is wide awake to the rights of self-government now being trampled on
in Louisiana. At such a crisis it would seem that liberty-loving
statesmen might easily be converted to the idea of universal suffrage.
On every principle that they now demand self-government for the people
of Louisiana, they should extend the right of suffrage to the women of
that State now in so unsettled a condition. The annual report and
resolutions were discussed and speeches made by Miss Anthony and Mrs.
Blake during the morning session. Letters were read from Robert Dale
Owen, of Philadelphia, Rev. O. B. Frothingham, of New York, Paulina
Wright Davis, of Providence, Dr. J. C. Jackson, of Dansville, N. Y.,
and Abby Smith, of Glastonbury, Conn. Miss Couzins' speech in the
evening on the "Social Trinity" was a touching appeal for woman's
moral, spiritual, and æsthetic influence on humanity at large. Miss
Carrie Burnham made an interesting argument showing that the
disabilities of women might be directly traced to papal decrees; to
the canon rather than the civil law. Miss Lillie Devereux Blake made a
strong appeal on the duty of enfranchising the women of the Nation
before celebrating the coming Centennial. She thought it would be an
act of justice that would glorify that day as it could be done in no
other manner. Belva A. Lockwood, Marilla M. Ricker, Catharine
Stebbins, Lavinia Dundore, and Dr. Clemence Lozier, all took part in
the discussion of the resolutions.
3. _Resolved_, That as the duties of citizens are the outgrowth
of their rights, a class denied the common rights of citizenship
should be exempt from all duties to the State. Hence the Misses
Smith, of Glastonbury, Conn., and Abby Kelly Foster, of
Worcester, Mass., who refused to pay taxes because not allowed to
vote, suffered gross injustice and oppression at the hands of
State officials, who seized and sold their property for taxes.
4. _Resolved_, That to deny the right of suffrage to the women of
the Nation, is a dangerous innovation on the rights of man, since
the assumed power to deny the right to one class, is the implied
power to deny it to all others; acting on this principle, New
Hampshire abridges the rights of her citizens by forbidding
Catholics to hold office; and Rhode Island abridges the rights of
her citizens by forbidding foreigners to vote, except on a
property qualification.
5. _Resolved_, That our thanks are due to the Hon. A. A. Sargent
and the other eighteen Senators who voted for woman suffrage on
the Pembina Bill, and to the 40,000 brave men who went to the
polls and voted for woman suffrage in Michigan.
6. _Resolved_, That in the death of Martha C. Wright, the
President of our National Association, Dr. Harriot K. Hunt, the
first woman in the country who entered the medical profession,
the Rev. Beriah Green, and the Hon. Gerrit Smith, steadfast
advocates of woman suffrage, we have in the last year been called
to mourn the loss of four most efficient and self-sacrificing
friends of our movement--women and men alike true to the great
principles of republican government.
WHEREAS, It is now proposed to celebrate our coming centennial
birthday as a free Government, inviting the monarchies of the Old
World to join in the festivities, while the women of the country
have no share in its blessings; therefore,
_Resolved_, That the National Woman Suffrage Association will
hold a convention in Philadelphia on July 4, 1876, to protest
against such injustice unless Congress shall in the meantime
secure to woman the rights, privileges, and immunities of
American citizens.
_Resolved_, That we cordially invite all women in the Old World
and the New, to co-operate with us in promoting the objects of
the convention in 1876. As the enfranchisement of woman would be
the most fitting way of celebrating this great event in our
nation's history, women suffragists throughout the country should
now make an united effort with Congress and all State
Legislatures to act on this question, that when the old liberty
bell rings in the dawn of the new century, we may all be free and
equal citizens of a true republic.
MISS ANTHONY said that man neither supports woman nor protects
her. The census reports show that two million women are entirely
independent of men in regard to employments. Thousands of women
do work outside the home from necessity. A million women are
engaged in domestic service providing for their own necessities,
and a million more are supporting their families and drunken
husbands.
Letters were read from Dr. Mary Thomas, President of the Indiana
Association, and from Clara Barton, then traveling in Italy, deploring
the subject condition of women in foreign lands. The day after the
Convention the ladies received their friends in the spacious parlors
at Willard's Hotel. Congressmen, lawyers, clergymen, and many bright
girls from the departments were among the guests. Nothing indicates
the progress of a reform more readily than the cordial social
recognition of its leaders. While pausing now and then to note the
adverse winds we are compelled to encounter in the jealousies,
discords, and divisions of friends, and in the ridicule and
misrepresentation of enemies, a broader vision shows us that the great
tidal waves of thought are all flowing in one direction.
May 11, 1875, the twenty-seventh anniversary of the suffrage movement
was held in the new Masonic Temple, Twenty-third street, New York.
