History of Woman Suffrage/Volume 4/Chapter 1
CHAPTER I.
WOMAN'S CONSTITUTIONAL RIGHT TO VOTE.
In the early days of the movement to enfranchise women, no other method was considered than that of altering the constitution of each individual State, as it was generally accepted that the right to prescribe the qualifications for the suffrage rested entirely with the States and that the National Constitution could not be invoked for this purpose. While the word "male" was not used in this document, yet with the one exception of New Jersey, where women exercised the full suffrage from the adoption of its first constitution in 1776 until 1807, there is no record of any woman's being permitted to vote. At the inception of the republic women were almost wholly uneducated; they were unknown in the industrial world; there were very few property owners among them; the manifold exactions of domestic duties absorbed all their time, strength and interest; and for these and many other causes they were not public factors in even the smallest sense of the word. One could readily believe that the founders of the Government never imagined a time when women would ask for a voice were it not for the significant fact that every State constitution, except the one mentioned above, was careful to put up an absolute barrier against such a contingency by confining the elective franchise strictly to "male" citizens — and there it has stood impassable down to the present day.
It was almost the exact middle of the nineteenth century before the first demand was made by women for the right to represent themselves — the right for which their forefathers had fought a seven-years' war, and the one which had been made the corner-stone of the new Government. The complete story of the startling results which followed this demand never has been told but once, and that was when Vol. I of this History of Woman Suffrage was written. It was related then by the two who were the principal personages in a period which tried women's souls as they were never tried before Elizabeth Cady Stanton and Susan B. Anthony.[1]
This movement for the freedom of women was scarcely launched when the long-threatened Civil War broke forth and precipitated the struggle for the liberty of another class whose slavery seemed far more terrible than the servitude of white women. The five years' ordeal which followed developed women as all the previous centuries had not been able to do, and when peace reigned once more, when an entire race had been born into freedom and the republic had been consecrated anew, the whole status of the American woman had been changed and the lines which circumscribed her old sphere had been forever obliterated. Women were studying laws, constitutions and public questions as never before in all history, and, as they saw millions of colored men endowed with the full prerogatives of citizenship, they began to ask, "Am I not also a citizen of this great republic and entitled to all its rights and privileges?"
Up to this time the word "male" never had appeared in the Federal Constitution. In 1865, when the leaders among women were beginning to gather up their scattered forces, and the Fourteenth Amendment was under discussion, they saw to their amazement and indignation that it was proposed to incorporate in that instrument this discriminating word. Miss Anthony was the first to sound the alarm, and Mrs. Stanton quickly came to her aid in the attempt to prevent this desecration of the people's Bill of Rights. The thrilling account of their efforts to thwart this highhanded act, their abandonment in consequence by nearly all of their co-workers before and during the war, their anger and humiliation at seeing the former slaves, whom they had helped to free, made their political superiors and endowed with a personal representation in Government which women had been pilloried for asking all this is graphically told in Vol. II of the History of Woman Suffrage, Chaps. XVII and XXI. The story with many personal touches is also related in the Life and Work of Susan B. Anthony, Chaps. XV and XVI.
The Fourteenth Amendment was declared adopted July 28, 1868,[2] and the women felt that the ground had been swept from 'beneath their feet, as now the barriers opposed to their enfranchisement by all the State constitutions had been doubly and trebly strengthened by sanction of the National Constitution. The first ray of encouragement came in October, 1869, when, at a State woman suffrage convention held in St. Louis, Mo., Francis Minor, a leading attorney of that city, declared that this very Fourteenth Amendment in enfranchising colored men had performed a like service for all women. His argument was embodied concisely in the following resolutions, which were adopted by that convention with great enthusiasm, . and by the National Association at its annual convention in Washington, D. C., the next January:
Resolved, i. That the immunities and privileges of American citizenship, however defined, are national in character and paramount to all State authority.
2. That while the Constitution oi the United States leaves the qualification of electors to the several States, it nowhere gives them the right to deprive any citizen of the elective franchise which is possessed by any other citizen—to regulate not including the right to prohibit.
3. That, as the Constitution of the United States expressly declares that no State shall make or enforce any laws that shall abridge the privileges or immunities of citizens of the United States, those provisions of the several State constitutions which exclude women from the franchise on account of sex are violative alike of the spirit and letter of the Federal Constitution.
