. One was that it should establish such terms of admission as would promote the proper administration of justice, and the other that it should not admit any persons, or class of persons, not intended by the Legislature to be admitted, even though not expressly excluded by statute. In view of this latter limitation the court felt compelled to deny the application of females to be admitted as members of the bar. Being contrary to the rules of the common law and the usages of Westminster Hall from time immemorial, it could not be supposed that the Legislature had intended to adopt any different rule.
The claim that, under the XIV. Amendment of the Constitution, which declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that State, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life.
It certainly can not be affirmed, as a historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and.trusts that belong to the office of an attorney and counselor.
It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and can not be based upon exceptional cases.
The humane movements of modern society, which have for their object the multiplication of avenues for woman's advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the Legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.
For these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.
I concur in the opinion of Mr. Justice Bradley. Field, J.
The result of this suit taught woman that for her civil as well as political rights she had no National protection. This was the first case under the XIV. Amendment that was decided by the Supreme Court of the United States. This august body based its decision against Mrs. Bradwell on the ground of "no jurisdiction," declaring that the case rested with the Legislature of the State of Illinois. In language stripped of legal verbiage and obscurity, it decided that the civil rights of women could be extended and restricted at the caprice of any legislative body in the several States; that the methods for earning their daily bread, in the trades and professions, the use of their powers of mind and body, could be defined, permitted or denied for the citizen by State authorities.
In Norwalk, Connecticut, long known as the Gibralter of republicanism in that State, Mrs. Sarah M. T. Huntington was allowed to register by sufferance of the selectmen whose objections she overcame by a logical argument upon the constitutional provisions under the XIV. Amendment, but she was not permitted to vote (see Connecticut chapter). At the same election several ladies voted in Nyack, New York, and in Toledo, Ohio, and many unsuccessful attempts were made by others in several States of the Union.
It was on November 1st, 1872, at her quiet home in Rochester, while reading her morning paper, that Miss Anthony's eye fell on the following editorial:
She immediately threw aside her journal, and asking one of her sisters to accompany her, made her determined way to the registration office. The inspectors were young men, entirely unversed in the intricacies of constitutional law, so that when Miss Anthony expounded to them the XIV. Amendment, they were utterly incapable of answering her legal argument. After some hesitation the two Republican members of the board agreed to receive her name, while the Democratic official remained obdurate. The United States Supervisor being present strongly advised the young men against refusing to allow Miss Anthony to register. A full report of this scene appeared in the afternoon papers with varying comments; the Republican paper inclined toward a favorable view of the right of women to vote, while the Democratic paper denounced these proceedings and warned all inspectors that if they received the names of women they would be liable to prosecution under the 19th section of the enforcement act.
Upon reading this article Miss Anthony hastened back to the registration office and assured the young men that she would be personally responsible for all costs growing out of any suit that might be instituted against them for having registered women. As an outgrowth of all this discussion about fifty women registered in the city, fourteen of them in Miss Anthony's own ward. As a whole, the tone of the press was so adverse that all the inspectors except those of the 8th ward were intimidated and refused to receive the votes of women on election day.
Bright and early on the morning of November 5th, Miss Anthony and six of the women presented themselves at the polling booth. The ladies went early not in order to vote often, but to avoid any disturbance which might result from so novel a scene if it were enacted when the streets had become crowded. Each of these new voters was in turn challenged, and each swore in her vote, except Rhoda De Garmo, who in true Quaker fashion refused either to "swear" or to "affirm," simply saying "I will tell the truth." Nevertheless her vote was also received.
The discussion of this action continued in the papers and on November 28th, Thanksgiving day, those fourteen offending citizens were informed that they were to be prosecuted by the United States Government, and that Commissioner Storrs wished them to call at his office. The ladies refusing to respond to this polite invitation, Marshal Keeney made the circuit to collect the rebellious forces. It was the afternoon of Thanksgiving day that Miss Anthony was summoned to her parlor to receive a visitor. As she entered she saw her guest was a tall gentleman in most irreproachable attire, nervously dandling in his gloved hands a well-brushed high hat. After some incidental remarks the visitor in a hesitating manner made known his mission. "The Commissioner wishes to arrest you" were his first words touching the object of his call. "Is this your usual method of serving a warrant," asked Miss Anthony; whereupon the Marshal summoned courage enough to serve the usual legal paper.[5] He gallantly offered to leave his prisoner to go alone, but Miss Anthony refusing to take herself to Court, the United States official meekly escorted her to the Commissioner's office. When all the ladies had arrived, the Commissioner, after hours of waiting, announced that the Assistant District Attorney whom he had summoned to examine the culprits, was unable to reach the city that afternoon, and so the ladies were dismissed to appear the next morning.
The voters received their preliminary examination in the same small dingy office where, in the days of slavery, fugitives escaping to Canada had been examined and remanded to bondage. This historic little room is a double disgrace to the American Republic, as within its walls the rights of color and of sex have been equally trampled upon.
The fourteen women pleaded "not guilty," but the Commissioner ordered bail of $500 each for their appearance at the Albany term of the United States District Court January 21, 1873. Miss Anthony refused to give bail, and petitioned for a writ of habeas corpus. The Inspectors were also arrested, and had their final hearing the afternoon of the same day before Commissioner Ely,—Hon. John Van Voorhis their counsel—and were bound over to the Albany Term. The hearing on Miss Anthony's petition was had before Judge Hall. The decision was adverse, and bail of $1,000 demanded for her appearance at the May term at Rochester. The Grand Jury found a true bill of indictment against her, the fourteen other women, and the three Inspectors. Miss Anthony objected to giving bail, but was overruled by her counsel, Hon. Henry R. Selden, whose sense of gallantry made him feel it a disgrace to allow his client to go to jail. This was a source of deep regret to Miss Anthony, as it prevented her case going to the Supreme Court of the United States for final adjudication.
During the intermediate period between November 28, 1872, and January 21, 1873, Miss Anthony, in the eye of the law, was imprisoned, but the Marshal, though somewhat uneasy, left her free to fulfill her lyceum engagements and attend woman suffrage con ventions.A singularly anomalous position for a criminal, traveling about the country as a teacher of morals to the people! Learning that in case the jury returned a verdict of guilty the judge must declare the costs of the trial against the defendants, she determined to canvass Monroe County, in order to make a verdict of "guilty" impossible. She held meetings in twenty-nine of the post-office districts, speaking on the equal rights of all citizens to the ballot. Hearing that District Attorney Crowley threatened to move her trial out of that county, she sent him word that she would then canvass the next with an army of speakers.
The court sat in Rochester May 13th, but several days passed without calling the case. Finally, it was moved by District Attorney Crowley, merely to ask its adjournment to the June United States Circuit Court at Canandaigua. Counsel protested, but without avail, and both the women and the Inspectors were again required to answer the charge and renew bail. This motion for change of venue was made on Friday, and the following Monday night Miss Anthony held her first meeting in Ontario County. In the twenty-two days before the convening of the Court she made twenty-one speeches. Matilda Joslyn Gage came to her aid, and spoke in sixteen townships, thus together making a thorough canvass of that county. Miss Anthony's speech, "Is it a crime for a United States citizen to vote," and that of Mrs. Gage, "The United States on trial, not Susan B. Anthony," were most effective in rousing general thought on the vital principles of republican government, and did much toward enlightening the possible jury in the coming trial.
The last meeting of the series was held at Canandaigua on the evening before the trial. Strong resolutions against these acts of injustice toward woman were introduced by Mrs. Gage, and unanimously indorsed by the audience. Thus the case went to trial with ample opportunity for the District Attorney and the Judge to know the opinions of the people, and for the men of Ontario to be too generally enlightened on the subject to find any twelve who could be trusted to bring in a verdict of guilty against the women for voting, or the inspectors for receiving their votes.
The following is the argument which Miss Anthony made in twenty-nine of the post office-districts of Monroe, and twenty-one of Ontario, in her canvass of those counties, prior to her trial, June 17, 1873:
Friends and Fellow Citizens:—I stand before you to-night, under indictment for the alleged crime of having voted illegally at the last Presidential election. I shall endeavor this evening to prove to you that in voting, I not only committed no crime, but simply exercised my "citizen's right," guaranteed to me and all United States citizens by the National Constitution, beyond the power of any State to deny.
Our democratic republican government is based on the idea of the natural right of every individual member thereof to a voice and a vote in making and executing the laws. We assert the province of government to be to secure the people in the enjoyment of their inalienable rights. We throw to the winds the old dogma that governments can give rights. Before governments were organized, no one denies that each individual possessed the right to protect his own life, liberty, and property. And when 100 or 1,000,000 people enter into a free government, they do not barter away their natural rights; they simply pledge themselves to protect each other in the enjoyment of them, through prescribed judicial and legislative tribunals. They agree to abandon the methods of brute force in the adjustment of their differences, and adopt those of civilization. The Declaration of Independence, the National and State Constitutions, and the organic laws of the Territories, all alike propose to protect the people in the exercise of their God-given rights. Not one of them pretends to bestow rights.
All men are created equal, and endowed by their Creator with certain inalienable rights. Among these are life, liberty, and the pursuit of happiness. That to secure these, governments are instituted among men, deriving their just powers from the consent of the governed.
Here is no shadow of government authority over rights, nor exclusion of any class from their full and equal enjoyment. Here is pronounced the rights of all men, and "consequently," as the Quaker preacher said, "of all women," to a voice in the government. And here, in this very first paragraph of the Declaration, is the assertion of the natural right of all to the ballot; for, how can "the consent of the governed" be given, if the right to vote be denied. Again:
That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such forms as to them shall seem most likely to effect their safety and happiness.
Surely, the right of the whole people to vote is here clearly implied. For, however destructive to their happiness this government might become, a disfranchised class could neither alter nor abolish it, nor institute a new one, except by the old brute force method of insurrection and rebellion. One half of the people of this Nation to-day are utterly powerless to blot from the statute books an unjust law, or to write there a new and a just one. The women, dissatisfied as they are with this form of government, that enforces taxation without representation,—that compels them to obey laws to which they have never given their consent—that imprisons and hangs them without a trial by a jury of their peers—that robs them, in marriage, of the custody of their own persons, wages, and children—are this half of the people left wholly at the mercy of the other half, in direct violation of the spirit and letter of the declarations of the framers of this government, every one of which was based on the immutable principle of equal rights to all. By those declarations, kings, priests, popes, aristocrats, were all alike dethroned, and placed on a common level, politically, with the lowliest born subject or serf. By them, too, men, as such, were deprived of their divine right to rule, and placed on a political level with women. By the practice of those declarations all class and caste distinction will be abolished; and slave, serf, plebeian, wife, woman, all alike, will bound from their subject position to the proud platform of equality.
The preamble of the Federal Constitution says:
We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
It was we, the people, not we, the white male citizens, nor yet we, the male citizens, but we, the whole people, who formed this Union. And we formed it, not to give the blessings of liberty, but to secure them; not to the half of ourselves and the half of our posterity, but to the whole people—women as well as men. And it is downright mockery to talk to women of their enjoyment of the blessings of liberty while they are denied the use of the only means of securing them provided by this democratic republican government—the ballot.
The early journals of Congress show that when the Committee reported to that body the original Articles of Confederation, the very first article which became the subject of discussion was that respecting equality of suffrage. Article 4th said:
The better to secure and perpetuate mutual friendship and intercourse between the people of the different States of this Union, the free inhabitants of each of the States (paupers, vagabonds, and fugitives from justice excepted), shall be entitled to all the privileges and immunities of the free citizens of the several States.
Thus, at the very beginning, did the fathers see the necessity of the universal application of the great principle of equal rights to all—in order to produce the desired result—a harmonious union and a homogeneous people. Luther Martin, Attorney-General of Maryland, in his report to the Legislature of that State of the convention that framed the United States Constitution, said:
Those who advocated the equality of suffrage took the matter up on the original principles of government; that the reason why each individual man in forming a State government should have an equal vote, is because each individual, before he enters into government, is equally free and equally independent.
James Madison said:
Under every view of the subject, it seems indispensable that the mass of the citizens should not be without a voice in making the laws which they are to obey, and in choosing the magistrates who are to administer them.
Also,
Let it be remembered, finally, that it has ever been the pride and the boast of America that the rights for which she contended were the rights of human nature.
And these assertions of the framers of the United States Constitution of the equal and natural rights of all the people to a voice in the government, have been affirmed and reaffirmed by the leading statesmen of the nation, throughout the entire history of our Government.
Thaddeus Stevens, of Pennsylvania, said in 1866:
I have made up my mind that the elective franchise is one of the inalienable rights meant to be secured by the Declaration of Independence.
Mr. President, I say here on the floor of the American Senate, I stand for universal suffrage; and as a matter of fundamental principle, do not recognize the right of society to limit it on any ground of race or sex. I will go farther, and say that I recognize the right of franchise as being intrinsically a natural right. I do not believe that society is authorized to impose any limitations upon it that do not spring out of the necessities of the social state itself.
Charles Sumner, in his brave protests against the XIV. and XV. Amendments, insisted that, so soon as by the XIII. Amendment the slaves became free men, the original powers of the United States Constitution guaranteed to them equal rights—the right to vote and to be voted for:
I do not hesitate to say that when the slaves of our country became "citizens," they took their place in the body politic as a component part of the "people," entitled to equal rights, and under the protection of these two guardian principles: First, that all just governments stand on the consent of the governed; and second, that taxation without representation is tyranny; and these rights it is the duty of Congress to guarantee as essential to the idea of a Republic.
The preamble of the Constitution of the State of New York declares:
We, the people of the State of New York, grateful to Almighty God for our freedom, in order to secure its blessings, do establish this Constitution.
Here is not the slightest intimation, either of receiving freedom from the United States Constitution, or of the State conferring the blessings of liberty upon the people; and the same is true of every one of the thirty-six State Constitutions. Each and all alike declare rights God-given, and that to secure the people in the enjoyment of their inalienable rights, is their one and only object in ordaining and establishing government. And all of the State constitutions are equally emphatic in their recognition of the ballot as the means of securing the people in the enjoyment of these rights. Article 1 of the New York State Constitution says:
No member of this State shall be disfranchised or deprived of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.
And so carefully guarded is the citizen's right to vote, that the Constitution makes special mention of all who may not vote:
Laws may be passed excluding from the right of suffrage all persons who have been or may be convicted of bribery, larceny, or any infamous crime.
In naming the various employments that shall not affect the residence of voters, the 3d section of Article 2d says
That being kept at any almshouse or other asylum, at public expense, nor being confined at any public prison, shall deprive a person of his residence,
and hence his vote. Thus is the right of voting most sacredly hedged about. The only seeming permission in our constitution for the disfranchisement of women is in section 1st of Article 2d:
Every male citizen of the age of twenty-one years, etc., shall be entitled to vote.
But I insist that in view of the explicit assertions of the equal right of the whole people, both in the preamble and previous article of the constitution, this omission of the adjective "female" in the second, should not be construed into a denial; but, instead, counted as of no effect. Mark the direct prohibition:
"No member of this State shall be disfranchised, unless by the 'law of the land,' or the judgment of his peers."
"The law of the land," is the United States Constitution; and there is no provision in that document that can be fairly construed into a permission to the States to deprive any class of their citizens of their right to vote. Hence New York can get no power from that source to disfranchise one entire half of her members. Nor has "the judgment of their peers" been pronounced against women exercising their right to vote. No disfranchised person is allowed to be judge or juror—and none but disfranchised persons can be women's peers; nor has the Legislature passed laws excluding them on account of idiocy or lunacy; nor yet the courts convicted them of bribery, larceny, or any infamous crime. Clearly, then, there is no constitutional ground for the exclusion of women from the ballot-box in the State of New York. No barriers whatever stand to-day between women and the exercise of their right to vote save those of precedent and prejudice.
The clauses of the United States Constitution, cited by our opponents as giving power to the States to disfranchise any classes of citizens they shall please, are contained in sections 2d and 4th of article 1st. The second says:
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.
This can not be construed into a concession to the States of the power to destroy the right to become an elector, but simply to prescribe what shall be the qualifications, such as competency of intellect, maturity of age, length of residence, that shall be deemed necessary to enable them to make an intelligent choice of candidates. If, as our opponents assert, the last clause of this section makes it the duty of the United States to protect citizens in the several States against higher or different qualifications for electors for Representatives in Congress, than for members of Assembly, then must the first clause make it equally imperative for the national government to interfere with the States, and forbid them from arbitrarily cutting off the right of one half of the people to become electors altogether. Section 4th says:
The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators.
Miss Anthony, put "sex" where I have "race" or "color," and you have here the best and strongest argument I can make for woman. There is not a doubt but women have the constitutional right to vote, and I will never vote for a XVI. Amendment to guarantee it to them. I voted for both the XIV. and XV. under protest; would never have done it but for the pressing emergency of that hour; would have insisted that the power of the original Constitution to protect all citizens in the equal enjoyment of their rights should have been vindicated through the courts. But the newly made freedmen had neither the intelligence, wealth, nor time to wait that slow process. Women possess all these in an eminent degree; and I insist that they shall appeal to the courts, and through them establish the powers of our American magna charta, to protect every citizen of the Republic.
But, friends, when in accordance with Senator Sumner's counsel, I went to the ballot-box, last November, and exercised my citizen's right to vote, the courts did not wait for me to appeal to them—they appealed to me, and indicted me on the charge of having voted illegally. Senator Sumner, putting sex where he did color, would have said:
Qualifications can not be in their nature permanent or insurmountable. Sex can not be a qualification any more than size, race, color, or previous condition of servitude. A permanent or insurmountable qualification is equivalent to a deprivation of the suffrage. In other words, it is the tyranny of taxation without representation, against which our revolutionary mothers, as well as fathers, rebelled.
For any State to make sex a qualification that must ever result in the disfranchisement of one entire half of the people, is to pass a bill of attainder, or an ex post facto law, and is therefore a violation of the supreme law of the land. By it, the blessings of liberty are forever withheld from women and their female posterity. To them, this government has no just powers derived from the consent of the governed. To them this government is not a democracy. It is not a republic. It is an odious aristocracy; a hateful oligarchy; the most hateful ever established on the face of the globe. An oligarchy of wealth, where the rich govern the poor; an oligarchy of learning, where the educated govern the ignorant; or even an oligarchy of race, where the Saxon rules the African, might be endured; but surely this oligarchy of sex, which makes the men of every household sovereigns, masters; the women subjects, slaves; carrying dissension, rebellion into every home of the Nation, can not be endured. And yet this odious aristocracy exists in the face of Section 4, of Article 4, which says:
The United States shall guarantee to every State in the Union a Republican form of government.
What, I ask you, is the distinctive difference between the inhabitants of a Monarchical and those of a Republican form of government, save that in the Monarchical the people are subjects, helpless, powerless, bound to obey laws made by superiors—while in the Republican, the people are citizens, individual sovereigns, all clothed with equal power, to make and unmake both their laws and their law makers. And the moment you deprive a person of his right to a voice in the government, you degrade him from the status of a citizen to that of a subject, and it matters very little to him whether his monarch be an individual tyrant, as is the Czar of Russia, or a 15,000,000 headed monster, as here in the United States.
But, it is urged, the use of the masculine pronouns he, his, and him, in all the constitutions and laws, is proof that only men were meant to be included in their provisions. If you insist on this version of the letter of the law, we shall insist that you be consistent, and accept the other horn of the dilemma, which would compel you to exempt women from taxation for the support of the government, and from penalties for the violation of laws.
A year and a half ago I was at Walla Walla, Washington Territory. I saw there a theatrical company, the "Pixley Sisters," playing before crowded houses every night of the whole week of the Territorial fair. The eldest of those three fatherless girls was scarce eighteen. Yet every night a United States officer stretched out his long fingers, and clutched six dollars of the proceeds of the exhibitions of those orphan girls, who, but a few years before, were starvelings in the streets of Olympia, the capital of that far-off north-west territory. So the poor widow, who keeps a boarding-house, manufactures shirts, or sells apples and peanuts on the street corners of our cities, is compelled to pay taxes from her scanty pittance. I would that the women of this republic at once resolve, never again to submit to taxation until their right to vote be recognized. Miss Sarah E. Wall, of Worcester, Mass., twenty years ago, took this position. For several years, the officers of the law distrained her property and sold it to meet the necessary amount; still she persisted, and would not yield an iota, though every foot of her lands should be struck off under the hammer. And now, for several years, the assessor has left her name off the tax list, and the collector passed her by without a call. Mrs. J. S. Weeden, of Viroqua, Wis., for the past six years has refused to pay her taxes, though the annual assessment is $75. Mrs. Ellen Van Valkenburg, of Santa Cruz, Cal., who sued the County Clerk for refusing to register her name, declares she will never pay another dollar of tax until allowed to vote; and all over the country, women property holders are waking up to the injustice of taxation without representation, and ere long will refuse, en masse, to submit to the imposition.
There is no she, or her, or hers, in the tax laws. The statute of New York reads:
Every person shall be assessed in the town or ward where he resides when the assessment is made, for the lands owned by him, etc. Every collector shall call at least once on the person taxed, or at his usual place of residence, and shall demand payment of the taxes charged on him. If any one shall refuse to pay the tax imposed on him, the collector shall levy the same by distress and sale of his property.
The same is true of all the criminal laws:
No person shall be compelled to be a witness against himself, etc.
In the law of May 31, 1870, the 19th section of which I am charged with having violated; not only are all the pronouns masculine, but everybody knows that that particular section was intended expressly to hinder the rebels from voting. It reads:
If any person shall knowingly vote without his having a lawful right, etc.
Precisely so with all the papers served on me—the U. S. Marshal's warrant, the bail-bond, the petition for habeas corpus, the bill of indictment—not one of them had a feminine pronoun printed in it; but, to make them applicable to me, the Clerk of the Court made a little carat at the left of "he" and placed an "s" over it, thus making she out of he. Then the letters "is" were scratched out, the little carat placed under and "er" over, to make her out of his, and I insist if government officials may thus manipulate the pronouns to tax, fine, imprison, and hang women, women may take the same liberty with them to secure to themselves their right to a voice in the government.
So long as any classes of men were denied their right to vote, the government made a show of consistency, by exempting them from taxation. When a property qualification of $250 was required of black men in New York, they were not compelled to pay taxes, so long as they were content to report themselves worth less than that sum; but the moment the black man died, and his property fell to his widow, the black woman's name would be put on the assessor's list, and she be compelled to pay taxes on the same property exempted to her husband. The same is true of ministers in New York. So long as the minister lives, he is exempted from taxation on $1,500 of property, but the moment the breath goes out of his body, his widow's name will go down on the assessor's list, and she will have to pay taxes on the $1,500. So much for the special legislation in favor of women. In all the penalties and burdens of the government (except the military), women are reckoned as citizens, equally with men. Also, in all the privileges and immunities, save those of the jury-box and ballot-box, the two fundamental privileges on which rest all the others. The United States government not only taxes, fines, imprisons, and hangs women, but it allows them to pre-empt lands, register ships, and take out passport and naturalization papers. Not only does the law permit single women and widows to the right of naturalization, but Section 2 says:
A married woman may be naturalized without the concurrence of her husband. (I wonder the fathers were not afraid of creating discord in the families of foreigners); and again: When an alien, having complied with the law, and declared his intention to become a citizen, dies before he is actually naturalized, his widow and children shall be considered citizens, entitled to all rights and privileges as such, on taking the required oath.
If a foreign-born woman, by becoming a naturalized, citizen, is entitled to all rights and privileges of citizenship, is not a native-born woman by her National citizenship, possessed of equal rights and privileges?
The question of the masculine pronouns, yes and nouns too, has been settled by the United States Supreme Court, in the case of Silver vs. Ladd, December, 1868, in a decision as to whether a woman was entitled to lands under the Oregon donation law of 1850. Elizabeth Cruthers, a widow, settled upon a claim and received patents. She died, and her son was heir. He died. Then Messrs. Ladd & Nott took possession, under the general pre-emption law, December, 1861. The administrator, E. P. Silver, applied for a writ of ejectment at the land office in Oregon City. Both the Register and Receiver decided that an unmarried woman could not hold land under that law. The Commissioner of the General Land Office, at Washington, and the Secretary of the Interior, also gave adverse opinions. Here patents were issued to Ladd & Nott, and duly recorded. Then a suit was brought to set aside Ladd's patent, and it was carried through all the State Courts and the Supreme Court of Oregon; each, in turn, giving adverse decisions. At last, in the United States Supreme Court, Associate Justice Miller reversed the decisions of all the lower tribunals, and ordered the land back to the heirs of Mrs. Cruthers. The Court said: In construing a benevolent statute of the government, made for the benefit of its own citizens, inviting and encouraging them to settle on its distant public lands, the words "single man," and "unmarried man" may, especially if aided by the context and other parts of the statute, be taken in a generic sense. Held, accordingly, that the fourth section of the Act of Congress, of September 27th, 1850, granting by way of donation, lands in Oregon Territory, to every white settler or occupant, American half-breed Indians included, embraced within the term single man an unmarried woman.
And the attorney, who carried this question to its final success, is now the Senator elect from Oregon, Hon. J. H. Mitchell, in whom the cause of equal rights to women has an added power on the floor of the United States Senate.
Though the words persons, people, inhabitants, electors, citizens, are all used indiscriminately in the National and State constitutions, there was always a conflict of opinion, prior to the war, as to whether they were synonymous terms, as for instance:
No person shall be a representative who shall not have been seven years a citizen, and who shall not, when elected, be an inhabitant of that State in which he is chosen. No person shall be a senator who shall not have been a citizen of the United States, and an inhabitant of that State in which he is chosen.
But, whatever room there was for a doubt, under the old regime, the adoption of the XIV. Amendment settled that question forever, in its first sentence:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
And the second settles the equal status of all persons—all citizens:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
The only question left to be settled now, is: Are women persons? And I hardly believe any of our opponents will have the hardihood to say they are not. Being persons, then, women are citizens, and no State has a right to make any new law, or to enforce any old law, that shall abridge their privileges or immunities. Hence, every discrimination against women in the constitutions and laws of the several States, is to-day null and void, precisely as is every one against negroes. Is the right to vote one of the privileges or immunities of citizens? I think the disfranchised ex-rebels, and the ex-state prisoners will all agree with me, that it is not only one of them, but the one without which all the others are nothing. Seek first the kingdom of the ballot, and all things else shall be given thee, is the political injunction.
Webster, Worcester and Bouvier all define citizen to be a person, in the United States, entitled to vote and hold office. And prior to the adoption of the XIII. Amendment, by which slavery was forever abolished, and black men transformed from property to persons, the judicial opinions of the country had always been in harmony with these definitions. To be a person was to be a citizen, and to be a citizen was to be a voter. Associate Justice Washington, in defining the privileges and immunities of the citizen, more than fifty years ago, said:
They included all such privileges as were fundamental in their nature. And among them is the right to exercise the elective franchise and to hold office.
Even the "Dred Scott" decision, pronounced by the Abolitionists and Republicans infamous, because it virtually declared "black men had no rights white men were bound to respect," gave this true and logical conclusion, that to be one of the people was to be a citizen and a voter. Chief Judge Daniels said:
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 considered as conferring the actual possession and enjoyment of the perfect right of acquisition and enjoyment of an entire equality of privileges, civil and political.
Associate Justice Taney said:
The words "people of the United 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.
Thus does Judge Taney's decision, which was such a terrible ban to the black man while he was a slave, now that he is a person, no longer property, pronounce him a citizen, possessed of an entire equality of privileges, civil and political. And not only the black man, but the black woman, and all women as well. And it was not until after the abolition of slavery, by which the negroes became free men, hence citizens, that the United States Attorney-General Bates rendered a contrary opinion:
The Constitution uses the word "citizen" only to express the political quality (not equality, mark) of the individual in his relation to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligations of allegiance on the one side, and protection on the other. The phrase "a citizen of the United States," without addition or qualification, means neither more nor less than a member of the nation.
Then, to be a citizen of this Republic, is no more than to be a subject of an Empire. You and I, and all true and patriotic citizens must repudiate this base conclusion. We all know that American citizenship, without addition or qualification, means the possession of equal rights, civil and political. We all know that the crowning glory of every citizen of the United States is, that he can either give or withhold his vote from every law and every legislator under the government. Did "I am a Roman citizen," mean nothing more than that I am a "member" of the body politic of the Republic of Rome, bound to it by the reciprocal obligations of allegiance on the one side, and protection on the other? When you, young man, shall travel abroad among the monarchies of the old world, and there proudly boast yourself an "American citizen," will you thereby declare yourself neither more nor less than a "member" of the American nation?
And this opinion of Attorney-General Bates, that a black citizen was not a voter, made merely to suit the political exigency of the Republican party in that transition hour between emancipation and enfranchisement, was no less infamous, in spirit or purpose, than was the decision of Judge Taney, that a black man was not one of the people, rendered in the interest and at the behest of the old Democratic party, in its darkest hour of subjection to the Slave power. Nevertheless, all of the adverse arguments, adverse congressional reports and judicial opinions, thus far, have been based on this purely partisan, time-serving opinion of General Bates, that the normal condition of the citizen of the United States is that of disfranchisement. That only such classes of citizens as have had special legislative guarantee have a legal right to vote. And if this decision of Attorney-General Bates was infamous, as against black men, but yesterday plantation slaves, what shall we pronounce upon Judge Bingham, in the House of Representatives, and Carpenter, in the Senate of the United States, for citing it against the women of the entire nation, vast numbers of whom are the peers of those honorable gentlemen themselves, in morals, intellect, culture, wealth, family—paying taxes on large estates, and contributing equally with them and their sex, in every direction, to the growth, prosperity, and well-being of the Republic? And what shall be said of the judicial opinions of Judges Cartter, Jameson, McKay, and Sharswood, all based upon this aristocratic monarchical idea, of the right of one class to govern another?
I am proud to mention the names of the two United States judges who have given opinions honorable to our Republican idea, and honorable to themselves—Judge Howe, of Wyoming Territory, and Judge Underwood, of Virginia. The former gave it as his opinion a year ago, when the Legislature seemed likely to revoke the law enfranchising the women of that Territory, that, in case they succeeded, the women would still possess the right to vote under the XIV. Amendment. Judge Underwood, of Virginia, in noticing the recent decision of the Supreme Court of the District of Columbia, denying to women the right to vote, under the XIV. Amendment, says:
If the people of the United States, by amendment of their Constitution, could expunge, without any explanatory or assisting legislation, an adjective of five letters from all State constitutions, and thereby raise millions of our most ignorant fellow-citizens to all the rights and privileges of electors, why should not the same people, by the same Amendment, expunge an adjective of four letters from the same State constitutions, and thereby raise other millions of more educated and better informed citizens to equal rights and privileges, without explanatory or assisting legislation?
If the XIV. Amendment does not secure to all citizens the right to vote, for what purpose was that grand old charter of the fathers lumbered with its unwieldy proportions? The Republican party, and Judges Howard and Bingham, who drafted the document, pretended it was to do something for black men; and if that something was not to secure them in their right to vote and hold office, what could it have been? For, by the XIII. Amendment, black men had become people, and hence were entitled to all the privileges and immunities of the Government, precisely as were the women of the country and foreign men not naturalized. According to Associate Justice Washington, they already had the
Protection of the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject to such restraints as the Government may justly prescribe for the general welfare of the whole; the right of a citizen of one State to pass through or to reside in any other State for the purpose of trade, agriculture, professional pursuit, or otherwise; to claim the benefit of the writ of habeas corpus, to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the State.
Thus, you see, those newly-made freed men were in possession of every possible right, privilege, and immunity of the Government, except that of suffrage, and hence, needed no constitutional amendment for any other purpose. What right, I ask you, has the Irishman the day after he receives his naturalization papers that he did not possess the day before, save the right to vote and hold office? And the Chinamen, now crowding our Pacific coast, are in precisely the same position. What privilege or immunity has California or Oregon the constitutional right to deny them, save that of the ballot? Clearly, then, if the XIV. Amendment was not to secure to black men their right to vote, it did nothing for them, since they possessed everything else before. But if it was meant to be a prohibition of the States to deny or abridge their right to vote—which I fully believe—then it did the same for all persons, white women included, born or naturalized in the United States, for the amendment does not say all male persons of African descent, but all persons are citizens.
The second section is simply a threat to punish the States, by reducing their representation on the floor of Congress, should they disfranchise any class of male citizens, and does not allow of the inference that the States may disfranchise from any, or all other causes; nor in anywise weaken or invalidate the universal guarantee of the first section. What rule of law or logic would allow the conclusion, that the prohibition of a crime to one person, on severe pains and penalties, was a sanction of that crime to any and all other persons save that one? But, however much the doctors of the law may disagree, as to whether people and citizens, in the original constitution, were one and the same, or whether the privileges and immunities in the XIV. Amendment include the right of suffrage, the question of the right of the citizen to vote is settled forever by the XV. Amendment:
The citizen's right to vote shall not be denied by the United States, nor any State thereof; on account of race, color, or previous condition of servitude.
How can the State deny or abridge the right of the citizen, if the citizen does not possess it? There is no escape from the conclusion, that to vote is the citizen's right, and the specifications of race, color, or previous condition of servitude can, in no way, impair the force of the emphatic assertion, that the citizen's right to vote shall not be denied or abridged. The political strategy of the second section of the XIV. Amendment, failing to coerce the rebel States into enfranchising their negroes, and the necessities of the Republican party demanding their votes throughout the South, to insure the re-election of Grant in 1872, that party was compelled to place this positive prohibition of the XV. Amendment upon the United States and all the States thereof.
If we once establish the false principle, that United States citizenship does not carry with it the right to vote in every State in this Union, there is no end to the petty freaks and cunning devices that will be resorted to, to exclude one and another class of citizens from the right of suffrage. It will not always be men combining to disfranchise women; native-born men combining to abridge the rights of naturalized citizens, as in Rhode Island; it will not always be the rich and educated who may combine to cut off the poor and ignorant; but we may live to see the poor, hard-working, uncultivated day laborers, foreign and native born, learning the power of the ballot and their vast majority of numbers, combine and amend State constitutions so as to disfranchise the Vanderbilts and A. T. Stewarts, the Conklings and Fentons. It is a poor rule that won't work more ways than one. Establish this precedent, admit the right of the States to deny suffrage, and there is no power to foresee the confusion, discord, and disruption that may await us. There is, and can be, but one safe principle of government—equal rights to all. And any and every discrimination against any class, whether on account of color, race, nativity, sex, property, culture, can but embitter and disaffect that class, and thereby endanger the safety of the whole people. Clearly, then, the National government must not only define the rights of citizens, but it must stretch out its powerful hand and protect them in every State in this Union.
But if you will insist that the XV. Amendment's emphatic interdiction against robbing United States citizens of their right to vote, "on account of race, color, or previous condition of servitude," is a recognition of the right, either of the United States or any State, to rob citizens of that right for any or all other reasons, I will prove to you that the class of citizens for which I now plead, and to which I belong, may be, and are, by all the principles of our Government, and many of the laws of the States, included under the term "previous condition of servitude."
First.—The married women and their legal status. What is servitude? "The condition of a slave." What is a slave? "A person who is robbed of the proceeds of his labor; a person who is subject to the will of another."
By the law of Georgia, South Carolina, and all the States of the South, the negro had no right to the custody and control of his person. He belonged to his master. If he was disobedient, the master had the right to use correction. If the negro didn't like the correction, and attempted to run away, the master had a right to use coercion to bring him back. By the law of every State in this Union to-day, North as well as South, the married woman has no right to the custody and control of her person. The wife belongs to her husband; and if she refuses obedience to his will, he may use moderate correction, and if she doesn't like his moderate correction, and attempts to leave his "bed and board," the husband may use moderate coercion to bring her back. The little word "moderate," you see, is the saving clause for the wife, and would doubtless be overstepped should her offended husband administer his correction with the "cat-o'-nine-tails," or accomplish his coercion with blood-hounds.