This magnificent Hall for the first time echoed to the demands of
woman for an equal share in the great interests of the world.
The convention was opened with prayer by the Rev. Olympia Brown, who
referred most impressively to the coming Centennial, expressing the
hope that the Fourth of July, 1876, might indeed be a day of jubilee,
in which liberty and justice would be secured to the whole people. The
resolutions[161] were discussed with great spirit by the various
speakers.[162] An interesting letter was read from Isabella Beecher
Hooker, giving some of her experiences and observations in France.
The Hall was crowded in the evening to listen to Mr. Frothingham. His
address was an able exposition of the injustice of the heavy taxes
laid on women. He read several extracts from the reports of William I.
Bowditch, of Boston, in regard to the large number of women in
Massachusetts holding property, and in closing, depicted with great
feeling the constant sacrifices women were compelled to endure because
they had no representation in the Government. After a song by the
Hutchinsons, the large audience slowly dispersed.
At a business meeting next day the officers[163] for the year were
chosen, and arrangements made to canvass Iowa if, as was proposed, an
amendment to the Constitution extending the right of suffrage to the
women of that State, should be submitted to the people.
All thoughts were now turned to the Centennial year, as to what new
forms of agitation could be suggested; what onward steps of progress
accomplished, for after the untiring labors of thirty years, the
leaders in this movement naturally felt that the great event of the
century could not pass without bringing some new liberty to woman.
FOOTNOTES:
[151] 2. _Resolved_, That the present attempts in our courts, by a
false construction of the National Constitution, to exalt all men as
sovereigns, and degrade all women as slaves, is to establish the most
odious form of aristocracy known in the civilized world--that of sex.
3. _Resolved_, That women are "persons" and "citizens," possessed of
all the legal qualifications of voters in the several States--age,
property, and education--and by the XIV. Amendment of the National
Constitution have been secured the right of suffrage.
4.: _Resolved_, That it is the duty of Congress, by appropriate
legislation, to protect women in their exercise of this right.
5. _Resolved_, That women are citizens, first of the United States,
and second of the States and Territories wherein they reside; hence we
claim National protection of our inalienable rights, against all State
authority.
6. _Resolved_, That States may regulate all local questions of
property, taxation, etc., but the inalienable personal rights of
citizenship must be declared by the Constitution, interpreted by the
Supreme Court, protected by Congress, and enforced by the arm of the
Executive.
7. _Resolved_, That the criminal prosecution of Susan B. Anthony by
the United States, for the alleged crime of exercising the citizen's
right of suffrage, is an act of arbitrary authority, unconstitutional,
and a blow at the liberties of every citizen of this nation.
_Business Committee_:--Matilda Joslyn Gage, New York; Belva A.
Lockwood, District of Columbia; Lillie Devereux Blake, New York; Mrs.
Mary Henderson, Missouri; Mrs. Lavinia Dundore, Maryland; Edward M.
Davis, Pennsylvania; Mrs. Mary A. Dobyns, Kentucky; Mrs. Anna C.
Savery, Iowa; Miss Phebe Couzins, St. Louis; Mrs. Jane Graham Jones,
Illinois; Mrs. Helen M. Barnard, District of Columbia; Rev. Olympia
Brown, Connecticut; Robert Purvis, District of Columbia.
_Finance Committee_:--Mrs. Ellen C. Sargent, Belva A. Lockwood; Edward
M. Davis, Ruth Carr Dennison, Helen M. Barnard.
_Committee on Resolution_:--Elizabeth Cady Stanton, Belva A. Lockwood,
Lillie Devereux Blake, Matilda Joslyn Gage.
[152] WOMAN SUFFRAGE ANNIVERSARY.--NATIONAL WOMAN SUFFRAGE
ASSOCIATION.--The Twenty-fifth Woman Suffrage Anniversary will be held
in Apollo Hall, New York, Tuesday, May 6, 1873. Lucretia Mott and
Elizabeth Cady Stanton, who called the first Woman's Rights convention
at Seneca Falls, 1848, will be present to give their reminiscences.
That Convention was scarcely mentioned by the local press; now, over
the whole world, equality for woman is demanded. In the United States,
woman suffrage is the chief political question of the hour. Great
Britain is deeply agitated upon the same topic; Germany has a princess
at the head of its National Woman's Rights organization. Portugal,
Spain, and Russia have been roused. In Rome an immense meeting,
composed of the representatives of Italian democracy, was recently
called in the old Coliseum; one of its resolutions demanded a reform
in the laws relating to woman and a re-establishment of her natural
rights. Turkey, France, England, Switzerland, Italy, sustain papers
devoted to woman's enfranchisement. A Grand International Woman's
Rights Congress is to be held in Paris in September of this year, to
which the whole world is invited to send delegates, and this Congress
is to be under the management of the most renowned liberals of Europe.
