action, and that it belonged to men to make, apply, and execute
the laws, was regarded as an almost axiomatic truth. It may have
been a radical error, and we are by no means certain it was not,
but that this was the universal belief certainly admits of no
denial. A direct participation in the affairs of government, in
even the most elementary form, namely, the right of suffrage, was
not then claimed, and has not yet been conceded, unless recently
in one of the newly-settled Territories of the West.
In view of these facts, we are certainly warranted in saying,
that when the Legislature gave to this court the power of
granting licenses to practice law, it was with not the slightest
expectation that this privilege would be extended equally to men
and women.
Neither has there been any legislation since that period which
would justify us in presuming a change in the legislative
intent. Our laws to-day in regard to women, are substantially
what they have always been, except in the change wrought by the
acts of 1861 and 1869, giving to married women the right to
control their own property and earnings.
Whatever, then, may be our individual opinions as to the
admission of women to the bar, we do not deem ourselves at
liberty to exercise our power in a mode never contemplated by the
Legislature, and inconsistent with the usages of courts of the
common law from the origin of the system to the present day.
But it is not merely an immense innovation in our own usages as a
court that we are asked to make. This step, if taken by us, would
mean that in the opinion of this tribunal, every civil office in
this State may be filled by women--that it is in harmony with the
spirit of our Constitution and laws that women should be made
governors, judges, and sheriffs. This we are not yet prepared to
hold.
In our opinion, it is not the province of a court to attempt, by
giving a new interpretation to an ancient statute, to introduce
so important a change in the legal position of one-half the
people. Courts of justice were not intended to be made the
instruments of pushing forward measures of popular reform. If it
be desirable that those offices which we have borrowed from the
English law, and which from their origin some centuries ago down
to the present time, have been filled exclusively by men, should
also be made accessible to women, then let the change be made,
but let it be made by that department of the Government to whom
the Constitution has intrusted the power of changing the laws.
The great body of our law rests merely upon ancient usage. The
right of a husband in this State to the personal property of his
wife, before the act of 1861, rested simply upon such usage, yet
who could have justified this court if, prior to the passage of
that act, it had solemnly decided that it was unreasonable that
the property of the wife should vest in the husband, and this
usage should no longer be recognized? Yet was it not as
unreasonable that a woman by marriage should lose the title of
her personal property, as it is that she should not receive from
us a license to practice law? The rule in both cases, until the
law of 1861, rested upon the same common law usage and could have
pleaded the same antiquity. In the one case it was never
pretended that this court could properly overturn the rule, and
we do not see how we could be justified should we disregard it in
the other. The principle can not be too strictly and
conscientiously observed, that each of the three departments of
the Government should avoid encroachment upon the other, and that
it does not belong to the judiciary to attempt to inaugurate
great social or political reforms. The mere fact that women have
never been licensed as attorneys-at-law is, in a tribunal where
immemorial usage is as much respected as it is and ought to be in
courts of justice, a sufficient reason for declining to exercise
our discretion in their favor, until the propriety of their
participating in the offices of State and the administration of
public affairs shall have been recognized by the law-making
department of the Government--that department to which the
initiative in great measures of reform properly belongs. For us
to attempt, in a matter of this importance, to inaugurate a
practice at variance with all the precedents of the law we are
sworn to administer, would be an act of judicial usurpation
deserving of the gravest censure. If we could disregard, in this
matter, the authority of those unwritten usages which make the
great body of our law, we might do so in any other, and the
dearest rights of person and property would become a matter of
mere judicial discretion.
But it is said the 28th section of chapter 90 of the Revised
Statutes of 1845 provides that, whenever any person is referred
to in the statute by words importing the masculine gender,
females as well as males shall be deemed to be included. But the
36th section of the same chapter provides that this rule of
construction shall not apply where there is anything in the
subject or context repugnant to such construction. That is the
case in the present instance.
In the view we have taken of this question the argument drawn by
the applicant from the Constitution of the United States has no
pertinency.
In conclusion we would add that, while we are constrained to
refuse this application, we respect the motive which prompts it,
and we entertain a profound sympathy with those efforts which are
being so widely made to reasonably enlarge the field for the
exercise of woman's industry and talent. While those theories
which are popularly known as "woman's rights" can not be expected
to meet with a very cordial acceptance among the members of a
profession which, more than any other, inclines its followers, if
not to stand immovable upon the ancient ways, at least to make no
hot haste in measures of reform, still all right-minded men must
gladly see new spheres of action opened to woman, and greater
inducements offered her to seek the highest and widest culture.