Again, the slave had no right to the earnings of his hands, they belonged to his master; no right to the custody of his children, they belonged to his master; no right to sue or be sued, or testify in the courts. If he committed a crime, it was the master who must sue or be sued. In many of the States there has been special legislation, giving to married women the right to property inherited, or received by bequest, or earned by the pursuit of any avocation outside of the home; also, giving her the right to sue and be sued in matters pertaining to such separate property; but not a single State of this Union has ever secured the wife in the enjoyment of her right to the joint ownership of the joint earnings of the marriage copartnership. And since, in the nature of things, the vast majority of married women never earn a dollar by work outside of their families, nor inherit a dollar from their fathers, it follows that from the day of their marriage to the day of the death of their husbands, not one of them ever has a dollar, except it shall please her husband to let her have it. In some of the States, also, there have been laws passed giving to the mother a joint right with the father in the guardianship of the children. But twenty years ago, when our woman's rights movement commenced, by the laws of the State of New York, and all the States, the father had the sole custody and control of the children. No matter if he were a brutal, drunken libertine, he had the legal right, without the mother's consent, to apprentice her sons to rumsellers, or her daughters to brothel keepers. He could even will away an unborn child, to some other person than the mother. And in many of the States the law still prevails, and legal mothers are still utterly powerless under the common law.
I doubt if there is, to-day, a State in this Union where a married woman can sue or be sued for slander of character, and until quite recently there was not one in which she could sue or be sued for injury of person. However damaging to the wife's reputation any slander may be, she is wholly powerless to institute legal proceedings against her accuser, unless her husband shall join with her; and how often have we heard of the husband conspiring with some outside barbarian to blast the good name of his wife. A married woman can not testify in the courts in cases of joint interest with her husband. A good farmer's wife near Earlville, Ill., who had all the rights she wanted, went to the dentist of the village, who made her a full set of false teeth, both upper and under. The dentist pronounced them an admirable fit, and the wife declared they gave her fits to wear them; that she could neither chew nor talk with them in her mouth. The dentist sued the husband; his counsel brought the wife as witness; the judge ruled her off the stand, saying:
A married woman can not be a witness in matters of joint interest between herself and her husband.
Think of it, ye good wives, the false teeth in your mouths a joint interest with your husbands, about which you are legally incompetent to speak! If in our frequent and shocking railroad accidents a married woman is injured in her person, in nearly all of the States, it is her husband who must sue the company, and it is to her husband that the damages, if there are any, will be awarded. In Ashfield, Mass., supposed to be the most advanced of any State in the Union in all things, humanitarian as well as intellectual, a married woman was severely injured by a defective sidewalk. Her husband sued the corporation and recovered $13,000 damages. And those $13,000 belong to him bona fide; and whenever that unfortunate wife wishes a dollar of it to supply her needs she must ask her husband for it; and if the man be of a narrow, selfish, niggardly nature, she will have to hear him say, every time:
"What have you done, my dear, with the twenty-five cents I gave you yesterday?"
Isn't such a position, I ask you, humiliating enough to be called "servitude"? That husband, as would any other husband, in nearly every State of this Union, sued and obtained damages for the loss of the services of his wife, precisely as the master, under the old slave regime, would have done, had his slave been thus injured, and precisely as he himself would have done had it been his ox, cow, or horse instead of his wife. There is an old saying that "a rose by any other name would smell as sweet," and I submit if the deprivation by law of the ownership of one's own person, wages, property, children, the denial of the right as an individual, to sue and be sued, and to testify in the courts, is not a condition of servitude most bitter and absolute, though under the sacred name of marriage?
Does any lawyer doubt my statement of the legal status of married women? I will remind him of the fact that the old common law of England prevails in every State in this Union, except where the Legislature has enacted special laws annulling it. And I am ashamed that not one State has yet blotted from its statute books the old common law of marriage, by which Blackstone, summed up in the fewest words possible, is made to say: "Husband and wife are one, and that one is the husband."
Thus may all married women, wives, and widows, by the laws of the several States, be technically included in the XV. Amendment's specification of "condition of servitude," present or previous. And not only married women, but I will also prove to you that by all the great fundamental principles of our free government, the entire womanhood of the nation is in a "condition of servitude" as surely as were our revolutionary fathers, when they rebelled against old King George. Women are taxed without representation, governed without their consent, tried, convicted, and punished without a jury of their peers. And is all this tyranny any less humiliating and degrading to women under our democratic-republican government to-day than it was to men under their aristocratic, monarchical government one hundred years ago? There is not an utterance of old John Adams, John Hancock, or Patrick Henry, but finds a living response in the soul of every intelligent, patriotic woman of the nation. Bring to me a common-sense woman property holder, and I will show you one whose soul is fired with all the indignation of 1776, every time the tax-gatherer presents himself at her door. You will not find one such but feels her condition of servitude as galling as did James Otis when he said:
The very act of taxing exercised over those who are not represented appears to me to be depriving them of one of their most essential rights, and if continued, seems to be in effect an entire disfranchisement of every civil right. For, what one civil right is worth a rush after a man's property is subject to be taken from him at pleasure without his consent? If a man is not his own assessor in person, or by deputy, his liberty is gone, or he is wholly at the mercy of others.
What was the three-penny tax on tea, or the paltry tax on paper and sugar to which our revolutionary fathers were subjected, when compared with the taxation of the women of this Republic? The orphaned Pixley sisters, six dollars a day; and even the women who are proclaiming the tyranny of taxation without representation, from city to city throughout the country, are often compelled to pay a tax for the poor privilege of protesting against the outrage. And again, to show that disfranchisement was precisely the slavery of which the fathers complained, allow me to cite to you old Ben. Franklin, who in those olden times was admitted to be good authority, not merely in domestic economy, but in political as well:
Suppose I read it with the feminine gender:
That women who have no voice nor vote in the electing of representatives, do not enjoy liberty, but are absolutely enslaved to men who have votes and their representatives; for to be enslaved is to have governors whom men have set over us, and to be subject to the laws made by the representatives of men, without having representatives of our own to give consent in our behalf.
And yet one more authority; that of Thomas Paine, than whom not one of the Revolutionary patriots more ably vindicated the principles upon which our government is founded:
The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce man to a state of slavery; for slavery consists in being subject to the will of another; and he that has not a vote in the election of representatives is in this case. The proposal, therefore, to disfranchise any class of men is as criminal os the proposal to take away property.
Is anything further needed to prove woman's condition of servitude sufficiently orthodox to entitle her to the guarantees of the XV. Amendment? Is there a man who will not agree with me, that to talk of freedom without the ballot, is mockery—is slavery—to the women of this Republic, precisely as New England's orator, Wendell Phillips, at the close of the late war, declared it to be to the newly emancipated black men?
I admit that prior to the rebellion, by common consent, the right to enslave, as well as to disfranchise both native and foreign born citizens, was conceded to the States. But the one grand principle, settled by the war and the reconstruction legislation, is the supremacy of National power to protect the citizens of the United States in their right to freedom and the elective franchise, against any and every interference on the part of the several States. And again and again, have the American people asserted the triumph of this principle, by their overwhelming majorities for Lincoln and Grant. The one-issue of the last two Presidential elections was, whether the XIV. and XV. Amendments should be considered the irrevocable will of the people; and the decision was, they shall be—and that it is not only the right, but the duty of the National government to protect all United States citizens in the full enjoyment and free exercise of all their privileges and immunities against any attempt of any State to deny or abridge. And in this conclusion Republicans and Democrats alike agree.
The Call for the National Republican Convention said—Equal suffrage has been engrafted on the National Constitution; the privileges and immunities of American citizenship have become a part of the organic law.
The National Republican Platform said—Complete liberty and exact equality in the enjoyment of al! civil, political, and public rights, should be established and maintained throughout the Union by efficient and appropriate State and Federal legislation.If these assertions mean anything, it is that Congress should pass a law compelling the States to protect women in their equal political rights, and that the States should enact laws making it the duty of inspectors of election to receive women's votes on precisely the same conditions they do those of men.
Judge Stanley Matthews—a substantial Ohio Democrat—in his preliminary speech at the Cincinnati Convention, said most emphatically:
The Constitutional Amendments have established the political equality of all citizens before the law.
President Grant, in his message to Congress March 30, 1870, on the adoption of the XV. Amendment, said:
A measure which makes at once four millions of people voters, is indeed a measure of greater importance than any act of the kind from the foundation of the Government to the present time.
How could the four million negroes be made voters if the two million women were not included?
The California State Republican Convention said:
Among the many practical and substantial triumphs of the principles achieved by the Republican party during the past twelve years, we may enumerate with pride and pleasure, the prohibiting of any State from abridging the privileges of any citizen of the Republic, the declaring the civil and political equality of every citizen, and the establishing of all these principles in the Federal Constitution by amendments thereto, as the permanent law.
Benjamin F. Butler, in a recent letter to me said:
I do not believe anybody in Congress doubts that the Constitution authorizes the right of women to vote, precisely as it authorizes trial by jury and many other like rights guaranteed to citizens. And again, It is not laws we want; there are plenty of laws—good enough, too. Administrative ability to enforce law is the great want of the age, in this country especially. Everybody talks of law, law. If everybody would insist on the enforcement of law, the government would stand on a firmer basis, and questions would settle themselves.
And it is upon this just interpretation of the United States Constitution that our National Woman Suffrage Association, which celebrates the twenty-fifth anniversary of the woman's rights movement, in New York on the 6th of May next, has based all its arguments and action the past three years. We no longer petition Legislature or Congress to give us the right to vote. We appeal to the women everywhere to exercise their too long neglected "citizen's right to vote." We appeal to the inspectors of election everywhere to receive the votes of all United States citizens, as it is their duty to do. We appeal to United States commissioners and marshals to arrest the inspectors who reject the names and votes of United States citizens, as it is their duty to do, and leave those alone who, like our eighth ward inspectors, perform their duties faithfully and well. We ask the juries to fail to return verdicts of "guilty" against honest, law-abiding, tax-paying United States citizens for offering their votes at our elections; or against intelligent, worthy young men, inspectors of election, for receiving and counting such citizens' votes. We ask the judges to render true and unprejudiced opinions of the law, and wherever there is room for a doubt to give its benefit on the side of liberty and equality to women, remembering that
The true rule of interpretation under our National Constitution, especially since its Amendments, is that anything for human rights is constitutional, everything against human rights unconstitutional.
Miss Anthony's trial opened the morning of the 18th of June. The lovely village of Canandaigua, with its placid lake reflecting the soft summer sky, gave no evidence of the great event that was to make the day and the place memorable in history. All was still, the usual peaceful atmosphere pervaded that conservative town, and with the exception of a small group of men and women in earnest conversation at the hotel, few there were who thought or cared about 'he great principles of government involved in the pending trial. When the tolling of the Court House bell announced that the hour had arrived, Miss Anthony, her counsel and friends, promptly appeared, and were soon followed by the District Attorney and Judge, representing the power of the United States,—Miss Anthony to stand as a criminal before the bar of her country for having dared to exercise a freeman's right of self-government, and that country through its Judiciary to falsify its grand declarations as to the equality of its citizens by 4 verdict of guilty because of sex.
On the bench sat Judge Hunt, a small-brained, pale-faced, prim-looking man, enveloped in a faultless suit of black broadcloth, and a snowy white neck-tie. This was the first criminal case he had been called on to try since his appointment, and with remarkable forethought, he had penned his decision before hearing it. At times by his side sat Judge Hall, who had declared himself unwilling to try the suit. Within the bar sat Miss Anthony and counsel, the Hon. Henry R. Selden and Hon. John Van Voorhis, several of the ladies who had voted,[6] Mrs, Gage, and the United States District Attorney. Upon the right sat the jury, while all the remaining space was crowded with curious and anxious listeners, among whom were many men[7] prominent in public life.
The indictment[8] presented against Miss Anthony will be regarded by the future historian as a remarkable document to have originated in a republic against one of its native-born citizens guilty of no crime.,
United States Circuit Couurt. (Northern District Of New York.)
Tried at Canandaigua, Tuesday and Wednesday, June 17th and 18th, 1873, before Hon. Ward Hunt, and a jury. Jury impaneled at 2:30 P.M.
Mr. Crowley opened the case as follows:
May it please the Court and Gentlemen of the Jury:
On the 5th of November, 1872, there was held in this State, as well as in other States of the Union, a general election for different officers, and among those, for candidates to represent several districts of this State in the Congress of the United States. The defendant, Miss Susan B. Anthony, at that time resided in the city of Rochester, in the county of Monroe, Northern District of New York, and upon the 5th day of November, 1872, she voted for a representative in the Congress of the United States, to represent the 29th Congressional District of this State, and also for a representative at large for the State.of New York, to represent the State in the Congress of the United States. At that time she was a woman. I suppose there will be no question about that. The question in this case, if there be a question of fact about it at
all, will, in my judgment, be rather a question of law than one of fact. I suppose that there will be no question of fact, substantially, in the case when all of the evidence is out, and it will be for you to decide under the charge for his honor, the Judge, whether or not the defendant committed the offense of voting for a representative in Congress upon that occasion. We think, on the part of the Government, that there is no question about it either one way or the other, neither a question of fact, nor a question of law, and that whatever Miss Anthony's intentions may have been—whether they were good or otherwise—she did not have a right to vote upon that question, and if she did vote without having a lawful right to vote, then there is no question but what she is guilty of violating a law of the United States in that behalf enacted by the Congress of the United States.
We don't claim in this case, gentlemen, that Miss Anthony is of that class of people who go about "repeating." We don't claim that she went from place to place for the purpose of offering her vote. But we do claim that upon the 5th of November, 1872, she voted, and whether she believed that she had a right to vote or not, it being a question of law, that she is within the statute. Congress in 1870 passed the following statute: (Reads 19th Section of the Act of 1870, page 144, 16th statutes at large.) It is not necessary for me, gentlemen, at this stage of the case, to state all the facts which will be proven on the part of the Government. I shall leave that to be shown by the evidence and by the witnesses, and if any question of law shall arise his Honor will undoubtedly give you instructions as he shall deem proper. Conceded, that on the 5th day of November, 1872, Miss Susan B. Anthony was a woman.
Beverly W. Jones, a witness, called in behalf of the United States, testified as follows: Examined by Mr. Crowley:
Q. Mr. Jones, where do you reside? A. 8th Ward, Rochester.
Q. Where were you living on the 5th of November, 1872? A. Same place.
Q. Do you know the defendant, Miss Susan B. Anthony? A. Yes, sir.
Q. In what capacity were you acting upon that day, if any, in relation to elections? A. Inspector of election.
Q. Into how many election districts is the 8th Ward divided, if it contains more than one? A. Two, sir.
Q. In what election district were you inspector of elections? A. The first district.
Q. Who were inspectors with you? A. Edwin T. Marsh and William B. Hall.
Q. Had the Board of Inspectors been regularly organized? A. Yes, sir.
Q. Upon the 5th day of November, did the defendant, Susan B. Anthony, vote in the first election district of the 8th Ward of the city of Rochester?
A. Yes, sir.
Q. Did you see her vote? A. Yes, sir.
Q. Will you state to the jury what tickets she voted, whether State, Assembly, Congress and Electoral? Objected to as calling for a conclusion.
Q. State what tickets she voted, if you know, Mr. Jones. A. If I recollect right she voted the Electoral ticket, Congressional ticket, State ticket, and Assembly ticket.
Q. Was there an election for member of Congress from that district and for Representative at large in Congress, for the State of New York, held on the 5th of November, in the city of Rochester? A. I think there was; yes, sir.
Q. In what Congressional District was the city of Rochester at the time? A. The 29th.
Q. Did you receive the tickets from Miss Anthony? A. Yes, sir.
Q. What did you do with them when you received them? A. Put them in the separate boxes where they belonged.
Q. State to the jury whether you had separate boxes for the several tickets voted in that election district? A. Yes, sir; we had.
Q. Was Miss Anthony challenged upon that occasion? A. Yes, sir—no; not on that day she wasn't.
Q. She was not challenged on the day she voted? A. No, sir.
Cross-examination by Judge Selden:
Q. Prior to the election, was there a registry of voters in that district made? A. Yes, sir.
Q. Were you one of the officers engaged in making that registry? A. Yes, sir.
Q. When the registry was being made did Miss Anthony appear before the Board of Registry and claim to be registered as a voter? A. She did. Q. What was the defect in her right to vote as a citizen? A. She was not a male citizen.
Q. That she was a woman? A. Yes, sir.
Q. Did the Board consider that and decide that she was entitled to register? Objected to. Objection overruled.
Q. Did the Board consider the question of her right to registry, and decide that she was entitled to registry as a voter? A. Yes, sir.
Q. And she was registered accordingly? A. Yes, sir.
Q. When she offered her vote, was the same objection brought up in the Board of Inspectors, or question made of her right to vote as a woman? A. She was challenged previous to election day.
Q. It was canvassed previous to election day between them? A. Yes, sir; she was challenged on the second day of registering names.
Q. At the time of the registry, when her name was registered, was the Supervisor of Election present at the Board? A. He was.
Q. Was he consulted upon the question of whether she was entitled to registry, or did he express an opinion on the subject to the inspectors?
Mr. Crowley.—I submit that it is of no consequence whether he did or not.
Judge Selden.—He was the Government Supervisor under this act of Congress.
Mr. Crowley.—The Board of Inspectors, under the State law, constitute the Board of Registry, and they are the only persons to pass upon that question.
The Court.—You may take it. A. Yes, sir; there was a United States Supervisor of Elections, two of them.
By Judge Selden:
Q. Did they advise the registry or did they not? A. One of them did.
Q. And on that advice the registry was made with the judgment of the inspectors? A. It had a great deal of weight with the inspectors, I have no doubt.
Re-direct examination by Mr. Crowley:
Q. Was Miss Anthony challenged before the Board of Registry? A. Not at the time she offered her name.
Q. Was she challenged at any time? A. Yes, sir; the second day of the meeting of the Board.
Q. Was the preliminary and the general oath administered? A. Yes, sir.
Q. Won't you state what Miss Anthony said, if she said anything, when she came there and offered her name for registration? A. She stated that she did not claim any rights under the Constitution of the State of New York; she claimed her right under the Constitution of the United States.
Q. Did she name any particular amendment? A. Yes, sir; she cited the XIV. Amendment.
Q. Under that she claimed her right to vote? A. Yes, sir.
Q. Did the other Federal Supervisor who was present, state it as his opinion that she was entitled to vote under that amendment, or did he protest, claiming that she did not have the right to vote? A. One of them said that there was no way for the inspectors to get around placing the name upon the register; the other one, when she came in, left the room. Q. Did this one who said that there was no way to get around placing the name upon the register, state that she had her right to register, but did not have the right to vote? A. I didn't hear him make any such statement.
Q. You didn't hear any such statement as that? A. No, sir.
Q. Was there a poll list kept of the voters of the first election district of the 8th Ward on the day of election? A. Yes, sir.
Q. (Handing witness two books.) State whether that is the poll list of voters kept upon the day of election in the first election district of the 8th Ward, of the city of Rochester? A. This is the poll list, and also the register.
Q. Turn to the name of Susan B. Anthony, if it is upon that poll list. A. I have it.
Q. What number is it? A. Number 22.
Q. From that poll list what tickets does it purport to show that she voted upon that occasion? A. Electoral, State, Congress, and Assembly.
United States rests.
Judge Selden opened the case in behalf of the defendant, as follows:
If the Court please, Gentlemen of the Jury:
This is a case of no ordinary magnitude, although many might regard it as one of very little importance. The question whether my client here has done anything to justify her being consigned to a felon's prison or not, is one that interests her very essentially, and that interests the people also essentially. I claim and shall endeavor to establish before you that when she offered to have her name registered as a voter, and when she offered her vote for Member of Congress, she was as much entitled to vote as any man that voted at that election, according to the Constitution and laws of the Government under which she lives. If I maintain that proposition, as a matter of course she has committed no offense, and is entitled to be discharged at your hands.
But, beyond that, whether she was a legal voter or not, whether she was entitled to a vote or not, if she sincerely believed that she had a right to vote, and offered her ballot in good faith, under that belief, whether right or wrong, by the laws of this country she is guilty of no crime. I apprehend that that proposition, when it is discussed, will be maintained with a clearness and force that shall leave no doubt upon the mind of the Court or upon your minds as the gentlemen of the jury. If I maintain that proposition here, then the further question and the only question which, in my judgment, can come before you to be passed upon by you as a question of fact is whether or not she did vote in good faith, believing that she had a right to vote. The public prosecutor assumes that, however honestly she may have offered her vote, however sincerely she may have believed that she had a right to vote, if she was mistaken in that judgment, her offering her vote and its being received makes a criminal offense—a proposition to me most abhorrent, as I believe it will be equally abhorrent to your judgment.
Before the registration, and before this election, Miss Anthony called upon me for advice upon the question whether, under the XIV. Amendment of the Constitution of the United States, she had a right to vote. I had not examined the question. I told her I would examine it and give her my opinion upon the question of her legal right. She went away and came again after I had made the examination. I advised her that she was as lawful a voter as I am, or as any other man is, and advised her to go and offer her vote. I may have been mistaken in that, and if I was mistaken, I believe she acted in good faith. I believe she acted according to her right as the law and Constitution gave it to her. But whether she did or not, she acted in the most perfect good faith, and if she made a mistake, or if I made one, that is not a reason for committing her to a felon’s cell.
For the second time in my life, in my professional practice, I am under the necessity of offering myself as a witness for my client.
Henry R. Selden, a witness sworn in behalf of the defendant, testified as follows: Before the last election, Miss Anthony called upon me for advice, upon the question whether she was or was not a legal voter. I examined the question, and gave her my opinion, unhesitatingly, that the laws and Constitution of the United States authorized her to vote, as well as they authorize any man to vote; and I advised her to have her name placed upon the registry and to vote at the election, if the inspectors should receive her vote. I gave the advice in good faith, believing it to be accurate, and I believe it to be accurate still. [This witness was not cross-examined.]
Judge Selden : I propose to call Miss Anthony as to the fact of her voting—on the question of the intention or belief under which she voted.
Mr. Crowley: She is not competent as a witness in her own behalf. [The Court so held.] Defendant rests.
John E. Pound, a witness sworn in behalf of the United States, testified as follows, examined by Mr. Crowley:
Q. During the months of November and December 1872, and January, 1873, were you Assistant United States District Attorney for the Northern District of New York? A. Yes, sir.
Q. Do you know the defendant, Susan B. Anthony? A. Yes, sir.
Q. Did you attend.an examination before Wm. C. Storrs, a United States Commissioner, in the city of Rochester, when her case was examined? A. I did. :
Q. Was she called as a witness in her own behalf upon that examination ? A. She was.
Q. Was she sworn? A. She was.
Q. Did she give evidence? A. She did.
Q. Did you keep minutes of evidence on that occasion? A, I did.
Q. (Handing the witness a paper). Please look at the paper now shown you and see if it contains the minutes you kept upon that occasion? A. It does.
Q. Turn to the evidence of Susan B. Anthony? A, I have it.
Q. Did she, upon that occasion, state that she consulted or talked with Judge Henry R. Selden, of Rochester, in relation to her right to vote ?
Judge Selden : I object to that upon the ground that it is incompetent, that if they refuse to allow her to be sworn here, they should be excluded from producing any evidence that she gave elsewhere, especially when they want to give the version which the United States officer took of her evidence.
The Court: Go on.
By Mr. Crowley:
Q. State whether she stated on that examination, under oath, that she had talked or consulted with Judge Henry R. Selden in relation to her right to vote? A. She did.
Q. State whether she asked, upon that examination, if the advice given her by Judge Henry R. Selden would or did make any difference in her action in voting, or in substance that? A. She stated on the cross-examination, "I should have made the same endeavor to vote that I did had I not consulted Judge Selden. I didn't consult any one before I registered. I was not influenced by his advice in the matter at all; have been resolved to vote, the first time I was at home thirty days, for a number of years."
Cross-examination by Mr. Van Voorhis:
Q. Mr. Pound, was she asked there if she had any doubt about her right to vote, and did she answer, "Not a particle"? A. She stated, "Had no doubt as to my right to vote," on the direct examination.
Q. There was a stenographic reporter there, was there not? A. A reporter was there taking notes.
Q. Was not this question put to her, "Did you have any doubt yourself of your right to vote?" and did she not answer, "Not a particle "?
The Court: Well, he says so, that she had no doubt of her right to vote.
Judge Selden: I beg leave to state, in regard to my own testimony, Miss Anthony informs me that I was mistaken in the fact that my advice was before her registry. It was my recollection that it was on her way to the registry, but she states to me now that she was registered and came immediately to my office. In that respect I was under a mistake.
Evidence closed.
ARGUMENT OF MR. SELDEN FOR THE DEFENDANT.
The defendant is indicted under the 19th section of the Act of Congress of May 31, 1874 (16 St. at L., 144), for "voting without having a lawful right to vote." The words of the statute, so far as they are material in this case, are as follows:
If at any election for representative or delegate in the Congress of the United States, any person shall knowingly ... . vote without having a lawful right to vote.... every such person shall be deemed guilty of a crime... . and on conviction thereof shall be punished by a fine not exceeding $500, or by imprisonment for a term not exceeding three years, or by both, in the discretion of the court and shall pay the costs of prosecution.
The only alleged ground of illegality of the defendant's vote is that she is a woman. If the same act had been done by her brother under the same circumstances, the act would have been not only innocent, but honorable and laudable; but having been done by a woman it is said to be a crime. The crime, therefore, consists not in the act done, but in the simple fact that the person doing it was a woman and nota man. I believe this is the first instance in which a woman has been arraigned in a criminal court merely on account of her sex. If the advocates of female suffrage had been allowed to choose the point of attack to be made upon their position, they could not have chosen it more favorably for themselves; and I am disposed to thank those who have been instrumental in this proceeding, for present ing it in the form of a criminal prosecution. Women have the same interest that men have in the establishment and maintenance of good government; they are to the same extent as men bound to obey the laws; they suffer to the same extent by bad laws, and profit to the same extent by good laws; and upon principles of equal justice, as it would seem, should be allowed equally with men, to express their preference in the choice of law-makers and rulers. But however that may be, no greater absurdity, to use no harsher term, could be presented, than that of rewarding men and punishing women, for the same act, without giving to women any voice in the question which should be rewarded, and which punished.
I am aware, however, that we are here to be governed by the Constitution and laws as they are, and that if the defendant has been guilty of violating the law, she must submit to the penalty, however unjust or absurd the law may be. But courts are not required to so interpret laws or constitutions as to produce either absurdity or injustice, so long as they are open to a more reasonable interpretation. This must be my excuse for what I design to say in regard to the propriety of female suffrage, because with that propriety established there is very little difficulty in finding sufficient warrant in the Constitution for its exercise. This case, in its legal aspects, presents three questions, which I purpose to discuss.
1. Was the defendant legally entitled to vote at the election in question?
2. If she was not entitled to vote, but believed that she was, and voted in good faith in that belief, did such voting constitute a crime under the statute before referred to?
3. Did the defendant vote in good faith in that belief?
If the first question be decided in accordance with my views, the other questions become immaterial; if the second be decided adversely to my views, the first and third become immaterial. The first two are questions of law to be decided by the court, the other is a question for the jury.
The Court suggested that the argument should be confined to the legal questions, and the argument on the other question suspended. This suggestion was assented to, and the counsel proceeded.
My first position is that the defendant had the same right to vote as any other citizen who voted at that election. Before proceeding to the discussion of the purely legal question, I desire, as already intimated, to pay some attention to the propriety and justice of the rule which I claim to have been established by the Constitution.
Miss Anthony, and those united with her in demanding the right of suffrage, claim, and with a strong appearance of justice, that upon the principles upon which our Government is founded, and which lie at the basis of all just government, every citizen has a right to take part, upon equal terms with every other citizen, in the formation and administration of government. This claim on the part of the female sex presents a question the magnitude of which is not well appreciated by the writers and speakers who treat it with ridicule. Those engaged in the movement are able, sincere, and earnest women, and they will not be silenced by such ridicule, nor even by the villainous caricatures of Nast. On the contrary, they justly place all those things to the account of the wrongs which they think their sex has suffered. They believe, with an intensity of feeling which men who have not associfemale sex presents a question the magnitude of which is not well appreciated by the writers and speakers who treat it with ridicule. Those engaged in the movement are able, sincere, and earnest women, and they will not be silenced by such ridicule, nor even by the villainous caricatures of Nast. On the contrary, they justly place all those things to the account of the wrongs which they think their sex has suffered. They believe, with an intensity of feeling which men who have not associated[Pg 656] with them have not yet learned, that their sex has not had, and has not now, its just and true position in the organization of government and society. They may be wrong in their position, but they will not be content until their arguments are fairly, truthfully, and candidly answered.
In the most celebrated document which has been put forth on this side of the Atlantic, our ancestors declared that "governments derive their just powers from the consent of the governed." Blackstone says:
The lawfulness of punishing such criminals (i.e., persons offending merely against the laws of society) is founded upon this principle; that the law by which they suffer was made by their own consent; it is a part of the original contract into which they entered when first they engaged in society; it was calculated for and has long contributed to their own security.
Quotations, to an unlimited extent, containing similar doctrines from eminent writers, both English and American, on government, from the time of John Locke to the present day, might be made. Without adopting this doctrine which bases the rightfulness of government upon the consent of the governed, I claim that there is implied in it the narrower and unassailable principle that all citizens of a State, who are bound by its laws, are entitled to an equal voice in the making and execution of such laws. The doctrine is well stated by Godwin in his treatise on "Political Justice." He says:
The first and most important principle that can be imagined relative to the form and structure of government, seems to be this: that as government is a transaction in the name and for the benefit of the whole, every member of the community ought to have some share in its administration. Again, Government is a contrivance instituted for the security of individuals; and it seems both reasonable that each man should have a share in providing for his own security, and probable, that partiality and cabal should by this means be most effectually excluded. And again, To give each man a voice in the public concerns comes nearest to that admirable idea of which we should never lose sight, the uncontrolled exercise of private judgment. Each man would thus be inspired with a consciousness of his own importance, and the slavish feelings that shrink up the soul in the presence of an imagined superior would be unknown.
The mastery which this doctrine, whether right or wrong, has acquired over the public mind, has produced as its natural fruit, the extension of the right of suffrage to all the adult male population in nearly all the States of the Union; a result which was well epitomized by President Lincoln, in the expression, "government by the people for the people." This extension of the suffrage is regarded by many as a source of danger to the stability of free government. I believe it furnishes the greatest security for free government, as it deprives the mass of the people of all motive for revolution; and that government so based is most safe, not because the whole people are less liable to make mistakes in government than a select few, but because they have no interest which can lead them to such mistakes, or to prevent their correction when made. On the contrary, the world has never seen an aristocracy, whether composed of few or many, powerful enough to control a government, who did not honestly believe that their interest was identical with the public interest, and who did not act persistently in accordance with such belief; and, unfortunately, an aristocracy of sex has not proved an exception to the rule. The only method yet discovered of overcoming this tendency to the selfish use of power, whether consciously or unconsciously, by those possessing it, is the distribution of the power among all who are its subjects. Short of this the name free government is a misnomer.
This principle, after long strife, not yet entirely ended has been, practically at least, very generally recognized on this side of the Atlantic, as far as relates to men; but when the attempt is made to extend it to women, political philosophers and practical politicians, those "inside of politics," two classes not often found acting in concert, join in denouncing it. It remains to be determined whether the reasons which have produced the extension of the franchise to all adult men, do not equally demand its extension to all adult women. If it be necessary for men that each should have a share in the administration of government for his security, and to exclude partiality, as alleged by Godwin, it would seem to be equally, if not more, necessary for women, on account of their inferior physical power; and if, as is persistently alleged by those who sneer at their claims, they are also inferior in mental power, that fact only gives additional weight to the argument in their behalf, as one of the primary objects of government, as acknowledged on all hands, is the protection of the weak against the power of the strong.
I can discover no ground consistent with the principle on which the franchise has been given to all men, upon which it can be denied to women. The principal argument against such extension, so far as argument upon that side of the question has fallen under my observation, is based upon the position that women are represented in the government by men, and that their rights and interests are better protected through that indirect representation than they would be by giving them a direct voice in the government. The teachings of history in regard to the condition of women under the care of these self-constituted protectors, to which I can only briefly allude, show the value of this argument as applied to past ages; and in demonstration of its value as applied to more recent times, even at the risk of being tedious, I will give some examples from my own professional experience. I do this because nothing adds more to the efficacy of truth than the translation of the abstract into the concrete. Withholding names, I will state the facts with fullness and accuracy.
In another case, two ladies, mother and daughter, some time prior to 1860 came from an eastern county of New York to Rochester, where a habeas corpus was obtained for a child of the daughter less than two years of age. It appeared on the return of the writ, that the mother of the child had been previously abandoned by her husband, who had gone to a Western State to reside, and his wife had returned with the child to her mother's house, and had resided there after her desertion. The husband had recently returned from the West, had succeeded in getting the child into his custody, and was stopping overnight with it in Rochester on the way to his Western home. No misconduct on the part of the wife was pretended, and none on the part of the husband, excepting that he had gone to the West, leaving his wife and child behind, no cause appearing, and had returned, and somewhat clandestinely obtained possession of the child. The Judge, following Blackstone's views of husbands' rights, remanded the infant to the custody of the father. He thought the law required it, and perhaps it did; but if mothers had had a voice, either in making or administering the law, I think the result would have been different. The distress of the mother on being thus separated from her child can be better imagined than described. The separation proved a final one, as in less than a year neither father nor mother had any child on earth to love or care for. Whether the loss to the little one of a mother's love and watchfulness had any effect upon the result, can not, of course, be known.
The state of the law a short time since, in other respects, in regard to the rights of married women, shows what kind of security had been provided for them by their assumed representatives. Prior to 1848, all the personal property of every woman on marriage became the absolute property of the husband—the use of all her real estate became his during coverture, and on the birth of a living child, it became his during his life. He could squander it in dissipation or bestow it upon harlots, and the wife could not touch or interfere with it. Prior to 1860, the husband could by will take the custody of his infant children away from the surviving mother, and give it to whom he pleased—and he could in like manner dispose of the control of the children's property, after his death, during their minority, without the mother's consent. In most of these respects the state of the law has undergone great changes within the last twenty-five years. The property, real and personal, which a woman possesses before marriage, and such as may be given to her during coverture, remains her own, and is free from the control of her husband. If a married woman is slandered she can prosecute the slanderer in her own name, and recover to her own use damages for the injury. The mother now has an equal claim with the father to the custody of their minor children, and in case of controversy on the subject, courts may award the custody to either in their discretion. The husband can not now by will effectually appoint a guardian for his infant children without the consent of the mother, if living. These are certainly great ameliorations of the law; but how have they been produced? Mainly as the result of the exertions of a few heroic women, one of the foremost of whom is she who stands arraigned as a criminal before this Court to-day. For a thousand years the absurdities and cruelties to which I have alluded have been imbedded in the common law, and in the statute books, and men have not touched them, and would not until the end of time, had they not been goaded to it by the persistent efforts of the noble women to whom I have alluded.
Much has been done, but much more remains to be done by women. If they had possessed the elective franchise, the reforms which have cost them a quarter of a century of labor would have been accomplished in a year. They are still subject to taxation upon their property, without any voice as to the levying or destination of the tax; and are still subject to laws made by men, which subject them to fine and imprisonment for the same acts which men do with honor and reward—and when brought to trial no woman is allowed a place on the bench or in the jury box, or a voice in her behalf at the bar. They are bound to suffer the penalty of such laws, made and administered solely by men, and to be silent under the infliction. Give them the ballot, and, although I do not suppose that any great revolution will be produced, or that all political evils will be removed (I am not a believer in political panaceas), but if I mistake not, valuable reforms will be introduced which are not now thought of. Schools, alms-houses, hospitals, drinking saloons, and those worse dens which are destroying the morals and the constitutions of so many of the young of both sexes, will feel their influence to an extent now little dreamed of. At all events women will not be taxed without an opportunity to be heard, and will not be subject to fine and imprisonment by laws made exclusively by men for doing what it is lawful and honorable for men to do.
It may be said in answer to the argument in favor of female suffrage derived from the cases to which I have referred, that men, not individually, but collectively, are the natural and appropriate representatives of women, and that, notwithstanding cases of individual wrong, the rights of women are, on the whole, best protected by being left to their care. It must be observed, however, that the cases which I have stated, and which are only types of thousands like them, in their cruelty and injustice, are the result of ages of legislation by these assumed protectors of women. The wrongs were less in the men than in the laws which sustained them, and which contained nothing for the protection of the women. But passing this view, let us look at the matter historically and on a broader field.