Come up, then, friends, and celebrate the Silver Wedding of the Woman
Suffrage movement. Let our Twenty-fifth Anniversary be one of power;
our reform is everywhere advancing, let us redouble our energies and
our courage.
MATILDA JOSLYN GAGE, _Ch'n Ex. Com._ SUSAN B. ANTHONY, _Pres._
[153] Mrs. Elizabeth Avery Meriwether, Tennessee; Isabella Beecher
Hooker, Connecticut; Francis Miller, Washington, D. C.; Sarah R. L.
Williams, Toledo, Ohio; Mrs. C. M. Palmer, California; Carrie S.
Burnham, Pennsylvania; Ellen C. Sargent, Washington; Le Grand Marvin,
Buffalo, N. Y.; Carl Doerflinger, Wisconsin; Emily Pitts Stevens,
editor of the _Pioneer_, San Francisco, Cal.; A. Jane Duniway, editor
of the _New Northwest_, Portland, Oregon.
[154] WHEREAS, This being the twenty-fifth anniversary of the first
combined effort of women for the recognition of their civil and
political rights; and,
WHEREAS, The demands first publicly promulgated in an obscure village
in the State of New York have now spread over the world; therefore,
_Resolved_, That while we congratulate women on the progress of this
reform during a quarter of a century, we urge them not to grow
discouraged or faint-hearted when obstacles arise in their attack upon
hoary wrongs. We remind them that the race is not to the swift, nor
the battle to the strong, and that the nearer we come to victory the
stronger will be the effort against us. But our cause is one of
eternal justice, and must ultimately prevail.
_Resolved_, That Lucretia Mott and Elizabeth Cady Stanton will
evermore be held in grateful remembrance as the pioneers in this
grandest reform of the age; that as the wrongs they attacked were
broader and deeper than any other, so as time passes they will be
revered as foremost among the benefactors of the race, and that we
also hold sacred the memory of their co-laborers in the Convention of
1848.
WHEREAS, The underlying principle of our Government is equality of
political rights, therefore,
_Resolved_, That in the prosecution and trial of Susan B. Anthony, a
citizen of the United State, for having cast a ballot at the last
election, the Government of the United States declares it is a crime
to vote, thus attempting to undermine the very foundation of the
Republic.
_Resolved_, That as in this trial Susan B. Anthony represents one-half
of the people, the whole power of the United States is arrayed against
the women of the nation--against law-abiding, tax-paying women
citizens.
_Resolved_, That the trial of Susan B. Anthony, though ostensibly
involving the political status of woman alone, in reality questions
the right of every man to share in the Government; that it is not
Susan B. Anthony, or the women of the Republic who alone are on trial
to-day, but it is the Government of the United States, and that as the
decision is rendered for or against the political rights of
citizenship, so will the men of America find themselves free or
enslaved.
_Resolved_, That the decisions of the courts in the case of Mrs.
Bradwell, of Illinois, Mrs. Spencer and Mrs. Webster, of Washington;
Mrs. Minor, of St. Louis; Miss Burnham, of Philadelphia, and others,
are warnings to the people that their liberties are in danger.
_Resolved_, That it is because women are not voters, and, therefore,
have no recognized political power, that the members of the
Forty-second Congress, while raising their own salaries from $5,000 to
$7,500, dared to reject an amendment to the same bill, which proposed
to raise the salaries of the women employés of the Government from
$900 to $1,200.
_Resolved_, That in the coming Centennial of our nation's birth it is
mockery to ask woman to lend a helping hand without some pledge to
right her wrongs; what cause has she for rejoicing unless the century
shall round out with her enfranchisement, and the old liberty bell
ring in equality for all.
_Resolved_, That the report of the Judiciary Committee of the Assembly
of the State of New York in regard to a property suffrage
qualification for women, is one of the signs of awakened thought
toward our reform.
_Resolved_, That the rapid advance of Woman's Rights in foreign
countries is a subject of gratulation, and as a matter of special
cheer we call particular attention to the grand international Woman's
Rights Congress, under the control of the liberals of Europe, to be
held in Paris during the present year.
WHEREAS, The National Woman Suffrage Association has been requested to
send delegates to the International Woman's Rights Congress to be held
in Paris in October next; therefore,
_Resolved_, That this Association empower Ernestine L. Rose, Paulina
Wright Davis, Mathilde F. Wendt, Jane Graham Jones, and Elizabeth
Phelps Pearsall, to represent our woman suffrage movement in that
congress.
[155] Mrs. Nettie C. Tabor, Cal.; Frances Ellen Burr, Hartford, Conn.;
Mrs. Elizabeth B. Phelps, N. Y.; Mrs. E. Langdon, N. Y.; Jane B.