There are some departments of the legal profession in which she
can appropriately labor.
Whether, on the other hand, to engage in the hot strifes of the
Bar, in the presence of the public, and with momentous verdicts
the prizes of the struggle would not tend to destroy the
deference and delicacy with which it is the pride of our ruder
sex to treat her, is a matter certainly worthy of her
consideration. But the important question is, what effect the
presence of women as barristers in our courts would have upon the
administration of justice, and the question can be satisfactorily
answered only in the light of experience.
If the Legislature shall choose to remove the existing barriers
and authorize us to issue licenses equally to men and women, we
shall cheerfully obey, trusting to the good sense and sound
judgment of women themselves to seek those departments of the
practice in which they can labor without reasonable objection.
Application denied.
The opinion will be best understood by reading our arguments
first, and knowing all the points made before the court. We have
not the space to review the opinion in this issue, but shall do
so at some future day, and will simply say now, that what the
decision of the Supreme Court of the United States in the Dred
Scott case was to the rights of negroes as citizens of the United
States, this decision is to the political rights of women in
Illinois--annihilation.
CAN A WOMAN PRACTICE LAW OR HOLD ANY OFFICE IN ILLINOIS?
_Full Report of the Proceedings in the Supreme Court of Illinois
and the Supreme Court of the United States, upon the application
of Myra Bradwell to be admitted to the Bar._
On pp. 145, 146, and 147 of this volume, we gave the proceedings
in full in the Supreme Court of this State upon our application
to be admitted to practice law, including the opinion of Judge
Lawrence, the present learned Chief-Justice of that tribunal,
denying the application on the sole ground that a woman could not
be admitted to the bar or hold any office in Illinois. As soon
after this opinion was announced as we could obtain a certified
copy of the record, we placed it in the hands of the Hon. Matt.
H. Carpenter, one of the ablest constitutional lawyers in the
nation, with a view of obtaining a writ of error from the Supreme
Court of the United States. Mr. Carpenter prepared and presented
our petition for a writ of error, together with the record. The
following is the indorsement upon the record, allowing the writ
of error from the Supreme Court of the United States:
I allow a writ of error from the Supreme Court of the United
States to the Supreme Court of Illinois, in the suit and
judgment of which the foregoing record is a transcript.
SAM. F. MILLER, _Asso. Jus. Sup. Court U. S._
_August 16, 1870_.
CITATION TO THE STATE OF ILLINOIS TO APPEAR AT WASHINGTON.
_The United States of America to the State of
Illinois_:--The State of Illinois is hereby cited and
admonished to appear and be at the Supreme Court of the
United States to be holden at Washington City in the
District of Columbia, on the first Monday of December next,
pursuant to a writ of error filed in the clerk's office of
the Supreme Court of the State of Illinois, wherein Myra
Bradwell is plaintiff in error, and the State of Illinois is
defendant in error, to show cause, if any there be, why the
judgment in the said writ of error mentioned should not be
corrected, and speedy justice should not be done to the
parties in that behalf.
Witness the Honorable Salmon P. Chase, Chief-Justice of the
Supreme Court of the United States this 16th day of August,
A.D. 1870.
SAM. F. MILLER, _Asso. Jus. Sup. Court U. S._
WRIT OF ERROR.