If Chinese women were allowed an equal share with men in shaping the laws of that great empire, would they subject their female children to torture with bandaged feet, through the whole period of childhood and growth, in order that they might be cripples for the residue of their lives? If Hindoo women could have shaped the laws of India, would widows for ages have been burned on the funeral pyres of their deceased husbands? If Jewish women had had a voice in framing Jewish laws, would the husband, at his own pleasure, have been allowed to "write his wife a bill of divorcement and give it in her hand, and send her out of his house"? Would women in Turkey or Persia have made it a heinous, if not capital, offense for a wife to be seen abroad with her face not covered by an impenetrable veil? Would women in England, however learned, have been for ages subjected to execution for offenses for which men, who could read, were only subjected to burning in the hand and a few months imprisonment?
The principle which governs in these cases, or which has done so hitherto, has been at all times and everywhere the same. Those who succeed in obtaining power, no matter by what means, will, with rare exceptions, use it for their exclusive benefit. Often, perhaps generally, this is done in the honest belief that such use is for the best good of all who are affected by it. A wrong, however, to those upon whom it is inflicted, is none the less a wrong by reason of the good motives of the party by whom it is inflicted.
The condition of subjection in which women have been held is the result of this principle; the result of superior strength, not of superior rights, on the part of men. Superior strength, combined with ignorance and selfishness, but not with malice. It is a relic of the barbarism in the shadow of which nations have grown up. Precisely as nations have receded from barbarism the severity of that subjection has been relaxed. So long as merely physical power governed in the affairs of the world, the wrongs done to women were without the possibility of redress or relief; but since nations have come to be governed by laws, there is room to hope, though the process may still be a slow one, that injustice in all its forms, or at least political injustice, may be extinguished. No injustice can be greater than to deny to any class of citizens not guilty of crime, all share in the political power of a State, that is, all share in the choice of rulers, and in the making and administration of the laws. Persons to which such share is denied, are essentially slaves, because they hold their rights, if they can be said to have any, subject to the will of those who hold the political power. For this reason it has been found necessary to give the ballot to the emancipated slaves. Until this was done their emancipation was far from complete. Without a share in the political powers of the State, no class of citizens has any security for its rights, and the history of nations to which I briefly alluded, shows that women constitute no exception to the universality of this rule.
Great errors, I think, exist in the minds of both the advocates and the opponents of this measure in their anticipation of the immediate effects to be produced by its adoption. On the one hand it is supposed by some that the character of women would be radically changed—that they would be unsexed, as it were, by clothing them with political rights, and that instead of modest, amiable, and graceful beings, we should have bold, noisy, and disgusting political demagogues, or something worse, if anything worse can be imagined. I think those who entertain such opinions are in error. The innate character of women is the result of God's laws, not of man's, nor can the laws of man affect that character beyond a very slight degree. Whatever rights may be given to them, and whatever duties may be charged upon them by human laws, their general character will remain unchanged. Their modesty, their delicacy, and intuitive sense of propriety, will never desert them, into whatever new positions their added rights or duties may carry them.
So far as women, without change of character as women, are qualified to discharge the duties of citizenship, they will discharge them if called upon to do so, and beyond that they will not go. Nature has put barriers in the way of any excessive devotion of women to public affairs, and it is not necessary that nature's work in that respect should be supplemented by additional barriers invented by men. Such offices as women are qualified to fill will be sought by those who do not find other employment, and others they will not seek, or if they do, will seek in vain. To aid in removing as far as possible the disheartening difficulties which women dependent upon their own exertions encounter, it is, I think, desirable that such official positions as they can fill should be thrown open to them, and that they should be given the same power that men have to aid each other by their votes. I would say, remove all legal barriers that stand in the way of their finding employment, official or unofficial, and leave them, as men are left, to depend for success upon their character and their abilities. As long as men are allowed to act as milliners, with what propriety can they exclude women from the post of school commissioners when chosen to such positions by their neighbors?
To deny them such rights, is to leave them in a condition of political servitude as absolute as that of the African slaves before their emancipation. This conclusion is readily to be deduced from the opinion of Chief-Justice Jay in the case of Chisholm's Ex'rs vs. The State of Georgia (2 Dallas, 419-471), although the learned Chief-Justice had of course no idea of any such application as I make of his opinion. The action was assumpsit by a citizen of the State of South Carolina, and the question was, whether the United States Court had jurisdiction, the State of Georgia declining to appear. The Chief-Justice, in the course of his opinion, after alluding to the feudal idea of the character of the sovereign in England, and giving some of the reasons why he was not subject to suit before the courts of the kingdom, says:
The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the prince and the subject. No such ideas obtain here. 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 among us may be so called), and have none to govern but themselves; the citizens of America are equal as fellow-citizens, and as joint tenants in the sovereignty.
Now I beg leave to ask, in case this charge against Miss Anthony can be sustained, what equality and what sovereignty is enjoyed by the half of the citizens of these United States to which she belongs? Do they not, in that event, occupy politically exactly the position which the learned Chief-Justice assigns to the African slaves? Are they not shown to be subjects of the other half, who are the sovereigns? And is not their political subjection as absolute as was that of the African slaves? If that charge has any basis to rest upon, the learned Chief-Justice was wrong. The sovereigns of this country, according to the theory of this prosecution, are not sovereigns without subjects. Though two or three millions of their subjects have lately ceased to be such, and have become freemen, they still hold twenty millions of subjects in absolute political bondage. If it be said that my language is stronger than the facts warrant, I appeal to the record in this case for its justification.
As deductions from what has been said, I respectfully insist, 1st, That upon the principles upon which our government is based, the privileges of the elective franchise can not justly be denied to women. 2d. That women need it for their protection. 3d. That the welfare of both sexes will be promoted by granting it to them.
It would not become me, however clear my own convictions may be on the subject, to assert the right of women, under our Constitution and laws as they now are, to vote at Presidential and Congressional elections, is free from doubt, because very able men have expressed contrary opinions on that question, and, so far as I am informed, there has been no authoritative adjudication upon it; or, at all events, none upon which the public mind has been content to rest as conclusive. I proceed, therefore, to offer such suggestions as occur to me, and to refer to such authorities bearing upon the question, as have fallen under my observation, hoping to satisfy your honor, not only that my client has committed no criminal offense, but that she has done nothing which she had not a legal and Constitutional right to do. It is not claimed that, under our State Constitution and the laws made in pursuance of it, women are authorized to vote at elections, other than those of private corporations, and consequently the right of Miss Anthony to vote at the election in question, can only be established by reference to an authority superior to and sufficient to overcome the provisions of our State Constitution. Such authority can only be found, and I claim that it is found in the Constitution of the United States. For convenience I beg leave to bring together the various provisions of that Constitution which bear more or less directly upon the question:
Article I, Section 2. 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 for electors of the most numerous branch of the State Legislature.
Article I, Section 3. The Senate of the United States shall be composed of two senators from each State, chosen by the Legislature thereof for six years; and each senator shall have one vote.
Article II, Section 1. Each State shall appoint in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the State may be entitled in the Congress.
Article IV, Section 2. The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.
Article IV, Section 4. The United States shall guarantee to every State in the Union a republican form of government. THIRTEENTH AMENDMENT. (DECEMBER 18, 1865.)
1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
2. Congress shall have power to enforce this article by appropriate legislation.
FOURTEENTH AMENDMENT. (JULY 28, 1868.)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of are in such State.
•••••••••••••
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
FIFTEENTH AMENDMENT. (MARCH 30, 1870.)
Section 1. 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.
Section 2. The Congress shall have power to enforce this article hy appropriate legislation.By reference to the provisions of the original Constitution, here recited, it appears that prior to the XIIL, if not until the XIV. Amendment, the whole power over the elective franchise, even in the choice of Federal officers, rested with the States. The Constitution contains no definition of the term "citizen," either of the United States, or of the several States, but contents itself with the provision that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." The States were thus left free to place such restrictions and limitations upon the "privileges and immunities" of citizens as they saw fit, so far as is consistent with a republican form of government, subject only to the condition that no State could place restrictions upon the "privileges or immunities" of the citizens of any other State, which would not be applicable to its own citizens under like circumstances. It will be seen, therefore, that the whole subject, as to what should constitute the "privileges and immunities" of the citizen being left to the States, no question, such as we now present, could have arisen under the original Constitution of the United States.
But now, by the XIV. Amendment, the United States have not only declared what constitutes citizenship, both in the United States and in the several States, securing the rights of citizens to "all persons born or naturalized in the United States"; but have absolutely prohibited the States from making or enforcing "any law which shall abridge the privileges or immunities of citizens of the United States." By virtue of this provision, I insist that the act of Miss Anthony in voting was lawful. It has never, since the adoption of the XIV. Amendment, been questioned, and can not be questioned, that women as well as men are included in the terms of its first section, nor that the same "privileges and immunities of citizens" are equally secured to both.
What, then, are the "privileges and immunities of citizens of the United States" which are secured against such abridgment, by this section? I claim that these terms not only include the right of voting for public officers, but that they include that right as pre-eminently the most important of all the privileges and immunities to which the section refers. Among these privileges and immunities may doubtless be classed the right to life and liberty, to the acquisition and enjoyment of property, and to the free pursuit of one's own welfare, so far as such pursuit does not interfere with the rights and welfare of others; but what security has any one for the enjoyment of these rights when denied any voice in the making of the laws, or in the choice of those who make, and those who administer them? The possession of this voice, in the making and administration of the laws—this political right—is what gives security and value to the other rights, which are merely personal, not political. A person deprived of political rights is essentially a slave, because he holds his personal rights subject to the will of those who possess the political power. This principle constitutes the very corner-stone of our Government—indeed, of all republican government. Upon that basis our separation from Great Britain was justified. "Taxation without representation is tyranny." This famous aphorism of James Otis, although sufficient for the occasion when it was put forth, expresses but a fragment of the principle, because government can be oppressive through means of many appliances besides that of taxation. The true principle is, that all government over persons deprived of any voice in such government, is tyranny. That is the principle of the Declaration of Independence. We were slow in allowing its application to the African race, and have been still slower in allowing its application to women; but it has been done by the XIV. Amendment, rightly construed, by a definition of "citizenship," which includes women as well as men, and in the declaration that "the privileges and immunities of citizens shall not be abridged."
If there is any privilege of the citizen which is paramount to all others, it is the right of suffrage; and in a constitutional provision, designed to secure the most valuable rights of the citizen, the declaration that the privileges and immunities of the citizen shall not be abridged must, as I conceive, be held to secure that right before all others. It is obvious, when the entire language of the section is examined, not only that this declaration was designed to secure to the citizen this political right, but that such was its principal, if not its sole object, those provisions of the section which follow it being devoted to securing the personal rights of "life, liberty, property, and the equal protection of the laws." The clause on which we rely, to wit: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," might be stricken out of the section, and the residue would secure to the citizen every right which is now secured, excepting the political rights of voting and holding office. If the clause in question does not secure those political rights, it is entirely nugatory, and might as well have been omitted. If we go to the lexicographers and to the writers upon law, to learn what are the privileges and immunities of the "citizen" in a republican government, we shall find that the leading feature of citizenship is the enjoyment of the right of suffrage. The definition of the term "citizen" by Bouvier is:
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 the gift of the people.
By Worcester:
An inhabitant of a republic who enjoys the rights of a freeman, and has a right to vote for public officers.
By Webster:
In the United States, a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate.
The meaning of the word "citizen" is directly and plainly recognized by the latest Amendment of the Constitution, the XV.:
The right of the 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.
This clause assumes that the right of citizens, as such, to vote, is an existing right. Mr. Richard Grant White, in his late work on "Words and their Uses," says of the word citizen:
A citizen is a person who has certain political rights, and the word is properly used to imply or suggest the possession of these rights.
Mr. Justice Washington, in the case of Corfield vs. Coryell (4 Wash. C. C. Rep. 380), speaking of the "privileges and immunities" of the citizen, as mentioned in Sec. 2, Art. 4, of the Constitution, after enumerating the personal rights mentioned above, and some others, as embraced by those terms, says,
To which may be added the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised.
At that time the States had entire control of the subject, and could abridge this privilege of the citizen at its pleasure; but the judge recognizes the "elective franchise" as among the "privileges and immunities" secured, to a qualified extent, to the citizens of every State by the provisions of the Constitution last referred to. When, therefore, the States were, by the XIV. Amendment, absolutely prohibited from abridging the privileges of the citizen, either by enforcing existing laws, or by the making of new laws, the right of every "citizen" to the full exercise of this privilege, as against State action, was absolutely secured.
Chancellor Kent and Judge Story both refer to the opinion of Mr. Justice Washington, above quoted, with approbation. The Supreme Court of Kentucky, in the case of Amy, a woman of color, vs. Smith (1 Littell's Rep. 326), discussed with great ability the questions as to what constituted citizenship, and what were the "privileges and immunities of citizens" which were secured by Sec. 2, Art. 4, of the Constitution, and they showed, by an unanswerable argument, that the term "citizens," as there used, was confined to those who were entitled to the enjoyment of the elective franchise, and that that was among the highest of the "privileges and immunities" secured to the citizen by that section. The court say that, To be a citizen it is necessary that he should be entitled to the enjoyment of these privileges and immunities, upon the same terms upon which they are conferred upon other citizens; and unless he is so entitled he can not, in the proper sense of the term, be a citizen.
In the case of Scott vs. Sanford (19 How. 404), Chief-Justice Taney says:
The words "people of the United States," and "citizens," are synonymous terms, and mean the same thing; they describe the political body, who according to our republican institutions, form the sovereignty and 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.
Mr. Justice Daniel, in the same case (p. 476), says:
Upon the principles 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.
Similar references might be made to an indefinite extent, but enough has been said to show that the term citizen, in the language of Justice Daniel, conveys the idea "of identification with the State or Government, and a participation in its functions." Beyond question, therefore, the first section of the XIV. Amendment, by placing the citizenship of women upon a par with that of men, and declaring that the "privileges and immunities" of the citizen shall not be abridged, has secured to women, equally with men, the right of suffrage, unless that conclusion is overthrown by some other provision of the Constitution.
It is not necessary for the purposes of this argument to claim that this Amendment prohibits a State from making or enforcing any law whatever, regulating the elective franchise, or prescribing the conditions upon which it may be exercised. But we do claim that in every republic the right of suffrage, in some form and to some extent, is not only one of the privileges of its citizens, but is the first, most obvious and most important of all the privileges they enjoy; that in this respect all citizens are equal, and that the effect of this Amendment is, to prohibit the States from enforcing any law which denies this right to any of its citizens, or which imposes any restrictions upon it, which are inconsistent with a republican form of government. Within this limit, it is unnecessary for us to deny that the States may still regulate and control the exercise of the right.
The only provisions of the Constitution which it can be contended conflict with the construction which has here been put upon the first section of the XIV. Amendment, are the XV. Amendment, and the second section of the XIV. In regard to the XV. Amendment, I shall only say, that if my interpretation of the XIV. is correct, there was still an object to be accomplished and which was accomplished by the XV. The prohibition of any action abridging the privileges and immunities of citizens, contained in the XIV. Amendment, applies only to the States, and leaves the United States Government free to abridge the political privileges and immunities of citizens of the United States, as such, at its pleasure. By the XV. Amendment both the United States and the State governments are proprohibited from exercising this power, "on account of race, color, or previous condition of servitude" of the citizen.
The first remark to be made upon the second section of the XIV. Amendment is, that it does not give, and was not designed to give to the States any power to deny or abridge the right of any citizen to exercise the elective franchise. So far as it touches that subject, it was designed to be restrictive upon the States. It gives to them no power whatever. It takes away no power, and it gives none; but if the States possess the power to deny or abridge the right of citizens to vote, it must be derived from some other provision of the Constitution. I believe none such can be found, which was not necessarily abrogated by the first section of this Amendment. It may be conceded that the persons who prepared this section supposed that, by other parts of the Constitution, or in some other way, the States would still be authorized, notwithstanding the provisions of the first section, to deny to the citizens the privilege of voting, as mentioned in the second section; but their mistake can not be held to add to, or to take from the other provisions of the Constitution. It is very clear that they did not intend, by this section, to give to the States any such power, but, believing that the States possessed it, they designed to hold the prospect of a reduction of their representation in Congress in terrorem over them to prevent them from exercising it. They seem not to have been able to emancipate themselves from the influence of the original Constitution which conceded this power to the States, or to have realized the fact that the first section of the Amendment, when adopted, would wholly deprive the States of that power.
But those who prepare constitutions are never those who adopt them, and consequently the views of those who frame them have little or no bearing upon their interpretation. The question for consideration here is, what the people, who, through their representatives in the legislatures, adopted the Amendments, understood, or must be presumed to have understood, from their language. They must be presumed to have known that the "privileges and immunities" of citizens which were secured to them by the first section beyond the power of abridgment by the States, gave them the right to exercise the elective franchise, and they certainly can not be presumed to have understood that the second section, which was also designed to be restrictive upon the States, would be held to confer by implication a power upon them, which the first section in the most express terms prohibited.
It has been, and may be again asserted, that the position which I have taken in regard to the second section is inadmissible, because it renders the section nugatory. That is, as I hold, an entire mistake. The leading object of the second section was the readjustment of the representation of the States in Congress, rendered necessary by the abolition of chattel slavery [not of political slavery], effected by the XIII. Amendment. This object the section accomplishes, and in this respect it remains wholly untouched, by my construction of it. Neither do I think the position tenable which has been taken by one tribunal, to which the consideration of this subject was presented, that the constitutional provision does not execute itself. The provisions on which we rely were negative merely, and were designed to nullify existing as well as any future State legislation interfering with our rights. This result was accomplished by the constitution itself. Undoubtedly before we could exercise our right, it was necessary that there should be a time and place appointed for holding the election and proper officers to hold it, with suitable arrangements for receiving and counting the votes. All this was properly done by existing laws, and our right being made complete by the Constitution, no further legislation was required in our behalf. When the State officers attempted to interpose between us and the ballot-box the State Constitution or State law, whether ancient or recent, abridging or denying our equal right to vote with other citizens, we had but to refer to the United States Constitution, prohibiting the States from enforcing any such constitutional provision or law, and our rights were complete; we needed neither Congressional nor State legislation in aid of them. The opinion of Mr. Justice Bradley, in a case in the United States Circuit Court in New Orleans (1 Abb. U. S. Rep., 402) would seem to be decisive of this question, although the right involved in that case was not that of the elective franchise. The learned Justice says:
It was very ably contended on the part of the defendants that the XIV. Amendment was intended only to secure to all citizens equal capacities before the law. That was at first our view of it. But it does not so read. The language is: "No State shall abridge the privileges or immunities of citizens of the United States." What are the privileges and immunities of citizens? Are they capacities merely? Are they not also rights?
Senator Carpenter, who took part in the discussion of the XIV. Amendment in the Senate, and aided in its passage, says:
The XIV. Amendment executes itself in every State of the Union.... It is thus the will of the United States in every State, and silences every State Constitution, usage, or law which conflicts with it.... And if this provision does protect the colored citizen, then it protects every citizen, black or white, male or female.... And all the privileges and immunities which I vindicate to a colored citizen, I vindicate to our mothers, our sisters, and our daughters.—Chicago Legal News, vol. IV., No. 15.
It has been said, with how much or how little truth I do not know, that the subject of securing to women the elective franchise was not considered in the preparation or in the adoption of these Amendments. It is wholly immaterial whether that was so or not. It is never possible to arrive at the intention of the people in adopting constitutions, except by referring to the language used. As is said by Mr. Cooley, "the intent is to be found in the instrument itself" (p. 55), and to that I have confined my remarks. It is not a new thing for constitutional and legislative acts to have an effect beyond the anticipation of those who framed them. It is undoubtedly true, that in exacting Magna Charta from King John, the Barons of England provided better securities for the rights of the common people than they were aware of at the time, although the rights of the common people were neither forgotten nor neglected by them. It has also been said, perhaps with some truth, that the framers of the original Constitution of the United States "builded better than they knew;" and it is quite possible that in framing the Amendments under consideration, those engaged in doing it have accomplished a much greater work than they were at the time, aware of. I am quite sure that it will be fortunate for the country, if this great question of female suffrage, than which few greater were ever presented for the consideration of any people, shall be found, almost unexpectedly, to have been put at rest. The opinion of Mr. Justice Bradley, in regard to this Amendment, in the case above referred to, if I understand it, correresponds very nearly with what I have here said. The learned Judge, in one part of his opinion, says:
It is possible that those who framed the article were not themselves aware of the far-reaching character of its terms. They may have had in mind but one particular phase of social and political wrong, which they desired to redress—yet, if the Amendment, as framed and expressed, does, in fact, have a broader meaning, and does extend its protecting shield over those who were never thought of when it was conceived and put in form, and does reach such social evils which were never before prohibited by constitutional amendment, it is to be presumed that the American people, in giving it their imprimatur, understood what they were doing, and meant to decree what has, in fact, been done.... It embraces much more. The "privileges and immunities" secured by the original Constitution were only such as each State gave its own citizens. Each was prohibited from discriminating in favor of its own citizens, and against the citizens of other States. But the XIV. Amendment prohibits any State from abridging the privileges or immunities of the citizens of the United States, whether its own citizens or any others. It not merely requires equality of privileges, but it demands that the privileges and immunities of all citizens shall be absolutely unabridged, unimpaired. (1 Abbott's U. S. Rep., 397).
It will doubtless be urged as an objection to my position (that citizenship carries with it the right to vote) that it would, in that case, follow that infants and lunatics, who, as well as adults and persons of sound mind, are citizens, would also have that right. This objection, which appears to have great weight with certain classes of persons, is entirely without force. It takes no note of the familiar fact, that every legislative provision, whether constitutional or statutory, which confers any discretionary power, is always confined in its operation to persons who are compos mentis. It is wholly unnecessary to except idiots and lunatics out of any such statute. They are excluded from the very nature of the case. The contrary supposition would be simply absurd. And, in respect to every such law, infants, during their minority, are in the same class. But are women, who are not infants, ever included in this category? Does any such principle of exclusion apply to them? Not at all. On the contrary, they stand, in this respect, upon the same footing as men, with the sole exception of the right to vote and the right to hold office. In every other respect, whatever rights and powers are conferred upon persons by law may be exercised by women as well as by men. They may transact any kind of business for themselves, or as agents or trustees for others; may be executors and administrators, with the same powers and responsibilities as men; and it ought not to be a matter of surprise or regret that they are now placed, by the XIV. Amendment, in other respects upon a footing of perfect equality.
Although not directly connected with the argument as to the right secured to women by the Constitution, I deem it not improper to allude briefly to some of the popular objections against the propriety of allowing females the privilege of voting. I do this because I know from past experience that these popular objections, having no logical bearing upon the subject, are yet, practically, among the most potent arguments against the interpretation of the XIV. Amendment, which I consider the only one that its language fairly admits of.
It is said that women do not desire to vote. Certainly many women do not but that furnishes no reason for denying the right to those who do desire to vote. Many men decline to vote. Is that a reason for denying the It is said that women do not desire to vote. Certainly many women do not but that furnishes no reason for denying the right to those who do desire to vote. Many men decline to vote. Is that a reason for denying the[Pg 670] right to those who would vote? I believe, however, that the public mind is greatly in error in regard to the proportion of female citizens who would vote if their right to do so were recognized. In England there has been to some extent a test of that question, with the following result, as given in the newspapers, the correctness of which, in this respect, I think there is no reason to doubt:
Woman suffrage is, to a certain extent, established in England, with the result as detailed in the London Examiner, that in 66 municipal elections, out of every 1,000 women who enjoy equal rights with men on the register, 516 went to the poll, which is but 48 less than the proportionate number of men. And out of 27,949 women registered, where a contest occurred, 14,416 voted. Of men there were 166,781 on the register, and 90,080 at the poll. The Examiner thereupon draws this conclusion: "Making allowance for the reluctance of old spinsters to change their habits, and the more frequent illness of the sex, it is manifest that women, if they had opportunity, would exercise the franchise as freely as men. There is an end, therefore, of the argument that women would not vote if they had the power."
Our law books furnish, perhaps, more satisfactory evidence of the earnestness with which women in England are claiming the right to vote, under the reform act of 1867, aided by Lord Brougham's act of 1850. The case of Chorlton, appellant, vs. Lings, respondent, came before the Court of Common Pleas in England in 1869. It was an appeal from the decision of the revising barrister, for the borough of Manchester, to the effect "that Mary Abbott, being a woman, was not entitled to be placed on the register." Her right was perfect in all respects excepting that of sex. The court, after a very full and able discussion of the subject, sustained the decision of the revising barrister, denying to women the right to be placed on the register, and consequently denying their right to vote. The decision rested upon the peculiar phraseology of several Acts of Parliament, and the point decided has no applicability here. My object in referring to the case has been to call attention to the fact stated by the reporter, that appeals of 5,436 other women were consolidated and decided with this. No better evidence could be furnished of the extent and earnestness of the claim of women in England to exercise the elective franchise.—Law Rep. Com. Pleas, 4-374. I infer, without being able to say how the fact is, that the votes given by women, as mentioned in the newspapers, were given at municipal elections merely, and that the cases decided by the Court of Common Pleas relate to elections for members of Parliament.
Another objection is, that the right to hold office must attend the right to vote, and that women are not qualified to discharge the duties of responsible offices. I beg leave to answer this objection by asking one or more questions. How many of the male bipeds who do our voting are qualified to hold high offices? How many of the large class to whom the right of voting is supposed to have been secured by the XV. Amendment, are qualified to hold office? Whenever the qualifications of persons to discharge the duties of responsible offices is made the test of their right to vote, and we are to have a competitive examination on that subject, open to all claimants, my client will be content to enter the lists, and take her chances among the candidates for such honors.
But the practice of the world, and our own practice, give the lie to this objection. Compare the administration of female sovereigns of great kingdoms, from Semiramis to Victoria, with the average administration of male sovereigns, and which will suffer by the comparison? How often have mothers governed large kingdoms, as regents, during the minority of their sons, and governed them well? Such offices as the "sovereigns" who rule them in this country have allowed women to hold (they having no voice on the subject), they have discharged the duties of with ever-increasing satisfaction to the public; and Congress has lately passed an act, making the official bonds of married women valid, so that they could be appointed to the office of postmaster.
The case of Olive vs. Ingraham (7 Modern Rep. 263) was an action brought to try the title to an office. On the death of the sexton of the parish of St. Butolph, the place was to be filled by election, the voters being the housekeepers who "paid Scot and lot" in the parish. The widow of the deceased sexton (Sarah Bly) entered the lists against Olive, the plaintiff in the suit, and received 169 indisputable votes, and 40 votes given by women who were "housekeepers, and paid to church and poor." The plaintiff had 174 indisputable votes, and 22 votes given by such women as voted for Mrs. Bly. Mrs. Bly was declared elected. The action was brought to test two questions: 1. Whether women were legal voters; and 2. Whether a woman was capable of holding the office. The case was four times argued in the King's Bench, and all the Judges delivered opinions, holding that the women were competent voters; that the widow was properly elected, and could hold the office. In the course of the discussion it was shown that women had held many offices, those of constable, church warden, overseer of the poor, keeper of the "gate house" (a public prison), governess of a house of correction, keeper of castles, sheriffs of counties, and high constable of England. If women are legally competent to hold minor offices, I would be glad to have the rule of law, or of propriety, shown which should exclude them from higher offices, and which marks the line between those which they may and those which they may not hold.
Another objection is that women can not serve as soldiers. To this I answer that capacity for military service has never been made a test of the right to vote. If it were, young men from sixteen to twenty-one would be entitled to vote, and old men from sixty and upward would not. If that were the test, some women would present much stronger claims than many of the male sex.
Another objection is that engaging in political controversies is not consistent with the feminine character. Upon that subject, women themselves are the best judges, and if political duties should be found inconsistent with female delicacy, we may rest assured that women will either effect a change in the character of political contests, or decline to engage in them. This subject may be safely left to their sense of delicacy and propriety. If any difficulty on this account should occur, it may not be impossible to receive the votes of women at their places of residence. This method of voting was practiced in ancient Rome under the republic; and it will be remembered that when the votes of the soldiers who were fighting our battles in the Southern States were needed to sustain their friends at home, no difficulty was found in the way of taking their votes at their respective camps.
I humbly submit to your honor, therefore, that on the Constitutional grounds to which I have referred, Miss Anthony had a lawful right to vote; that her vote was properly received and counted; that the first section of the XIV. Amendment secured to her that right, and did not need the aid of any further legislation. But conceding that I may be in error in supposing that Miss Anthony had a right to vote, she has been guilty of no crime, if she voted in good faith believing that she had such right. This proposition appears to me so obvious, that were it not for the severity to my client of the consequences which may follow a conviction, I should not deem it necessary to discuss it.
To make out the offense, it is incumbent on the prosecution to show affirmatively, not only that the defendant knowingly voted, but that she so voted knowing that she had no right to vote. That is, the term "knowingly" applies, not to the fact of voting, but to the fact of want of right. Any other interpretation of the language would be absurd. We can not conceive of a case where a party could vote without knowledge of the fact of voting, and to apply the term "knowingly" to the mere act of voting, would make nonsense of the statute. This word was inserted as defining the essence of the offense, and it limits the criminality to cases where the voting is not only without right, but where it is done willfully, with a knowledge that it is without right. Short of that there is no offense within the statute. This would be so upon well-established principles, even if the word "knowingly" had been omitted, but that word was inserted to prevent the possibility of doubt on the subject, and to furnish security against the inability of stupid or prejudiced judges or jurors, to distinguish between willful wrong and innocent mistake. If the statute had been merely that "if at any election for representative in Congress any person shall vote without having a lawful right to vote, such person shall be deemed guilty of a crime," there could have been justly no conviction under it without proof that the party voted knowing that he had not a right to vote. If he voted innocently supposing he had the right to vote, but had not, it would not be an offense within the statute. An innocent mistake is not a crime, and no amount of judicial decisions can make it such. Mr. Bishop says, (I Cr. Law, § 205),
There can be no crime unless a culpable intent accompanies the criminal act. The same author (1 Cr. Prac. § 521), repeated in other words, the same idea: In order to render a party criminally responsible, a vicious will must concur with a wrongful act.
I quote from a more distinguished author:
Felony is always accompanied with an evil intention, and therefore shall not be imputed to a mere mistake or misanimadversion, as where persons break open a door, in order to execute a warrant, which will not justify such proceeding: Affectio enim tua nomen imponit operi tuo: item crimen non contrahitur nisi nocendi, voluntas intercedat, which, as I understand, may read: For your violation puts the name upon your act; and a crime is not committed unless the will of the offender takes part in it. (1 Hawk. P. C., p. 99, Ch. 25, § 3.)
The doctrine of the intent as it prevails in the criminal law, is necessarily one of the foundation principles of public justice. There is only one criterion by which the guilt of man is to be tested. It is whether the mind is criminal. Criminal law relates only to crime. And neither in philosophical speculation, nor in religious or moral sentiment, would any people in any age allow that a man should be deemed guilty unless his mind was so. It is, therefore, a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent without which it can not exist. (1 Bishop's Crim. Law, § 287.)
Again, the same author, writing on the subject of knowledge, as necessary to establish the intent, says:
It is absolutely necessary to constitute guilt, as in indictments for uttering forged tokens, or other attempts to defraud, or for receiving stolen goods, and offenses of a similar description. (1 Crim. Prac. § 504.)
In regard to the offense of obtaining property by false pretenses, the author says:
The indictment must allege that the defendant knew the pretenses to be false. This is necessary upon the general principles of the law, in order to show an offense, even though the statute does not contain the word "knowingly." (2 Id. § 172.)
As to a presumed knowledge of the law, where the fact involves a question of law, the same author says:
The general doctrine laid down in the foregoing sections (i.e., that every man is presumed to know the law, and that ignorance of the law does not excuse), is plain in itself and plain in its application. Still, there are cases, the precise nature and extent of which are not so obvious, wherein ignorance of the law constitutes, in a sort of indirect way, not in itself a defense, but a foundation on which another defense rests. Thus, if the guilt or innocence of a prisoner depends on the fact to be found by the jury, of his having been or not, when he did the act, in some precise mental condition, which mental condition is the gist of the offense, the jury in determining this question of mental condition, may take into consideration his ignorance or misinformation in a matter of law. For example, to constitute larceny, there must be an intent to steal, which involves the knowledge that the property taken does not belong to the taker; yet, if all the facts concerning the title are known to the accused, and so the question is one merely of law whether the property is his or not; still he may show, and the showing will be a defense to him against the criminal proceeding, that he honestly believed it his through a misapprehension of the law.
As it is cepit and asportavit, so it must be felonice, or animo furandi, otherwise it is not felony, for it is the mind that makes the taking of another's goods to be a felony, or a bare trespass only; but because the intention and mind are secret, the intention must be judged of by the circumstances of the fact, and these circumstances are various, and may sometimes deceive, yet regularly and ordinarily these circumstances following direct in the case. If A., thinking he hath a title to the house of B., seizeth it as his own ... this regularly makes no felony, but a trespass only; but yet this may be a trick to color a felony, and the ordinary discovery of a felonious intent is, if the party doth it secretly or being charged with the goods denies it. (1 Hale's P. C, 509.)
I concede, that if Miss Anthony voted, knowing that as a woman she had no right to vote, she may properly be convicted, and that if she had dressed herself in men's apparel, and assumed a man's name, or resorted to any other artifice to deceive the board of inspectors, the jury might properly regard her claim of right to be merely colorable, and might, in their judgment, pronounce her guilty of the offense charged, in case the constitution has not secured to her the right she claimed. All I claim is, that if she voted in perfect good faith, believing that it was her right, she has committed no crime. An innocent mistake, whether of law or fact, though a wrongful act may be done in pursuance of it, can not constitute a crime.
[The following cases and authorities were referred to and commented upon by the counsel, as sustaining his positions: U. S. vs. Conover, 3 McLean's Rep., 573; The State vs. McDonald, 4 Harrington, 555; The State vs. Homes, 17 Mo., 379; Rex vs. Hall, 3 C. & P., 409 (S. C. 14 Eng., C. L.); The Queen vs. Reed, 1 C. &. M., 306 (S. C. 41 Eng., C. L.); Lancaster's Case, 3 Leon, 208; Starkie on Ev., Part IV., Vol. 2, p. 828, 3d Am. Ed.]
The counsel then said, there are some cases which I concede can not be reconciled with the position which I have endeavored to maintain, and I am sorry to say that one of them is found in the reports of this State. As the cases are referred to in that, and the principle, if they can be said to stand on any principle, is in all of them the same, it will only be incumbent on me to notice that one. That case is not only irreconcilable with the numerous authorities and the fundamental principles of criminal law to which I have referred, but the enormity of its injustice is sufficient alone to condemn it. I refer to the case of Hamilton vs. The People (57 Barb., 725). In that case Hamilton had been convicted of a misdemeanor, in having voted at a general election, after having been previously convicted of a felony, and sentenced to two years imprisonment in the State prison, and not having been pardoned; the conviction having by law deprived him of citizenship and right to vote, unless pardoned and restored to citizenship. The case came up before the General Term of the Supreme Court, on writ of error. It appeared that on the trial evidence was offered, that before the prisoner was discharged from the State prison, he and his father applied to the Governor for a pardon, and that the Governor replied in writing, that on the ground of the prisoner's being a minor at the time of his discharge from prison, a pardon would not be necessary, and that he would be entitled to all the rights of a citizen on his coming of age. They also applied to two respectable counselors of the Supreme Court, and they confirmed the Governor's opinion. All this evidence was rejected. It appeared that the prisoner was seventeen years old when convicted of the felony, and was nineteen when discharged from prison. The rejection of the evidence was approved by the Supreme Court on the ground that the prisoner was bound to know the law, and was presumed to do so, and his conviction was accordingly confirmed. Here a young man, innocent so far as his conduct in this case was involved, was condemned for acting in good faith upon the advice (mistaken advice it may be conceded), of one governor and two lawyers to whom he applied for information as to his rights; and this condemnation has proceeded upon the assumed ground, conceded to be false in fact, that he knew the advice given to him was wrong. On this judicial fiction the young man, in the name of justice, is sent to prison, punished for a mere mistake, and a mistake made in pursuance of such advice. It can not be, consistently with the radical principles of criminal law to which I have referred, and the numerous authorities which I have quoted, that this man was guilty of a crime, that his mistake was a crime, and I think the judges who pronounced his condemnation, upon their own principles, better than their victim, deserved the punishment which they inflicted. The condemnation of Miss Anthony, her good faith being conceded, would do no less violence to any fair administration of justice.
