This meeting comes at a most auspicious moment, when the entire Nation

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.

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