_United States of America, ss.:_
[SEAL.] The President of the United States, To the Honorable
the Judges of the Supreme Court of the State of
Illinois--Greeting:
Because, in the record and proceedings, as also in the
rendition of the judgment of a plea which is in the said
Supreme Court of the State of Illinois, before you, or some
of you, being the highest court of law or equity of the said
State in which a decision could be had in the said suit in
the matter of the application of Myra Bradwell, of Cook
County, Illinois for a license to practice law in the courts
of said State, wherein was drawn in question the validity of
a treaty or statute of, or an authority exercised under, the
United States, and the decision was against their validity;
or wherein was drawn in question the validity of a statute
of, or an authority exercised under, said State, on the
ground of their being repugnant to the Constitution,
treaties, or laws of the United States, and the decision was
in favor of such their validity; or wherein was drawn in
question the construction of a clause of the Constitution,
or of a treaty, or statute of, or commission held under, the
United States, and the decision was against the title,
right, privilege, or exemption, specially set up or claimed
under such clause of the said Constitution, treaty, statute,
or commission, a manifest error hath happened, to the great
damage of the said Myra Bradwell, as by her complaint
appears. We being willing that error, if any hath been,
should be duly corrected, and full and speedy justice done
to the parties aforesaid in this behalf, do command you, if
judgment be therein given, that then under your seal,
distinctly and openly, you send the record and proceedings
aforesaid, with all things concerning the same, to the
Supreme Court of the United States, together with this writ,
so that you have the same at Washington on the first Monday
of December next, in the said Supreme Court, to be then and
there held, that the record and proceedings aforesaid being
inspected, the said Supreme Court may cause further to be
done therein to correct that error what of right, and
according to the laws and custom of the United States,
should be done.
Witness the Honorable Salmon P. Chase, Chief-Justice of the
said Supreme Court, the first Monday of December, in the
year of our Lord one thousand eight hundred and sixty-nine.
D. W. MIDDLETON,
_Clerk of the Supreme Court of the U. S._
Issued 23d August, 1870. Allowed by me,
SAM. F. MILLER, _Asso. Jus. Sup. Court, U. S._
While these suits for the recognition of the political rights of women
were pending, a contest of a different character took place in
Illinois. Mrs. Myra Bradwell, editor of the Chicago _Legal News_,
applied for admission to the bar of that State, and was refused. She
made this denial of her civil rights a test case by bringing suit
against the State of Illinois in the Supreme Court of the United
States. The case was argued for the plaintiff in the December term,
1871, by the Hon. Matt. H. Carpenter, of Wisconsin, an eminent
republican United States Senator. In addressing the Court Mr.
Carpenter said:
This is a writ of error to the Supreme Court of the State of
Illinois, to review the proceedings of that court, denying the
petition of the plaintiff in error to be admitted to practice as
an attorney and counselor of that court, which right was claimed
by the plaintiff in error in that court under the XIV. Amendment
of the Constitution of the United States. The plaintiff in error
is a married woman, of full age, a citizen of the United States
and of the State of Illinois; was ascertained and certified to be
duly qualified in respect of character and attainments, but was
denied admission to the bar for the sole reason that she was a
married woman. This is the error relied upon to reverse the
proceedings below.
By the rules of this court no person can be admitted to practice
at the bar without service for a fixed term in the highest court
of the State in which such person resides. Consequently a denial
of admission in the highest court of the State is an
insurmountable obstacle to admission to the bar of this court.
This record, therefore, presents the broad question, whether a
married woman, being a citizen of the United States and of a
State, and possessing the necessary qualifications, is entitled
by the Constitution of the United States to be admitted to
practice as an attorney and counselor-at-law in the courts of the
State in which she resides. This is a question not of taste,
propriety, or politeness, but of civil right. Before proceeding
to discuss this question, it may be well to distinguish it from
the question of the right of female citizens to participate in
the exercise of the elective franchise.
The great problem of female suffrage, the solution of which lies
in our immediate future, naturally enough, from its transcendent
importance, draws to itself, in prejudiced minds, every question
relating to the civil rights of women; and it seems to be feared
that doing justice to woman's rights in any particular would
probably be followed by the establishment of the right of female
suffrage, which, it is assumed, would overthrow Christianity,
defeat the ends of modern civilization, and upturn the world.
While I do not believe that female suffrage has been secured by
the existing amendments to the Constitution of the United States,
neither do I look upon that result as at all to be dreaded. It is
not, in my opinion, a question of woman's rights merely, but, in
a far greater degree, a question of man's rights. When God
created man, he announced the law of his being, that it was not
well for him to be alone, and so He created woman to be his
helpmate and companion. Commencing with the barbarism of the
East, and journeying through the nations toward the bright light
of civilization in the West, it will everywhere be found that,
just in proportion to the equality of women with men in the
enjoyment of social and civil rights and privileges, both sexes
are proportionately advanced in refinement and all that ennobles
human nature. In our own country, where women are received on an
equality with men, we find good order and good manners
prevailing. Because women frequent railroad cars and steamboats,
markets, shops, and post-offices, those places must be, and are,
conducted with order and decency. The only great resorts from
which woman is excluded by law are the election places; and the
violence, rowdyism, profanity, and obscenity of the gathering
there in our largest cities are sufficient to drive decent men,
even, away from the polls. If our wives, sisters, and daughters
were going to the polls, we should go with them, and good order
would be observed, or a row would follow, which would secure
order in the future. I have more faith in female suffrage, to
reform the abuses of our election system in the large cities,
than I have in the penal election laws to be enforced by soldiers
and marines. Who believes that, if ladies were admitted to seats
in Congress, or upon the bench, or were participating in
discussions at the bar, such proceedings would thereby be
rendered less refined, or that less regard would be paid to the
rights of all?