One other matter will close what I have to say. Miss Anthony believed, and was advised that she had a right to vote. She may also have been advised, as was clearly the fact, that the question as to her right could not be brought before the courts for trial, without her voting or offering to vote, and if either was criminal, the one was as much so as the other. Therefore she stands now arraigned as a criminal, for taking the only step by which it was possible to bring the great constitutional question as to her right, before the tribunals of the country for adjudication. If for thus acting, in the most perfect good faith, with motives as pure and impulses as noble as any which can find place in your honor's breast in the administration of justice, she is by the laws of her country to be condemned a a criminal. Her condemnation, however, under such circumstances, would only add another most weighty reason to those which I have already advanced, to show that women need the aid of the ballot for their protection.
Upon the remaining question, of the good faith of the defendant, it is not necessary for me to speak. That she acted in the most perfect good faith stands conceded.
Thanking your honor for the great patience with which you have listened to my too extended remarks, I submit the legal questions which the case involves for your honor's consideration.District Attorney Crowley followed Judge Selden with an argument two hours in length. He stated that, in his view, the case simply presented questions of law, and that his argument, therefore, would be addressed strictly to the court, leaving the court to give such instructions to the jury upon the facts as he might deem proper. He contended that the right to vote was not included in "privileges and immunities," and was only given by State laws and State constitutions. He concluded his argument by saying that an honest mistake of the facts may sometimes excuse, but a mistake of the law never. The Court addressed the jury as follows:
The XIII., XIV., and XV. Amendments were designed mainly for the protection of the newly emancipated negroes, but full effect must nevertheless be given to the language employed. The XIII. Amendment provided that neither slavery nor involuntary servitude should longer exist in the United States. If honestly received and fairly applied, this provision would have been enough to guard the rights of the colored race. In some States it was attempted to be evaded by enactments cruel and oppressive in their nature; as that colored persons were forbidden to appear in the towns except in a menial capacity; that they should reside on and cultivate the soil without being allowed to own it; that they were not permitted to give testimony in cases where a white man was a party. They were excluded from performing particular kinds of business, profitable and reputable, and they were denied the right of suffrage. To meet the difficulties arising from this state of things, the XIV. and XV. Amendments were enacted.
The XIV. Amendment created and defined citizenship of the United States. It had long been contended, and had been held by many learned authorities, and had never been judicially decided to the contrary, that there was no such thing as a citizen of the United States, except as that condition arose from citizenship of some State. No mode existed, it was said, of obtaining a citizenship of the United States except by first becoming a citizen of some State. This question is now at rest. The XIV. Amendment defines and declares who shall be citizens of the United States, to wit: "All persons born or naturalized in the United States and subject to the jurisdiction thereof." The latter qualification was intended to exclude the children of foreign representatives and the like. With this qualification every person born in the United States or naturalized is declared to be a citizen of the United States, and of the State wherein he resides.
After creating and defining citizenship of the United States, the Amendment provides that no State shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the United States. This clause is intended to be a protection, not to all our rights, but to our rights as citizens of the United States only; that is, the rights existing or belonging to that condition or capacity. (The words "or citizen of a State," used in the previous paragraph, are carefully omitted here.) In article 4, paragraph 2, of the Constitution of the United States it had been already provided in this language, viz: "The citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States." The rights of citizens of the States and of citizens of the United States are each guarded by these different provisions. That these rights were separate and distinct, was held in the Slaughter-house Cases recently decided by the United States Supreme Court at Washington.
The rights of citizens of the State, as such, are not under consideration in the XIV. Amendment. They stand as they did before the adoption of the XIV. Amendment, and are fully guaranteed by other provisions. The rights of citizens of the States have been the subject of judicial decision on more than one occasion. (Corfield agt. Coryell, 4 Wash. C. C. R., 371. Ward agt. Maryland, 12 Wall., 430. Paul agt. Virginia, 8 Wall., 140.) These are the fundamental privileges and immunities belonging of right to the citizens of all free governments, such as the right of life and liberty; the right to acquire and possess property, to transact business, to pursue happiness in his own manner, subject to such restraint as the Government may adjudge to be necessary for the general good. In Cromwell agt. Nevada, 6 Wallace, 36, is found a statement of some of the rights of a citizen of the United States, viz:
To come to the seat of the Government to assert any claim he may have upon the Government, to transact any business he may have with it; to seek its protection; to share its offices; to engage in administering its functions. He has the right of free access to its seaports through which all operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.
Another privilege of a citizen of the United States, says Miller, Justice, in the "Slaughter-house" cases, is to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. The right to assemble and petition for a redress of grievances, the privilege of the writ of habeas corpus, he says, are rights of the citizen guaranteed by the Federal Constitution.
The right of voting, or the privilege of voting, is a right or privilege arising under the Constitution of the State, and not of the United States. The qualifications are different in the different States. Citizenship, age, sex, residence, are variously required in the different States, or may be so. If the right belongs to any particular person, it is because such person is entitled to it by the laws of the State where he offers to exercise it, and not because of citizenship of the United States. If the State of New York should provide that no person should vote until he had reached the age of thirty-one years, or after he had reached the age of fifty, or that no person having gray hair, or who had not the use of all his limbs, should be entitled to vote, I do not see how it could be held to be a violation of any right derived or held under the Constitution of the United States. We might say that such regulations were unjust, tyrannical, unfit for the regulation of an intelligent State; but if rights of a citizen are thereby violated, they are of that fundamental class derived from his position as a citizen of the State, and not those limited rights belonging to him as a citizen of the United States, and such was the decision in Corfield agt. Coryell, supra.
The United States rights appertaining to this subject are those first under article 1, paragraph 2, of the United States Constitution, which provides that electors of Representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the State Legislature, and second, under the XV. Amendment, which provides that the right of a citizen 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. If the Legislature of the State of New York should require a higher qualification in a voter for a representative in Congress than is required for a voter for a member of Assembly, this would, I conceive, be a violation of a right belonging to one as a citizen of the United States. That right is in relation to a federal subject or interest, and is guaranteed by the Federal Constitution. The inability of a State to abridge the right of voting on account of race, color, or previous condition of servitude, arises from a federal guaranty. Its violation would be the denial of a federal right—that is, a right belonging to the claimant as a citizen of the United States.
This right, however, exists by virtue of the XV. Amendment. If the XV. Amendment had contained the word "sex," the argument of the defendant would have been potent. She would have said, an attempt by a State to deny the right to vote because one is of a particular sex, is expressly prohibited by that Amendment. The Amendment, however, does not contain that word. It is limited to race, color, or previous condition of servitude. The Legislature of the State of New York has seen fit to say, that the franchise of voting shall be limited to the male sex. In saying this there is, in my judgment, no violation of the letter or of the spirit of the XIV. or of the XV. Amendment.
This view is assumed in the second section of the XIV. Amendment, which enacts that if the right to vote for Federal officers is denied by any State to any of the male inhabitants of such State, except for crime, the basis of representation of such State shall be reduced in proportion specified. Not only does this section assume that the right of male inhabitants to vote was the especial object of its protection, but it assumes and admits the right of a State, notwithstanding the existence of that clause under which the defendant claims to the contrary, to deny to classes or portions of the male inhabitants the right to vote which is allowed to other male inhabitants. The regulation of the suffrage is thereby conceded to the States as a State's right.
The case of Myra Bradwell, decided at a recent term of the Supreme Court of the United States, sustains both the positions above put forth, viz: First, that the rights referred to in the XIV. Amendment are those belonging to a person as a citizen of the United States and not as a citizen of a State; and second, that a right of the character here involved is not one connected with citizenship of the United States. Mrs. Bradwell made application to be admitted to practice as an attorney and counselor-at-law in the Courts of Illinois. Her application was denied, and upon appeal to the Supreme Court of the United States, it was there held that to give jurisdiction under the XIV. Amendment, the claim must be of a right pertaining to citizenship of the United States, and that the claim made by her did not come within that class of cases. Mr. Justice Bradley and Mr. Justice Field held that a woman was not entitled to a license to practice law. It does not appear that the other Judges passed upon that question. The XIV. Amendment gives no right to a woman to vote, and the voting by Miss Anthony was in violation of the law. If she believed she had a right to vote, and voted in reliance upon that belief, does that relieve her from the penalty? It is argued that the knowledge referred to in the act relates to her knowledge of the illegality of the act, and not to the act of voting; for it is said that she must know that she voted. Two principles apply here: First, ignorance of the law excuses no one; second, every person is presumed to understand and to intend the necessary effects of his own acts. Miss Anthony knew that she was a woman, and that the Constitution of this State prohibits her from voting. She intended to violate that provision—intended to test it, perhaps, but certainly intended to violate it. The necessary effect of her act was to violate it, and this she is presumed to have intended. There was no ignorance of any fact, but all the facts being known, she undertook to settle a principle in her own person. She takes the risk, and she can not escape the consequences. It is said, and authorities are cited to sustain the position, that there can be no crime unless there is a culpable intent; to render one criminally responsible a vicious will must be present. A. commits a trespass on the land of B., and B., thinking and believing that he has a right to shoot an intruder on his premises, kills A. on the spot. Does B.'s misapprehension of his rights justify his act? Would a Judge be justified in charging the jury that if satisfied that B. supposed he had a right to shoot A he was justified, and they should find a verdict of not guilty? No Judge would make such a charge. To constitute a crime, it is true that there must be a criminal intent, but it is equally true that knowledge of the facts of the case is always held to supply this intent. An intentional killing bears with it evidence of malice in law. Whoever, without justifiable cause, intentionally kills his neighbor, is guilty of a crime. The principle is the same in the case before us, and in all criminal cases. The precise question now before me has been several times decided, viz: That one illegally voting was bound and was assumed to know the law, and that a belief that he had a right to vote gave no defense, if there was no mistake of fact. (Hamilton against The People, 57th of Barbour, p. 625; State against Boyet, 10th of Iredell, p. 336; State against Hart, 6th Jones, 389; McGuire against State, 7 Humphrey, 54; 15th of Iowa reports, 404.) No system of criminal jurisprudence can be sustained upon any other principle. Assuming that Miss Anthony believed she had a right to vote, that fact constitutes no defense if in truth she had not the right. She voluntarily gave a vote which was illegal, and thus is subject to the penalty of the law.The Judge directed the jury to find a verdict of guilty.
First.—If the defendant, at the time of voting, believed that she had a right to vote and voted in good faith in that belief, she is not guilty of the offense charged. Second.—In determining the question whether she did or did not believe that she had a right to vote, the jury may take into consideration, as bearing upon that question, the advice which she received from the counsel to whom she applied.
Third.—That they may also take into consideration, as bearing upon the same question, the fact that the inspectors considered the question and came to the conclusion that she had a right to vote.
Fourth.—That the jury have a right to find a general verdict of guilty or not guilty as they shall believe that she has or has not committed the offense described in the statute.
A professional friend sitting by has made this suggestion which I take leave to avail myself of as bearing upon this question: "The Court has listened for many hours to an argument in order to decide whether the defendant has a right to vote. The arguments show the same question has engaged the best minds of the country as an open question. Can it be possible that the defendant is to be convicted for acting upon such advice as she could obtain while the question is an open and undecided one?"
The Court.—You have made a much better argument than that, sir.
Judge Selden.—As long as it is an open question, I submit that she has not been guilty of an offense. At all events, it is for the jury.
The Court.—I can not charge these propositions of course. The question, gentlemen of the jury, in the form it finally takes, is wholly a question or questions of law, and I have decided as a question of law, in the first place, that under the XIV. Amendment, which Miss Anthony claims protects her, she was not protected in a right to vote. And I have decided also that her belief and the advice which she took do not protect her in the act which she committed. If I am right in this, the result must be a verdict on your part of guilty, and I therefore direct that you find a verdict of guilty.
Judge Selden.—That is a direction no Court has power to make in a criminal case.
The Court.—Take the verdict, Mr. Clerk.
The Clerk.—Gentlemen of the jury, hearken to your verdict as the Court has recorded it. You say you find the defendant guilty of the offense whereof she stands indicted, and so say you all?
Judge Selden.—I don't know whether an exception is available, but I certainly must except to the refusal of the Court to submit those propositions, and especially to the direction of the Court that the jury should find a verdict of guilty. I claim that it is a power that is not given to any Court in a criminal case. Will the Clerk poll the jury? The Court.—No. Gentlemen of the jury, you are discharged.On the next day a motion for a new trial was made and argued by Judge Selden, as follows:
I assume, without attempting to produce any authority on the subject, that this Court has power to grant to the defendant a new trial in case it should appear that in the haste and in the lack of opportunity for examination which necessarily attend a jury trial, any material error should have been committed prejudicial to the defendant, as otherwise no means whatever are provided by the law for the correction of such errors.
The defendant was indicted under the nineteenth section of the act of Congress of May 31, 1870, entitled, "An act to enforce the right of citizens of the United States to vote in the several States of this Union, and for other purposes," and was charged with having knowingly voted, without having a lawful right to vote, at the Congressional election in the Eighth Ward of the City of Rochester, in November last; the only ground of illegality being that the defendant was a woman.
The provisions of the act of Congress, so far as they bear upon the present case, are as follows:
Section 19. If at any election for representative or delegate in the Congress of the United States, any person shall knowingly personate and vote, or attempt to vote, in the name of any other person, whether living, dead, or fictitious, or vote more than once at the same election for any candidate for the same office, or vote at a place where he may not be lawfully entitled to vote, or vote without having a lawful right to vote, ... every such person shall be deemed guilty of a crime, and shall for such crime be liable to prosecution in any court of the United States, of competent jurisdiction, and on conviction thereof, shall be punished by a fine not exceeding $500 or by imprisonment for a term not exceeding three years, or both, in the discretion of the Court, and shall pay the costs of prosecution.
It appeared on the trial that before voting the defendant called upon a respectable lawyer, and asked his opinion whether she had a right to vote, and he advised her that she had such right, and the lawyer was examined as a witness in her behalf, and testified that he gave her such advice, and that he gave it in good faith, believing that she had such right.
It also appeared that when she offered to vote, the question whether as a woman she had a right to vote, was raised by the inspectors, and considered by them in her presence, and they decided that she had a right to vote, and received her vote accordingly.
It was also shown on the part of the Government, that on the examination of the defendant before the commissioner on whose warrant she was arrested, she stated that she should have voted, if allowed to vote, without reference to the advice she had received from the attorney whose opinion she had asked; that she was not influenced to vote by that opinion; that she had before determined to offer her vote, and had no doubt about her right to vote.
At the close of the testimony the defendant's counsel proceeded to address the jury, and stated that he desired to present for consideration three propositions, two of law and one of fact:
First.—That the defendant had a lawful right to vote.
Second.—That whether she had a lawful right to vote or not, if she honestly believed that she had that right and voted in good faith in that belief, she was guilty of no crime.
Third.—That when she gave her vote she gave it in good faith, believing that it was her right to do so.
That the first two propositions presented questions for the Court to decide, and the last for the jury. When the counsel had proceeded thus far, the Court suggested that the counsel had better discuss in the first place the questions of law; which the counsel proceeded to do, and having discussed the two legal questions at length, asked leave then to say a few words to the jury on the question of fact. The Court then said to the counsel that he thought that had better be left until the views of the Court upon the legal question should be made known.
The District Attorney thereupon addressed the Court at length upon the legal questions, and at the close of his argument the Court delivered an opinion adverse to the positions of the defendant's counsel upon both of the legal questions presented, holding that the defendant was not entitled to vote; and that if she voted in good faith in the belief in fact that she had a right to vote, it would constitute no defense—the grounds of the decision on the last point being that she was bound to know that by law she was not a legal voter, and that even if she voted in good faith in the contrary belief, it constituted no defense to the crime with which she was charged. The decision of the court upon these questions was read from a written document.
At the close of the reading, the Court said that the decision of these questions disposed of the case and left no question of fact for the jury, and that he should therefore direct the jury to find a verdict of guilty, and proceeded to say to the jury that the decision of the Court had disposed of all there was in the case, and that he directed them to find a verdict of guilty, and he instructed the clerk to enter a verdict of guilty.
At this point, before any entry had been made by the clerk, the defendant's counsel asked the Court to submit the case to the jury, and to give to the jury the following several instructions: [Here Judge Selden repeated the instructions. See page 665.]
The Court declined to submit the case to the jury upon any question whatever, and directed them to render a verdict of guilty against the defendant. The defendant's counsel excepted to the decision of the Court upon the legal questions—to its refusal to submit the case to the jury; to its refusal to give the instructions asked; and to its direction to the jury to find a verdict of guilty against the defendant—the counsel insisting that it was a direction which no Court had a right to give in a criminal case.
The Court then instructed the clerk to take the verdict, and the clerk said, "Gentlemen of the jury, hearken to the verdict as the Court hath recorded it. You say you find the defendant guilty of the offense charged. So say you all." No response whatever was made by the jury, either by word or sign. They had not consulted together in their seats or otherwise. None of them had spoken a word. Nor had they been asked whether they had or had not agreed upon a verdict. The defendant's counsel then asked that the clerk be requested to poll the jury. The Court said, "That can not be allowed. Gentlemen of the jury, you are discharged," and the jurors left the box. No juror spoke a word during the trial, from the time they were impaneled to the time of their discharge.
Now I respectfully submit, that in these proceedings the defendant has been substantially denied her constitutional right of trial by jury. The jurors composing the panel have been merely silent spectators of the conviction of the defendant by the Court. They have had no more share in her trial and conviction than any other twelve members of the jury summoned to attend this Court, or any twelve spectators who have sat by during the trial. If such course is allowable in this case, it must be equally allowable in all criminal cases, whether the charge be for treason, murder, or any minor grade of offense which can come under the jurisdiction of a United States Court; and as I understand it, if correct, substantially abolishes the right of trial by jury.
It certainly does so in all those cases where the judge shall be of the opinion that the facts which he may regard as clearly proved, lead necessarily to the guilt of the defendant. Of course by refusing to submit any question to the jury, the judge refuses to allow counsel to address the jury in the defendant's behalf. The constitutional provisions which I insist are violated by this proceeding are the following:
Constitution of the United States, article 3, section 2. The trial of all crimes, except in cases of impeachment, shall be by jury.
Amendments to Constitution, article 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
In accordance with these provisions, I insist that in every criminal case, where the party has pleaded not guilty, whether upon the trial the guilt of such party appears to the judge to be clear or not, the response to the question, guilty or not guilty, must come from the jury, must be their voluntary act, and can not be imposed upon them by the Court.
No opportunity has been given me to consult precedents on this subject, but a friend has referred me to an authority strongly supporting my position, from which I will quote, though I deem a reference to precedents unnecessary to sustain the plain declarations of the Constitution: I refer to the case of the State vs. Shule (10 Iredell, 153), the substance of which is stated in 2 Graham & Waterman on New Trials, page 363. Before stating that case I quote from the text of G. & W.
The verdict is to be the result of the deliberation of the jury upon all the evidence in the case. The Court has no right to anticipate the verdict by an expression of opinion calculated so to influence the jury as to take from them their independence of action.
In the State vs. Shule two defendants were indicted for an affray. The jury remaining out a considerable time, at the request of the prosecuting attorney they were sent for by the Court. The Court then charged them that although Jones (the other defendant) had first commenced a battery on Shule, yet, if the jury believed the evidence, the defendant, Shule, was also guilty. Thereupon, one of the jurors remarked that they had agreed to convict Jones, but were about to acquit Shule. The Court then charged the jury again, and told them that they could retire if they thought proper to do so. The jury consulted together a few minutes in the court room. The prosecuting attorney directed the clerk to enter a verdict of guilty as to both defendants. When the clerk had entered the verdict, the jury were asked to attend to it, as it was about to be read by the clerk. The clerk then read the verdict in the hearing of the jury. The jury, upon being requested, if any of them disagreed to the verdict to make it known by a nod, seemed to express their unanimous assent; and no juror expressed his dissent.
A venire de novo was ordered. The principal difference between this case and the one under consideration is, that in the latter the Court directed the clerk to enter the verdict, and in the former he was allowed to do so, and in the latter the Court denied liberty to the jurors to dissent from the verdict, and in the former the Court allowed such dissent.
With what jealous care the right of trial by jury in criminal cases has been guarded by every English-speaking people from the days of King John, indeed from the days of King Alfred, is known to every lawyer and to every intelligent layman, and it does not seem to me that such a limitation of that right as is presented by the proceedings in this case, can be reconciled either with constitutional provisions, with the practice of courts, with public sentiment on the subject, or with safety in the administration of justice. How the question would be regarded by the highest Court of this State may fairly be gathered from its decision in the case of Cancemi, 18 N. Y., 128, where, on a trial for murder, one juror, some time after the trial commenced, being necessarily withdrawn, a stipulation was entered into, signed by the District Attorney, and by the defendant and his council, to the effect that the trial should proceed before the remaining eleven jurors, and that their verdict should have the same effect as the verdict of a full panel would have. A verdict of guilty having been rendered by the eleven jurors, was set aside and a new trial ordered by the Court of Appeals, on the ground that the defendant could not, even by his own consent, be lawfully tried by a less number of jurors than twelve. It would seem to follow that he could not waive the entire panel, and effectually consent to be tried by the Court alone, and still less could the Court, against his protest, assume the duties of the jury, and effectually pronounce the verdict of guilty or not guilty in their stead.
It will doubtless be insisted that there was no disputed question of fact upon which the jury were required to pass. In regard to that, I insist that however clear and conclusive the proof of the facts might appear to be, the response to the question, guilty or not guilty, must under the Constitution come from the jury and could not be supplied by the judgment of the court, unless, indeed, the jury should see fit to render a special verdict, which they always may, but can never be required to do. It was the province of the court to instruct the jury as to the law, and to point out to them how clearly the law, on its view of the established facts, made out the offense; but it has no authority to instruct them positively on any question of fact, or to order them to find any particular verdict. That must be their spontaneous work.
But there was a question of fact, which constituted the very essence of the offense, and one on which the jury were not only entitled to exercise, but were in duty bound to exercise, their independent judgment. That question of fact was, whether the defendant, at the time when she voted, knew that she had not a right to vote. The statute makes this knowledge the very gist of the offense, without the existence of which, in the mind of the voter at the time of voting, there is no crime. There is none by the statute and none in morals. The existence of this knowledge, in the mind of the voter at the time of voting, is under the statute, necessarily a fact and nothing but a fact, and one which the jury was bound to find as a fact, before they could, without violating the statute, find the defendant guilty. The ruling which took that question away from the jury, on the ground that it was a question of law and not of fact, and which declared that as a question of law, the knowledge existed, was, I respectfully submit, a most palpable error, both in law and justice. It was an error in law, because its effect was to deny any force whatever to the most important word which the statute uses in defining the offense—the word "knowingly." It was also unjust, because it makes the law declare a known falsehood as a truth, and then by force of that judicial falsehood condemns the defendant to such punishment as she could only lawfully be subject to, if the falsehood were a truth.
I admit that it is an established legal maxim that every person (judicial officers excepted) is bound, and must be presumed, to know the law. The soundness of this maxim, in all the cases to which it can properly be applied, I have no desire to question; but it has no applicability whatever to this case. It applies in every case where a party does an act which the law pronounces criminal, whether the party knows or does not know that the law has made the act a crime. That maxim would have applied to this case, if the defendant had voted, knowing that she had no legal right to vote; without knowing that the law had made the act of knowingly voting without a right, a crime. In that case she would have done the act which the law made a crime, and could not have shielded herself from the penalty by pleading ignorance of the law. But in the present case the defendant has not done the act which the law pronounces a crime. The law has not made the act of voting without a lawful right to vote, a crime, where it is done by mistake, and in the belief by the party voting that he has the lawful right to vote. The crime consists in voting "knowingly," without lawful right. Unless the knowledge exists in fact, the very gist of the offense is wanting. To hold that the law presumes conclusively that such knowledge exists in all cases where the legal right is wanting, and to reject all evidence to the contrary, or to deny to such evidence any effect, as has been done on this trial, is to strike the word "knowingly" out of the statute—and to condemn the defendant on the legal fiction that she was acting in bad faith, it being all the while conceded that she was in fact acting in good faith. I admit that there are precedents to sustain such ruling, but they can not be reconciled with the fundamental principles of criminal law, nor with the most ordinary rules of justice. Such a ruling can not but shock the moral sense of all right-minded, unprejudiced men.
No doubt the assumption by the defendant of a belief of her right to vote might be made use of by her as a mere cover to secure the privilege of giving a known illegal vote, and of course that false assumption would constitute no defense to the charge of illegal voting. If the defendant had dressed herself in male attire, and had voted as John Anthony, instead of Susan, she would not be able to protect herself against a charge of voting with a knowledge that she had no right to vote, by asserting her belief that she had a right to vote as a woman. The artifice would no doubt effectually overthrow the assertion of good faith. No such question, however, is made here. The decision of which I complain concedes that the defendant voted in good faith, in the most implicit belief that she had a right to vote, and condemns her on the strength of the legal fiction, conceded to be in fact a mere fiction, that she knew the contrary. But if the facts admitted of a doubt of the defendant's good faith, that was a question for the jury, and it was clear error for the court to assume the decision of it.
Again. The denial of the right to poll the jury was most clearly an error. Under the provisions of the Constitution which have been cited, the defendant could only be convicted on the verdict of a jury. The case of Cancemi shows that such jury must consist of twelve men; and it will not be claimed that anything less than the unanimous voice of the jury can be received as their verdict. How then could the defendant be lawfully deprived of the right to ask every juror if the verdict had his assent? I believe this is a right which was never before denied to a party against whom a verdict was rendered in any case, either civil or criminal. The following cases show, and many others might be cited to the same effect, that the right to poll the jury is an absolute right in all cases, civil and criminal. (The People vs. Perkins, 1 Wend., 91; Jackson vs. Hawks, 2 Wend., 619; Fox vs. Smith, 3 Cowen, 23.)
The ground on which the right of the defendant to vote has been denied, is, as I understood the decision of the Court,
That the rights of the citizens of the State as such were not under consideration in the XIV. Amendment; that they stand as they did before that Amendment.... The right of voting or the privilege of voting is a right or privilege arising under the Constitution of the State, and not of the United States. If the right belongs to any particular person, it is because such person is entitled to it as a citizen of the State where he offers to exercise it, and not because of citizenship of the United States.... The regulation of the suffrage is conceded to the States as a State right.
If this position be correct, which I am not now disposed to question, I respectfully insist that the Congress of the United States had no power to pass the act in question; that by doing so it has attempted to usurp the rights of States, and that all proceedings under the act are void.
I claim therefore that the defendant is entitled to a new trial.
First—Because she has been denied her right of trial by jury.
Second—Because she has been denied the right to ask the jury severally whether they assented to the verdict which the Court had recorded for them.
Third—Because the Court erroneously held, that the defendant had not a lawful right to vote.
Fourth—Because the Court erroneously held, that if the defendant, when she voted, did so in good faith, believing that she had a right to vote, that fact constituted no defense.
Fifth—Because the Court erroneously held that the question, whether the defendant at the time of voting knew that she had not a right to vote, was a question of law to be decided by the Court, and not a question of fact to be decided by the jury.
Sixth—Because the Court erred in holding that it was a presumption of law that the defendant knew that she was not a legal voter, although in fact she had not that knowledge.
Seventh—Because Congress had no Constitutional right to pass the act under which the defendant was indicted, and the act and all proceedings under it are void.
Sir, so far as my information in regard to legal proceedings extends, this is the only court in any country where trial by jury exists, in which the decisions that are made in the haste and sometimes confusion of such trials, are not subject to review before any other tribunal. I believe that to the decisions of this court, in criminal cases, no review is allowed, except in the same court in the informal way in which I now ask your honor to review the decisions made on this trial. This is therefore the court of last resort, and I hope your honor will give to these, as they appear to me, grave questions, such careful and deliberate consideration as is due to them from such final tribunal.
If a new trial shall be denied to the defendant, it will be no consolation to her to be dismissed with a slight penalty, leaving the stigma resting upon her name, of conviction for an offense of which she claims to be, and I believe is, an innocent as the purest of the millions of male voters who voted at the same election, are innocent of crime in so voting. If she is in fact guilty of the crime with which she stands charged, and of which she has been convicted by the court, she deserves the utmost penalty which the court under the law has power to impose; if she is not guilty she should be acquitted, and not declared upon the records of this high court guilty of a crime she never committed.The Court, after listening to an argument from the District Attorney, denied the motion for a new trial.
Miss Anthony: Yes, your honor, I have many things to say; for in your ordered verdict of guilty, you have trampled underfoot every vital principle of our government. My natural rights, my civil rights, my political rights, are all alike ignored. Robbed of the fundamental privilege of citizenship, I am degraded from the status of a citizen to that of a subject; and not only myself individually, but all of my sex, are, by your honor's verdict, doomed to political subjection under this so-called Republican government.
Judge Hunt: The Court can not listen to a rehearsal of arguments the prisoner's counsel has already consumed three hours in presenting.
Miss Anthony: May it please your honor, I am not arguing the question, but simply stating the reasons why sentence can not, in justice, be pronounced against me. Your denial of my citizen's right to vote is the denial of my right of consent as one of the governed, the denial of my right of representation as one of the taxed, the denial of my right to a trial by a jury of my peers as an offender against law, therefore, the denial of my sacred rights to life, liberty, property, and—
Judge Hunt: The Court can not allow the prisoner to go on.
Miss Anthony: But your honor will not deny me this one and only poor privilege of protest against this high-handed outrage upon my citizen's rights. May it please the Court to remember that since the day of my arrest last November, this is the first time that either myself or any person of my disfranchised class has been allowed a word of defense before judge or jury—
Judge Hunt: The prisoner must sit down; the Court can not allow it.
Miss Anthony: All my prosecutors, from the 8th Ward corner grocery politician, who entered the complaint, to the United States Marshal, Commissioner, District Attorney, District Judge, your honor on the bench, not one is my peer, but each and all are my political sovereigns; and had your honor submitted my case to the jury, as was clearly your duty, even then I should have had just cause of protest, for not one of those men was my peer; but, native or foreign, white or black, rich or poor, educated or ignorant, awake or asleep, sober or drunk, each and every man of them was my political superior; hence, in no sense, my peer. Even, under such circumstances, a commoner of England, tried before a jury of lords, would have far less cause to complain than should I, a woman, tried before a jury of men. Even my counsel, the Hon. Henry R. Selden, who has argued my cause so ably, so earnestly, so unanswerably before your honor, is my political sovereign. Precisely as no disfranchised person is entitled to sit upon a jury, and no woman is entitled to the franchise, so, none but a regularly admitted lawyer is allowed to practice in the courts, and no woman can gain admission to the bar—hence, jury, judge, counsel, must all be of the superior class.
Judge Hunt: The Court must insist—the prisoner has been tried according to the established forms of law.
Miss Anthony: Yes, your honor, but by forms of law all made by men, interpreted by men, administered by men, in favor of men, and against women; and hence, your honor's ordered verdict of guilty, against a United States citizen for the exercise of "that citizen's right to vote," simply because that citizen was a woman and not a man. But, yesterday, the same man-made forms of law declared it a crime punishable with $1,000 fine and six months' imprisonment, for you, or me, or any of us, to give a cup of cold water, a crust of bread, or a night's shelter to a panting fugitive as he was tracking his way to Canada. And every man or woman in whose veins coursed a drop of human sympathy violated that wicked law, reckless of consequences, and was justified in so doing. As then the slaves who got their freedom must take it over, or under, or through the unjust forms of law, precisely so now must women, to get their right to a voice in this Government, take it; and I have taken mine, and mean to take it at every possible opportunity.
Judge Hunt: The Court orders the prisoner to sit down. It will not allow another word.
Miss Anthony: When I was brought before your honor for trial, I hoped for a broad and liberal interpretation of the Constitution and its recent amendments, that should declare all United States citizens under its protecting ægis—that should declare equality of rights the national guarantee to all persons born or naturalized in the United States. But failing to get this justice—failing, even, to get a trial by a jury not of my peers—I ask not leniency at your hands—but rather the full rigors of the law.
Judge Hunt: The Court must insist— (Here the prisoner sat down.) Judge Hunt: The Court must insist— (Here the prisoner sat down.)[Pg 689]
Judge Hunt: The prisoner will stand up. (Here Miss Anthony arose again.) The sentence of the Court is that you pay a fine of one hundred dollars and the costs of the prosecution.
Miss Anthony: May it please your honor, I shall never pay a dollar of your unjust penalty. All the stock in trade I possess is a $10,000 debt, incurred by publishing my paper—The Revolution—four years ago, the sole object of which was to educate all women to do precisely as I have done, rebel against your man-made, unjust, unconstitutional forms of law, that tax, fine, imprison, and hang women, while they deny them the right of representation in the Government; and I shall work on with might and main to pay every dollar of that honest debt, but not a penny shall go to this unjust claim. And I shall earnestly and persistently continue to urge all women to the practical recognition of the old revolutionary maxim, that "Resistance to tyranny is obedience to God."
Judge Hunt: Madam, the Court will not order you committed until the fine is paid.Immediately after the verdict, Miss Anthony, her counsel, her friends, and the jury, passed out together talking over the case. Said Judge Selden: "The war has abolished something besides slavery, it has abolished jury trial. The decision of Justice Hunt was most iniquitous. He had as much right to order me hung to the nearest tree, as to take the case from the jury and render the decision he did," and he bowed his head with shame at this prostitution of legal power.
The jury with freedom now to use their tongues, when too late, also canvassed the trial and the injury done. "The verdict of guilty would not have been mine, could I have spoken," said one, "nor should I have been alone. There were others who thought as I did, but we could not speak."
The decision of Judge Hunt was severely criticised.[9]Even among those who believed women had no right to vote, and who did not hesitate to say that Miss Anthony's punishment was inadequate, there was a wide questioning as to his legal right to take the case from the jury and enter the verdict of guilty, without permitting them in any way to indicate their opinion. It was deemed a tyrannical and arrogant assumption on the part of Judge Hunt, and one which endangered the rights of the whole people. It was pertinently asked, "If this may be done in one instance, why not in all?" and "If the courts may thus arbitrarily direct what verdicts shall be rendered, what becomes of the right to trial by an impartial jury, which the Constitution guarantees to all persons alike, whether male or female?" These questions were of the gravest importance, and the more so because from this court there was no appeal. To deprive Miss Anthony of the benefit of jury trial seemed, however, in unison with every step taken in the cases of women under the XIV. Amendment.
The design of the Government was evidently to crush at once, and arbitrarily, all efforts of women for equality of rights with men. The principles of law and justice involved did not, however, apply to women alone, but to all persons alike. Where the rights of the most insignificant or humble are outraged those of all are endangered. The decisions in these cases are the more remarkable since they were based on the most ultra State Rights doctrine, and yet were rendered in every instance by members of the Republican party which held its position by reason of its recent success against the extreme demands of State sovereignty. The right of women to vote under national protection was but the logical result of the political guarantees of the war, and Republican leaders should have been anxious to clinch their war record by legislative and judicial decisions.
But a more thorough recognition of the State Rights theory never was presented than in the proceedings of this Judge of the Supreme Court in his verdict against Miss Anthony, nor a more absolute exhibition of National power in State affairs than his decision in the case of the Inspectors, who were State officers, working under State authority and State laws, and not under authority derived from the Constitution of the United States, but who were tried by an United States judge, and punished for what was held as a crime against the State of New York—a monstrous usurpation of National authority! Each of these trials was, in its way, an example of authority overriding law, and an evidence of the danger to the liberties of the people from a practically irresponsible judiciary. Men need to feel their indebtedness and their responsibility to those who place them in position; first, in order to preserve them from despotism; and, second, that they may be removed when infirmity demands the substitution of a competent person in their place.
Although for a period little has been said in regard to the usurpations of the judiciary, a time will come in the history of the country when the course of Justice Hunt will be recalled as a dangerous precedent.