4. That, as the subject of "naturalization" is expressly withheld from the States, and as the States clearly have no right to deprive of the franchise naturalized citizens, among whom women are expressly included, still more clearly have they no right to deprive native-born women citizens of the franchise.In support of these resolutions various portions of the National Constitution were quoted, including Article IV, Section 2: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States;" and Section 4: "The United States shall guarantee to every State in this Union a republican form of government." Many other authorities were cited, including numerous court decisions, as to the right of women to the suffrage now that their citizenship had been clearly established and the protection of its privileges and immunities guaranteed.
This position was sustained by many of the best lawyers in the United States, including members of Congress. f The previous May the National Woman Suffrage Association had been formed in New York City, and henceforth this right to vote under the Fourteenth Amendment was made the keynote of all its speeches, resolutions, etc., as will be seen in the History of Woman Suffrage, Vol. II, Chap. XXIII.
For the first time the Federal Constitution had defined the term "citizen," leaving no doubt that a woman was a citizen in the fullest meaning of the word. Until now there had been but one Supreme Court decision on this point that of Chief Justice Taney in 1857, in the Dred Scott Case, which declared that citizens were "the political body who, according to our republican institutions, form the sovereignty and hold the power, and conduct the Government through their representatives." This plainly had barred negroes and white women from citizenship.
At the next general election, in 1872, women attempted to vote in many parts of the country, in some cases their votes being received, in others rejected.[3] The vote of Miss Anthony was accepted in Rochester, N. Y., and she was then arrested for a criminal offense, tried and fined in the U. S. Circuit Court at Canandaigua, by Associate Justice Ward Hunt of the U. S. Supreme Court. There is no more flagrant judicial outrage on record. The full account of this case, in which she was refused the right of trial by jury as guaranteed by the Constitution, will be found in Vol. II, History of Woman Suffrage, p. 627 and following; also much more in detail in the Life and Work of Susan B. Anthony, p. 423, with her great Constitutional Argument delivered in fifty of the post-office districts of the two counties before the trial, p. 977 and following.
The vote of Mrs. Virginia L. Minor was refused in St. Louis and she brought suit against the inspectors of election. The case was decided against her in the Circuit Court of the county and the Supreme Court of Missouri. She then carried it to the Supreme Court of the United States—Minor vs. Happersett et al. No. 182, October term, 1874. The case was argued by her husband, Francis Minor, and after the lapse of a quarter of a century it is still believed that his argument could not have been excelled. The decision was delivered by Chief Justice Waite, March 29, 1875, and was in brief: "The National Constitution does not define the privileges and immunities of citizens. The United States has no voters of its own creation. The Constitution does not confer the right of suffrage upon any one, but the franchise must be regulated by the States. The Fourteenth Amendment does not add to the privileges and immunities of a citizen; it simply furnishes an additional guarantee to protect those he already has. Before the passage of the Fourteenth and Fifteenth Amendments the States had the power to disfranchise on account of race or color. These Amendments, ratified by the States, simply forbade that discrimination but did not forbid that against sex."
The full text of argument and decision will be found in the History of Woman Suffrage, Vol. II, p. 715 and following. In making this decision the Court was compelled to reverse absolutely its own finding of three years previous in what was known as the Slaughter House Cases (16 Wallace) which said: "The negro having by the Fourteenth Amendment been declared to be a citizen of the United States, is thus made a voter in every State in the Union."
The Fifteenth Amendment says: "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." No right is conferred by this amendment. It simply guarantees protection for a right already existing in the citizen, and the negro having been declared a citizen by the Fourteenth Amendment is thus protected in his right to vote. But whence did he obtain this right unless from the National Constitution, which the Supreme Court in the Minor decision declares "does not confer the right of suffrage upon any one"? Volume II of this History of Woman Suffrage, containing nearly 1,000 pages, is devoted mainly to a recital of the efforts on the part of women to obtain and exercise the franchise through the Fourteenth and Fifteenth Amendments. This decision of the Supreme Court destroyed the last hope, although it did not shake the belief of the leaders of this movement in the justice and legality of their claim.