But whether women should be admitted to the right of suffrage, is
one thing; whether this end has already been accomplished, is
quite another. The XIV. Amendment forbids the States to make or
enforce any law which shall abridge "the privileges or
immunities" of a citizen. But whether the right to vote is
covered by the phrase "privileges and immunities," was much
discussed under the provisions of the old Constitution; and at
least one of the earliest decisions drew a distinction between
"privileges and immunities" and political rights. On the other
hand, Mr. Justice Washington, in a celebrated case, expressed the
opinion, that the right to vote and hold office was included in
this phrase. But in neither of the cases was this point directly
involved, and both opinions are _obiter dicta_ in relation to it.
But the XIV. and XV. Amendments seem to settle this question
against the right of female suffrage. These amendments seem to
recognize the distinction at first pointed out between
"privileges and immunities," and the right to vote. The XIV.
Amendment declares,
[Illustration: Myra Bradwell.]
All persons born and naturalized in the United States, etc.,
are citizens of the United States, and of the State wherein
they reside.
Of course, women, as well as men, are included in this provision,
and recognized as citizens. This Amendment further declares:
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States.
If the privileges and immunities of a citizen can not be
abridged, then, of course, the privileges and immunities of all
citizens must be the same. The second section of this Amendment
provides that
Representatives shall be apportioned among the several
States according to their respective numbers, counting the
whole number of persons in each State, excluding Indians,
not taxed. But when the right to vote at any election, etc.,
is denied to any of the male inhabitants, being twenty-one
years of age, etc., the basis of representation therein
shall be reduced in the proportion which the number of such
male citizens shall bear to the whole number of male
citizens twenty-one years of age in such State.
It can not be denied, that the right or power of a State to
exclude a portion of its male citizens from the right to vote, is
recognized by this second section; from which it follows, that
the right to vote is not one of the "privileges or immunities"
which the first section declares shall not be abridged by any
State. The right of female suffrage is also inferentially denied
by that provision of the second section, above quoted, which
provides that when a State shall deny the right to vote to any
male citizen,
The basis of representation therein shall be reduced in the
proportion which the number of such male citizens shall bear
to the whole number of male citizens in such State.
In the first place, it is to be observed that the basis of
representation in a State, which is the whole number of
persons--male and female, adults and infants--is only to be
reduced when the State shall exclude a portion "of the male
inhabitants of such State." The exclusion of female inhabitants,
and infants under the age of twenty-one years, does not effect a
reduction of the basis of representation in such State. And,
again, when a State does exclude a portion of its male
inhabitants, etc., the basis of representation in such State is
not reduced in the proportion which the number of such excluded
males bears to the number of persons--male and female--in such
State; but only
In the proportion which the number of such (excluded) male
citizens shall bear to the whole number of male citizens
twenty-one years of age in such State.
This provision assumes that females are no part of the voting
population of a State. The XV. Amendment is equally decisive. It
recognizes the right--that is, power--of any State to exclude a
portion of its citizens from the right to vote, and only narrows
this right in favor of a particular class. Its language is:
The right of citizens of the United States to vote shall not
be denied or abridged, etc., on account of race, color, or
previous condition of servitude.