It was more than a year after Miss Anthony's trial was completed before her case received notice in the chief legal journal of the State of New York. At that time, in an article entitled, "Can a Judge Direct a Verdict of Guilty?"[10] Judge Hunt's course in refusing to poll the jury was reviewed and condemned as contrary to justice and law. To Mrs. Gage's review of this article, the Law Journal said, "If Mrs. Gage and Miss Anthony are not pleased with our laws, they had better emigrate." This would make real, in case of woman, Edward Everett Hale's story of the "Man Without a Country." Women are, by this advice, assumed to have no country; to be living in the United States upon sufferance, a species of useful aliens, which possesses no rights that man is bound to respect, which are not to be permitted to vote, nor even to protest when the dearest rights are trampled upon. While admitting that Justice Hunt usurped power in taking the case from the jury, the Albany Law Journal expressed a desire that it should have gone to the jury, not on the ground of legal right, but on the ground that the jury would have brought in a verdict of guilty.
But had the case been allowed to go to the jury, no verdict of guilty would have been rendered. The jury did not believe the defendant guilty, but they were not permitted to give their opinion. Their opinions counted for nothing; they were wronged as well as Miss Anthony.
It was said of the infamous Lord Jeffries, that when pre-determined upon a conviction he always wore a red cap. In such cases juries were useless appendages to his court. Justice Hunt, through this trial, wore an invisible red cap which only came into view at its close.
The effect of Miss Anthony's prosecution, conviction, and sentence, was in many ways advantageous to the cause of freedom. Her trial served to awaken thought, promote discussion, and compel an investigation of the principles of government. The argument of Judge Selden, clearly proving woman's constitutional right to vote, published[11] in all the leading papers, arrested the attention of legal minds as no popular discussions had done.
Thus the question of the abstract rights of each individual, their civil and political rights under State and National Constitutions, were widely discussed. And when the verdict, contrary to law, was rendered by the Judge, and the jury dismissed without having been permitted to utter a word, the whole question of woman's rights and wrongs was brought into new prominence through this infringement of the sacred right of jury trial.
A nolle prosequi was entered for the women who voted with Miss Anthony. Immediately after the decision in her case, the trial of the Inspectors took place before the same court. This was in ality a continuation of the same question—a citizen's right to vote—and like that of Miss Anthony's was a legal farce, the decision in this case evidently having also been pre-determined. The indictment stated that:
Beverly W. Jones, Edwin T. Marsh, and William B. Hall, Inspectors of Election in and for said first election district of said eight ward of said city of Rochester, etc., did then and there knowingly and willfully register as a voter of said District, one Susan B. Anthony, she, said Susan B. Anthony, then and there not being entitled to be registered as a voter of said District in that she, said Susan B. Anthony was then and there a person of the female sex, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity.
Although the above indictment may have been legal in form, it clearly proved the inadequacy of man alone to frame just laws, holding, as it did, Susan B. Anthony to be "then and there a person of the female sex, contrary to the form of the statutes of the United States of America," etc.
Witnesses were first called on behalf of the United States; during whose examination it was again conceded that the women named in the indictment were women on the 5th day of November, 1872, thus again clearly showing the animus of these trials to be against sex—making sex a crime in the eye of United States laws. While the right to testify in her own behalf was denied to Miss Anthony it was granted to the Inspectors of election.
Beverly W. Jones, and each of the other defendants, was duly sworn as a witness in his own behalf, and Susan B. Anthony was called as a witness in behalf of the defendants.
The Court: They call you as a witness, madam.
The witness, having been duly affirmed, testified as follows:
Examined by Mr. Van Voorhis:
Q. Miss Anthony, I want you to state what occurred at the Board of Registry, when your name was registered? A. That would be very tedious, for it was full an hour.
Q. State generally what was done, or what occupied that hour's time? Objected to.
Q. Well, was the question of your right to be registered a subject of discussion there? A. It was.
Q. By and between whom? A. Between the supervisors, the inspectors, and myself.
Q. State, if you please, what occurred when you presented yourself at the polls on election day? A. Mr. Hall decidedly objected Mr. Crowley: I submit to the Court that unless the counsel expects to change the version given by the other witnesses, it is not necessary to take up time.
The Court: As a matter of discretion, I don't see how it will be any benefit. It was fully related by the others, and doubtless correctly.
Mr. Crowley: It is not disputed.
The Witness: I would like to say, if I might be allowed by the Court, that the general impression that I swore I was a male citizen, is an erroneous one.
Mr. Van Voorhis: You took the two oaths there, did you? A. Yes, sir.
The Court: You presented yourself as a female, claiming that you had a right to vote? A. I presented myself not as a female at all, sir; I presented myself as a citizen of the United States. I was called to the United States ballot-box by the XIV. Amendment, not as a female, but as a citizen, and I went there.
Miss Anthony's emphatic reply and intimation that, although a condemned criminal for having voted, she still believed in her citizenship as securing that right to her, closed the lips of the Court, and she was summarily dismissed from the witness-box, and the case rested.
Mr. Van Voorhis addressed the Court at some length, submitting that there was no ground whatever to charge these defendants (the Inspectors) with any criminal offense,
These points were amplified by the counsel at some length, who closed by saying, "The defendants should be discharged by the Court." Mr. Crowley then rose to make his argument, when the Court said:
Now, this is the point in the case, in my view of it: If there was any case in which a female was entitled to vote, then it would be a subject of examination. If a female over the age of twenty-one was entitled to vote, then it would be within the judicial authority of the inspectors to examine and determine whether in the given case the female came within that provision. If a married woman was entitled to vote, or if a married woman was not entitled to vote, and a single woman was entitled to vote, I think the inspectors would have a right in a case before them, to judge upon the evidence whether the person before them was married or single. If they decided erroneously, their judicial character would protect them. But under the law of this State, as it stands, under no circumstances is a woman entitled to vote. When Miss Anthony, Mrs. Leyden, and the other ladies came there and presented themselves for registry, and presented themselves to offer their votes, when it appeared that they were women—that they were of the female sex—the power and authority of the inspectors was at an end. When they act upon a subject upon which they have no discretion, I think there is no judicial authority. There is a large range of discretion in regard to the votes offered by the male sex. If a man offers his vote, there is a question whether he is a minor—whether he is twenty-one years of age. The subject is within their jurisdiction. If they decide correctly, it is well; if they decide erroneously, they act judicially, and are not liable. If the question is whether the person presenting his vote is a foreigner or naturalized, or whether he has been a resident of the State or district for a sufficient length of time, the subject is all within their jurisdiction, and they have a right to decide, and are protected if they decide wrong.
But upon the view which has been taken of this question of the right of females to vote, by the United States Court at Washington, and by the adjudication which was made this morning, upon this subject there is no discretion, and therefore I must hold that it affords no protection. In that view of the case, is there anything to go to the jury?
Mr. Van Voorhis: Yes, your honor. The Court: What?
Mr. Van Voorhis: The jury must pass upon the whole case, and particularly as to whether any ballots were received for representative in Congress, or candidates for representative in Congress, and whether the defendants acted willfully and maliciously.
The Court: It is too plain to argue that. Mr. Van Voorhis: There is nothing but circumstantial evidence.
The Court: Your own witness testified to it. Mr. Van Voorhis: But "knowingly," your honor, implies knowing that it is a vote for representative in Congress.
The Court: That comes within the decision of the question of law. I don't see that there is anything to go to the jury. Mr. Van Voorhis: I can not take your honor's view of the case, but of course must submit to it. We ask to go to the jury upon this whole case, and claim that in this case, as in all criminal cases, the right of trial by jury is made inviolate by the Constitution—that the Court has no power to take it from the jury. The Court: I am going to submit it to the jury. Gentlemen of the Jury: This case is now before you upon the evidence as it stands, and I shall leave the case with you to decide. Mr. Van Voorhis: I claim the right to address the jury.
The Court: I don't think there is anything upon which you can legitimately address the jury. Gentlemen, the defendants are charged with knowingly, willfully, and wrongfully receiving the votes of the ladies whose names are mentioned, in November last, in the city of Rochester. They are charged in the same indictment with willfully and improperly registering those ladies. I decided in the case this morning, which many of you heard, probably, that under the law as it stands the ladies who offered their votes had no right to vote whatever. I repeat that decision, and I charge you that they had no right to offer their votes. They having no right to offer their votes, the inspectors of election ought not to receive them. The additional question exists in this case whether the fact that they acted as inspectors will relieve them from the charge in this case. You have heard the views which I have given upon that. I think they are administrative officers. I charge you that they are administrative and ministerial officers in this respect, and that they are not judicial officers whose action protects them, and that therefore they are liable in this case. But, instead of doing as I did in the case this morning—directing a verdict—I submit the case to you with these instructions, and you can decide it here, or you may go out.
Mr. Van Voorhis: I ask your honor to instruct the jury that if they find these inspectors acted honestly, in accordance with their best judgment, they should be acquitted. The Court: I have expressly ruled to the contrary of that, gentlemen; that that makes no difference.
Mr. Van Voorhis: And that in this country—under the laws of this country—The Court: That is enough—you need not argue it, Mr. Van Voorhis.
Mr. Van Voorhis: Then. I ask your honor to charge the jury that they must find the fact that these inspectors received the votes of these persons knowingly, and that such votes were votes for some person for member of Congress, there being in the case no evidence that any man was voted for, for member of Congress, and there being no evidence except that secret ballots were received; that the jury have a right to find for the defendants, if they choose. The Court: I charge the jury that there is sufficient evidence to sustain the indictment upon this point.
Mr. Van Voorhis: I ask your honor also to charge the jury that there is sufficient evidence to sustain a verdict of not guilty. The Court: I can not charge that.
Mr. Van Voorhis: Then why should it go to the jury? The Court: As a matter of form.
Mr. Van Voorhis: If the jury should find a verdict of not guilty, could your honor set it aside? The Court: I will debate that with you when the occasion arises. Gentlemen, you may deliberate here, or retire, as you choose.The jury retired for consultation, and the Court took a recess. The Court re-convened at 7 o'clock, when the clerk called the jury and asked them if they had agreed upon their verdict. The foreman replied in the negative.
The Court: If that gentleman desires to ask any questions in respect to the questions of law, or the facts in the case, I will give him any information he desires. [No response from the jury.] It is quite proper, if any gentleman has doubts about anything, either as to the law or the facts, that he should state it to the Court. Counsel are both present, and I can give such information as is correct. A Juror: I don't wish to ask any questions.
The Court: Then you may retire again, gentlemen. The Court will adjourn until to-morrow morning.The jury retired, and after an absence of about ten minutes returned into court. The clerk called the names of the jury.
The Clerk: Gentlemen, have you agreed upon your verdict? The Foreman: We have.
On the next day, June 19, 1873, the counsel for the defendants, Mr. John Van Voorhis, made a motion to the court for a new trial in behalf of Beverley W. Jones, Edwin T. Marsh, and William B. Hall. The following are the grounds of the motion:
The court denied the motion; then asked the defendants if they had anything to say why sentence should not be pronounced, in response to which they replied as follows:
Edwin T. Marshsaid: In October last, just previous to the time fixed for the sitting of the Board of Registrars in the first district of the eighth ward of Rochester, a vacancy occurred. I was solicited to act, and consenting, I was duly appointed by the common council. I had never given the matter a thought until called to the position, and as a consequence knew nothing of the law. On the morning of the first day of the last session of the board, Miss Anthony and other women presented themselves and claimed the right to be registered. So far as I knew, the question of woman suffrage had never come up in that shape before. We were in a position where we could take no middle course. Decide which way me might, we were liable to prosecution. We devoted all the time to acquiring information on the subject that our duties as Registrars would allow. We were expected, it seems, to make an infallible decision, inside of two days, of a question in regard to which some of the best minds of the country are divided. The influences by which we were surrounded, were nearly all in unison with the course we took. I believed then, and believe now, that we acted lawfully.
I faithfully discharged the duties of my office according to the best of my ability, in strict compliance with the oath administered to me. I consider the argument of our counsel unanswered and unanswerable. The verdict is not the verdict of the jury. I am not guilty of the charge.The Court then sentenced the defendants to pay a fine of $25 each, and the costs of the prosecution.[12]
The following petition was presented in the Senate by Mr. Sargent, the present (1882) United States Minister to Germany, and in the House by Mr. Loughridge, of Iowa:
To the Congress of the United States:
The petition of Susan B. Anthony, of the city of Rochester, in the county of Monroe, and State of New York, respectfully represents: That, prior to the late presidential election, your petitioner applied to the Board of Registry in the Eighth Ward of the city of Rochester, in which city she had resided for more than twenty-five years, to have her name placed upon the register of voters; and the Board of Registry, after consideration of the subject, decided that your petitioner was entitled to have her name placed upon the register, and placed it there accordingly. On the day of election your petitioner, in common with hundreds of other American citizens, her neighbors, whose names had also been registered as voters, offered to the inspectors of election her ballots for electors of President and Vice-President, and for members of Congress, which were received and deposited in the ballot-box by the inspectors. For this act of your petitioner an indictment was found against her by the grand jury, at the sitting of the District Court of the United States for the Northern District of New York, at Albany, charging your petitioner, under the nineteenth section of the act of Congress of May 31, 1870, entitled "An act to enforce the rights of citizens of the United States to vote in the several States of this Union, and for other purposes," with having "knowingly voted without having a lawful right to vote."
To that indictment your petitioner pleaded not guilty, and the trial of the issue thus joined took place at the Circuit Court in Canandaigua, in the county of Ontario, before the Honorable Ward Hunt, one of the Justices of the Supreme Court of the United States, on the 18th day of June last. Upon that trial the facts of voting by your petitioner, and that she was a woman, were not denied; nor was it claimed on the part of the Government than your petitioner lacked any of the qualifications of a voter, unless disqualified by reason of her sex. It was shown on behalf of your petitioner, on the trial, that before voting she called upon a respectable lawyer and asked his opinion whether she had a right to vote, and he advised her that she had such right, and the lawyer was examined as a witness in her behalf, and testified that he gave her such advice, and that he gave it in good faith, be lieving that she had such right. It also appeared that when she offered to vote, the question whether, as a woman, she had a right to vote, was raised by the inspectors, and considered by them in her presence, and they decided that she had a right to vote, and received her vote accordingly.
It was shown on the part of the Government that, on the examination of your petitioner before the commissioner on whose warrant she was arrested, your petitioner stated that she should have voted if allowed to vote, without reference to the advice of the attorney whose opinion she asked; that she was not induced to vote by that opinion; that she had before determined to offer her vote, and had no doubt about her right to vote. At the close of the testimony, your petitioner's counsel proceeded to address the jury, and stated that he desired to present for consideration three propositions, two of law, and one of fact: 1. That your petitioner had a lawful right to vote. 2. That whether she had a right to vote or not, if she honestly believed that she had that right, and voted in good faith in that belief, she was guilty of no crime. 3. That when your petitioner gave her vote she gave it in good faith, believing that it was her right to do so.
That the two first propositions presented questions for the court to decide, and the last question for the jury. When your petitioner's counsel had proceeded thus far, the judge suggested that the counsel had better discuss, in the first place, the questions of law, which the counsel proceeded to do; and, having discussed the two legal questions at length, asked then to say a few words to the jury on the question of fact. The judge then said to the counsel that he thought that had better be left until the views of the court upon the legal questions should be made known.
The district attorney thereupon addressed the court at length upon the legal questions, and at the close of his argument the judge delivered an opinion adverse to the positions of your petitioner's counsel upon both of the legal questions presented, holding that your petitioner was not entitled to vote; and that if she voted in good faith in the belief in fact that she had a right to vote, it would constitute no defense; the ground of the decision on the last point being that your petitioner was bound to know that by the law she was not a legal voter, and that even if she voted in good faith in the contrary belief, it constituted no defense to the crime with which she was charged.
The decision of the judge upon those questions was read from a written document, and at the close of the reading the judge said that the decision of those questions disposed of the case and left no question of fact for the jury, and that he should therefore direct the jury to find a verdict of guilty against your petitioner. Your petitioner's counsel excepted to the decision of the judge upon the legal questions, and to his direction to the jury to find a verdict[Pg 700] of guilty, insisting that it was a direction which no court had a right to give in any criminal case.
The judge then instructed the clerk to take the verdict, and the clerk said, "Gentlemen of the jury, hearken to your verdict as the court hath recorded it. You say you find the defendant guilty of the offense charged; so say you all." No response whatever was made by the jury, either by word or sign. They had not consulted together in their seats or otherwise. Neither of them had spoken a word, nor had they been asked whether they had or had not agreed upon a verdict. Your petitioner's counsel then asked that the clerk be requested to poll the jury. The judge said, "That can not be allowed. Gentlemen of the jury, you are discharged;" and the jurors left the box. No juror spoke a word during the trial, from the time when they were empaneled to the time of their discharge. After denying a motion for a new trial, the judge proceeded upon the conviction thus obtained to pass sentence upon your petitioner, imposing upon her a fine of $100 and the costs of the prosecution.
Your petitioner respectfully submits that, in these proceedings, she has been denied the rights guaranteed by the Constitution to all persons accused of crime, the right of trial by jury, and the right to have the assistance of counsel for their defense. It is a mockery to call her trial a trial by jury; and unless the assistance of counsel may be limited to the argument of legal questions, without the privilege of saying a word to the jury upon the question of the guilt or innocence in fact of the party charged, or the privilege of ascertaining from the jury whether they do or do not agree to the verdict pronounced by the court in their name, she has been denied the assistance of counsel for her defense.
Your petitioner also respectfully insists that the decision of the judge that good faith on the part of your petitioner in offering her vote did not constitute a defense, was not only a violation of the deepest and most sacred principle of the criminal law, that no one can be guilty of crime unless a criminal intent exists; but was also a palpable violation of the statute under which the conviction was had; not on the ground that good faith could, in this, or in any case, justify a criminal act, but on the ground that bad faith in voting was an indispensable ingredient in the offense with which your petitioner was charged. Any other interpretation strikes the word "knowingly" out of the statute, the word which alone describes the essence of the offense. The statute means, as your petitioner is advised, and humbly submits, a knowledge in fact, not a knowledge falsely imputed by law to a party not possessing it in fact, as the judge in this case has held. Crimes can not, either in law or in morals, be established by judicial falsehood. If there be any crime in the case, your petitioner humbly insists it is to be found in such an adjudication.
To the decision of the judge upon the question of the right of your petitioner to vote, she makes no complaint. It was a question properly belonging to the court to decide, was fully and fairly submitted to the judge, and of his decision, whether right or wrong, your petitioner is well aware she can not here complain. But in regard to her conviction of crime, which she insists, for the reasons above given, was in violation of the principles of the common law, of common morality, of the statute under which she was charged, and of the Constitution—a crime of which she was as innocent as the judge by whom she was convicted—she respectfully asks, inasmuch as the law has provided no means of reviewing the decisions of the judge, or of correcting his errors, that the fine imposed upon your petitioner be remitted, as an expression of the sense of this high tribunal that her conviction was unjust.
Dated January 12, 1874.Susan B. Anthony.
In the Senate of the United States, June 20, 1874, Mr. Edmunds submitted the following report:
That they are not satisfied that the action of the Court was such as represented in the petition, and that, if it were so, the Senate could not legally take any action in the premises, and move that the Committee be discharged from the further consideration of the petition, and that the bill be postponed indefinitely.
Mr. Carpenter asked, and obtained, leave of the Senate to present the following as the views of the minority:
••••••••••••••
The majority of the Committee have determined that inasmuch as the relief prayed for by the memorial can not be granted, the Committee will ask to be discharged from its further consideration, and will not express any opinion as to the correctness or incorrectness of the course pursued on the trial of Miss Anthony.
The House of Lords in England or the Senate of the United States may engage in any investigation looking to legislation, although, as an incident to, or a result of, such investigation, it may appear that some officer who is impeachable has been guilty of conduct for which he might be impeached. Then, surely, in a case like this, where there is neither suggestion nor suspicion of corrupt conduct on the part of the estimable judge before whom the trial was conducted, it can not be improper for a committee of the Senate to inquire whether, in the trial of a citizen for alleged violation of the laws of the United States, a precedent dangerous to the liberties of every citizen has been set. Indeed, the injurious effect of every judicial departure from sound principle is in proportion to the eminence and purity of the judge by whom it is committed. The outrages perpetrated by Scroggs and Jeffreys in the administration of criminal justice were grievous upon the individuals unjustly or illegally convicted, but do no harm as precedents. A vicious precedent, set by an infamous judge, is harmless; while a similar violation of the law by a pure and upright magistrate is attended by far-reaching and detrimental consequences. It is fashionable, we know, just now to heap contumely upon women who demand to be allowed to enjoy their civil political rights. Ridicule is the chief weapon employed against them, and is freely applied to all who advocate their cause. Gentlemen who would blush to be thought negligent in the offices of frivolous gallantry lack the manhood to accord to women their substantial rights. And, strange to say, ladies dwelling in luxurious ease join with the fops of society to cast contempt upon the earnest aspirations of woman for the possession of her just rights. We have acted upon the doctrines of the Declaration of Independence, so far as to make all men equal before the law; but women, our mothers, our wives, our sisters, and our daughters, we condemn to inequality—many to servitude. But the cry of women, who, in poverty and want, are driven from the employments of honest industry to indulgence in vice and to the haunts of shame, is rising on every hand, and appeals to the heart with as much power as the wailings of a slave beneath the lash of his master.
The wrongs of Martin Koszta in a foreign land touched the heart of the nation. But the denial of her rights to Miss Susan B. Anthony in a court of the Union is thought to be unworthy the attention of the American Senate. To those who are indifferent whether a woman be deprived of or be permitted to enjoy even the rights which are secured to her by the Constitution, it may be suggested that a bad precedent set in the trial of a woman who has presumed to express her choice as to those who should make laws for her, laws by which her rights are to be affected and her property be taxed, may stand in the way of some man's rights hereafter. It may yet happen, in the revolutions of time, that some one of the majority of your committee may be subjected to an unjust and false accusation, which must be submitted to the judgment of twelve men in the jury-box or of one man on the bench; twelve men fresh from the people and warmed with the instinctive sympathies of humanity, or one man, separated from the people by his station and by the habits of a life passed in seclusion and study. A jury-trial must be the same whether a man or woman be arraigned. And the subject under consideration is important even to men who are regardless of the rights of women.
I shall, therefore, proceed to inquire, as I think the committee ought to have done, whether the memorialist has been deprived, as she alleges, of the right of trial by jury secured to her by the Constitution of the United States. The memorialist claims that the court erred in its ruling, and in taking the case from the jury and directing a verdict against her; and also in refusing to have the jury polled in regard to their verdict; and she prays that her fine may be remitted by act of Congress.
The first question is, whether in a criminal trial, plea not guilty, the jury have a right to render a general verdict involving questions of law as well as fact, under instructions by the court upon matters of law; or whether, when the testimony is not conflicting, the court may take the case from the jury and direct a verdict of guilty to be entered.
It is the practice in civil causes for the court, if there is no conflict in the evidence, to direct a verdict for the plaintiff or for the defendant, because in such case the court may set aside a verdict and grant a new trial in favor of plaintiff or defendant. It would, therefore, be a barren[Pg 703] form to require the jury to deliberate and find a verdict in a form to require the jury to deliberate and find a verdict in a case where if the verdict was not one way, the court would set it aside and order a new trial, and so on, until a verdict should be found that was satisfactory to the court. So in practice it is usual for the court to direct the jury to acquit the prisoner in a criminal case; because, if the jury find against the prisoner, the court may set the verdict aside and order a new trial, and continue to do so until a verdict of acquittal shall be rendered; though it is doubtful whether, even in a civil cause, the court could refuse to let the jury be polled, or could enter a verdict for the jury to which they did not agree. The court could direct the jury what to do, and set aside the verdict if they did otherwise; but it is not admitted that, even in a civil cause, the court could enter a verdict against the wishes of the jury.
But at the common law and in the Federal courts it is certain that where the jury render a verdict of acquittal, even against the evidence and the instructions of the court on propositions of law, the court can not set aside the verdict and order another trial. From this it follows that the court can not take from the jury this power of acquittal in a criminal case, by directing and compelling a verdict against the prisoner, and refusing to have the jury polled. But the importance of this question requires its examination not only in the light of reason, but of authority. The Constitution of the United States provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and a public trial by an impartial jury of the State and district wherein the crime shall have been committed, etc.
The Constitution does not define or regulate the trial by jury, but secures it as it was then known to the common law. This is a proposition so well settled by judicial determination that I shall spend no time upon it beyond citing the following authorities: Norval vs. Rice, 2 Wis., 22; May vs. R. R. Co., 3 Wis., 219; Byers & Davis vs. Com., 42 Penn. St., 89; United States vs. Lorenzo Dow, Taney Decis., 35; Lamb et al. vs. Lane, 4 Ohio Stat., 167.
Therefore, if it can be shown that, at the time the Constitution was adopted, it was well settled that the jury in a criminal cause might find a general verdict, including both law and fact, then this right is secured to juries in the Federal courts by the Constitution itself; and not even an act of Congress could take it away. What the law was at that time, is mere matter of historical inquiry, wholly different from another question, which is so often mistaken for it, whether juries ought to possess the right.
What, then, was the law upon this subject when the Constitution was adopted? Mr. Hargrave, in one of his annotations upon Lord Coke's first Institute, declares that, inasmuch as the jury may, as often as they think fit, find a general verdict, it was unquestionable that they might so far decide upon the law as well as fact, such a verdict necessarily involving both.
In this opinion, says Mr. Hargrave, I have the authority of Littleton himself, who writes, "that if the inquest will take upon them the knowledge of the law upon the matter, they may give their verdict generally."
To meet and resist directly this stream of authority is impossible. But while the power of the jury is admitted, it is denied that they can rightfully or lawfully exercise it without compromitting their consciences, and that they are bound implicitly in all cases to receive the law from the court. The law must, however, have intended, in granting this power to a jury, to grant them a lawful and rightful power, or it would have provided a remedy against the undue exercise of it. The true criterion of a legal power is its capacity to produce a definitive effect, liable to neither censure nor review. And the verdict of not guilty in a criminal case is, in every respect, absolute and final. The jury are not liable to punishment, nor the verdict to control. No attaint lies, nor can a new trial be awarded. The exercise of this power in the jury has been sanctioned and upheld in constant activity from the earliest ages. It was made a question by Bracton (fol. 119, a. b.), who was to sit in judgment and decide upon points of law on appeals in capital cases. It could not be the king, he says, for then he would be both prosecutor and judge; nor his justices, for they represented him. He thinks, therefore, the curia and pares were to be judges in all cases of life and limb, or disherison of heir, where the crown was the prosecutor. And, indeed, it is probable that in the earliest stages of the English juridical history the jury, instead of deciding causes under the direction of the judge, decided all causes without the assistance of the judge. (Barrington on the Statutes, 18, 26, 311.)
He then proceeds to review the trial of Lilburn for high treason in 1549; Bushell's case, Vaughan, 135, and Sir T. Jones, 113; Algernon Sidney's case, 3 State Trials, 817; Tuchin's case, 5 State Trials, 542, and other cases. Again, he says:
To deny to the jury the right of judging of the intent and tendency of the act, is to take away the substance, and with it the value and security of this mode of trial. It is to transfer the exclusive cognizance of crimes from the jury to the court, and to give the judge the absolute control of the press. There is nothing peculiar in the law of libels to withdraw it from the jurisdiction of the jury. The twelve judges in their opinion in the House of Lords (April, 1792), admitted that the general criminal law of England was the law of libel. And by the general criminal law of England, the office of the jury is judicial. "They only are the judges," as Lord Somers observes (Essay on the Power and Duty of Grand Juries, p. 7), "from whose sentence the indicted are to expect life or death. Upon their integrity and understanding the lives of all that are brought into judgment do ultimately depend. From their verdict there lies no appeal. They resolve both law and fact, and this has always been their practice."
And, after referring to the case of Franklin, and other cases holding a contrary doctrine, he denounces them as innovations, and adding that the subject underwent a patient investigation and severe scrutiny upon principle and precedent in Parliament, says:
And a bill declaratory of the right of the jury to give a general verdict upon the whole matter put in issue, without being required or directed to find the defendant guilty merely on the proof of publication and the truth of the innuendoes, was at length agreed to, and passed with uncommon unanimity. It is entitled "An act to remove doubts respecting the functions of juries in cases of libel"; and, although I admit that a declaratory statute is not to be received as conclusive evidence of the common law, yet it must be considered as a very respectable authority in the case, and especially as the circumstances attending the passage of this bill reflect the highest honor on the moderation, the good sense, and the free and independent spirit of the British Parliament.
And again he says: The result, from this view, is, to my mind, a firm conviction that this court is not bound by the decisions of Lord Raymond and his successors. By withdrawing from the jury the consideration of the essence of the charge, they render their function nugatory and contemptible. Those opinions are repugnant to the more ancient authorities which had given to the jury the power, and with it the right, to judge of the law and the fact, when they were blended by the issue, and which rendered their decisions, in criminal cases, final and conclusive. The English bar steadily resisted those decisions as usurpations on the rights of the jury. Some of the judges treated the doctrine as erroneous, and the Parliament at last declared it an innovation by restoring the trial by jury, in cases of libel, to that ancient vigor and independence by which it had grown so precious to the nation as the guardian of liberty and life, against the power of the court, the vindictive persecution of the prosecutor, and the oppression of the government.This celebrated opinion may safely be relied upon as a correct statement of the law as it stood when it was delivered in 1804. But still more conclusive authority remains to be considered. The sedition act of 1798, after defining what should be a criminal libel, and declaring that the defendant might give the truth of the matter in evidence, provides as follows:
And the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases. (1 Stat. at L., 507.)
The language of this act, "as in other cases," recognizes the right here contended for. In the celebrated Callender trial, in 1800, which was a prosecution under this statute, Mr. Justice Chase, whose general bearing was so unfriendly to the defendant as to secure his impeachment by the House of Representatives, admitted this right of the jury. He said:
We all know that juries have the right to decide the law as well as the fact. (Wharton's State Trials, 710.) And again he says:
I admit that the jury are to compare the statute with the facts proved, and then to decide whether the acts done are prohibited by the law, and whether they amount to the offense described in the indictment. (Ib., p. 713.)
Though, with seeming want of logic, he held that the jury could not decide whether the statute was constitutional or not. But the full admission that the jury were judges of the law as well as the fact, shows the general understanding upon this subject, though the judge may have erred in applying the principle in the case before him. In Fries's case, who was tried for treason, 1799-1800, the jury were instructed by Judge Peters as follows:
It is the duty of the court to declare the law; though both facts and law, which, I fear, are too plain to admit a reasonable doubt, are subject to your consideration. (Wharton's State Trials, 587.)
And, in the second trial of Fries, Judge Chase instructed the jury as follows:
It is the duty of the court in this case, and in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide in the present, and in all criminal cases, both the law and the facts, on their consideration of the whole case. (2 Chase's Trial, Appendix 1.)
In the answer of Judge Chase to articles of impeachment against him, he says:
In Georgia vs. Brailsford, 3 Dallas, 4, in 1794, Chief-Justice Jay charged the jury as follows:
It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court, to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have, nevertheless, a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for as, on the one hand, it is presumed that juries are the best judges of facts, it is, on the other hand, presumable that the court are the best judges of law. But still both objects are lawfully within your power of decision.
This charge was delivered in a jury trial, at the bar of the Supreme Court, and expressed the unanimous opinion of the judges of that court, and that, too, in a civil cause. The decision in Georgia vs. Brailsford has never been expressly overruled by that court; although the practice in civil causes is for the court to direct a verdict where there is no conflict in regard to the testimony. In Beavans vs. The United States, 13 Wall, 56, which was an action ex contractu, on a receiver's bond, the court says:
The objection that the jury was instructed to find for the plaintiffs the amount claimed by the papers given in evidence (viz, the official settlements), with interest thereon, is entirely without merit. There was no evidence to impeach the accounts stated, or to show set-off, release, or payment. The instruction was, therefore, in accordance with the legal effect of the evidence, and there were no disputed facts upon which the jury could pass.
An act of Congress declares that the papers of official settlement shall be prima facie evidence of the condition of the accounts. No testimony was offered in this case to impeach that statement. There was, therefore, no fact in issue; and the instruction of the court to find a verdict for the plaintiff was, in substance, ruling upon matters of law only. And the Supreme Court, in their opinion, recognize, and merely recognize, the practice which now obtains universally in the trial of civil causes. And, although it is inconsistent with Georgia vs. Brailsford, and substantially overrules it, it does not impair the value of the decision in that case, as showing the understanding of the profession and the courts about the time of the adoption of the Constitution.
In United States vs. Wilson (1 Bald., 108), the jury were instructed as follows:
In United States vs. Porter (1 Bald., 108), the doctrine was stated more guardedly, as follows:
In repeating what was said on a former occasion to another jury, that you have the power to decide on the law as well as the facts of this case, and are not bound to find according to our opinion of the law, we feel ourselves constrained to make some explanations not then deemed necessary, but now called for from the course of the defense.
You may find a general verdict of guilty or not guilty as you think proper, or may find the facts specially, and leave the guilt or innocence of the prisoner to the judgment of the court. If your verdict acquits the prisoner, we can not grant a new trial, however much we may differ with you as to the law which governs the case; and, in this respect, a jury are the judges of law if they choose to become so.
In Farmer's trial before the Supreme Court of the State of New Hampshire in 1821, the Chief-Justice, speaking for the whole court, told the jury that they were the judges both of the law and the fact; that
It was the duty of the court to give them proper instructions and to aid them in forming a correct opinion as to the law applicable to the case. But if, contrary to his intentions, any expression should escape him which might seem to indicate any opinion as to the facts, they must disregard it; their verdict ought to be according to their own opinion as to the prisoner's guilt or innocence. (See Farmer's Trial, p. 68.)
In the trial of William S. Smith for misdemeanor, in the Circuit Court of the United States for the State of New York, in July, 1806, the jury were instructed as follows:
You have heard much said upon the right of a jury to judge of the law as well as the fact. Be assured that on this occasion there is not the least desire to abridge those rights. I am an advocate for the independence of the jury. It is the basis of civil liberty; and in this country, I trust, will ever be a sacred bulwark against oppression and encroachment upon political freedom. The law is now settled that this right appertains to a jury in all criminal cases.
On the trial of John Hodges for high treason, before the Circuit Court of the United States for the District of Maryland, in 1815, the Court charged the jury as follows:
The court said they were bound to declare the law whenever they were called upon, in civil or criminal cases. In the latter, however, it was also their duty to inform the jury that they were not obliged to take their direction as to the law. (Hodge's Trial, p. 20.)
The elementary writers declare the same principle. Blackstone, 4 Comm., 361, says:
In Wilson's Lectures, Vol. II., p. 72, the same doctrine is declared and illustrated; and he says:
The jury must do their duty and their whole duty. They must decide the law as well as the fact. This doctrine is peculiarly applicable to criminal cases, and from them, indeed, derives its peculiar importance.
In Forsyth's Jury Trials, after an examination of the subject, it is said, p. 265:
It can not therefore be denied that, in all criminal cases, the jury do virtually possess the power of deciding questions of law as well as of fact.
The authorities quoted from conclusively show that at the time the Constitution was adopted, and for nearly a quarter of a century afterward, juries were understood and declared to possess the right to pass upon questions of law as well as fact in all criminal cases; and this is all that need be shown to bring this right within the protection of the Constitution.
The first case it is believed in which the contrary doctrine received favor in any American court was in the case of the United States vs. Battiste, 2 Sum., 240, decided in 1835. Mr. Justice Story, in that case, said:
My opinion is that the jury are no more judges of the law in a criminal case upon the plea of not guilty than they are in every civil case tried upon the general issue. In each of these cases their verdict, when general, is necessarily compounded of law and of fact, and includes both. In each they must necessarily determine the law as well as the fact. In each they have the physical power to disregard the law as laid down to them by the court. But I deny that in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure.
In Commonwealth vs. Porter, 10 Met., decided in 1845, the Supreme Court of Massachusetts followed the decision in Battiste's case, and held that the jury are under a moral obligation to decide the case as instructed by the court, and the court sum up the subject as follows:
On the whole subject, the views of the court may be summarily expressed in the following propositions: That in all criminal cases it is competent for the jury, if they see fit, to decide upon all questions of fact embraced in the issue, and to refer the law arising thereon to the court in the form of a special verdict. But it is optional with the jury thus to return a special verdict or not, and it is within their legitimate province and power to return a general verdict if they see fit. In thus rendering a general verdict, the jury must necessarily pass upon the whole issue, compounded of the law and of the fact, and they may thus incidentally pass on questions of law.