Archibald, D. C.; Miss Jennie V. Jewell, D. C.; Mrs. Adeliah Gardiner,
Baltimore; Kate C. Harris, Baltimore; Miss Laura Ewing, Baltimore;
Phoebe W. Couzins; Edward M. Davis, Philadelphia; Matilda Joslyn Gage,
Fayetteville, N. Y.; Lillie Devereux Blake, New York City; Ruth C.
Dennison, D. C.; Sara Andrews Spencer, D. C.; Dr. Clemence S. Lozier,
New York City; Belva A. Lockwood, Virginia L. Vaughn, James K. Wilcox,
and the Hutchinson Family.
[156] Letters were received from Paulina Wright Davis, Providence, R.
I.; Virginia L. Minor, St. Louis, Mo.; Hon. E. G. Lapham, Canandaigua,
N. Y.; Vice-Pres. Henry Wilson, Natick, Mass.; John Van Vhoris,
Rochester, N. Y.; Dr. James C. Jackson, Dansville, N. Y.; Hon. Henry
R. Selden, Rochester, N. Y.; Hon. John A. Kasson, Iowa; Thomas
Wentworth Higginson, Newport, R. I.; Ernestine L. Rose, London,
England; Dr. Laura Ross Wolcott, Milwaukee, Wisconsin; Carrie S.
Burnham, Philadelphia, Pa.; Lewia C. Smith, Rochester, N. Y.; Asenath
Coolidge, Watertown, N. Y.; Priscilla Holmes Drake, Alabama; Laura De
Force Gordon, California; George F. Downing, Washington, D. C.; The
Free Thinkers Club of Milwaukee; The Radical Democracy of Wisconsin.
[157] _Resolved_, That this convention, representing as it does all
portions of our country, cordially sympathizes with the proposed
efforts of the women of the District of Columbia to secure the
practical enjoyment of their constitutional right to vote, as declared
by the Supreme Court of said District, by the passage of an act of
Congress amending the organic law of the District by striking out the
word "male" from the seventh section of said act; and we earnestly
request our senators and representatives to support a bill providing
for such an amendment by speech and vote.
_Resolved_, That a committee of seven be appointed by the president of
this convention to co-operate with the committee heretofore appointed
by the women of the District of Columbia in their application to
Congress for the passage of an act amendatory of the organic act of
said District, as above indicated.
_Resolved_, That among the important events in our struggle for the
equal rights of woman we place the trial of Miss Susan B. Anthony
before Hon. Ward Hunt, a judge of the Supreme Court of the United
States, at Canandaigua, New York, in June last, on an indictment for
voting as a citizen at the general election in November, 1872; that
the grossly partial course of Judge Hunt on that occasion, his seeming
unacquaintance with the plainest rules of law, and his eagerness for
the conviction of Miss Anthony, stand in marked contrast with the calm
demeanor and clear apprehension of the facts and principles at issue
which she exhibited on the trial, and their conduct respectively in
this memorable contest affords proof that, though it may be possible
that all women have not a constitutional right to be voters, it is
very certain that some men are not fit to be judges.
_Resolved_, That waiving for the present moment the question whether
or not Judge Hunt was correct in his decision concerning the
constitutional right of women to vote for Federal officers,
nevertheless, in the opinion of all sound lawyers and intelligent men,
he committed a great outrage against Miss Anthony by assuming, without
proof, that she voted for a candidate for Congress, and by arbitrarily
refusing to allow the jury to pass upon the question of her innocence,
and by peremptorily commanding them to render a verdict of guilty.
That so plain is this to the minds of those who possess any clear
knowledge of general principles of law, and of the ordinary duties of
a criminal court, that Judge Hunt has shown by his conduct on that
trial that he is too ignorant to fill his high position, or too
arbitrary to be entrusted with its grave responsibilities; and,
therefore, in either case, he ought to be impeached and removed from
the bench.
_Resolved_, That by the death of John Stuart Mill, woman has lost a
wise, brave friend. His great work for the enfranchisement of woman,
and for the elevation of all mankind deserves the public thanks of
this convention.
_Resolved_, That in Hon. John C. Underwood, lately removed from the
bench by death, the women of his district have lost that rarest of
public servants, a judge to whom the disfranchised could confidently
look for justice.
_Resolved_, That by the death of John M. Morris, late editor of the
Washington _Chronicle_, the cause of woman's freedom lost a tried and
valued friend, whose faithfulness and judgment entitled him to the
gratitude of the women of this Nation.
Miss Anthony submitted the following:
_Resolved_, That the thanks of the friends of woman suffrage are due
to the Misses Smith, of Glastonbury, Connecticut, for their patriotic
resistance to the tyranny of taxation without representation, and that
all women tax payers through the country should follow their example.