This amendment was wholly unnecessary upon the theory that the
XIV. Amendment had established or recognized the right of every
citizen to vote. It recognizes the right of a State to exclude a
portion of its citizens, and only restrains that power so far as
to provide that citizens shall not be excluded on account of
race, color, or previous condition of servitude. In every other
case, the power of exclusion recognized by the XIV. Amendment is
untouched by the XV. It is also worthy of notice that, throughout
the XIV. and XV. Amendments, voting is not treated as, or
denominated a privilege, and evidently was not intended to be,
nor regarded as included in the "privileges or immunities" of a
citizen, which no State can abridge for any cause whatever. I
have taken this pains to distinguish between the "privileges and
immunities" of a citizen, and the "right" of a citizen to vote,
not because I feared that this court would deny one, even if the
other would follow, but to quiet the fears of the timid and
conservative.
I come now to the narrower and precise question before the court:
Can a female citizen, duly qualified in respect of age,
character, and learning, claim, under the XIV. Amendment, the
privilege of earning a livelihood by practicing at the bar of a
judicial court? It was provided by the original Constitution:
The citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States.
Under this provision each State could determine for itself what
the privileges and immunities of its citizens should be. A
citizen emigrating from one State to another carried with him,
not the privileges and immunities he enjoyed in his native State,
but was entitled, in the State of his adoption, to such
privileges and immunities as were enjoyed by the class of
citizens to which he belonged by the laws of such adopted State.
A white citizen of one State, where no property qualification for
voting was required, emigrating to a State which required such
qualification, must conform to it before he could claim the right
to vote. A colored citizen, authorized to hold property in
Massachusetts, emigrating to South Carolina, where all colored
persons were excluded from such right, derived no aid, in this
respect, from the Constitution of the United States, but was
compelled to submit to all the incapacities laid by the laws of
that State upon free persons of color born and residing therein.
A married woman, a citizen of the State of Wisconsin, where by
law she was capable of holding separate estate, and making
contracts concerning the same, emigrating to a State where the
common law in this regard prevailed, could not buy and sell
property in her own name, or contract in reference thereto.
But the XIV. Amendment executes itself in every State of the
Union. Whatever are the privileges and immunities of a citizen in
the State of New York, such citizen, emigrating, carries them
with him into any other State of the Union. It utters the will of
the United States in every State, and silences every State
constitution, usage, or law which conflicts with it. If to be
admitted to the bar, on attaining the age and learning required
by law, be one of the privileges of a white citizen in the State
of New York, it is equally the privilege of a colored citizen in
that State; and if in that State, then in any State. If no State
may "make or enforce any law" to abridge the privileges of a
citizen, it must follow that the privileges of all citizens are
the same. We have already seen that the right to vote is not one
of those privileges which are declared to be common to all
citizens, and which no State may abridge; but that it is a
political right, which any State may deny to a citizen, except on
account of race, color, or previous condition of servitude. It
therefore only remains to determine whether admission to the bar
belongs to that class of privileges which a State may not
abridge, or that class of political rights as to which a State
may discriminate between its citizens.
In discussing this subject, we are compelled to use the words
"privileges and immunities" and the word "rights" in the precise
sense in which they are employed in the Constitution. In popular
language, and even in the general treatises of law writers, the
words "rights" and "privileges" are used synonymously. Those
privileges which are secured to a man by the law are his rights;
and the great charter of England declares that the ancient
privileges enjoyed by Englishmen, are the undoubted rights of
Englishmen. But, as we have seen, the XIV. and XV. Amendments
distinguish between privileges and rights; and it must be
confessed that it is paradoxical to say, as the XIV. Amendment
clearly does, that the "privileges" of a citizen shall not be
abridged, while his "right" to vote may be. But a judicial
construction of the Constitution is wholly different from a mere
exercise in philology. The question is not whether certain words
were aptly employed--but the context must be searched to
ascertain the sense in which such words were used.
It is evident that there are certain "privileges and immunities"
which belong to a citizen of the United States as such; otherwise
it would be nonsense for the XIV. Amendment to prohibit a State
from abridging them; and it is equally evident from the XIV.
Amendment that the right to vote is not one of those privileges.
And the question recurs whether admission to the bar, the proper
qualification being possessed, is one of the privileges which a
State may not deny. In Cummings _vs._ Missouri, 4 Wall., 321,
this court say:
In France, deprivation or suspension of civil rights, or
some of them--and among these of the right of voting, of
eligibility to office, of taking part in family councils, of
being guardian or trustee, of bearing arms, and of teaching
or being employed in a school or seminary of learning--are
punishments prescribed by her code. The theory upon which
our political institutions rest is, that all men have
certain inalienable rights--that among these are life,
liberty, and the pursuit of happiness; and that in the
pursuit of happiness all avocations, all honors, all
positions, are alike open to every one, and that in the
protection of these rights all are equal before the law. Any
deprivation or extension of any of these rights for past
conduct is punishment, and can be in no otherwise defined.