The opinion in this case was delivered by Chief-Justice Shaw, and is rather a discussion of what is a convenient distribution of powers between the court and jury than an examination into the actual state of the law; and he neither cites nor refers to a single authority from the beginning to the end of the opinion. Again, the conclusions arrived at by the opinion admit the power of the jury to decide questions of law; and that, in cases where the jury acquit the defendant, there is no power to reverse or even to review the finding of the jury. And this opinion holds that the defendant, in all criminal cases, is entitled to address the jury upon the questions of law as well as of fact involved in the case. To maintain that the defendant has the right to address the jury upon matters which the jury have no right to determine, and yet that the jury possess the power—the ultimate and final power—to decide matters of law, and are nevertheless under moral obligation never to exercise the power, are palpable inconsistencies.
The Supreme Court of Vermont in State vs. Croteau, 23 Ver., 14, in a very able opinion, review these two cases and other subsequent decisions which follow their doctrine, and, after an able and critical examination of all the English and American cases, repudiate this new doctrine, and declare that in criminal prosecutions it is the ancient, common-law right of the jury in favor of the prisoner to determine the whole matter in issue—the law as well as the fact.
There are some American cases holding a contrary doctrine, but the current of American as well as of English authorities is overwhelmingly in favor of the proposition that juries in criminal causes are judges of the law as well as of the facts.[13]
In late years there has been considerable discussion, and some contrariety of judicial opinion, in regard to the moral right of juries to find a general verdict of not guilty against the instructions of the court on matters of law. This subject, however, need not be further discussed, because it is believed that no reported case can be found denying to juries the power of determining the law as well as the fact in all criminal cases. The utmost extent to which any case goes is, that the jury, in deciding upon the law, are morally bound to adopt the opinion expressed by the court; but every case admits their power to do otherwise if they see fit. But admitting the existence of the distinction between the legal power and the moral right of juries, still the decision of the court on the trial of Miss Anthony was erroneous, because the court did not instruct the jury in regard to the law, and then leave the jury to perform their duty in the premises. On the contrary, the court took the case from the jury altogether and directed their verdict; thus denying to the jury not only the moral right, but even the power of rendering a verdict of not guilty; and refused the request of counsel to have the jury polled in regard to their verdict. No precedent has been shown for this proceeding, and it is believed none exists. It is altogether a departure from, and a most dangerous innovation upon, the well-settled method of jury-trial in criminal cases. Such a doctrine renders the trial by jury a farce. The memorialist had no jury-trial within the meaning of the Constitution, and her conviction was therefore erroneous.
But it may be said that the ruling of the court was correct in point of law, and, had the court submitted the case to the jury, it would have been the duty of the jury to find the memorialist guilty; therefore she is not aggrieved by the judgment which the court pronounced. Should this reasoning be adopted, it would follow that the memorialist had been tried by the court and by Congress; but it would still be true that she had been denied trial by a jury which the Constitution secures to her.
It is not safe thus to trifle with the rights of citizens. The trial by jury—the judgment of one's peers—is the shield of real innocence imperiled by legal presumptions. A Judge would charge a jury that a child who had stolen bread to escape starvation had committed the crime of larceny, but all the Judges in Christendom could not induce a jury to convict in such a case. It is the humane policy of our law, that, before any citizen shall suffer punishment, he shall be condemned by the verdict of his peers, who may be expected to judge as they would be judged. To sustain the judgment in this case, is to strike a fatal blow at this sacred right.
But the question remains, What relief can be granted? I concur with the majority of the Committee that Congress can not remit the judgment; that would be to exercise the pardoning power. Congress can not grant a new trial; that would be an exercise of judicial power. There is no Court of the Government which has jurisdiction to review the case. In Commonwealth vs. Austin, 5 Gray, 226, Chief-Justice Shaw says:
Now, when a new statute is passed, and a question of law is raised by counsel, it must first come before the court, charged by law with the conduct and superintendence of a jury trial; and, in any well-ordered system of jurisprudence, provision is made that it be re-examinable by the court of last resort. When this question is definitively adjudged by the tribunal of last resort—the principles on which it is adjudged being immutable, and the rule of law adjudged in any one case being equally applicable to every other case presenting the same facts—the decision is necessarily conclusive of the law. I do not say how and after what consideration it maybe considered as definitively decided. In the first instance it may be misunderstood or feebly presented. It may have been misapprehended by the judges, and not considered in all its bearings, or they may have wanted time and means for a careful and thorough investigation, and may therefore consent and desire to reconsider it one or more times. But I only say that, when thus definitively adjudged, the decision must be deemed conclusive and stand as a rule of law.
Unfortunately the United States has no "well-ordered system of jurisprudence." A citizen may be tried, condemned, and put to death by the erroneous judgment of a single inferior judge, and no court can grant him relief or a new trial. If a citizen have a cause involving the title to his farm, if it exceed two thousand dollars in value, he may bring his cause to the Supreme Court; but if it involves his liberty or his life, he can not. While we permit this blemish to exist on our judicial system, it behooves us to watch carefully the judgments inferior courts may render; and it is doubly important that we should see to it that twelve jurors shall concur with the Judge before a citizen shall be hanged, incarcerated, or otherwise punished.
I concur with the majority of the Committee that Congress can not grant the precise relief prayed for in the memorial; but I deem it to be the duty of Congress to declare its disapproval of the doctrine asserted and the course pursued in the trial of Miss Anthony; and all the more for the reason that no judicial court has jurisdiction to review the proceedings therein.
I need not disclaim all purpose to question the motives of the learned Judge before whom this trial was conducted. The best of judges may commit the gravest of errors amid the hurry and confusion of a nisiprius term; and the wrong Miss Anthony has suffered ought to be charged to the vicious system which denies to those convicted of offenses against the laws of the United States a hearing before the court of last resort—a defect it is equally within the power and the duty of Congress speedily to remedy.
Matt H. Carpenter.
Mr. Tremaine, from the House Judiciary Committee, reported adversely on the prayer of Miss Anthony's Petition, and Benjamin F. Butler favorably.
Forty-third Congress, 1st Session, House of Representatives, Report No. 608, Susan B. Anthony, May 25, 1874, recommitted to the Committee on the Judiciary and ordered to be printed.
Mr. B. F. Butler, from the Committee on the Judiciary, submitted the following Report to accompany bill H. R. 3492:
The Committee on the Judiciary, to whom was referred the memorial of Susan B. Anthony, of the city of Rochester, in the State of New York, praying that a fine alleged to have been unjustly imposed on the petitioner by a judgment of the Circuit Court of the United States for the Northern District of New York, may be remitted, having considered the prayer of the petitioner and the statement of facts set forth in the memorial, respectfully beg leave to report:
••••••••••••
Are these positions of the petitioner well founded? By necessary division there arise two questions: First, has Congress any power, or is there any precedent for entertaining such petition for such purpose? And, secondly, are the acts and order of the judge in accordance with the law of the land, and not in derogation of the right of the citizen to trial by jury at common law as guaranteed by the Constitution, as known and practiced in the courts of the United States? If the first should be answered in the negative, of course the committee and the House would be spared the discussion of the second.
It seems to your committee that there are two very noted and historical cases which may form the precedents for this application, and favorable action thereon by Congress—in the proceeding concerning the fines imposed by the courts on Matthew Lyon and General Jackson.
Lyon was fined by a United States judge for a seditious libel. He petitioned for a remission of fine upon the ground that the law was unconstitutional under which he was convicted. That petition was very fully considered, and, in 1820, a report was presented to the Senate by Mr. Barbour, of Virginia, which, after elaborating the considerations, concludes thus:
In this case, therefore, the committee think the Government is under a moral obligation to indemnify the petitioner.
Assuming, therefore, that this application is properly before us, we come to the second question of whether, by the proceedings in court, the legal rights of the petitioner have been infringed, from which she has suffered. It would not seem to be germane to this question to inquire whether or not the petitioner had the legal right to vote, because that was a question of law fully within the competency of the judge to decide, and his decision did not necessarily work a hardship to the defendant, even if mistaken in judgment. Or, in other words, it was a rightful execution of a power intrusted to him by law, from which there was no appeal to this or any other jurisdiction.
We come, therefore, to the great question in this case: whether the judge erred in withdrawing the case from the jury. Upon this question it would seem that the judge himself vacillated in the trial, because he permitted evidence to be gone into on both sides as a question of fact, tending to show whether the petitioner did or did not vote, knowing that she had no right so to do; but afterward withdrew the consideration of that evidence, upon the fact of intention or guilty knowledge, wholly from the jury, and ordered a verdict to be entered up upon his own decision, without allowing the question either to be argued or submitted to the jury, or the jury to pass upon it.
There certainly can be no graver question affecting the rights of citizens than this. The whole theory of trial by jury at common law consists in the fundamental maxim that before any conviction can be had for a crime it must be passed upon by twelve good and lawful men, the peers of the accused; and the very oath prescribed to jurors by the common law most distinctly guaranteed this right to the accused: "You shall well and truly try and true deliverance make, between the King and the prisoner at the bar, according to your evidence;" while at the common law the oath prescribed in civil cases gave a right to a judge to direct the jury in the matter of law, and to direct the verdict one way or the other, as he saw fit, the oath being substantially as follows: "You shall well and truly try the issue between party and party according to the law and the evidence given you."
Whatever changes may have been made in the practice of the States since the time of the earlier amendments to the Constitution, certain it is that at that time, after a jury had been impaneled, there was no way that the accused could be put in jeopardy of life or limb without his cause being submitted to twelve men, and their unanimous verdict passing upon the fact of his guilt or innocence. And this right your committee deem is not one lightly to be sacrificed. Burke once said that the whole English Constitution and machinery of government—not quoting words—were only to put into a jury-box twelve honest men. What advantage could it be to an accused to put twelve honest men into the jury-box, if the judge, without asking for their opinion, or without their intervention, can order a verdict of guilty to be entered up against the accused?
Nothing, therefore, can be of more consequence to the citizen in troublous times to protect him against the exercise of usurped or other power for oppression, than the intervention of the judgment of his peers upon the question whether he has been guilty of a crime, or alleged offense against the Government. And in the judgment of your committee, we can not too scrupulously guard, in the interest of the liberty of the citizen, this great and almost invaluable right. The friends of liberty under the common-law system have stood for it and stood by it, strenuously and assiduously, as the palladium of their liberties and the impenetrable shield of the people from oppression. By the order of the judge the defendant was deprived of this right, and if, in this case of minor consequence so far as regards the punishment inflicted, this can be done, so in the trial for murder or treason a judge may order a verdict of the jury without allowing them to pass upon the fact. It has been sometimes said "Can this be done?" We are clearly of the opinion that it can not and ought not to be done. It is sometimes said as a triumphant argument in favor of the exercise of this power, "Has not the judge the power to order a verdict of acquittal?" The answer to that, as a matter of law, is "No; he can only direct the jury that upon the facts and matter of law he believes the case can not be maintained, but that it is for the jury to say whether they will follow that direction;" and his remedy is to set aside that verdict, and that power has always been exercised at common law in favor of the prisoner, but he can not set aside the verdict of not guilty. Sometimes, in the darker hours of English jurisprudence, the judges fined the jury when they were not the obedient instruments of their will but persisted in finding the defendants in state prosecutions not guilty when the judge thought they ought to have been found guilty; but neither Jeffreys nor Scroggs ever dared to set aside a verdict of not guilty.
Your committee have been led by the great consequence of this precedent more carefully and at length to give an examination to this question to which its importance would not otherwise have entitled it. But your committee do not find it necessary to impute any intent of wrong to the learned judge who tried this case; but the effect of his error was to deprive this petitioner of a great and beneficent right, guaranteed to her as strongly as any other by the Constitution of her country, to have the question of her guilt passed upon by her peers, which error has had the same effect upon her rights as an intentional assumption of power would have had, and may have hereafter, in bad times, wherein corrupt judges, wielding instruments of power, shield themselves by precedents set by good judges in good times.
Therefore, because the fine has been imposed by a court of the United States for an offense triable by jury, without the same being submitted to the jury, and because the court assumed to itself the right to enter a verdict without submitting the case to the jury, and in order that the judgment of the House of Representatives, if it concur with the judgment of the committee, may, in the most signal and impressive form, mark its determination to sustain in its integrity the common-law right of trial by jury, your committee recommend that the prayer of the petitioner be granted, and to this end report the following bill, with the recommendation that it do pass.
The Inspectors were counseled to refuse to pay their fines, and take the consequences.
House of Representatives, Washington, Feb. 22, 1874.
My Dear Miss Anthony:—In regard to the Inspectors of Election, I would not, if I were they, pay, but allow any process to be served; and I have no doubt the President will remit the fine if they are pressed too far.
I am yours truly, Benjamin F. Butler.
On Miss Anthony's return home, February 26, 1874, she found the three Inspectors lodged in jail. She at once called on Judge Selden, and after consultation with him as to what could be done for their protection, telegrams were sent to influential friends in Washington, to which the following reply was received:
Washington, D. C., March 2, 1874—12 noon.
To Miss Susan B. Anthony:—I laid the case of the Inspectors before the President to-day. He kindly orders their pardon. Papers are being prepared.
A. A. Sargent.
An Associated Press dispatch, dated Washington, March 2, 1874, said:
At the written request of Senator Sargent, the President to-day directed the Attorney-General to prepare the necessary papers to remit the fine and imprisonment of Hall, Marsh, and others, the Rochester Election Inspectors, who were tried and convicted in June, 1873, of registering Susan B. Anthony and other women, and receiving their votes.
The Rochester Evening Express of Feb. 26, 1874, said:
Tyranny in Rochester.—The arrest and imprisonment in our city jail of the Election Inspectors who received the votes of Susan B. Anthony and other ladies, at the polls of the Eighth Ward, some months ago, is a petty but malicious act of tyranny, of which the officers who are responsible for it will yet be ashamed. It should be known to the public that these young men received Miss Anthony's vote by the advice of the best legal talent that could be procured. The ladies themselves took oath that they were citizens of the United States and entitled to vote.... The Court, however, fined these inspectors $25 and costs, for an offense which at the worst is merely technical, and now, nearly nine months after conviction, in default of payment, they are seized and shut up in jail, away from their families and their business, and subjected to all the inconvenience to say nothing of the odium of such an incarceration. This is an outrage which ought not to be tolerated in this country, and we shall be disappointed if public sentiment does not yet rebuke, in thunder-tones, the authorities who have perpetrated it. Miss Anthony is willing to fight her own battles and take the consequences, but she naturally feels indignant that others should suffer in this matter through no fault of their own....
The Rochester Democrat and Chronicle of March 26th, said:
An Outrage.—.... We regard this action on the part of District Attorney Crowley as an outrage, in that these young men, who, at the worst, are but accessories in the violation of law, are made to feel its terrors, while the chief criminal is allowed to defy the law with impunity. No effort has been made to satisfy the judgment of the court against Miss Anthony. She contemns the law which adjudged her guilty, and its duly appointed administrators are either too timid or too negligent of duty to endeavor to enforce it.... It is doubtful whether they had the right to refuse those votes. In any event their offense is venial as compared with hers. It does not look well for the District Attorney thus to proceed against the lesser offenders, while the chief offender snaps her fingers at the law, and dares its ministers to make her a martyr.... We write in no spirit of vindictiveness, nor even in one of antagonism toward Miss Anthony; but in the name of justice we are called upon to protest against the unseemly proceeding which persecutes those excellent young men and hesitates to attack this woman, who stands as a representative of what she regards a great reform, and in its advocacy shrinks not from any of the terrors the law may have in store for her. Mr. District Attorney, it is your duty to arrest Miss Anthony; to cross swords with an antagonist worthy of your steel. Your present action looks ignoble, and is unworthy of you or of the office you fill.More than a week elapsed before the arrival of President Grant's pardon papers, and during that time hundreds of the people of Rochester visited the "boys" in jail, and the best of dinners were furnished them daily by the fourteen women voters of the Eighth Ward.
VIRGINIA L. MINOR'S PETITION
in the circuit court of st. louis county, december term, 1872.
The plaintiff, Virginia L. Minor (with whom is joined her husband, Francis Minor, as required by the law of Missouri), states, that under the Constitution and law of Missouri, all persons wishing to vote at any election, must previously have been registered in the manner pointed out by law, this being a condition precedent to the exercise of the elective franchise.
That on the fifteenth day of October, 1872 (one of the days fixed by law for the registration of voters), and long prior thereto, she was a native-born, free white citizen of the United States, and of the State of Missouri, and on the day last mentioned she was over the age of twenty-one years.
That on said day, the plaintiff was a resident of the thirteenth election district of the city and county of St. Louis, in the State of Missouri, and had been so residing in said county and election district, for the entire period of twelve months and more, immediately preceding said fifteenth day of October, 1872, and for more than twenty years had been and is a tax-paying, law-abiding citizen of the county and State aforesaid.
That on said last mentioned day, the defendant, having been duly and legally appointed Registrar for said election district, and having accepted the said office of Registrar and entered upon the discharge of the duties thereof at the office of registration, to wit: No. 2004 Market Street, in said city and county of St. Louis, it became and was then and there his duty to register all citizens, resident in said district as aforesaid, entitled to the elective franchise, who might apply to him for that purpose.
The plaintiff further states, that wishing to exercise her privilege as a citizen of the United States, and vote for Electors for President and Vice-President of the United States, and for a Representative in Congress, and for other officers, at the General Election held in November, 1872: While said defendant was so acting as Registrar, on said 15th day of October, 1872, she appeared before him, at his office aforesaid, and then and there offered to take and subscribe the oath to support the Constitution of the United States and of the State of Missouri, as required by the registration law of said State, approved March 10, 1871, and respectfully applied to him to be registered as a lawful voter, which said defendant then and there refused to do.
The plaintiff further states, that the defendant, well knowing that she, as a citizen of the United States and of the State of Missouri, resident as aforesaid, was then and there entitled to all the privileges and immunities of citizenship, chief among which is the elective franchise, and as such, was entitled to be registered, in order to exercise said privilege: yet, unlawfully intending, contriving, and designing to deprive the plaintiff of said franchise or privilege, then and there knowingly, willfully, maliciously, and corruptly refused to place her name upon the list of registered voters, whereby she was deprived of her right to vote.
Defendant stated to plaintiff, that she was not entitled to be registered, or to vote, because she was not a "male" citizen, but a woman! That by the Constitution of Missouri, Art. II., Sec. 18, and by the aforesaid registration law of said State, approved March 10, 1871, it is provided and declared, that only "male citizens" of the United States, etc., are entitled or permitted to vote.
But the plaintiff protests against such decision, and she declares and maintains that said provisions of the Constitution and registration law of Missouri aforesaid, are in conflict with, and repugnant to the Constitution of the United States, which is paramount to State authority; and that they are especially in conflict with the following articles and clauses of said Constitution of the United States, to wit:
Art. I. Sec. 9.—Which declares that no Bill of Attainder shall be passed.
Art. I. Sec. 10.—No State shall pass any Bill of Attainder, or grant any title of nobility.
Art. IV. Sec. 2.—The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.
Art. IV. Sec. 4.—The United States shall guarantee to every State a republican form of government.
Art. VI.—This Constitution and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, anything in the Constitutions or laws of any State to the contrary notwithstanding. AMENDMENTS.
Art. V.—No person shall be. . . . deprived of life, liberty, or property without due process of law.
Art. IX.—The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.
Art. XIV. Sec. 1.—All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws.The plaintiff states, that by reason of the wrongful act of the defendant as aforesaid, she has been damaged in the sum of ten thousand dollars, for which she prays judgment.
| John M. Krum, | Att'ys for Plffs. | ||
| Francis Minor, | |||
| John B. Henderson, |
Demurrer. In the Circuit Court of St. Louis County: Virginia L. Minor and Francis Minor, her husband, Plaintiffs, vs. Reese Happersett.
The defendant, Reese Happersett, demurs to the petition of plaintiffs, and for cause of demurrer defendant states that said petition does not state facts sufficient to constitute a cause of action, for the following reasons:
1. Because said Virginia L. Minor, plaintiff, had no right to vote at the general election held in November, 1872, in said petition referred to.
2. Because said Virginia L. Minor had no right to be registered for voting by said defendant, at the time and iu the manner in said petition alleged.
3. Because it was the duty of the defendant to refuse to place said Virginia L. Minor's name upon the list of registered voters in said petition referred to.
All of which appears by said petition. Smith P. Galt,Atty for Deft.
The defense, in substance, being based upon the Constitution of Missouri, which provides (Art. IL. Sec. 18) that "every male citizen of the United States, etc, . . . . shall be entitled to vote"; and also upon the registration law of said State, approved March 10, 1871, which is as follows:
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section 1.—Every male citizen of the United States, and every person of foreign birth who may have declared his intention to become a citizen of the United States, according to law, not less than one year nor more than five years before he offers to vote, who is over the age of twenty-one years, who has resided in this State one year next preceding his registration as a voter, and during the last sixty days of that period shall have resided in the county, city, or town where he seeks registration as a voter, who is not convicted of bribery, perjury, or other infamous crime, nor directly or indirectly interested in any bet or wager depending upon the result of the election for which such registration is made, nor serving at the time of such registration in the regular army or navy of the United States, shall be entitled to vote at such elections for all officers, State, county, or municipal, made elective by the people, or any other election held in pursuance of the laws of this State; but he shall not vote elsewhere than in the election district where his name is registered, except as provided in the twenty-first section of the second article of the Constitution.
Sec. 2.—The several clerks of the County Courts in this State shall provide a suitable registration book for each election district in their several counties, which shall hava written or printed therein the following oath: "We the undersigned, do solemnly swear or affirm that we will support the Constitution of the United States and of the State of Missouri."
Sec. 3.—On or before the 9th day of March, 1871, the several County Courts in this State shall appoint some competent person to act as Registrar in each election district in their respective counties, who shall have the qualifications of an elector in his election district, and who shall hold his office until the general election in 1872, and until his successor is elected and qualified. Said Registrar shall have authority to administer all oaths which may be necessary in the registration of voters.
Sec. 4.—Any person having the qualification of a voter as prescribed in the first section of this act, and who shall take and subscribe the oath required of voters by the second section of this act, and who applies for registration at the time and in the manner prescribed by law, and any naturalized citizen who shall subscribe to a written statement, under oath, before the Registrar, that he is naturalized according to the laws of the United States and of this State, and has resided in this State, according to the first section of this act, and that his naturalization papers or evidence of his citizenship have been lost or destroyed, or that the same are not accessible to him, and shall state where he was naturalized, shall be accepted by the registering officer, and duly registered as a qualified voter.It is claimed, therefore, that the defendant was justified in refusing to register the plaintiff on account of her sex. The plaintiff, however, denies the validity of this clause of the Missouri Constitution, and the registration act based thereon, and contends that they are in violation of, and repugnant to, the Constitution of the United States, and particularly to those articles and clauses thereof which she has specified in her petition.
It is admitted, by the pleadings, that the plaintiff is a native-born, free white citizen of the United States and of the State of Missouri; that the defendant is a Registrar, qualified and acting as such; that the plaintiff, in proper time and in proper form made application to him to be registered, and that the defendant refused to register the plaintiff solely for the reason that she is a female (and that she possesses the qualifications of an elector, in all respects, except as to the matter of sex, as before stated).
The question is thus broadly presented of a conflict between the Constitution of the State of Missouri and that of the United States, as contemplated by the twenty-fifth section of the judiciary act of 1789, and the supplemental act of February 5, 1867.
Assignment of Errors.—And now comes Virginia L. Minor, the plaintiff in error in the above entitled cause, by her attorneys, John B. Henderson, John M. Krum, and Francis Minor, and says that in the records and proceedings in the above entitled cause, in said Supreme Court of the State of Missouri, there is manifest error in this, to wit:
1st. Because the said Supreme Court erred in affirming the judgment of the St. Louis Circuit Court—thereby, in effect, sustaining the demurrer filed in said Circuit Court by the defendant to the petition of the plaintiff.
2d. Because the said Supreme Court erred in its judgment affirming the judgment of the St. Louis Circuit Court—thereby, in effect, declaring that the plaintiff in error was not entitled to vote at the election mentioned in the record.
3. Because the said Supreme Court of Missouri erred in affirming the judgment of the St. Louis Circuit Court—thereby, in effect, declaring that the Constitution and laws of Missouri, before recited, do not conflict with the Constitution of the United States.
Statement.—This was an action, brought by the plaintiff, against the defendant, a registering officer, for refusing to register her as a lawful voter.
The defendant demurred to the petition, the defense, in substance, being based upon the Constitution of Missouri, which provides (Art 2, Sec. 18) that "every male citizen of the United States, etc., ... shall be entitled to vote";—and also upon the registration law of said State, approved March 10, 1871, to the same effect; and it was claimed, therefore, that the defendant was justified in refusing to register the plaintiff on account of her sex.
The plaintiff, however, denied the validity of this clause of the Missouri Constitution, and the registration act based thereon, and contended that they are in violation of, and repugnant to, the Constitution of the United States, and particularly to those articles and clauses thereof which she had specified in her petition.
It was admitted, by the pleadings, that the plaintiff was a native-born, free, white citizen of the United States, and of the State of Missouri; that the defendant was a Registrar, qualified and acting as such; that the plaintiff, in proper time, and in proper form, made application to him to be registered, and that the defendant refused to register the plaintiff solely for the reason that she was a female (and that she possessed the qualifications of an elector, in all respects, except as to the matter of sex, as before stated). The question was thus broadly presented of a conflict between the Constitution of the State of Missouri and that of the United States, as contemplated by the 25th section of the Judiciary act of 1789, and 5th February, 1867.Argument and Brief.—We think the chief difficulty in this case is one of fact rather than of law. The practice is against the plaintiff. The States, with one exception, which we shall notice hereafter more in detail, have uniformly claimed and exercised the right to act, as to the matter of suffrage, just as they pleased—to limit or extend it, as they saw proper. And this is the popular idea on the subject. Men accept it as a matter of fact, and take for granted it must be right. So in the days of African slavery, thousands believed it to be right—even a Divine institution. But this belief has passed away; and, in like manner, this doctrine of the right of the States to exercise unlimited and absolute control over the elective franchise of citizens of the United States, must and will give way to a truer and better understanding of the subject. The plaintiff's case is simply one of the means by which this end will ultimately be reached.
We claim, and presume it will not be disputed, that the elective franchise is a privilege of citizenship within the meaning of the Constitution of the United States. In order to get a clearer idea of the true meaning of this term citizenship, it may be well to recur for a moment to its first introduction and use in American law.
Before the colonists asserted their independence they were politically bound to the sovereign of Great Britain, by what is termed in English law, "allegiance"; and those from whom this allegiance was due were termed "subjects." But when these "bands," as they are termed in the Declaration of Independence, were dissolved, the political relation became changed, and we no longer hear in the United States the term "subject" and "allegiance," except the latter, which is used to express the paramount duty of our citizens to our own government. The term citizen was substituted for that of "subject." But this was not a mere change of name; the men who framed the Constitution of the United States had all been "subjects" of the English king, and they well knew the radical change wrought by the revolution.
In the new political sovereignty thus created, the feudal idea of dependence gave way to that of independence, and the people became their own sovereigns or rulers in the government of their own creation. Of this body politic, represented by the Constitution of the United States, all persons born or naturalized therein and subject to the jurisdiction thereof, are members; without distinction as to political rights or privileges, except that the head or chief of the new government must be native-born—and this exception the more strongly proves the rule. It is to this Constitution, therefore, we must look for the limitations, if any, that may be placed upon the political rights of the people or citizens of the United States. A limitation not found there, or authorized by that instrument, can not be legally exercised by any lesser or inferior jurisdiction.
But the subject of suffrage (or the qualifications of electors, as the Constitution terms it) is simply remitted to the States by the Constitution, to be regulated by them; not to limit or restrict the right of suffrage, but to carry the same fully into effect. It is impossible to believe that anything more than this was intended. In the first place, it would be inconsistent and at variance with the idea of the supremacy of the Federal government; and, next, if the absolute, ultimate, and unconditional control of the matter had been intended to be given to the States, it would have been so expressed. It would not have been left to doubt or implication. In so important a matter as suffrage, the chief of all political rights or privileges, by which, indeed, life, liberty, and all others are guarded and maintained, and without which they would be held completely at the mercy of others; we repeat, it is impossible to conceive that this was intended to be left wholly and entirely at the discretion of the States.
A right so important must not be the subject of implication.[14] Some positive warrant or authority must be shown for it, and in the case at bar we challenge its production. There is another view of the subject that is important to be considered. There can be no division of citizenship, either of its rights or its duties. There can be no half-way citizenship. Woman, as a citizen of the United States, is entitled to all the benefits of that position, and liable to all its obligations, or to none. Only citizens are permitted to pre-empt land, obtain passports, etc., all of which woman can do; and, on the other hand, she is taxed (without her "consent") in further recognition of her citizenship; and yet, as to this chief privilege of all, she is forbidden to exercise it. We call upon the State to show its warrant for so doing—for inflicting upon the plaintiff and the class to which she belongs, the bar of perpetual disfranchisement, where no crime or offense is alleged or pretended, and without "due process of law."
We charge it as a "bill of attainder" of the most odious and oppressive character. The State can no more deprive a citizen of the United States of one privilege than of another, except by the "law of the land." There is no security for freedom if this be denied. To use the language of Mr. Madison, such a course "violates the vital principle of free government, that those who are to be bound by laws, ought to have a voice in making them." (Madison Papers, vol. 3—appendix, p. 12.)
It is sometimes said this is one of the "reserved rights" of the States. But this can not be, for the simple reason that, as to the "privileges and immunities" of federal citizenship, they had no existence prior to the adoption of the Federal Constitution; how then could they be reserved?
As Mr. Justice Story says: "The States can exercise no powers whatsoever, which exclusively spring out of the existence of the National Government, which the Constitution does not delegate to them.... No State can say that it has reserved what it never possessed." (Commentaries, §§ 624-627.)
We say, then, that the States may regulate, but they have no right to prohibit the franchise to citizens of the United States. They may prescribe the qualifications of the electors. They may require that they shall be of a certain age, be of sane mind, be free from crime, etc., because these are conditions for the good of the whole, and to which all citizens, sooner or later, may attain. But to single out a class of citizens and say to them, "Notwithstanding you possess all these qualifications, you shall never vote, or take part in your government," what is it but a bill of attainder?
To show that the mere regulation of this matter of suffrage was left to the States for the purpose we have indicated, and not to their absolute and ultimate control, we will now quote the language of one of the framers of the Constitution, to whom, indeed, has been applied the epithet of "Father of the Constitution"—James Madison; and this, too, in reply to questions by Mr. Monroe, who sought an explanation on these very points. We quote from the debates in the Virginia convention upon the adoption of the Federal Constitution:
Mr. Madison: Mr. Chairman, the reason of the exception was, that if Congress could fix the place of choosing the Senators, it might compel the State Legislatures to elect them in a different place from that of their usual sessions, which would produce some inconvenience, and was not necessary for the object of regulating the elections. But it was necessary to give the General Government a control over the time and manner of choosing the Senators, to prevent its own dissolution.
With respect to the other point, it was thought that the regulation of time, place, and manner of electing the Representatives should be uniform throughout the continent. Some States might regulate the elections on the principles of equality, and others might regulate them otherwise. This diversity would be obviously unjust. Elections are regulated now unequally in some States, particularly South Carolina, with respect to Charleston, which is represented by thirty members.
Should the people of any State by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the General Government.
It was found impossible to fix the time, place, and manner of the election of Representatives in the Constitution. It was found necessary to leave the regulation of these, in the first place, to the State Government, as being best acquainted with the situation of the people, subject to the control of the General Government, in order to enable it to produce uniformity, and prevent its own dissolution. And, considering the State Governments and General Government as distinct bodies, acting in different and independent capacities for the people, it was thought the particular regulations should be submitted to the former and the general regulations to the latter. Were they exclusively under the control of the State Governments, the General Government might easily be dissolved. But if they be regulated properly by the State Legislature, the Congressional control will very properly never be exercised. The power appears to me satisfactory, and as unlikely to be abused as any part of the Constitution. (Elliot's Debates, vol. 2, pages 276-7.)It seems to us that nothing can be clearer or plainer than this, coming to us, as it does, with all the weight and authority of Mr. Madison himself. But it may be asked: If this be so, why was not the question sooner raised? We answer, at that very time, and for nearly twenty years afterward, women did vote, unquestioned and undisputed, in one of the States (New Jersey). The men who framed the Constitution were then living—some of them in this very State; yet we hear no mention of its being unconstitutional, no objection made to it whatever.
It is true that subsequently this provision was omitted (about 1807) in the revisal of the State Constitution (as we think, very unjustly), but the fact remains of the unquestioned exercise of this privilege by women at the very time the Federal Constitution was adopted, and for years afterward. This fact is worth a thousand theories. Again, we think that one of the causes of the popular error on this subject arises from forgetting or overlooking the dual nature of our citizenship.
We are citizens of a State, as well as of the United States. This is alluded to in several of the early cases, and its importance is clearly pointed out. We quote, first, from Talbut vs. Jansen, 3 Dallas, Sup. Ct. Rep., 153 (1795), in which Mr. Justice Patterson says: "The act of the Legislature of Virginia does not apply. Ballard was a citizen of Virginia, and also of the United States. If the Legislature of Virginia pass an act specifying the causes of expatriation and prescribing the manner in which it is to be effected by the citizens of that State, what can be its operation on the citizens of the United States?"
If the act of Virginia affects Ballard's citizenship so far as respects that State, can it touch his citizenship so far as regards the United States? Allegiance to a particular State is one thing; allegiance to the United States is another. Will it be said that the renunciation of allegiance to the former implies or draws after it a renunciation of allegiance to the latter? The sovereignties are different; the allegiance is different; the right, too, may be different. Our situation being new, unavoidably creates new and intricate questions. We have sovereignties moving within a sovereignty.
Judge Cabell, also of the Supreme Court of Appeals of Virginia, alludes to it briefly in the case of Murray vs. McCarty, 2 Munford, 398. He says: "But although the Constitution of the United States has wisely given to the citizens of each State the privileges of a citizen of any other State, yet it clearly recognizes the distinction between the character of a citizen of the United States and a citizen of any individual State, and also of citizens of different States," etc. Or, if a still further and later authority be desired, we have it in the language of Chief-Justice Taney, who says, in the Dred Scott case:
Now, substitute in the above, for "persons of the African race," women, who are "citizens of the State and of the United States," and you have the key to the whole position. We will now consider the clauses of the Constitution before recited, somewhat in detail:
As to "bills of attainder," "due process of law," etc. "No State shall pass any bill of attainder," etc. A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the text-book, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise, and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense. These bills are generally directed against the individuals by name, but they may be directed against a whole class.
The theory upon which our political institutions rest, is, that all men have certain inalienable rights—that among these are life, liberty, and the pursuit of happiness; and that, in the pursuit of happiness, all avocations, all honors, all positions are alike open to every one, and that, in the protection of these rights, all are equal before the law. Any deprivation or suspension of any of these rights, for past conduct, is punishment, and can be in no otherwise defined.
Punishment not being therefore restricted, as contended by counsel, to the deprivation of life, liberty, or property, but also embracing deprivation or suspension of political or civil rights, and the disabilities prescribed by the provisions of the Missouri Constitution being in effect punishment, we proceed to consider whether there is any inhibition in the Constitution of the United States against their enforcement.—(Cummings vs. The State of Missouri, 4 Wallace, 351-323, and ex parte Garland—same volume.)
We are aware that the Supreme Court of Missouri, in the case of Blair vs. Ridgley, hold a different view, but we submit that the cases differ in a most material point, to wit: In the Blair case he was merely required to take the oath taken by all voters; and, by refusing to do so, he virtually disfranchised himself. In this case, however, the disfranchisement of the plaintiff is arbitrary and insurmountable; and we further submit, that the arguments in this case present it in a different, and, we think, a broader view than was taken in the Blair case. But to show that we are not unsupported by authority in this matter, we will now quote from a New York case, very similar to the Blair case, where the elector was required, but refused to take the oath, etc.