A number of the women contended that, if the National Constitution did not confer Full Suffrage, it did at least guarantee Federal Suffrage the right to vote for Congressional Representatives and in this opinion they were sustained by eminent lawyers. The National Association, however, never made an issue of this question, considering that it would be useless, but it has a Standing Committee on Federal Suffrage empowered to make such efforts in this direction as it deems advisable.[4]
The assertion is made that if Congress had no authority over the election of its own members, it would be wholly unable to perpetuate itself should the States at any time decide that they no longer care to be under the authority of a central governing body, and refuse to elect Representatives. Many able reports have been made by this Standing Committee, and the question "was clearly stated in an article in The Arena, December, 1891, by Francis Minor, who gave the question of woman suffrage a more thorough legal examination, perhaps, than any other man. He prepared the following bill which was presented in the House of Representatives, April 25, 1892, by the Hon. Clarence D. Clark, member from Wyoming:
Whereas, The right to choose Members of the House of Representatives is vested by the Constitution in the people of the several States, without distinction of sex, but for want of proper legislation has hitherto been restricted to one-half of the people; for the purpose, therefore, of correcting this error and of giving effect to the Constitution:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled: That at all elections hereafter held in the several States of this Union for members of the House of Representatives, the right of citizens of the United States, of either sex, above the age of twenty-one years, to register and to vote for such Representatives shall not be denied or abridged by the United States, or by any State, on account of sex.
The argument for the authority of Congress to pass this law is based partly on Article I of the Federal Constitution:
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 requisite for electors of the most numerous branch of the State Legislature.
Section 4. The time, place and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof, but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.[5]Congress is here endowed unquestionably with the right to regulate the election of Representatives. James Madison, one of the framers of the Constitution, when asked the intention of this clause, in the Virginia convention of 1788, called to ratify this instrument, answered that the power was reserved to Congress because "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." [Elliott's Debates, Vol. II, p. 266. ]
Again Madison said in The Federalist (No. 54), in speaking of the enumeration for Representatives:
The Federal Constitution, therefore, decides with great propriety in the case of our slaves when it views them in the mixed character of persons and property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied that these are the proper criteria; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted that, if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation.
Therefore, as women are counted in the enumeration on which the Congressional apportionment is based, they are legally entitled to an equal share in direct representation.
In 1884 the case of Jasper Yarbrough and others who had been sentenced to hard labor in the penitentiary in Georgia for preventing a colored man from voting for a member of Congress, was brought to the U. S. Supreme Court by a petition for a writ of habeas corpus. The decision rendered March 2, virtually nullified that given by this court in the case of Mrs. Minor in 1875, as quoted above, which held that "the National Constitution has no voters," for this one declared::
The States in prescribing the qualifications of voters for the most numerous branch of their own Legislature, do not do this with reference to the election for members of Congress. Nor can they prescribe the qualifications for those eo nomine [by that name}.
They define who are to vote for the popular branch of their own Legislature, and the Constitution of the United States says the same persons shall vote for members of Congress in that State.
It adopts the qualification thus furnished as the qualification of its own electors for members of Congress. It is not true, therefore, that the electors for members of Congress owe their right to vote to the State law in any sense which makes the exercise of the right to depend exclusively on the law of the State.
Counsel for petitioners seizing upon the expression found in the opinion of the Court in the case of Minor vs. Happersett, "that the Constitution of the United States does not confer the right of suffrage upon any one," without reference to the connection in which it is used, insists that the voters in this case do not owe their right to vote in any sense to that instrument. But the Court was combating the argument that this right was conferred on all citizens, and therefore upon women as well as men.(!)
In opposition to that idea it was said the Constitution adopts, as the qualification for voters for members of Congress, that which prevails in the State where the voting is to be done; therefore, said the opinion, the right is not definitely conferred on any person or class of persons by the Constitution alone, because you have to look to the law of the State for the description of the class. But the Court did not intend to say that, when the class or the person is thus ascertained, his right to vote for a member of Congress was not fundamentally based upon the Constitution which created the office of member of Congress, and declared it should be elective, and pointed to the means of ascertaining who should be electors.
The Fifteenth Amendment of the Constitution, by its limitation of the power of the States in the exercise of their right to prescribe the qualifications of voters in their own elections, and by its limitation of the power of the United States over that subject, clearly shows that the right of suffrage was considered to be of supreme importance to the National Government and was not intended to be left within the exclusive control of the States.
In such cases this Fifteenth Article of amendment does proprio vigore [by its own force] substantially confer on the negro the right to vote, and Congress has the power to protect and enforce that right. In the case of United States vs. Happersett, so much relied on by counsel, this Court said, in regard to the Fifteenth Amendment, that it has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is an exemption from discrimination in the exercise of the elective franchise on account of race, color or previous condition of servitude.