_Resolved_, That the best means of agitating at the present hour is
for all women to insist on their right of representation by actually
presenting their votes at every election, and for all property-holding
women to refuse to pay another dollar of tax until their right of
representation is recognized.
PETERBORO, January 5, 1874
SUSAN B. ANTHONY--MY DEAR FRIEND: As I am suffering from an attack of
vertigo, I answer your letter by the hand of my wife. Enclosed is my
contribution toward defraying the expenses of your convention. Strong
as is the Constitutional argument for woman suffrage, I nevertheless
hope that your convention will not tolerate the idea of measuring the
rights of woman by a man-made constitution. Have you heard of a State
in which women and women only bear rule, and the constitution of which
was made by women only? Perhaps there is such a flagrantly unjust
state, either on this or some other planet. If so, deep is the injury
done to its men. But deeper the insult added to this injury if, when
the men complain of being excluded from the government, the women
apply to the measurement of man's rights the yardstick of a woman-made
constitution. Constitutions are useful in settling ten thousand
subordinate questions. But the great questions of primary and inherent
human rights are to be submitted to no lower decisions than those of
God's immutable and everlasting justice.
With high regard, your friend, GERRIT SMITH.
GEN. BUTLER'S LETTER.
WASHINGTON, December 1.
MY DEAR MADAM: As a rule I have refused to take part in any convention
in the District of Columbia about any matter which might come before
Congress. I do not think it proper. I went far out of my way in this
regard, having given evidence that I am most strongly committed to the
legality, propriety and justice of giving the ballot to woman. I do
not see how I can add anything to it by appearing on the platform in
advocacy of any measure that may come before me as a Member of
Congress, and I do not think my sense of propriety would over-balance
such considerations. Hoping that your cause may succeed, I have the
honor to be, very truly yours,
BEN. F. BUTLER.
[158] ANNUAL CONVENTION OF THE NATIONAL WOMAN SUFFRAGE
ASSOCIATION.--For more than a quarter of a century the representative
women of this nation have held annual meetings, demanding the
recognition of their rights as citizens of the United States. In halls
of legislation and courts of justice, as well as in Conventions,
woman's equality with man in all civil and political rights,
privileges and immunities, has been debated and variously decided by
popular opinion, statute law and judicial decree, without arriving at
any permanent settlement of the question. And until the world learns
that there should be but one code of laws and morals for man and
woman, this question never can be settled. But the discussion has
roused woman herself to new thought and action, and kindled in her an
enthusiasm that the best interests of the nation demand should be
wisely directed and controlled.
The fact that women are already voting, holding office and resisting
taxation, that thousands are enrolling in the Grange movement and
Temperance Crusade, that Woman Suffrage is to be voted upon in
Michigan at the next election, should warn the Government that the
hour for its action has come. It must now determine whether woman's
transition from slavery to freedom shall be through reformation or
revolution, whether she shall be permitted to express her interest in
national questions through law by the direct power of the ballot, or
outside of law by indirect and irresponsible power; and thus, by a
blind enthusiasm, plunge the nation into anarchy.
For an earnest discussion of the duty of the hour, we invite all
persons interested in woman's enfranchisement to meet in Irving Hall,
New York, on the 14th and 15th of May.
SUSAN B. ANTHONY, _President_.
ELIZABETH CADY STANTON, _Chairman Ex. Com_.
[159] The speakers at this Convention were Ernestine L. Rose, Martha
C. Wright, O. B. Frothingham, Rev. Olympia Brown, Rev. Antoinette
Brown Blackwell, Elizabeth B. Phelps, Carrie S. Burnham, Sarah Andrews
Spencer, Frances V. Hallock, Amanda Deyo, Dr. J. Mix, Mrs. Helen M.
Slocum, Dr. Clemence S. Lozier, Lillie Devereux Blake, Susan B.
Anthony.
[160] Letters were received at this May Anniversary (1874) from
Lucinda B. Chandler, Vineland, New Jersey; Mrs. C. C. Hussey, Report
of New Jersey; Mary F. Davis, New Jersey; Catherine F. Stebbins,
Michigan; Mary J. Channing, Paulina Wright Davis, Rhode Island; Alfred
H. Love, Edward M. Davis, Sarah Pugh, Philadelphia; Lorenza Haynes,
Theological School, St. Lawrence University, Canton, N. Y.; Sarah R.
L. Williams, Toledo, Ohio; Harriet S. Brooks, Report for Illinois;
Catharine V. Waite, Illinois; Lizzie Boynton Harbert, Iowa; Virginia
L. Minor, Missouri; Annie L. Quinby, Kentucky; Sarah Burger Stearns,
Duluth, Minnesota; Hon. Benj. F. Butler, Massachusetts; Mrs. C. H.
Baker, Mrs. H. K. Clapp, Nevada; Sarah J. Wallis, California; Mrs. C.