No broader or better enumeration of the privileges which pertain
to American citizenship could be given. "Life, liberty, and the
pursuit of happiness; and, in the pursuit of happiness, all
avocations, all honors, all positions, are alike open to every
one; and in the protection of these rights all are equal before
the law." In _ex parte_ Garland (4 Wall., 378) this court say:
The profession of an attorney and counselor is not like an
office created by an act of Congress, which depends for its
continuance, its powers, and its emoluments upon the will of
its creator, and the possession of which may be burdened
with any conditions not prohibited by the Constitution.
Attorneys and counselors are not officers of the United
States; they are not elected or appointed in the manner
prescribed by the Constitution for the election and
appointment of such officers. They are officers of the
court, admitted as such by its order, upon evidence of their
possessing sufficient legal learning and fair private
character.... The order of admission is the judgment of the
court, that the parties possess the requisite qualifications
as attorneys and counselors, and are entitled to appear as
such and conduct causes therein. From its entry the parties
become officers of the court, and are responsible to it for
professional misconduct. They hold their office during good
behavior, and can only be deprived of it for misconduct,
ascertained and declared by the judgment of the court, after
opportunity to be heard has been offered. (_Ex parte_
Heyfron, 7 How., Miss., 127; Fletcher _vs._ Daingerfield, 20
Cal., 430.) Their admission or their exclusion is not the
exercise of a mere ministerial power. It is the exercise of
judicial power, and has been so held in numerous cases....
The attorney and counselor being, by the solemn judicial act
of the court, clothed with his office, does not hold it as a
matter of grace and favor. The right which it confers upon
him to appear for suitors, and to argue causes, is something
more than a mere indulgence, revocable at the pleasure of
the court, or at the command of the Legislature. It is a
right of which he can only be deprived by the judgment of
the court, for moral or professional delinquency. The
Legislature may undoubtedly prescribe qualifications for the
office, to which he must conform, as it may, where it has
exclusive jurisdiction, prescribe qualifications for the
pursuit of the ordinary avocations of life.
It is now well settled that the courts, in admitting attorneys
to, and in expelling them from, the bar, act judicially, and that
such proceedings are subject to review on writ of error or
appeal, as the case may be. (_Ex parte_ Cooper, 22 N. Y., 67.
Strother _vs._ Missouri, 1 Mo., 605. _Ex parte_ Secomb, 19 How.,
9. _Ex parte_ Garland, 4 Wall., 378.)
From these cases the conclusion is irresistible, that the
profession of the law, like the clerical profession and that of
medicine, is an avocation open to every citizen of the United
States. And while the Legislature may prescribe qualifications
for entering upon this pursuit, they can not, under the guise of
fixing qualifications, exclude a class of citizens from admission
to the bar. The Legislature may say at what age candidates shall
be admitted; may elevate or depress the standard of learning
required. But a qualification, to which a whole class of citizens
never can attain, is not a regulation of admission to the bar,
but is, as to such citizens, a prohibition. For instance, a State
Legislature could not, in enumerating the qualifications, require
the candidate to be a white citizen. This would be the exclusion
of all colored citizens, without regard to age, character, or
learning. Such an act would abridge the rights of all colored
citizens, by denying them admission into one of the avocations
which this court has declared is alike open to every one. I
presume it will be admitted that such an act would be void. I am
certain this court would declare it void. And I challenge the
most astute mind to draw any distinction between such an act and
a custom, usage, or law of a State, which denies this privilege
to all female citizens without regard to age, character, or
learning. If the Legislature may, under pretense of fixing
qualifications, declare that no female citizen shall be permitted
to practice law, they may as well declare that no colored citizen
shall practice law. It should be borne in mind that the only
provision in the Constitution of the United States which secures
to colored male citizens the privilege of admission to the bar,
or the pursuit of the other ordinary avocations of life, is that
provision that
No State shall make or enforce any law which shall abridge
the privileges or immunities of a citizen.