This new constitutional right was mainly designed for [male] citizens of African descent. The principle, however, that the protection of the exercise of this right is within the power of Congress, is as necessary to the right of other citizens to vote in general as to the right to be protected against discrimination.This legal hair-splitting is beyond the comprehension of the average lay mind and will be viewed by future generations with as much contempt as is felt by the present in regard to the infamous decision of the Supreme Court in the Dred Scott case in 1857. If it decides anything it is that the right to vote for Congressional Representatives is a Federal right, vested in all the people by the National Constitution, and one which it is beyond the power of the States to regulate. Therefore, no State has the power to deprive women of the right to vote for Representatives in Congress.
Those who hold that women are already entitled to Federal Suffrage under the National Constitution, further support their claim by a series of decisions as to the citizenship of women and the inherent rights which it carries. They quote especially the case of the United States vs. Kellar. The defendant was indicted by a Federal grand jury in Illinois for illegal voting in a Congressional election, as he never had been naturalized. He and his mother were born in Prussia, but came to the United States when he was a minor, and she married a naturalized citizen. The case was tried in June, 1882, in the Circuit Court of the United States for the Southern District of Illinois, by Associate Justice Harlan of the U. S. Supreme Court, who discharged the defendant. He held that the mother, having become a citizen by marriage while the son was a minor, transferred citizenship to him. In other words she transmitted a Federal Citizenship including the right to vote which she did not herself possess, thus enfranchising a child born while she was an alien. The whole matter was settled not by State but by Federal authority.[6] If a mother can confer this right on a son, why not on a daughter? But why does she not possess it herself? The clause of the National Constitution which established suffrage at the time that instrument was framed, does not mention the sex of the elector.
The argument for Federal Suffrage was presented in a masterly manner before the National Convention of 1889 by U. S. Senator Henry W. Blair (N. H.); and it was discussed by Miss Anthony and Mrs. Minor. See present volume, Chap. IX.
From this bare outline of the claim that women already possess Federal Suffrage, or that Congress has authority to confer it without the sanction of the States, readers can continue the investigation. Notwithstanding its apparent equity, the leaders of the National Association, including Miss Anthony herself, felt convinced after the decision against Mrs. Minor that it would be useless to expect from the Supreme Court any interpretation of the Constitution which would permit women to exercise the right of suffrage. They had learned, however, through the passage of the Fourteenth and Fifteenth Amendments, that it had been possible to amend this document in such a way as to enfranchise an entire new class of voters—or in other words to protect them in the exercise of a right which it seemed that in some mysterious way they already possessed. As the Fourteenth Amendment declared the negroes to be citizens, and the Fifteenth forbade the United States or any State to deny or abridge "the right of citizens of the United States to vote, on account of race, color or previous condition of servitude," it was clearly evident that this right inhered in citizenship. This being the case women must already have it, but as there was no national authority prohibiting the States from denying or abridging it, each of them did so by putting the word "male" in its constitution as a qualification for suffrage; just as many of them had used the word "white" until the adoption of the Fifteenth Amendment by a three-fourths majority made this unconstitutional. Therefore, since the Minor vs. Happersett decision, the National Association has directed its principal efforts to secure from Congress the submission to the several State Legislatures of a Sixteenth Amendment which should prohibit disfranchisement on account of "sex," as the Fifteenth had done on account of "color."
The association does not discourage attempts in various. States to secure from their respective Legislatures the submission of an amendment to the voters which shall strike out this word "male" from their own constitutions. On the contrary, it assists every such attempt with money, speakers and influence, but having seen such amendments voted on sixteen times and adopted only twice (in Colorado and Idaho), it is confirmed in the opinion that the quickest and surest way to secure woman suffrage will be by an amendment to the Federal Constitution. In other words it holds that women should be permitted to carry their case to the selected men of the Legislatures rather than to the masses of the voters.
From 1869 until the decision in the Minor case in 1875, the National Association went before committees of every Congress with appeals for a Declaratory Act which would permit women to vote under the Fourteenth Amendment. Since that decision it has asked for a Sixteenth Amendment. In both cases it has been supported by petitions of hundreds of thousands of names.