I. H. Nichols, Pomo, California; Mariana Thompson Folsom, Foxboro,
Mass.; Emily P. Collins, La.; Mary K. Spalding, Atlanta, Ga.; Mrs.
Matilda Joslyn Gage, New York; Mary L. Booth, _Harper's Bazar_, New
York; Ann T. Greeley, Ellsworth, Me.; Mary Olney Brown, Olympia,
Washington Territory.
[161] _Resolved_, That as complete individual development depends on
the harmonious exercise of our three-fold nature, and undue power
given to either deranges and undermines the whole being, so in the
nation, a complete experiment of self-government can be made only by
the equal recognition of the rights of all citizens, and in their
homogeneous education into the laws of national life.
_Resolved_, That the decision of Chief Justice Waite, in the case of
Virginia L. Minor of Missouri, that according to the Federal
Constitution woman is a citizen, but not entitled to the right of
suffrage, is more infamous and retrogressive in principle at this
hour, than was Chief-Justice Tancy's decision in the Dred Scott case,
that a black man was not a United States citizen, and therefore not
entitled to the rights of a citizen of every State.
_Whereas_, By the recent decisions of the Supreme Court in the case of
Myra Bradwell of Illinois, and of Virginia L. Minor of Missouri, the
Federal Constitution is declared powerless to protect the civil and
political rights of woman.
_Resolved_, That it is the duty of Congress to take the necessary
steps to secure an amendment to the Constitution that shall prohibit
the several States from disfranchising citizens of the United States
on account of sex.
_Whereas_, One of the strongest evidences of the degradation of
disfranchised classes is the denial of their right to testify against
their rulers in courts of justice (slaves could not testify against
their masters; Chinamen in California to-day can not testify against
white men, nor wives in cases of crim. con. against their husbands);
therefore
_Resolved_, That the denial of Elizabeth R. Tilton's right to testify
in the pending Brooklyn trial, is but proof of woman's need of the
ballot in her own right for self-defence and self-protection.
_Resolved_, That as the proposition for woman's enfranchisement is to
be submitted in Iowa, in 1876, the National Woman Suffrage Association
will hold there 100 county conventions, and by lectures and the
circulation of tracts, help the women of Iowa to make a thorough
canvass of the State.
_Resolved_, That we congratulate the women of England for the large
vote secured on the Woman's Disabilities Bill in the House of Commons.
With a Queen on her throne, 400,000 women already voting, and her
Premier in favor of the measure, England bids fair to take the lead in
the complete enfranchisement of women.
[162] Rev. O. B. Frothingham, Matilda Joslyn Gage, Rev. Olympia Brown,
Lillie Devereux Blake, Carrie S. Burnham, Mrs. Stanton, and Miss
Anthony.
[163] Matilda Joslyn Gage, President; Lucretia Mott and Elizabeth Cady
Stanton, Vice-Presidents; Henrietta P. Westbrook, Recording Secretary;
Isabella Beecher Hooker, Corresponding Secretary; Ellen Clark Sargent,
Treasurer; Susan B. Anthony and fifteen others, Executive Committee.
CHAPTER XXV.
TRIALS AND DECISIONS.
Women voting under the XIV. Amendment--Appeals to the
Courts--Marilla 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 Marilla M. Ricker, of Dover, New
Hampshire, a young widow of large property. In March,[164] 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,[165]
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:
Mr. RIDDLE said: May it please the Court; ... These plaintiffs,
describing themselves as women, claim to be citizens of the
United States and of this District, with the right of the
elective franchise, which they attempted to exercise at the
election of April 20th last past, and were prevented. They say
that as registration was a prerequisite of the right to vote,
they tendered themselves in due form, and demanded it, under the
second section of the Act of May 31, 1870 (16th U.S. Stats.,
140). That is the "Act to enforce the right of citizens of the
United States to vote," etc., and authorizes a suit for refusing
registration. They say, that being refused registration, they
tendered their votes to the proper inspectors of said election,
with proof of their attempt to register, citizenship, etc., as
authorized by the third section of said Act, and their votes were
refused; and, thereupon, Spencer brings her suit under said
second section, against the registering officers, and Webster
hers under the third section, which authorizes it, for rejecting
her vote. The questions in both cases are identical and presented
together.