If this provision does not open all the professions, all the
avocations, all the methods by which a man may pursue happiness,
to the colored as well as the white man, then the Legislatures of
the States may exclude colored men from all the honorable
pursuits of life, and compel them to support their existence in a
condition of servitude. And if this provision does protect the
colored citizen, then it protects every citizen, black or white,
male or female. Why may a colored citizen buy, hold, and sell
land in any State of the Union? Because he is a citizen of the
United States, and that is one of the privileges of a citizen.
Why may a colored citizen be admitted to the bar? Because he is a
citizen, and that is one of the avocations open to every citizen;
and no State can abridge his right to pursue it. Certainly no
other reason can be given.
Now, let us come to the case of Myra Bradwell. She is a citizen
of the United States, and of the State of Illinois, residing
therein; she has been judicially ascertained to be of full age,
and to possess the requisite character and learning. Indeed, the
court below, in their opinion, found in the record, page 9, say:
"Of the ample qualifications of the applicant we have no doubt."
Still, admission to the bar was denied the petitioner, not upon
the ground that she was not a citizen; not for want of age or
qualifications; not because the profession of the law is not one
of those avocations which are open to every American citizen as
matter of right, upon complying with the reasonable regulations
prescribed by the Legislature: but upon the sole ground that
inconvenience would result from permitting her to enjoy her legal
rights in this, to wit, that her clients might have difficulty in
enforcing the contracts they might make with her, as their
attorney, because of her being a married woman.
Now, with entire respect to that court, it is submitted that this
argument _ab inconvenienti_, which might have been urged with
whatever force belongs to it, against adopting the XIV. Amendment
in the full scope of its language, is utterly futile to resist
its full and proper operation, now that it has been adopted.
Concede, for argument, that the XIV. Amendment ought to have read
thus:
No State shall make or enforce any law which shall abridge
the privileges or immunities of any citizens except married
women;
yet that exception is not found in the sweeping provision of this
amendment. It is provided that citizens may be disfranchised for
treason; but it is nowhere provided that a citizen shall be
disfranchised for being a married woman. The opinion of the court
below puts a limitation upon this unlimited constitutional
provision. If this court shall approve this exception, in the
very teeth of the unambiguous language of the Constitution, where
may we expect judicial legislation to stop? Can this court say
that married women have no rights that are to be respected? Can
this court say that, when the XIV. Amendment speaks of all
persons, etc., and declares them to be citizens, it means all
male persons and unmarried females? Or can this court say that,
when the XIV. Amendment declares "the privileges of no citizen
shall be abridged," it means that the privileges of no male
citizen or unmarried female citizen shall be abridged? This would
be bold dealing with the constitutional provision. It would be
excluding a large proportion of the citizens of the United States
from privileges which the Constitution declares shall be the
inheritance of every citizen alike.
But it is respectfully submitted that the court below erred in
holding that a married woman, admitted to the bar under the XIV.
Amendment, would not be liable on contracts, express or implied,
between her and her clients. In Wisconsin, when the Legislature
passed the act protecting married women in the enjoyment of their
separate estate, our court, upon reasoning that can not be
gainsaid, held that the Legislature must have intended all the
natural and logical results of the act in question; and,
therefore, that the contracts of a married woman, relating to her
separate estate, were as binding as if made by a _feme sole_. It
is submitted that, for still stronger reasons, the great
innovation of the XIV. Amendment should be carried to its logical
conclusion, and that it sweeps away the principles of the common
law, as it does the express provisions of State constitutions and
statutes.
But again: Mrs. Bradwell, admitted to the bar, becomes an officer
of the court, subject to its summary jurisdiction. Any
malpractice or unprofessional conduct towards her client would be
punishable by fine, imprisonment, or expulsion from the bar, or
by all three. Her clients would, therefore, not be compelled to
resort to actions at law against her. But if the courts of
Illinois should refuse to exercise this summary jurisdiction, and
should hold that actions at law could not be maintained on
contracts between her and her clients, it might result that she
would not be as generally employed as she otherwise would be. But
that is no reason why she should be prohibited from appearing and
trying causes for clients who are willing to rely upon her
integrity and honor.