The ablest women this nation has produced have presented the arguments and pleadings. Many of the older advocates have passed away, but new ones have taken their place. It is the unvarying testimony of the Senate and House Committees who have granted these hearings, that no body of men has appeared before them for any purpose whose dignity, logic and acumen have exceeded, if indeed they have equaled, those of the members of this association. They have been heard always with respect, often with cordiality, but their appeals have fallen, if not upon deaf, at least upon indifferent ears. They have asked these committees to report to their respective Houses a resolution to submit this Sixteenth Amendment. Sometimes the majority of the committee has been hostile to woman suffrage and presented an adverse report: sometimes it has been friendly and presented one favorable; sometimes there have been an opposing majority and a friendly minority report, or vice versa; but more often no action whatever has been taken. During these thirty years eleven favorable reports have been made—five from Senate, six from House Committees.[7]
In the History of Woman Suffrage, Vols. II and III, will be found a full record of various debates which occurred in Senate and House on different phases of the movement to secure suffrage for women previous to 1884, when the present volume begins. In 1885 Thomas W. Palmer gave his great speech in the United States Senate in advocacy of their enfranchisement; and in 1887 occurred the first and only discussion and vote in that body on a Sixteenth Amendment for this purpose, both of which are described herein under their respective dates.
In the following chapters will be found an account of the annual conventions of the National Suffrage Association since 1883, and of the American until the two societies united in 1890, with many of the resolutions and speeches for which these meetings have been distinguished. They contain also portions of the addresses, covering every phase of this subject, made at the hearings before Congressional Committees, and the arguments advanced for and against woman suffrage in the favorable and adverse reports of these committees, thus presenting both sides of the question. Readers who follow the story will be obliged to acknowledge that the very considerable progress which has been made toward obtaining the franchise is due to the unceasing and long-continued efforts of this association far more than to all other agencies combined; and that the women who compose this body have demonstrated their capacity and their right to a voice in the Government infinitely beyond any class to whom it has been granted since the republic was founded.
- ↑ The part of this record with which Miss Anthony herself was directly connected, and which comprises by far the greater portion of the whole, is given # with many personal incidents in her Life and Work. [Husted-Harper.]
- ↑
article xiv.
Section I. 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; nor shall any State deprive any person of life, liberty or property, without due process of law, or 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 age in such State.
- ↑ Women also had attempted to vote in local and State elections in 1870 and 1871. An account of the trials and decisions which followed will be found in the History of Woman Suffrage, Vol. II, Chap. XXV.
- ↑ The most earnest advocates of the constitutional right of women to Federal Suffrage are Mrs. Sallie Clay Bennett, Ky.; Mrs. Clara B. Colby, D. C.; Mrs. Martha E. Root. Mich.; Miss Sara Winthrop Smith, Conn. They have done a large amount of persistent but ineffectual work in the endeavor to obtain a recognition of this right.
- ↑ Senator John Sherman did at one time introduce a bill for this purpose.
- ↑ This is precisely what was done in the case of Susan B. Anthony above referred to.
- ↑ The first report, in 1871, was signed by Representatives Benjamin F. Butler (Mass,) and William A. Loughridge (Ia.): History of Woman Suffrage, Vol. II, p. 464. The second, in 1879, was signed by Senators George F. Hoar (Mass.), John H. Mitchell (Ore.), Angus Cameron (Wis.): Id., Vol. III, p. 131. The third, in 1882, was signed by Senators Elbridge G. Lapham (N. Y.), Thomas W. Ferry (Mich.), Henry W. Blair (N. H.), Henry B. Anthony (R. I.): Id., p. 231. The fourth, in 1883, was signed by Representative John D. White (Ky-): Id., p. 263. For the fifth and sixth, in 1884, see Chap. III of present volume; for the seventh and eighth, in 1886, Id., Chap. V. (See also, Chap. VI.); for the ninth and tenth, in 1890, Id., Chap. X; for the eleventh, in 1892, Id., Chap. XII. It is worthy of notice that from 1879 to 1891, inclusive, Miss Susan B. Anthony was enabled to spend the congressional season in Washington [see pp. 188, 366], and during this time nine of these eleven favorable reports were made. For adverse reports see History of Woman Suffrage: 1871, Vol. II, p. 461; 1878, Vol. III, p. 112; 1882, Id., p. 237; 1884, present volume, Chap. FII (see also, Chap. VI); 1892, Id., Chap. XII; 1894, Id., Chap. XIV; 1896, Id., Chap. XVI.