I think that the oath in question was unconstitutional and invalid, for the reasons which I will proceed to state. The first subdivision of the tenth section of the first article of the Constitution of the United States provides, that "no State shall pass any bill of attainder, ex post facto law, or laws impairing the obligations of contracts, or grant any title of nobility." The provision of the act which is to be considered declares, that no person shall vote at the election for delegates to said convention who will not, if duly challenged, take and subscribe an oath that he has not done certain acts mentioned therein, and inflicts the penalty of political disfranchisement without any preliminary examination or trial, for a refusal to take said oath.
By this enactment the citizen is deprived, upon declining to conform to its mandate, of a right guaranteed to him by the Constitution and laws of the land, and one of the most inestimable and invaluable privileges of a free government. There can be no doubt, I think, that to deprive a citizen of the privileges of exercising the elective franchise, for any conduct of which he has previously been guilty, is to inflict a punishment for the act done.
It imposes upon him a severe penalty, which interferes with his privileges as a citizen, affects his respectability and standing in the community, degrades him in the estimation of his fellow-men, and reduces him below the level of those who constitute the great body of the people of which the Government is composed. It moreover inflicts a penalty which, by the laws of this State, is a part of the punishment inflicted for a felony, and which follows conviction for such a crime. It is one of the peculiar characteristics of our free institutions, that every citizen is permitted to enjoy certain rights and privileges, which place him upon an equality with his neighbors. Any law which takes away or abridges these rights, or suspends their exercise, is not only an infringement upon their enjoyment, but an actual punishment. That such is the practical effect of the test oath required by the act in question, can admit of no doubt, in my judgment. It arbitrarily and summarily, and without any of the forms of law, punishes for an offense created by the law itself. In the formation of our National Constitution, its framers designed to prevent and guard against the exercise of the power of the Legislature, by usurping judicial functions, and for the punishment of alleged offenses in advance of trial, for offenses unknown to the law, and by bill of attainder and ex post facto enactments, etc.—(Green vs. Shumway, 36 Howard's Practice Rep., pp. 7, 8.)On the same subject, we will next quote from a decision by the Supreme Court of Nevada:
We quote next from a Tennessee case:
The rules of law which guard against deprivation or injury, the rights of persons in corporeal properties, are alike and equally applicable to the elective franchise, and alike and equally guard persons invested with it against deprivation of or injury to it. Persons invested with it can not be deprived of it otherwise than by "due process of law." See
The State vs. Staten, 6 Caldwell's Rep., p. 243. See also Rison vs. Farr, 25 Ark. Rep., p. 173; Winehamer vs. People, 13 N. Y., 378; State vs. Symonds, 57 Maine, 150, 511; Huber vs. Riley, 53 Penn., 112; Cooley's Constitutional Limitations.
We conclude this list of references with Mr. Webster's celebrated definition in the Dartmouth College case (4 Wheaton, 581):
That the elective franchise is a privilege of citizenship, we have the authority of Judge Washington, for he says:
What are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What those fundamental principles are, it would perhaps be more tedious than difficult to enumerate.
They may, however, be all comprehended under the following general heads: Protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may justly prescribe for the general good of the whole; the right of a citizen of one State to pass through, or to reside in any other State for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of every kind in the courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or imposition than are paid by the citizens of the other State, may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added, the elective franchise, as regulated and established by the laws or Constitution of the State in which it is to be exercised (Corfield vs. Corryell, 4 Wash. C.C., 380). Cited and approved in Dunham vs. Lamphere, 3 Gray, 276 (Mass.); Bennett vs. Boggs, Baldwin Rep., 72.A proper construction of Art. 1, Sec. 2, of the Constitution of the United States will further demonstrate the proposition we are endeavoring to uphold. That section is as follows:
Article 1, Section 2. 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 for electors of the most numerous branch of the State Legislature.
This section consists of two clauses, but in neither is there a word as to the sex of the elector. He, or she, must be one of the people, or "citizens," as they are designated in the Constitution, that is all.—(Story's Comms. § 579.)
The "people" are to elect. This clause fixes the class of voters; the other clause is in subordination to that, and merely provides, that as touching qualifications, there shall be one and the same standard for the Federal and for the State elector. Both are mentioned and neither is or can be excluded by the other.
The right to vote is very different from the qualification necessary in a voter. A person may have the right to vote, and yet not possess the necessary qualifications for exercising it. In this case, the right to vote is derived from the Federal Constitution, which designates the class of persons who may exercise it, and provides that the Federal elector shall conform to the regulations of the State, so far as time, place, and manner of exercising it are concerned. But it is clear that under this authority the State has no right to lay down an arbitrary and impossible rule. As before stated by the Chief-Justice of Nevada: "To make the enjoyment of a right depend upon an impossible condition, is equivalent to an absolute denial of it under any condition."
In conclusion, we will consider, as briefly as possible, the points made by the Supreme Court of Missouri. We quote from the opinion:
The question presented then is, whether there is a conflict between the Constitution of the United States and the Constitution and laws of the State of Missouri on this subject. That the different States of the Union had a right, previous to the adoption of what is known as the XIV. Amendment to the Constitution of the United States, to limit the right to vote at election by their constitutions and laws to the male sex, I think can not at this day be questioned.
Undoubtedly the practice in the different States, as we have before said, is against the claim made by the plaintiff, although, as we shall show, in the early days of the Republic this practice was by no means universal. But when the Court states that the right of the States to do this can not be questioned, it assumes the very point in controversy, and it fails to notice the distinction between "the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union." (Chief-Justice Taney in Scott vs. Sandford, 19 Howard, 405.)
"The difference," says Judge Cooley (Story on Constitution, section 1937), "is in a high degree important." And while it may be true that the voter himself rarely, if ever, thinks of any difference between his vote for State and for Federal officers, yet, in law, there is a wide distinction.
In the one case he exercises the franchise under one jurisdiction or sovereignty, and in the other under a totally different one. In voting for Federal officers he exercises the freeman's right to take part in the government of his own creation, and he does this in contemplation of law, in his character or capacity of a citizen of the United States, and his right so to vote legally depends upon such status or character. Clearly, then, the right of a citizen of the United States to vote for Federal officers can only be exercised under the authority or sovereignty of the United States, not under some other authority or sovereignty, and consequently the citizen of the United States could not justly have been deprived of such right by the State, even before the adoption of the XIV. Amendment. But whatever doubt there may have been as to this, we hold that the adoption of the XIV. Amendment put an end to it and placed the matter beyond controversy. The history of that Amendment shows that it was designed as a limitation on the powers of the States, in many important particulars, and its language is clear and unmistakable. "No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States." Of course all the citizens of the United States are by this protected in the enjoyment of their privileges and immunities. Among the privileges, that of voting is the highest and greatest. To an American citizen there can be none greater or more highly to be prized; and the preservation of this privilege to the citizens of the United States respectively is, by this Amendment, placed under the immediate supervision and care of the Government of the United States, who are thus charged with its fulfillment and guaranty.
By ratifying this Amendment the several States have relinquished and quit-claimed, so to speak, to the United States, all claim or right, on their part, to "make or enforce any law which shall abridge the privileges and immunities of citizens of the United States." The State of Missouri, therefore, is estopped from longer claiming this right to limit the franchise to "males," as a State prerogative; and the Supreme Court of Missouri should have so declared, and its failure to do so is error; because, by retaining that word in the State Constitution and laws, not this plaintiff only, but large numbers of other citizens of the United States are "abridged" in the exercise of their "privileges and immunities as citizens of the United States," by being deprived of their right or privilege to vote for United States officers, as claimed by the plaintiff in her petition. Not only this, but we say further, that the ratification of this amendment was, in intendment of law, a solemn agreement, on the part of the States, that all existing legislation inconsistent therewith should be repealed, or considered as repealed, and that none of like character should take place in the future. The State of Missouri has acted upon this idea in part, and its subsequent legislation, on the subject of the ballot, has been as follows: The ratification of the XV. Amendment (which we do not consider as having any direct bearing on the point now being considered, inasmuch as this Amendment is merely prohibitory—not conferring any right, but treating the ballot in the hands of the negro as an existing fact, and forbidding his deprivation thereof). Next, amending the State Constitution and registration law, by simply omitting the word "white" from the clause "white male citizens."
This constitutes the entire legislation of the State of Missouri on this subject since the adoption of the XIV. Amendment, and this omission of the word "white" was designed to make the State Constitution conform to the Amendment, so far as the negro was concerned, leaving the women citizens of the United States still under the ban of "involuntary servitude," in plain violation of the Amendment.
So that, while the negro votes to-day in Missouri, there is not a syllable of affirmative legislation by the State conferring the right upon him. Whence, then, does he derive it? There is but one reply. The XIV. Amendment conferred upon the negro race in this country citizenship of the United States, and the ballot followed as an incident to that condition. Or, to use the more forcible language of this Court, in the Slaughter-house cases (16 Wall., 71), "the negro having, by the XIV. Amendment, been declared a citizen of the United States, is thus made a voter in every State of the Union." If this be true of the negro citizen of the United States, it is equally true of the woman citizen. And we invoke the interposition of of this Court to effect, by its decree, that which the Supreme Court of Missouri should have done, and declare that this objectionable word must be omitted, or considered as omitted from the Constitution and registration law of said State.
It can not be pretended that the Constitution of the United States makes, or permits to be made, any distinction between its citizens in their rights and privileges; that the negro has a right which is denied to the woman. The discrimination, therefore, made and continued by the State of Missouri, of which we complain, is an unjustifiable act of arbitrary power, not of right, and can be designated by no other term. We proceed with our quotation from the opinion:
In this changed state of affairs, it was thought by those who originated and adopted this Amendment, that it was absolutely necessary that these emancipated people should have the elective franchise, in order to enable them to protect themselves against unfriendly legislation, in which they could take no part; that unless these people had the right to vote, and thus protect themselves against oppression, their freedom from slavery would be a mockery, and their condition but little improved. It was to remedy this that the XIV. Amendment to the Constitution was adopted. It was to compel the former slave States to give these freedmen the right of suffrage, and to give them all of the rights of other citizens of the respective States, and thus make them equal with other citizens before the law.
It would be impossible for us to give any better reason for woman's need of the ballot than the court has here given for that of the negro, except that woman's condition is even more helpless than his—"unless these people had the right to vote, and thus protect themselves against oppression, their freedom from slavery would be a mockery." How an American judge, with the claim of an American citizen before him, for the protection, which, as he truly says, this ballot alone can give, could see its lawfulness and justice in the one case, and not in the other, passes our comprehension.
We again quote from the opinion: It was only intended to give the freedmen the same rights that were secured to all other classes of citizens in the State, and that if the other male inhabitants of the State over the age of twenty-one years enjoyed the right of suffrage, so should the males among the freedmen over the age of twenty-one years enjoy the same right; it was not intended that females, or persons under the age of twenty-one years, should have the right of suffrage conferred on them.
In reply to this, we might content ourselves with saying that it is mere assertion, and can hardly be dignified as argument; but we answer, that if the XIV. Amendment does not secure the ballot to woman, neither does it to the negro; for it does not in terms confer the ballot upon any one. As we have already shown, it is the altered condition of citizenship that secures to the negro this right; but this plaintiff might well reply, I was born to that condition, and yet am denied its privileges.
We quote again, and finally, from the opinion:
This is not only shown by the history of the times when the Amendment was adopted, and the circumstances which produced it, but by reference to the second section of said Amendment, it will be seen that the right to restrict the right of suffrage to the male inhabitants by a State is clearly recognized. If "the right to vote, etc., is denied to any of the male inhabitants of such State, being twenty-one years of age," etc., is the language used. This clearly recognizes the right, and seems to anticipate the exercise of the right on the part of the States, to restrict the right of suffrage to the male inhabitants.
We doubt if an instance can be found of a more complete misconception of the meaning and intention of the law. So far from its being a recognition of the right of the States to restrict the right to suffrage of males, it has an exactly opposite meaning. It was intended as a punishment on the States if they did this thing. It is no more a justification or authorization of the act than is the law punishing larceny an authority for stealing! Its object was to punish the States as such, which, but for this provision, could not have been done by diminishing their representation accordingly; and it was designed as a still further security for the rights of the colored population. But, even if it could be held to recognize a right on the part of the State to disfranchise any one, it would only extend to "males," not to females. They, as "citizens of the United States," are embraced in, and protected by, the broad language of the Amendment; a right that is fundamental, can not be taken away by implication. But more than this, the XIV. Amendment was an addition to the organic law of a great nation, intended to enlarge the area of human freedom, and secure more firmly individual rights. It is absurd to impute to the law-makers a design at the same time to restrict those rights. Although the point is not alluded to by the Supreme Court of Missouri, yet, as we desire to meet every possible objection, we think this a proper place to notice an argument sometimes put forward, based upon the XV. Amendment. It is of the nature of what is termed in law a negative pregnant, or, the familiar maxim of "the expression of one thing is the exclusion of another." As this Amendment says, that 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, it is claimed by some that it may be abridged on other grounds. But, aside from the well-known history of this Amendment, as shown by the debates in Congress, of which this court will take notice when necessary, and which show that the sole object and purpose of this Amendment was to still further protect the negro race, the IX. Amendment to the Constitution effectually puts an end to the application of this principle by declaring that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. And Mr. Justice Story, in his Commentary says, § 1905:
This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmative in particular cases implies a negative in all others; and, e converso, that a negative in particular cases implies an affirmative in all others. The maxim, rightly understood, is perfectly sound and safe; but it has often been forced from its natural meaning into the support of the most dangerous political heresies. The Amendment was undoubtedly suggested by the reasoning of the Federalist on the subject of a general bill of rights and trial by jury. Federalist No. 83-84.
We ask the court to consider what it is to be disfranchised; not this plaintiff only, but an entire class of people, utterly deprived of all voice in the government under which they live! We say it is to her, and to them, a Despotism, and not a Republic. What matters it that the tyranny be of many instead of one? Society shudders at the thought of putting a fraudulent ballot into the ballot-box! What is the difference between putting a fraudulent ballot in, and keeping a lawful ballot out? Her disfranchised condition is a badge of servitude. [Mr. Justice Bradley in the Grant parish case.] Take one illustration, evidenced by a recent decision of the Supreme Court of Missouri, in Clark vs. The National Bank of the State of Missouri, 47 Mo. Rep., 1. We use our own words, but we state it correctly; that a married woman can not, by the law of Missouri, own a dollar's worth of personal property, except by the consent of another! it makes no difference that that other is her husband. This, it is true, is a State law, a matter exclusively of State legislation; but we mention it to show how utterly helpless and powerless her condition is without the ballot.
Either we must give up the principles announced in the Declaration of Independence, that governments derive their just powers from the consent of the governed; and are formed by the people to protect their rights, not to withhold them; or we must acknowledge the truth contended for by the plaintiff, that citizenship carries with it every incident to every citizen alike. It can not be disputed, that upon this principle of absolute political equality, our Government is founded. So thought the Hon. Luther Martin, of Maryland, one of the most distinguished lawyers of his day, and a member of the convention that framed our Constitution. We quote his own words. (Elliott's Debates, Vol. 4.)
These are the words, not lightly uttered, nor to be by us lightly considered, of one of the framers of the Constitution; and in complete accord with this principle of entire equality of individual right, see how those men who had fought through the War of Independence did their work. Upon what broad and comprehensive foundations it is laid. Examine the Constitution, the work of their hands. Do we find any recognition of inequality of rights? Not a syllable. On the contrary, every safeguard is thrown around them; "no State shall pass any bill of attainder," or "grant any title of nobility." So, too, when it comes to the practical recognition of these rights at the ballot-box, all are included. "The House of Representatives shall be composed of members chosen every second year by the people of the several States," not by a part—not by the "males"—but simply by "the people of the several States." The same "people" who ordain and establish that Constitution as the supreme law of the land, they are to do the voting, they are to elect. There is not one word as to sex. The elector, male or female, must be one of the people or citizens, that is all. But when these electors come to exercise this right or privilege, then the matter of qualification arises, the age of the elector, the time, place, and manner of the exercise of the right, are to be considered, and the convention, instead of laying down a uniform rule or standard for all the States, which would have produced change and confusion, thought it best to leave this feature of it as it already stood in the several States. But the right itself is secured to the people of the United States, and in its very nature can not be derived from any other authority.
We deem it proper, in this connection, to refer to the well-known fact that women voted in one of the States (New Jersey) down to the year 1807, when they were unjustly deprived of the right, by an act of the Legislature of that State. We say unjustly, because no Legislature can deprive a citizen of a constitutional right, and the matter has slumbered ever since. The Constitution of New Jersey, adopted in 1776, used the term "inhabitants" in describing electors, and under this Constitution women were recognized as voters, as well as men. In conformity with this constitutional provision the statute law was so worded as to read "he or she," in speaking of electors thus affording a contemporaneous and legislative attestation of the truth of our statement. This law of 1776 could not, of course, be the source of authority to any one for voting under a sovereignty not then in existence, not created until 1789, thirteen years afterward. Therefore, when the elector, male or female, in New Jersey, voted for Federal officers in 1789, it was done by virtue of his or her status of citizenship, under the new and paramount sovereignty, and not under the law of 1776; and so it has continued ever since, the elector voting for United States officers by virtue of his citizenship of the United States, and for State officers as a citizen of the State. We believe, then, we are justified in the statement that white women in New Jersey voted, under State authority, for the members of the Constitutional Convention of 1787. That they next voted, under like authority, for the ratification of the newly framed Constitution of the United States; and then, that Constitution having been adopted, as newly-created citizens of the newly-created sovereignty, the white women of New Jersey voted at the five succeeding Presidential elections—for Washington, for Adams, and for Jefferson. The contest in 1800 was bitter beyond all precedent, and we are told that all the women of the State entitled to vote did so. We refer to the Constitution and laws of New Jersey; to a work entitled The Historical Magazine, published in Boston in 1857, Vol. I., p. 361; to the National Intelligencer, Washington, October 3, 1857; to Notes and Queries, Vol. VIII., p. 171, August, 1853.
But apart from these considerations, which we deem amply sufficient to sustain our position, an examination into the nature and character of the right itself will further show that it is one of which the citizen can not justly be deprived, save for cause.
The first amendment to the Constitution declares that Congress shall make no law abridging freedom of speech or of the press, thus incorporating into the organic law of this country absolute freedom of thought or opinion. We presume it will not be doubted that the States are equally bound with Congress by this prohibition, not only because, as Chief-Justice Taney says, "the Constitution of the United States, and every article and clause in it, is a part of the law of every State in the Union, and is the paramount law" (Prigg vs. The Comm., 16 Peters R., 628), but because, in the very nature of things, freedom of speech or of thought can not be divided. It is a personal attribute, and once secured is forever secured. To vote is but one form or method of expressing this freedom of speech. Speech is a declaration of thought. A vote is the expression of the will, preference, or choice. Suffrage is one definition of the word, while the verb is defined, to choose by suffrage, to elect, to express or signify the mind, will, or preference, either viva voce, or by ballot. We claim then that the right to vote, or express one's wish at the polls, is embraced in the spirit, if not the letter, of the First Amendment, and every citizen is entitled to the protection it affords. It is the merest mockery to say to this plaintiff, you may write, print, publish, or speak your thoughts upon every occasion, except at the polls. There your lips shall be sealed. It is impossible that this can be American law!
Again, it is the opinion of some that suffrage is somehow lodged in the government, whence it is dispensed, or conferred upon the citizen, thus completely reversing the actual fact. Suffrage is never conferred by government upon the citizen. He holds it by a higher title. In this country government is the source of power, not of rights. These are vested in the individual—are personal and inalienable. Society can only acquire the authority to regulate these rights, or declare them forfeited, for cause. The time, place, and manner of their exercise are under governmental control, but their origin and source are in the individual himself.
I shall, therefore, says a writer on government, assume it as an incontrovertible position, as a first principle, that the right of private opinion, which is, in fact, no other than the right of private judgment upon any subject presented to the mind, is a sacred right, with which society can, on no pretense, authoritatively interfere, without a violation of the first principles of the law of nature. (Chipman on Government, chap. 5.)
Other liberties, says Erskine, are held under governments, but the liberty of opinion keeps governments themselves in due subjection to their duties. (Speech in defense of Thomas Paine.)
But this clause of the Missouri law further violates the XIII. Amendment, which declares that neither slavery nor involuntary servitude shall exist in the United States, except for crime, etc. This Amendment is a copy of the 6th clause of the famous Ordinance of 1787, which secured freedom for the Northwest Territory, and has now become the organic law for the entire Union. This Ordinance was drawn by the Hon. Nathan Dane, of Massachusetts.[15]
We say that this Missouri law violates this Amendment inasmuch as it places the plaintiff in a disfranchised condition, which is none other than a condition of servitude—of "involuntary servitude," because, although a citizen in the fullest acceptation of the term—a member of this body politic —one of the "people"—she has never consented to this law; has never been permitted to express either consent or dissent, nor given any opportunity to express her opinion thereon, in the manner pointed out by law, while at the same time she is taxed, and her property taken to pay the very men who sat in judgment upon and condemned her!
Finally—Such is the nature of this privilege—so individual—so purely personal is its character, that its indefinite extension detracts not in the slightest degree from those who already enjoy it, and by an affirmation of the plaintiff's claim all womanhood would be elevated into that condition of self-respect that perfect freedom alone can give.
RESUME—{Minor vs. Happersett, 21 Wallace Rep., p. 164.)
1st. As a citizen of the United States, the plaintiff is entitled to any and all the "privileges and immunities" that belong to such position however defined; and as are held, exercised, and enjoyed by other citizens of the United States.
2d. The elective franchise is a "privilege" of citizenship, in the highest sense of the word. It is the privilege preservative of all rights and privieges; and especially of the right of the citizen to participate in his or her government.
3d. The denial or abridgment of this privilege, if it exist at all, must be sought only in the fundamental charter of government—the Constitution of the United States. If not found there, no inferior power or jurisdiction can legally claim the right to exercise it.
4th. But the Constitution of the United States, so far from recognizing or permitting any denial or abridgment of the privileges of its citizens, expressly declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
5th. It follows that the provisions of the Missouri Constitution and registry law before recited, are in conflict with and must yield to the paramount authority of the Constitution of the United States,
A few words more and we have done. The plaintiff has sought, by this action, for the establishment of a great principle of fundamental right, applicable not only to herself, but to the class to which she belongs; for the principles here laid down (as in the Dred Scott case) extend far beyond the limits of the particular suit, and embrace the rights of millions of others, who are thus represented through her. She has a right, therefore, to be heard for her cause; and in making this plea, she seeks only to give expression to those principles upon which, as upon a rock, our Government is founded.
It is impossible that that can be a Republican government in which one half the citizens thereof are forever disfranchised. A citizen disfranchised is a citizen attainted; and this, too, in face of the fact, that you look in vain in the great charter of government, the Constitution of the United States, for any warrant or authority for such discrimination. To that instrument she appeals for protection.
Supreme Court of the United States. No. 182.—October Term, 1874. Virginia L. Minor and Francis Minor, her husband, Plaintiffs in Error, vs. Reese Happersett. In error to the Supreme Court of the State of Missouri.
Mr. Chief Justice Waite delivered the opinion of the court. (March 29, 1875.)
The question is presented in this case, whether, since the adoption of the XIV. Amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the Constitution and laws of the State, which confine the right of suffrage to men alone. We might perhaps decide the case upon other grounds, but this question is fairly made. From the opinion, we find that it was the only one decided in the court below, and it is the only one which has been argued here. The case was undoubtedly brought to this court for the sole purpose of having that question decided by us, and, in view of the evident propriety there is of having it settled, so far as it can be by such a decision, we have concluded to waive all other considerations and proceed at once to its determination.
It is contended that the provisions of the Constitution and laws of the State of Missouri, which confine the right of suffrage and registration therefor to men, are in violation of the Constitution of the United States, and therefore void. The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State can not by its laws or constitution abridge.
There is no doubt that women may be citizens. They are persons, and, by the XIV. Amendment, "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are expressly declared to be "citizens of the United States and of the State wherein they reside" But, in our opinion, it did not need this Amendment to give them that position. Before its adoption, the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There can not be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance, and is entitled to its protection. Allegiance and protection are in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance. For convenience, it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words "subject," "inhabitant," and "citizen" have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterward adopted in the articles of confederation and in the Constitution of the United States. When used in this sense, it is understood as conveying the idea of membership of a nation, and nothing more.
To determine, then, who were citizens of the United States before the adoption of the Amendment, it is necessary to ascertain what persons originally associated themselves together to form the nation, and what were afterward admitted to membership. Looking at the Constitution itself, we find that it was ordained and established by "the people of the United States" (Preamble, 1 Stat., 10), and then, going further back, we find that these were the people of the several States that had before dissolved the political bands which connected them with Great Britain and assumed a separate and equal station among the powers of the earth (Dec. of Ind., 1 Stat., 1), and that had by articles of confederation and perpetual union, in which they took the name of "the United States of America," entered into a firm league of friendship with each other for their common defense, the security of their liberties and their mutual and general welfare, binding themselves to assist each other against all force offered to or attack made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever (Art. Confed., sec. 3, 1 Stat. 4).
Whoever then was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen—a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.
Additions might always be made to the citizenship of the United States in two ways—first by birth and second by naturalization. This is apparent from the Constitution itself, for it provides (Art. 2, Sec. 1) that "no person except a natural born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President," and (Art. 1, Sec. 8) that Congress shall have power "to establish a uniform rule of naturalization." Thus, new citizens may be born or they may be created by naturalization.
The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves upon their birth citizens also. These were natives, or natural-born citizens as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider, that all children born of citizen parents within the jurisdiction are themselves citizens. The words "all children" are certainly as comprehensive when used in this connection as "all persons," and if females are included in the last, they must be in the first. That they are included in the last is not denied. In fact, the whole argument of the plaintiffs proceeds upon that idea.
Under the power to adopt a uniform system of naturalization, Congress as early as 1790 provided "that any alien, being a free white person," might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States, and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens (1 Stat. 103). These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since. In 1855, however, the last provision was somewhat extended, and all persons theretofore born or thereafter to be born out of the limits of the jurisdiction of the United States, whose fathers were, or should be at the time of their birth, citizens of the United States, were declared to be citizens also (10 Stat. 604). As early as 1804 it was enacted by Congress that when any alien, who had declared his intention to become a citizen in the manner provided by law, died before he was actually naturalized, his widow and children should be considered as citizens of the United States, and entitled to all rights and privileges as such upon taking the necessary oath (2 Stat., 293); and in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws, married, or who should be married to a citizen of the United States, should be deemed and taken to be a citizen (10 Stat., 604). From this it is apparent, that, from the commencement of the legislation upon this subject, alien women and alien minors could be made citizens by naturalization; and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizens by birth.
But if more is necessary to show that women have always been considered as citizens the same as men, abundant proof is to be found in the legislative and judicial history of the country. Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held, that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist, the case must be dismissed. Notwithstanding this, the records of the courts are full of cases in which the jurisdiction depends upon the citizenship of women, and not one can be found, we think, in which objection was made on that account. Certainly none can be found in which it has been held that women could not sue or be sued in the courts of the United States. Again, at the time of the adoption of the Constitution, in many of the States (and in some probably now) aliens could not inherit or transmit inheritance. There are a multitude of cases to be found in which the question has been presented whether a woman was or was not an alien, and as such capable or incapable of inheritance, but in no one has it been insisted that she was not a citizen because she was a woman. On the contrary, her right to citizenship has been in all cases assumed. The only question has been whether, in the particular ease under consideration, she had availed herself of the right.
In the legislative department of the Government similar proof will be found. Thus, in the pre-emption laws (5 Stat., 455, sec. 10), a widow, "being a citizen of the United States," is allowed to make settlement on the public lands and purchase upon the terms specified, and women, "being citizens of the United States," are permitted to avail themselves of the benefit of the homestead law (12 Stat., 392).
Other proof of like character might be found, but certainly more can not be necessary to establish the fact that sex has never been made one of the elements of citizenship in the United States. In this respect men have never had an advantage over women. The same laws precisely apply to both. The XIV. Amendment did not affect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the Amendment. She has al ways been a citizen from her birth, and entitled to all the privileges and immunities of citizenship. The Amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States, but it did not confer citizenship on her; that she had before its adoption.
If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the Constitution and laws of Missouri confining it to men are in violation of the Constitution of the United States as amended, and consequently void. The direct question is, therefore, presented whether all citizens are necessarily voters (p. 170, Wallace).
The Constitution does not define the privileges and immunities of citizens. For that definition we must look elsewhere. In this case we need not determine what they are, but only whether suffrage is necessarily one of them.
It certainly is nowhere made so in express terms. The United States has no voters in the States of its own creation. The elective officers of the United States are all elected directly or indirectly by State voters. The members of the House of Representatives are to be chosen by the people of the States, and the electors in each State must have the qualifications requisite for electors of the most numerous branch of the State Legislature (art. 1, sec. 2, Const.) Senators are to be chosen by the Legislatures of the States, and, necessarily, the members of the Legislature required to make the choice are elected by the voters of the State (art. 1, sec. 3). Each State must appoint, in such manner as the Legislature thereof may direct, the electors to elect the President and Vice-President (art. 2, sec. 2). The times, places, and manner of holding elections for Senators and Representatives are to be prescribed in each State by the Legislature thereof; but Congress may at any time by law make or alter such regulations, except as to the place of choosing Senators (art. 1, sec. 4). It is not necessary to inquire whether this power of supervision thus given to Congress is sufficient to authorize any interference with the State laws prescribing the qualifications of voters, for no such interference has ever been attempted. The power of the State in this particular is certainly supreme until Congress acts.
The Amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens entitled to suffrage under the Constitution and laws of the States, but it operates for this purpose, if at all, through the States and the State laws, and not directly upon the citizen.
It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was co-extensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be assumed. When the Constitution of the United States was adopted, all the several States, with the exception of Rhode Island, had constitutions of their own. Rhode Island continued to act under its charter from the Crown. Upon an examination of those constitutions, we find that in no State were all citizens permitted to vote. Each State determined for itself who should have that power.
In this condition of the law in respect to suffrage in the several States, it can not for a moment be doubted that, if it had been intended to make all citizens of the United States voters, the framers of the Constitution would not have left it to implication. So important a change in the condition of citizenship as it actually existed, if intended, would have been expressly declared.
But if further proof is necessary to show that no such change was intended, it can easily be found both in and out of the Constitution. By article 4, section 2, it is provided that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." If suffrage is necessarily a part of citizenship, then the citizens of each State must be entitled to vote in the several States precisely as their citizens are. This is more than asserting that they may change their residence and become citizens of the State and thus be voters. It goes to the extent of insisting that, while retaining their original citizenship, they may vote in any State. This, we think, has never been claimed. And again, by the very terms of the Amendment we have been considering (the XIV).
Why this, if it was not in the power of the Legislature to deny the right of suffrage to some male inhabitants? And if suffrage was necessarily one of the absolute rights of citizenship, why confine the operation of the limitation to male inhabitants? Women and children are, as we have seen, "persons." They are counted in the enumeration upon which the apportionment is to be made; but if they were necessarily voters because of their citizenship unless clearly excluded, why inflict the penalty for the exclusion of males alone? Clearly, no such form of words would have been selected to express the idea here indicated if suffrage was the absolute right of all citizens.
And still again, after the adoption of the XIV. Amendment, it was deemed necessary to adopt a XV., as follows: "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." The XIV. Amendment had already provided that no State should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race, etc.? Nothing is more evident than that the greater must include the less; and if all were already protected, why go through with the form of amending the Constitution to protect a part?
It is true that the United States guarantees to every State a republican form of government (art. 4, sec. 4). It is also true that no State can pass a bill of attainder (art. 1, section 10), and that no person can be deprived of life, liberty, or property, without due process of law (Amendment V). All these several provisions of the Constitution must be construed in connection with the other parts of the instrument, and in the light of the surrounding circumstances.
The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended. The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all, the people participated to some extent through their representatives elected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it is therefore to be presumed that they were such as it was the duty of the States to provide. Thus, we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution. As has been seen, all the citizens of the States were not invested with the right of suffrage. In all, save perhaps New Jersey, this right was only bestowed upon men, and not upon all of them. Under these circumstances, it is certainly now too late to contend that a Government is not republican within the meaning of this guaranty in the Constitution because women are not made voters.
The same maybe said of the other provisions just quoted. Women were excluded from suffrage in nearly all the States by the express provision of their constitutions and laws. If that had been equivalent to a bill of attainder, certainly its abrogation would not have been left to implication. Nothing less than express language would have been employed to effect so radical a change. So also of the Amendment which declares that no person shall be deprived of life, liberty, or property, without due process of law; adopted as it was as early as 1791. If suffrage was intended to be included within its obligations, language better adapted to express that intent would most certainly have been employed. The right of suffrage, when granted, will be protected. He who has it can only be deprived of it by due process of law; but, in order to claim protection, he must first show that he has the right. But we have already sufficiently considered the proof found upon the inside of the Constitution. That upon the outside is equally effective.
The Constitution was submitted to the States for adoption in 1787, and was ratified by nine States in 1788, and, finally, by the thirteen original States in 1790. "Vermont was the first new State admitted to the Union, and it came in under a Constitution which conferred the right of suffrage only upon men of the full age of twenty-one years, having resided in the State for the space of one whole year next before the election, and who were of quiet and peaceable behavior. This was in 1791. The next year (1792) Kentucky followed, with a Constitution confining the right of suffrage to free male citizens of the age of twenty-one years, who had resided in the State two years, or, in the county in which they offered to vote, one year next before the election. Then followed Tennessee in 1796, with voters of freemen of the age of twenty-one years and upward, possessing a freehold in the county wherein they may vote, and being inhabitants of the State or freemen being inhabitants of any one county in the State six months immediately preceding the day of election. But we need not particularize further. No new State has ever been admitted to the Union which has conferred the right of suffrage upon women, and this has never been considered a valid objection to her admission. On the contrary, as is claimed in the argument, the right of suffrage was withdrawn from women as early as 1807 in the State of New Jersey, without any attempt to obtain the interference of the United States to prevent it. Since then the governments of the insurgent States have been reorganized under a requirement that, before their Representatives could be admitted to seats in Congress, they must have adopted new Constitutions, republican in form. In no one of these Constitutions was suffrage conferred upon women, and yet the States have all been restored to their original position as States in the Union.
Besides this, citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circumstances vote. The same provision is to be found in the Constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas.
Certainly if the courts can consider any question settled, this is one. For near ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage. If uniform practice long continued can settle the construction of so important an instrument as the Constitution of the United States confessedly is, most certainly it has been done here. Our province is to decide what the law is, not to declare what it should be.
We have given this case the careful consideration its importance demands. If the law is wrong it ought to be changed, but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. No argument as to woman's need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end, if we find it is within the power of a State to withhold.
Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the Constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we affirm the judgment of the court below.
Soon after the decision on Mrs. Minor's case, Mrs. Gage, in a convention at Washington, ably reviewed Judge Waite's opinion, showing that the United States has eight classes of voters. She said:
Chief justice Waite, in rendering the opinion of the Supreme Court of the United States, in the Minor vs. Happersett case, which was an appeal from the Supreme Court of Missouri, on the question of woman's right to vote under the provisions of the XIV. Amendment, decided against this right. The court maintained that the United States Constitution does not confer the right of suffrage on any person, and that the matter is regulated by State Constitutions, and that when provision is made in them extending the right of suffrage to men only, such provisions are binding. It also declared that the United States had no voters in the States of its own creation. But this assertion was false upon the very face of it.
1st. Every enfranchised male slave had the ballot secured him under United States law—a law which annulled all State provisions against color. At the time of ratification of the last amendments, the State of New York possessed a property qualification of $250. The moment these amendments were ratified, that law became dead on the statute book. The New York Legislature did not repeal it. The United States repealed this property prohibition, by creating a class of United States voters out of colored men. So here is one class of United States voters, and a clear mistake on the part of Chief-Justice Waite and the Supreme Court. But the United States has often exercised its power over the ballot more directly than through constitutional amendments; for,
2d. Every Southern man disfranchised because of having taken part in the war, and who has since been granted amnesty, has again been made a voter through United States law; all such men then became United States voters. Here is a second class of United States voters, and a second mistake of Chief Justice Waite and the Supreme Court. It may be answered that the revolted States were in the condition of Territories at the time of this disfranchisement, and therefore under direct control of the National Government. Admitting this, we still know that general amnesty was granted after reconstruction; after State forms of government had again been organized, the nation exercised its power over the ballot by restoring thousands of men to their political rights—to citizenship. And from the general law of amnesty for the rank and file, the leaders in the rebellion were again and again, by special Acts of Congress, re-endowed with the ballot. No amendment was submitted or expected. The authority of Congress thus to restore to these men the use of the ballot was unquestioned.