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
Sec. 578. The most strenuous advocate for universal suffrage
has never yet contended that the right should be absolutely
universal. No one has ever been sufficiently visionary to
hold that all persons of every age, degree, and character,
should be entitled to vote in all elections of all public
officers. Idiots, infants, minors, and persons insane or
utterly imbecile, have been, without scruple, denied the
right as not having the sound judgment and discretion fit
for its exercise. In many countries, persons guilty of
crimes have also been denied the right as a personal
punishment, or as a security to society. In most countries,
females, whether married or single, have been purposely
excluded from voting, as interfering with sound policy and
the harmony of social life ... And yet it would be extremely
difficult, upon any mere theoretical reasoning, to establish
any satisfactory principle upon which the one-half of every
society has thus been systematically excluded by the other
half from all right of participating in government, which
would not at the same time apply to and justify many other
exclusions. If it be said that all men have a natural,
equal, and inalienable right to vote, because they are all
born free and equal; that they all have common rights and
interests entitled to protection; and, therefore, have an
equal right to decide, either personally or by their chosen
representatives, upon the laws and regulations which shall
control, measure, and sustain those rights and interests;
that they can not be compelled to surrender, except by their
free consent, what by the bounty and order of Providence
belongs to them in common with all their race. What is there
in these considerations which is not equally applicable to
females as free, intelligent, moral, responsible beings,
entitled to equal rights and interests and protection, and
having a vital stake in all the regulations and laws of
society? And, if an exception, from the nature of the case,
could be felt in regard to persons who are idiots, infants,
and insane, how can this apply to persons who are of more
mature growth, and are yet deemed minors by the municipal
law?
SEC. 580. If, then, every well-organized society has the
right to consult for the common good of the whole; and if,
upon the principle of natural law, this right is conceded by
the very union of society, it seems difficult to assign any
limit to this right which is compatible with the due
attainment of the end proposed. If, therefore, any society
shall deem the common good and interests of the whole
society best promoted under the particular circumstances in
which it is placed by a restriction of the right of
suffrage, it is not easy to state any solid ground of
objection to its exercise of such an authority. At least, if
any society has a clear right to deprive females,
constituting one-half of the whole population, of the right
of suffrage (which, with scarcely an exception, has been
uniformly maintained), it will require some astuteness to
find upon what ground this exclusion can be vindicated,
which does justify, or at least excuse, many other
exclusions.
Sec. 581. Without laying any stress upon this theoretical
reasoning which is brought before the reader, not so much
because it solves all doubts and objections, as because it
presents a view of the serious difficulties attendant upon
the assumption of an original and inalienable right of
suffrage, as originating in natural law, and independent of
civil law, it may be proper to state that every civilized
society has uniformly fixed, modified, and regulated the
right of suffrage for itself according to its own free will
and pleasure. Every constitution of government in these
United States has assumed, as a fundamental principle, the
right of the people of the State to alter, abolish, and
modify the form of its own government according to the
sovereign pleasure of the people. In fact, the people of
each State have gone much further, and settled a far more
critical question, by deciding who shall be the voters
entitled to approve and reject the constitution framed by a
delegated body under their direction. In the adoption of no
State constitution has the assent been asked of any but the
qualified voters; and women, and minors, and other persons
not recognized as voters by existing laws, have been
studiously excluded. And yet the constitution has been
deemed entirely obligatory upon them as well as upon the
minority, who voted against it. From this it will be seen
how little, even in the most free of republican governments,
any abstract right of suffrage, or any original and
indefeasible privilege, has been recognized in practice.
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:
That the rights in question (the right of suffrage) are not
incompatible with the legal status of the woman, the
following authorities seem to show. On the other hand, there
can not be adduced any one authority against the position
that the franchise of the shire and the borough were enjoyed
by the female "resiants" equally with those of the male sex
in times when "resiants," as such, and not as "tenants," had
the franchise. The statutes by which the parliamentary
franchise in counties was taken away from the "resiants" and
vested in the "tenants," and at length restricted to those
of freehold tenure (8 Hen., 6, c. 7; 18 Geo., 2, c. 18; 31
Geo., 2 c. 14), did not in any manner create or recognize
any such distinction as that of the male and the female
freeholders. Those acts had relation to tenure, not to sex.
For the same reason, in all those boroughs where the "common
right" prevailed, the suffrage would naturally be
exercisable by the female no less than by the male
"inhabitants" or "residants." It is believed that in not one
of the boroughs where the suffrage was said to be regulated
by "charter," or by "custom," or by "prescription" or even
where it was regulated by a local act of Parliament, there
can be found one instance of any provision or usage
whatsoever whereby any voter was excluded from the enjoyment
of the suffrage by reason of sex. That a woman may be a
householder, or freeholder, or burgage tenant, parishioner,
is plain enough. That she may answer the description of "a
person paying scot and lot" within the "city of London," has
been solemnly decided by the Court of King's Bench (Olive
_vs._ Ingram, 7 Mod. 264, 267, 270, 271,) and that
determination was expressly grounded by their Lordships
"singly upon the foot of the common law, without regard to
the usages of the parishes in London," which usage,
nevertheless, had been also shown to be in favor of the same
construction. In all cases, whether of statutory, of
customary, or of common law qualification for the suffrage,
the general rule is that which was laid down by the Court of
King's Bench with respect to the choice of parochial
officers under the first "Act for the Relief of the Poor,"
which directed them to be made from among the "substantial
householders" of the place. The court held (Rex. _vs._
Stubbs, 2 T. R., 395)--overruling a dictum in Viner's
Abridgment to the contrary--that a woman, being a
"substantial householder," was properly chosen under that
act to the office of overseer of the poor, notwithstanding
the objections raised at the bar that it was a burthensome
office and one of which, being once appointed to it, she
would be called upon to perform duties some of which were
above the bodily and mental powers, and others were
inconsistent with the morality, or, at least, the decency of
that sex.--(Id. 400.)