3d. The naturalized foreigner secures his right to vote under United States law, and can not vote unless he first becomes an United States citizen, or announces his intention of so becoming. In Missouri, Nebraska, and some other States, the declaration of such intention permits him to vote. This is a State regulation, but the fact of his United States citizenship must in some form first exist. In the naturalized man is a third class of United States voters. With one and the same hand he at the same moment picks up his naturalization papers and his ballot. It matters not what the State law may be, the foreigner secures his vote under United States law. And here is a third class of United States voters and a third mistake of Chief-Justice Waite and the Supreme Court.
4th. The Thirty-ninth or Fortieth Congress took a step farther than this, passing a law that all foreigners who had served in, and been honorably discharged from the army, should possess the right to vote, even though they had not previously filed intention of naturalization, thus again proving that Congress itself, without an amendment to the Constitution, or the authorization of States, possessed power over the ballot. If it has this power of securing the use of the ballot to foreigners who have never intimated a desire to become citizens, it surely can enfranchise its own native-born citizens irrespective of sex. The denial of the ballot to all women by the Supreme Court, in the person of Virginia L. Minor, under the pretense that the United States possesses no voters in the States of its own creation is thus shown to be a false assumption. But this is not all.
5th and 6th. And oldest of all these classes of United States voters are those men who vote for members of the House of Representatives, and for Presidential Electors in the several States.
The United States by these articles guarantees: 1st. To every person who has a right under State action to vote for the most numerous branch of his State Legislature, the United States right to vote at a peaceable election for members of Congress. 2d. The United States directs the appointment of Presidential Electors, and declares that Congress may not only determine the time of choosing such electors, but shall also fix the day upon which such votes shall be given. The United States secures the right, merely leaving the States to prescribe the qualifications of voters. This is all, with one exception that woman asks; she demands that her right shall be recognized and secured by the United States, which shall then prohibit the States from prescribing qualifications not within the reach of all citizens.
A 7th class of United States voters are those men who having been deprived of citizenship through civil offenses against the power and majesty of the United States are afterward pardoned, or "restored to citizenship."
Still an 8th class over whom the United States exercises its authority are deserters from the army—military criminals. An act of Congress of March 3, 1865, imposed forfeiture of citizenship and its rights, as an additional penalty for the crime of desertion. In accordance with this act, the President issued a proclamation the eleventh of that same month, declaring that all deserters who failed to report themselves to a Provost Marshal within sixty days thereafter should be deemed to have forfeited their rights of citizenship, and should be declared forever incapable of holding any office of interest or profit under the United States. This act was passed previous to the submission of the XIV. Amendment.
Thus at the time of Chief-Justice Waite's decision asserting National want of power over the ballot, and declaring the United States possessed no voters of its own creation in the States (where else would it have them?), the country already possessed eight classes of voters, or persons whose right to the ballot was in some form under the control or sanction of the United States. The black man, the amnestied man, the naturalized man, the foreigner honorably discharged from the Union army, voters for the lower House of Congress, voters for Presidential electors, pardoned civil and military criminals. Further research may bring still other classes to light.
Thus when woman claims that her right to the use of the ballot shall be secured by the United States, she has eight distinguished precedents in favor of her demand for National protection. No more inconsistent assertion was ever made than that the United States possesses no control over the suffrage. While by Circuit Court decisions, Supreme Court decisions, and decisions of courts of lesser degree, theoretically denying its control over the suffrage, the United States in many ways besides those mentioned, practically acknowledges its possession of this right. In the case of Miss Anthony and the fourteen other women of Rochester, N. Y., who voted in 1872, the great State of New York took no action at all in the matter; it was the General Government which thrust itself forward and took up the question. If the United States has no control over the suffrage then Miss Anthony's trial was a clear interference of the United States with the rights of States. And so great was this interference, it is believed the judge appointed to try her case left Washington with his verdict in his pocket already written.
Let none of my audience forget the various great trials of woman's right to vote under the XIV. Amendment, especially that of Mrs. Virginia L. Minor, who prosecuted the Inspector of Election in St. Louis for refusing to receive her vote, and whose case, coming finally for adjudication to the Supreme Court of the United States, decision was rendered against her on the plea that the ballot was under control of the respective States, and that the United States has no voters in the States of its own creation; which I have shown to be an ignorant, imbecile, and false plea. Neither let them forget that of Susan B. Anthony, decided against her on the ground that she was a woman at the time she voted. If States have the sole control of the suffrage, there was interference in the rights of the State of New York by her trial; and if United States citizens of any class have a right to be protected in the use of the ballot, then the United States very flagrantly and tyrannously interfered in Miss Anthony's individual right as a citizen of the United States.
In the near future these trials of women under the XIV. Amendment will be looked upon as the great State trials of the world; trials on which a republic, founded upon the acknowledged rights of all persons to self-government, through its courts decided against the right of one half of its citizens on the ground that sex was a barrier and a crime.
Then let us look at the territory of Wyoming. Much has of late been said in regard to women not making use of the ballot there. I care little about that statement one way or the other, as long as her right to vote is not interfered with. It will be time to require all women to vote when we have such a law for men; until then let each voter refrain from voting at his or her own option; it is not the vital question. But there is a point connected with woman's voting in Wyoming that is well worthy of our consideration. That is, the interference of the United States with the concomitants of this right. For a time the women of Wyoming sat upon juries, and the fact was heralded over the country that thieves, gamblers, murderers fled the territory rather than fall into the hands of these women jurors. The first conviction for a murder in that territory, not committed in self-defense, came from a mixed jury.
But of late we have ceased hearing of women jurors. And why? Because that sacred right has been interfered with by the United States. The Marshal of the Territory, an officer appointed by the United States Government, has absolutely refused to place the names of women on the jury lists. Consequently the women of Wyoming are denied the exercise of this right by United States power. Whether the Marshal has been ordered by the National Government to omit the names of women, we do not know, and it does not signify. The duty of the United States is none the less clear; the Territories are in an especial way the wards of the nation, and should be protected in all territorial rights. The Territory of Wyoming having secured to women the exercise of their right to vote, it is the duty of the General Government to protect them in the exercise of all concomitant rights, of which the jury is one.
This deprivation of jury rights in Wyoming is not only an United States interference with woman's political rights, but also an interference with her industrial rights. It is a well-known fact that some women earned their first independent dollar by sitting in the jury box. And whatever interferes with woman's industrial rights helps to send her down to those depths where want of bread has forced so many women: into the gutters of shame. This is a question of morality as well as of industrial and political rights. Every infringement of a person's political rights, touches a hundred other rights adversely. Let me show you one good that has come to woman through her ballot in Wyoming. The payment of men and women teachers has been equalized by direct statute, for political power always benefits the parties holding it.
Let us look at a few other ways in which the United States has touched the rights of women where protection has been secured her by legislation outside of itself. One instance that has come to my knowledge since I have been in your city, is in the case of pensions for colored women. The United States not only secured the ballot to the black male citizen outside of State authority, but it has touched the family relation with its powerful hand. It has assumed that the woman with whom a colored soldier was living at the time of his death was his wife, notwithstanding he may have lived for many years in recognized married relations with another woman, and become the father of children by her during this period. In one case coming under the cognizance of our Washington lawyer, Mrs. Lockwood, a pension was, by United States authority, thus granted to a woman living with such colored soldier at the time of his death, although she had no other claim upon it. This soldier, during the period of slavery, had been married in his master's house to another woman by a regularly ordained clergyman, and by that wife had become the father of five or six children. This woman was his lawful widow, according to State and church law. These children were his lawful children, according to State and church law, but the United States stepped in, and made this married woman an outcast, and left her children in the world with the brand of illegitimacy. The women of the Territories of Wyoming and Utah are not secure in their political rights, because the women of the Nation have none. Scarcely a session of Congress but some politician introduces a bill to disfranchise the women of these Territories.
In regard to the religious aspects of this Utah question. I care for it only so far as it touches woman's political rights, although I do know that wom an's political wrongs and her religious wrongs have been very closely intermingled in the past. I recall a Papal Bull of Urban II., in the 12th century, which compelled priests to discard their wives, making of thousands of women in England, wives who were not wed; of children, offspring who had no recognized fathers. We of the National Woman Suffrage Association have nothing to do with the religious rights of women in Utah, except in so far as they intermingle with and touch woman's political rights. But the Utah question, which now comes up again, is not simply a religious question. The Government is continuously striving to destroy the political rights of the women of this Territory. Its Governor is a United States officer, and in his last report to the Secretary of the Interior, he so far transcended the duties of his office as to suggest the disfranchisement of Utah women. Almost every session of Congress sees some bill of similar import introduced.
The General Government did not confer this right, did not secure even the exercise of it. The territorial Legislature, the same as in Wyoming, secured to women the exercise of the right of suffrage; the United States, according to its own theory, has no authority to interfere with this right, because, according to that theory, it has nothing at all to do with the suffrage question. Yet it proposes to disfranchise those women as a punishment for their religious belief; it proposes to make social outcasts of them, as it has already done with the wives of some of its black soldier voters.
Looking back through history we find no act of the Romish Church more vile than that which compelled its priests to disown their wives and legitimate children—none which so utterly demoralized society, and destroyed its tens of thousands of women. And although, as a body of reformers, I again say we do not touch religion except where it, and politics together, infringe upon the rights of women, I do not hesitate to say for myself individually, that I have no faith in any form of religion, be it what it may, Christian, Mohammedan, Buddhist, that receives revelation only through some man; or farther than that, I will say, I have no faith in any form of religion that does not place man and woman on an exact equality of religious rights. Two forms of religion of the present day which have risen through woman, or as revelations to her, namely the Shaker and the Spiritual, do give us equality of religious rights, for man and woman. But I call your attention to the inconsistency of United States laws, and their especial injustice to women by interference with those rights secured them by State or Territorial laws, as in case of the colored soldier's wife; as in case the assumption that the United States had a right to prohibit the exercise of the suffrage by a woman in New York, although New York itself did not interfere; as in case of the virtual prohibition by the United States of jury rights to the women of Wyoming; as in case of the presumptuous suggestion of the Governor of Utah that its women should be disfranchised; as in case of such bills so often introduced in Congress.
I know something of the opinion of the women of the Nation, and I know they intend to be recognized as citizens secured in the exercise of all the powers and rights of citizens. If this security has not come under the XIV. Amendment, it must come under a XVI., for woman intends to possess "equal personal rights and equal political privileges with all other citizens." She asks for nothing outside the power of the United States, she asks for nothing outside the duty of the United States to secure. Politicians may as well look this fact squarely in the face and become wise after the wisdom of the world, for in just so far as they ignore and forget the women of the country, in just so far will they themselves be ignored and forgotten by future generations.
The following review of this important case is from the January number, 1876, of the Central Law Journal, St. Louis, Missouri:
WOMAN SUFFRAGE IN ITS LEGAL ASPECT—A REVIEW OF THE CASE OF
MINOR vs. HAPPERSETT, 21 WALLACE, U. S. REPORTS.
As a rule, respect should undoubtedly be paid to judicial decisions. When the court of last resort has considered and passed upon a question of law, especially if it be one involving a consideration of constitutional power, as well as of private right, it is eminently proper that its conclusion should not be disturbed, unless for reasons of the gravest import. But cases present themselves at times, in which criticism is not only justified, but is demanded; and it is only through its aid that the ultimate truth of any question can be reached and its principles be correctly established. Nor can courts of justice take exception to such criticism, since the reports abound with evidences of the fact that there is no judicial immunity from error; and we believe that if the glamour of supposed legal impeccability, that shrouds the judiciary in the eyes of many, could be removed, a public service would be accomplished. In the case under consideration an important question of constitutional law was involved, the construction of which affected not only the plaintiff therein, but the entire class of persons to which she belonged, while the decision extends it still further, and makes it applicable to every citizen of the United States. Thus, while the particular case may be ended, the entire community has an interest in the conclusion announced. It is not our purpose to consider the subject of suffrage as an abstract right; with this aspect of it we have nothing to do in this article. We shall treat it solely as a legal right. Under a government of law, indeed, there are, properly speaking, no abstract rights. All rights, of person or of property, are legal rights, and it shall be our purpose to show that the right of Federal suffrage is recognized in the Constitution of the United States, and certainly no one will deny its practical exercise during nearly ninety years. An inspection of the Opinion will show that the whole matter was summed up in the question, whether suffrage is a right or privilege appertaining to citizenship of the United States, for if it be, then the plaintiff's suit was rightly brought. The opinion, which was delivered by the Chief Justice, states the matter as follows:
If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the Constitution and laws of Missouri confining it to men are in violation of the Constitution of the United States, as amended, and consequently void. The direct question is therefore presented, whether all citizens are necessarily voters. The Constitution does not define the privileges and immunities of citizens. For that definition we must look elsewhere. In this case we need not determine what they are, but only whether suffrage is necessarily one of them. It certainly is nowhere made so in express terms. The United States has no voters in the State, of its own creation. The elective officers of the United States are all elected directly or indirectly by State voters.
We had supposed that if there was any question that now, at least, might be regarded as finally settled, both by the late appeal to arms, and by the Constitutional Amendments, it was that of the subordination of State to National authority, over any and all subjects in which the rights and privileges of citizens of the United States are involved. If the amendments do not cover this ground, then they are worse than useless. And yet this decision is a blow at all that constitutes us a Nation. To declare that the United States has no voters—that its officers are all elected by State voters, is to completely reverse the order of things, and subordinate the citizens of the United States to State authority. It will be observed that this decision goes far beyond the ground hitherto and ordinarily claimed by the advocates of what are called "States' Rights."
It has usually been supposed that the States possessed the authority to regulate the exercise of the franchise by the Federal voter, but never before was the right itself denied as appurtenant to Federal citizenship. But now the franchise itself is declared to be non-existent—Federal officers are elected by State voters. The subject itself is wholly withdrawn from Federal supervision and control. Even the amendments can not confer authority over a matter that has no existence. If, then, the United States has no voters in the States, it can properly have nothing to do with the subject of elections. If the citizen of the United States has no right to vote except as a citizen of a State, his Federal citizenship is, of course, subordinated to his State citizenship. It logically follows that much of the recent legislation on this subject by Congress is destitute of authority. If members of the House of Representatives are elected by State voters, as here declared, there is no reason why the States may not, at their pleasure, recall their representatives, or refuse to elect them, as in 1860 the Southern States claimed it to be their right to do; and if a sufficient number can be united in such a movement, the Federal Government will be completely at their mercy. It may also well be doubted how far the Southern States are bound by legislation in which they had no part. Notwithstanding the provision of the XIV. Amendment, that neither the United States nor any State shall assume or pay any claim for the loss or emancipation of any slave; it (as held by the Supreme Court in two cases in 13th Wallace, Chief Justice Chase dissenting), contracts for the sale or hire of slaves effected before emancipation are valid, upon the ground that to take away the remedy for their enforcement would be to impair their obligation, how much less can the owner of a slave be deprived of his property, which forms the subject-matter of that contract, without compensation? If his contract can not be impaired, surely the thing to which that contract relates can not be taken from him, except upon compensation. Chief Justice Chase was of the opinion that the above quoted provision of the XIV. Amendment could be sustained only upon the ground that the XIII. Amendment wiped out everything, contracts as well as slavery. Yet the Court held all such contracts to be valid. And see, in this connection, the case of Wilkinson vs. Leland, 2d Peters, 657. It is idle to say that these suppositions are visionary. What has happened once, may occur again. It can hardly be questioned that if in 1860 the seceding States could have pointed to a decision of the Supreme Court of the United States such as this, the whole face of affairs might have been different, and the "erring sisters" permitted to "go in peace"! The "lost cause" may not be "lost," after all.
But to resume: The Court tells us in its opinion in this case, that "there can not be a Nation without a people," but it seems there may be a Nation without voters! Now the people of the United States may not have a very profound knowledge of their institutions, but their intelligence certainly rises to the level of comprehending that a republican government can not be established or maintained without voters. It would be a manifest absurdity to say that in a government created by the people, they are not voters. Inasmuch, then, as it is admitted by the Court, if the right of suffrage be a privilege of the citizen of the United States, that the State Constitution and laws confining it to men are in violation of the Constitution of the United States and, consequently, void; as contended for by the plaintiff in this case, we have really only to examine this single point: Does the Constitution of the United States recognize the right of suffrage as belonging to its citizens?
Future generations will look with astonishment at the fact that such a question could be asked seriously. Not only was the subject debated in the convention that framed the instrument, but one of its ablest members, Alexander Hamilton, in the fifty-second number of the Federalist, says:
The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason, that it would have rendered too dependent on the State Governments that branch of the Federal Government which ought to be dependent on the people alone. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State; because it is conformable to the standard already established, or which may be established by the State itself. It will be safe to the United States; because, being fixed by the State Constitutions, it is not alterable by the State Governments, and it can not be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the Federal Constitution.
Again, in the XV. Amendment, suffrage is recognized as an existing right of Federal citizenship. It is not created by that Amendment. It was already existing. The language is:
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. A right must exist before it can be denied. There can be no denial of a thing that has no existence. If it should be said the XV. Amendment relates only to the negro, we reply that this would be no answer, even if true, which may be doubted; but the point we are now discussing is the statement of the Court that the United States has no voters in the States of its own creation, or in other words, that Federal suffrage does not exist; we have shown that this a mistake, it being recognized in the Constitution; and as the argument of the Court was based on its non-existence it consequently falls to the ground. This really disposes of the case, but we will notice other points. The Court says:
After the adoption of the XIV. Amendment, it was deemed necessary to have a XV: ... The XIV. Amendment had already provided that no State should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race, etc.? Nothing is more evident than that the greater must include the less, and if all were already protected, why go through with the form of amending the Constitution to protect a part?
It is sometimes perilous in argument to ask questions—we will answer the Court in its own words. In the Slaughter-house cases, the Court then said:
A few years' experience satisfied the thoughtful men who had been the authors of the other two amendments, that, notwithstanding the restraints of those articles on the States, and the laws passed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered by the white man alone. It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage. Hence the XV. Amendment, which declares that the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude. The negro having, by the XIV. Amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union. (16 Wallace, 71.)
For the present argument, it is immaterial whether this result is effected by the XIV., or XV. Amendment, or both. The point is, that the Supreme Court here declares the negro to be a voter in every State of the Union, by virtue of one or both amendments. He is made a voter (a Federal voter) by the law of the United States, and not by the State law. Being made a citizen of the United States, he is thus made a voter in every State of the Union. This is the very gist of the matter. The whole principle is summed up in these few words. The franchise is an incident of the status, or condition of citizenship. Freedom alone was not enough. The XIII. Amendment made the negro free, but citizenship was additionally necessary before he became a voter. As soon as that was achieved, in that moment the franchise followed; to be enjoyed, in the same manner as by other citizens. If ever a suitor was entitled to rely with confidence upon judicial utterances of great principles of law, Mrs. Minor was thus entitled, in her case. She was a citizen of the United States by birth; admitted to be possessed of every qualification but that of sex. Her counsel appeared before this court and quoted its very language above given, and asked the court to be consistent with its own teachings. But no. There was no great and powerful party to back her demand, as in the case of the negro. She was merely a private individual, and the court contented itself with saying that the right of suffrage when granted would be protected! To which it may be replied, if women ever vote, they will protect themselves; but, if their right should subsequently be denied by the State, the Supreme Court, according to its own rulings in this case, could give no protection, since it declares the right to be wholly within the control of each State. But why should the court require the women citizens of the United States to produce a special grant of the right, when it required nothing of the kind from the negro? Are there two laws in this country, one for the negro, and another for woman? Does the Constitution of the United States recognize or permit class distinctions to be made between its citizens? Yet by this decision, the negro is placed above the woman. He is her superior. His position is above her. For our own part, we decline to accept any such construction of that instrument, knowing that the time will ultimately come when some claim similar to that of Mrs. Minor will meet with proper recognition. To make its inconsistency still greater, the court in this case declares that "allegiance and protection are reciprocal obligations. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection," yet in this case that protection is denied. While the negro, then, is thus declared to be a voter, by reason of his citizenship, in every State of the Union, there is no law either of the State or of the Nation, which in terms or by words confers the ballot upon him. The XV. Amendment does not confer it, but treats it as a right already existing, and forbids its deprivation. Likewise the State law assumes its existence, and makes no change, except to conform to the new condition of the negro's citizenship. There is no change in the State laws, except the omission of a word—the word "white"—from the clause "white male citizens," in the State Constitution. But who ever heard of a right being conferred by omission? And yet this change of a single word by the State was an acknowledgment by it of the supremacy of Federal law touching this subject; and was designed to make the State law conform to the Federal law, which declares (XIV. Amendment) that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This conformity extends, however, only so far as to embrace the negro citizen of the United States, leaving the far larger class of women citizens of the United States still under ban of disfranchisement, in plain violation of the amendment. Under these circumstances, in the case under consideration, the Supreme Court of the United States was asked to interpose its authority, and effect by its decree that which the State should have done, and declare that the word "male" must be dropped, as well as the word "white."
Had this been done, the State law in its entirety would have conformed to the paramount law of the United States, while as it is, it conforms only in part. We are told that slavery was abolished in Massachusetts, not by an enactment expressly adopted for the purpose, but by a decision of the Supreme Court in 1781, that its existence was inconsistent with the declaration in the Bill of Rights that "all men are born free and equal." (Bradford's History of Mass., 11, 227; Draper's Civil War, 1, 318; Story on Const., 11, p. 634, note.) So far, however, from interfering, as it was its plain duty to have done, to protect this class of United States citizens, the court has gone further than perhaps it intended, and possibly destroyed the rights of another class, for the decision, by declaring that the United States has no voters, virtually renders the XV. Amendment of no effect. There is nothing upon which it can operate. There being no voters, there is of course no "right to vote," to be "protected." So that every citizen of the United States is left completely at the mercy of the State.
We will now consider that clause of the Constitution of the United States in which, as Hamilton said, the right of suffrage is defined and established for the citizens of the United States; which, nevertheless, has most strangely been regarded as conferring upon the States authority to disfranchise them. Article 1, sec. 2. "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 section, it will be seen, consists of two clauses, but there is not a word as to the sex of the elector. He or she must be one of the people, or citizens—that is all. The "People" elect. They vote in their respective States, of course; or, to use the words of Chief Justice Marshall, "when they act, they act in their States." (4 Wheaton, 403.) This first clause, then, fixes the class of persons to whom belong this right of suffrage—Federal suffrage—not State suffrage. It would be absurd in the Federal Constitution to undertake to deal with State suffrage, and it attempts nothing of the kind. The right of Federal suffrage, then, attaches or belongs to this class. The subsequent clause is subordinate to this, and relates not to the right, but to the exercise of it by the voter. In other words, it prescribes the qualifications of the elector, as to how he shall exercise the right; the time, place, and manner of voting, and the age at which the right shall be enjoyed. As to all these matters, which are included in the subject of "qualifications," instead of laying down a uniform rule, to be applicable all over the Union, the convention thought it best to adopt the regulations on this subject already in force in the several States. When the Federal elector, therefore, comes to vote for United States officers, he finds that he must simply conform to the regulations laid down by the State for State voters. But this confers upon the State no authority over the Federal elector's right of suffrage; far less does it give the State authority to deprive the Federal elector of this right, under pretense of laying down for its own citizens an arbitrary and impossible condition. In the nature of things, a republican government could not part with this right of suffrage. As Hamilton says, such right is justly regarded as a fundamental article in such government. To part with it, would be to part with its chiefest attribute of sovereignty, and nothing of the kind was done, or intended.
Except so far, then, as this decision makes it so, there is not a particle of authority vested in the States to deny this right of Federal suffrage to the citizen of the United States. The regulation of the exercise of the franchise is within their control, as above stated, but the right itself is not theirs to give or to withhold. The right to vote for Federal officers is wholly distinct from the right to vote for State officers; but the fact of these two rights being blended in one and the same person, and being usually exercised at the same time, has given rise to the whole difficulty. In consequence of the fact of the election being conducted by State officers, the State providing all the machinery for voting, etc., we have become accustomed, from long habit, to associate in our minds the one franchise with the other, and thus confound rights that are wholly separate and distinct.
We notice, in conclusion, the remark of the court touching the non-assertion heretofore of this right by any one of the class now claiming to be entitled to it, and the intimation, or insinuation, that if the right really existed, it would have been claimed before, etc. It is true that Mrs. Minor's case is of "first impression," in the Supreme Court of the United States; but we fail to see that this fact has anything to do with the principle involved, or that there can be any such thing as a "limitation" of rights that are fundamental. If the right exists, and has a constitutional recognition, the time of its assertion has nothing to do with it. Only weak minds will be influenced by a fallacy like this. Because the women of a former day did not see and feel the necessity of making this claim, is no reason why those who do now see and feel that necessity should have that claim denied. "Time has no more connection with, nor influence upon principle, than principle has upon time. The wrong which began a thousand years ago, is as much a wrong as if it began to-day; and the right which originates to-day, is as much a right as if it had the sanction of a thousand years. Time, with respect to principles, is an eternal now. It has no operation upon them, it changes nothing of their nature and qualities." (Paine's Political Works, vol. 2, p. 328—Dissertation on Government.)
We are fully conscious that the subject upon which we have written is by no means exhausted; the point, especially in reference to bills of attainder, being wholly untouched. But the limits of a single article will not admit of a full discussion of the subject. Indeed, a treatise upon suffrage is one of the wants of the profession. We leave it, however, to the candid judgment of our readers, if we have not fully demonstrated the right of Federal suffrage to be a necessary privilege of a citizen of the United States, and, according to the court's own admission, such being the case, the plaintiff was entitled to the relief sought.Thus closed woman's struggle for National protection of her civil and political rights under the XIV. Amendment. In the case of Myra Bradwell, which was commenced in September, 1869, two years before the others, Chief-Justice Chase, one of the best and wisest Judges that ever honored the American bench, dissented from the opinion of the Supreme Court: that the fact of United States citizenship did not secure to woman the right to practice law, and that a married woman rested under a special disability in regard to her civil rights, thus sustaining the action of Illinois in refusing to admit Mrs. Bradwell to the bar of that State.
The decision in the case of Mrs. Minor, that the political rights of women were wholly under the control of their respective States was still more emphatic and discouraging. Had Judge Chase lived, we have every reason to believe that in this case too, he would have dissented, and that his opinion would have had great weight in the general discussion. Although defeated at every point, woman's claim as a citizen of the United States to the Federal franchise is placed upon record in the highest court of the Nation, and there it will remain forever. As Milton so grandly says in Paradise Lost:
What though the field be lost?
All is not lost: th' unconquerable will
And courage never to submit or yield!
- ↑ The elections in New Hampshire were held in the spring in former years.
- ↑ An account of Mrs. Gardner's voting will be found in the Michigan chapter.
- ↑
woman suffrage in the courts.—shakespeare revived.
In the case of Hamlet vs. Rex, Shakespeare's reports, occurs the following: Scene—Churchyard.—Enter two clowns with spades. First Clown. Is she to be buried in Christian burial that wilfully seeks her own salvation? Second Clown. I tell thee, she Is; therefore make her grave straight. The crowner hath set on her and finds it Christian burial. First Clown. Mow can that be, unless she drowned a in her own defense? Second Clown, Why, 'tis found so, First Clown. It must be so, se offendendo; it can not be else. For here Hes the point. If I drown myself wittingly, it argues an act; and an act has three branches—it is to act, to do, and to perform. Argal, she drowned herself wittingly. Second Clown. Nay, but hear you good man, deliver. First Clown. Give me leave. Here lies the water, Good. Here stands the man. Good. If the man goes to this water and drowns himself, it is nil he, will he, he goes. Mark you that. But if the water come to him and drown him, he drowns not himself. Argal, he that is not guilty of his own death shortens not his own life. Second Clown. But is this law? First Clown. Ay, marry is't, crowner quest law. It hardly needed any better authority than the above to convince simple-minded people of the truth of the observation made by Blackstone that "law is the perfection of human reason." But if law is great, those who expound it are greater. The woman suffrage trial came on. The judges endeavored to follow the arguments as far as possible, and to religiously earn their salaries by the attention given, if no more. The arguments were finally finished, and the women of the country waited expectantly to hear their legal status defined. It took just one week for the united judicial wisdom of this District to consider this case in all its bearings, and then the decision came. It was about as follows:
Scene—District Court-room.—Enter Judges with law books.
First Judge. Women are voters but they can't vote. Voting is a privilege and not a natural right, and must be conferred; it has clearly been conferred by the supreme law of the land, therefore women can not vote. A little voting is a good thing, but too much voting is injurious to public interests, as is instanced in our large cities. If women vote, there would be more voting than at present, consequently women are not entitled to vote. The Constitution gives women the right to vote. The organic law of the district does not. The latter, of course, is void where it conflicts with the former, therefore can not women vote. Congress has clearly recognized woman's right to the ballot, wily or nily. But the ballot must come to the woman, not she to the ballot, or else the law is violated. Congress must go further, and point out to women how the ballot must come to her, or else will she not be given Christian reception at the polls who willfully seek to vote thereat. Therefore can not women vote. Second Judge. Women are men, but men are not women. The former include the latter, but the latter won't be included. That is to say, the law regards men as women but not males as females. It is not every right which can be exercised, as society will not admit of it. The law, which is above society, says women shall vote, but society has not acceded, and hence this court can not interfere. Therefore, I concur that women can not vote. Third Judge. I do not know but that the better way would have been for Congress to have done otherwise than it did. Why it did as it did is a question. But it did. It might have done more, or less, or both. It might have done otherwise. In either case it would have done so. And then it would have been. But as it is, it is perhaps as well as if it should have been. Therefore can not women vote. Plaintiffs' Attorneys. But is this law? The Three Judges. Verily is't the law of the Supreme Court of the District of Columbia. This parody was written by J. W. Knowlton, son-in-law of Mr. Riddle.
- ↑ A report of this trial will be found in the California chapter.
- ↑ Whereas, Complaint has this day been made by ——— on oath before me, William C. Storrs, commissioner, charging that Susan B. Anthony, on or about the fifth day of November, 1872, at the city of Rochester, N. Y., at an election held in the eighth ward of the city of Rochester aforesaid, for a representative in the Congress of the United States, did then and there vote for representative in Congress in the United States, without having a lawful right to vote and in violation of Section 19 of an act of Congress approved May 31, 1870, entitled "An act to enforce the right of citizens of the United States to vote in the several States of this Union and for other purposes."
- ↑ The following ladies voted: Mrs. Hannah Anthony Mosher, Mrs. Mary S. Hebard, Mrs. Nancy M. Chapman, Mrs. Jane M. Cogswell, Mrs Martha N. French, Mre. Margaret Leyden, Mrs. Lottie Bolies Anthony, Mrs. Hannah Chatfield, Mrs. Susan M. Hough, Mrs. Surah Truesdale, Mrs. Mary Pulver, Mrs. Rhoda De Garmo, Mrs. Guelma Anthony McLean, Miss Mary 8. Anthony, Miss Ellen T. Baker. The following ladies registered but were not allowed to vote: Mrs. Amy Post, Mrs. Mary Fish Curtis, Mrs. Dr. Dutton, Mrs. Charlotte Wilbur Griffing, Mrs. Dr. Wheeler, Mrs. Allen, Mrs. Lathrop.
- ↑ Ex-President Fillmore, Hon. Charles Sedgwick, Hon. E. G. Lapham, David Wright, Esq., of Auburn.
- ↑ Indictement Against Susan B. Anthony—District Court Of The United States Of America, In And For The Northern District Of New York.—At a stated session of the District Court of the United States of America, held in and for the Northern District of New York, at the City Hall, in the city of Albany, in the said Northern District of New York, on the third Tuesday of January, in the year of our Lord one thousand eight hundred and seventy-three, before the Honorable Nathan K. Hall, Judge of the said Court, assigned to keep the peace of the said United States of America, in and for the said District, and also to hear and determine divers Felonies, Misdemeanors and other offenses against the said United States of America, in the said District committed. Brace Millard, James D. Wasson, Peter H. Bradt, James McGinty, Henry A. Davis, Loring W. Osborn, Thomas Whitbeck, John Mullen, Samuel G. Harris, Ralph Davis, Matthew Fanning, Abram Kimmey, Derrick B. Van Schoonhoven, Wilhelmus Van Natten, James Kenney, Adam Winne, James Goold, Samuel S. Fowler, Peter D. R. Johnson, Patrick Carroll, good and lawful men of the said District, then and there sworn and charged to inquire for the said United States of America, and the body of said District, do, upon their oaths, present,that Susan B. Anthony now or late of Rochester, in the county of Monroe, with force and arms, etc., to wit: at and in the first election district of the eighth ward of the city of Rochester, in the county of Monroe, in said Northern District of New York, and within the jurisdiction of this Court, heretofore, to wit: on the fifth day of November, in the year of our Lord one thousand eight hundred and seventy-two, at an election duly held at and in the first election district of the said eighth ward of the city of Rochester, in said county and in said Northern District of New York, which said election was for Representatives in the Congress of the United States, to wit: a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the twenty-ninth Congressional District of the State of New York, said first election district of said eighth ward of said city of Rochester, being then and there a part of said twenty-ninth Congressional District of the State of New York, did knowingly, wrongfully, and unlawfully vote for a Representative in the Congress of the United States for the State of New York at large, and for a Representative in the Congress of the United States for said twenty-ninth Congressional District, without a lawful right to vote in said election district (the said Susan B. Anthony being then and there a person of the female sex), as she, the said Susan B..Anthony then and there well knew, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity.
Second Count—And the jurors aforesaid upon their oaths aforesaid do further present that said Susan B. Anthony, now or late of Rochester, in the county of Monroe, with force and arms, etc., to wit: at and in the first election district of the eighth ward of the city of Rochester, in the county of Monroe, in said Northern District of New York, and within the jurisdiction of this Court, heretofore, to wit: on the fifth day of November, in the year of our Lord one thousand eight hundred and seventy-two, at an election duly held at and in the first election district of the said eighth ward, of said city of Rochester, in said county, and in said Northern District of New York, which said election was for Representatives in the Congress of the United States, to wit: a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the twenty-ninth Congressional District of the State of New York, said first election district of said eighth ward, of said city of Rochester, being then and there a part of said twenty-ninth Congressional District of the State of New York, did knowingly, wrongfully and unlawfully vote for a candidate for Representative in the Congress of the United States for the State of New York at large, and for Representative in the Congress of the United States for said twenty-ninth Congressional District, without having a lawful right to vote in said first election district (the said Susan B. Anthony being then and there a person of the female sex), as she, the said Susan B. Anthony then and there well knew, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity. RICHARD CROWLEY,
Attorney of the United States for the Northern District of New York.
(Endorsed). Jan. 24, 1873.
Pleads not guilty.Richard Crowley,
U. S. Attorney. - ↑ see Appendix.
- ↑ see Appendix.
- ↑ Thousands of copies were published in pamphlet form, with the Court report of the trial, and circulated throughout the country.
- ↑ See Appendix.
- ↑ To the same effect see former decisions in Massachusetts: Coffin vs. Coffin, 4 Mass., 25; Com. vs. Knapp, 10 Pic., 496; and see also State vs. Snow, 18 Maine, 346; Doss vs. Com., 1 Grattan, 557; Peo. vs. McFall, 1 Wheeler Crim. Rec., 108, note; Holder vs. The State, 5 Georgia, 443; State vs. Allen, 1 McCord, 525; State vs. Jones, 5 Alabama, 666; Armstrong vs. The State, 4 Blackford, 247; Patterson vs. The State, 2 English, 59.
- ↑ Gibbons vs. Ogden, 9th Wheaton, 221, Ch. J. Marshall. Ogden vs. Saunder, 12 Wheaton, 332, Ch. J. Marshall.
- ↑ More recent investigation shows that this claese was originated by Mr. Jefferson in 1784. See The Nation for May 4, 1882, and authorities there referred to. See Bancroft's "History of the United States," Vol. II., p. 115.