And so again on pages 90 and 91:
That there are some offices as to which it is the practice,
by the "custom of England," to exclude them, is undoubtedly
the fact. But it has been well said, as to these, that
"there is a difference between being exempted and being
incapacitated," and that "an excuse from acting, etc., is
different from an incapacity of doing so. For it must not be
forgotten, that it is upon the footing, not of disability,
but of exemption, that those exclusions are vested, by the
authorities which declare them." Thus, Whitelocke: "By the
custom of England, women are not returned of juries, nor
put into offices or commissions, nor eligible to serve in
Parliament, or admitted to be members of the House of Peers;
but, by reason of their sex, they are exempted from such
employment. The omission of the electoral franchise from
that enumeration [of exemption] is remarkable. If women
were, at that time, considered to be excluded by any "custom
of England" from the Parliamentary franchise, as well as
from Parliament, it is scarcely conceivable that Whitelocke
would have omitted to mention so important a fact. Singular
to say, there is no trace of any such custom or usage in the
reports or amongst the records, not even, so far as the
author's researches have been successful, in the Journals of
the House of Commons itself; and yet the right of the
returning officer to reject the vote of a female elector
when tendered at the polling-booth is always assumed to be
an adjudged point. Mr. Oldfield appears to have been under
the impression that the resolution of the House of Commons
upon the occasion of the Westminster election, asserting the
incapacity of an alien to vote in elections of members to
serve in Parliament, extended to "women" also. If it were
so, the incident would have no weight, for the enactment,
which, according to a second resolution of the same date,
was to be prepared for carrying into effect that intention,
never received the sanction even of that House. But, in
truth, no mention of "women" appears in either resolution.
Nor was there, in that year, or at any other period, any
resolution or determination of the House, so far as the
author's information goes, directly impeaching the capacity
of any female, in respect of her sex, to vote at an election
to Parliament. He is aware that the House of Commons did,
upon one remarkable occasion, deny the capacity of a female
to be heard even as a witness at their bar; and that this
extraordinary vote was obtained through the influence of Sir
Edward Coke, the only text-writer who can be vouched for the
position, that a woman's vote ought not to be received at a
parliamentary election.
Further on, pages 94 and 95;
On the other hand, there are extant many parliamentary
returns for counties and boroughs from the earliest times,
which were made by female electors, and yet were received.
Some of them are enumerated in Prynne's Collections of
Parliamentary Writs. Some of later dates are mentioned in
the Commons' Journals themselves. Others are to be found in
the repositories of the learned or the curious.
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.
* * * * *
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 began 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 1 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.
* * * * *
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:
ARTICLE XV., 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.
Sec. 2. The Congress shall have power to enforce this
article by appropriate legislation. (15 Stat., p. 316.)
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.
* * * * *
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.
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.
SEC. 2. The Congress shall have power to enforce this
article by appropriate legislation. (15 Stat., p. 345.)
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.
* * * * *
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
plaintiffs 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 dram-shop 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 law as
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[166]
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.[167]
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:
_Supreme Court of Illinois--Third Grand Division--September Term.
1869--(In the matter of the Application of Myra Bradwell for
license to practice law.)_
_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
disseized 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.
MYRA 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
persons 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
Division_--_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 prevent 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?
3. 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:
Secondly, who are capable of becoming agents? And here it
may be stated that there are few persons who are excluded
from acting as agents, or from exercising an authority
delegated to them by others. Therefore, it is by no means
necessary for a person to be _sui juris_ or capable of
acting in his or her own right, in order to qualify himself
or herself to act for others. Thus, for example, monks,
infants, _femes covert_, persons attainted, outlawed, or
excommunicated villains, and aliens, may be agents for
others.... A _feme covert_ may be an attorney of another, to
make livery to her husband upon a feoffment; and a husband
may take such livery to his wife, although they are
generally deemed but one person in law. She may also act as
agent or otherwise of her own husband, and as such, with his
consent, bind him by her contract, or other act; or she may
act as the agent of another, in a contract, with her own
husband.
III. UNDER THE COMMON LAW.--In Cox _vs._ Kitchin, 1 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, 1 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.