But let it not be supposed that, in trying to answer as to the
inconveniences imagined by the court below, I am at all departing
from the broad ground of constitutional right upon which I rest
this cause. I maintain that the XIV. Amendment opens to every
citizen of the United States, male or female, black or white,
married or single, the honorable professions as well as the
servile employments of life; and that no citizen can be excluded
from any one of them. Intelligence, integrity, and honor are the
only qualifications that can be prescribed as conditions
precedent to an entry upon any honorable pursuit or profitable
avocation, and all the privileges and immunities which I
vindicate to a colored citizen, I vindicate to our mothers, our
sisters, and our daughters. The inequalities of sex will
undoubtedly have their influence, and be considered by every
client desiring to employ counsel.
There may be cases in which a client's rights can only be rescued
by an exercise of the rough qualities possessed by men. There are
many cases in which the telling sympathy and the silver voice of
woman would accomplish more than the severity and sternness of
man could achieve. Of a bar composed of men and women of equal
integrity and learning, women might be more or less frequently
retained, as the taste or judgment of clients might dictate. But
the broad shield of the Constitution is over them all, and
protects each in that measure of success which his or her
individual merits may secure.
SUPREME COURT OF THE UNITED STATES. _December Term_, 1872. Myra
Bradwell, Plaintiff in Error, _vs._ the State of Illinois. In
error to the Supreme Court of the State of Illinois.
1. The Supreme Court of Illinois having refused to grant to
plaintiff a license to practice law in the courts of that
State, on the ground that females are not eligible under the
laws of that State, such a decision violates no provision of
the Federal Constitution.
2. The second section of the fourth article is inapplicable,
because plaintiff is a citizen of the State of whose action
she complains, and that section only guarantees privileges
and immunities to citizens of other States, in that State.
3. Nor is the right to practice law in the State courts a
privilege or immunity of a citizen of the United States,
within the meaning of the first section of the XIV. Article
of Amendment of the Constitution of the United States.
4. The power of a State to prescribe the qualifications for
admission to the bar of its own courts is unaffected by the
XIV. Amendment, and this court can not inquire into the
reasonableness or propriety of the rules it may prescribe.
Mr. Justice MILLER delivered the opinion of the Court.
The plaintiff in error, residing in the State of Illinois, made
application to the judges of the Supreme Court of that State for
a license to practice law. She accompanied her petition with the
usual certificate from an inferior court of her good character,
and that on due examination she had been found to possess the
requisite qualifications. Pending this application she also filed
an affidavit, to the effect "that she was born in the State of
Vermont; that she was (had been) a citizen of that State; that
she is now a citizen of the United States, and has been for many
years past a resident of the city of Chicago, in the State of
Illinois." And with this affidavit she also filed a paper
claiming that, under the foregoing facts, she was entitled to the
license prayed for by virtue of the second section of the fourth
article of the Constitution of the United States, and of the XIV.
Article of Amendment of that instrument.
The statute of Illinois on this subject enacts that no person
shall be permitted to practice as an attorney or
counselor-at-law, or to commence, conduct, or defend any action,
suit, or plaint, in which he is not a party concerned, in any
court of record within this State, either by using or subscribing
his own name or the name of any other person, without having
previously obtained a license for that purpose from some two of
the justices of the Supreme Court, which license shall constitute
the person receiving the same an attorney and counselor-at-law,
and shall authorize him to appear in all the courts of record
within this State, and there to practice as an attorney and
counselor-at-law, according to the laws and customs thereof.
The Supreme Court denied the application, apparently upon the
ground that it was a woman who made it. The record is not very
perfect, but it may be fairly taken that the plaintiff asserted
her right to a license on the grounds, among others, that she was
a citizen of the United States, and that having been a citizen of
Vermont at one time, she was, in the State of Illinois, entitled
to any right granted to citizens of the latter State. The court
having overruled these claims of right, founded on the clauses of
the Federal Constitution before referred, those propositions may
be considered as properly before this court.
As regards the provision of the Constitution that citizens of
each State shall be entitled to all the privileges and immunities
of citizens in the several States, the plaintiff in her affidavit
has stated very clearly a case to which it is inapplicable. The
protection designed by that clause, as has been repeatedly held,
has no application to a citizen of the State whose laws are
complained of. If the plaintiff was a citizen of the State of
Illinois, that provision of the Constitution gave her no
protection against its courts or its legislation. The plaintiff
seems to have seen this difficulty, and attempts to avoid it by
stating that she was born in Vermont. While she remained in
Vermont that circumstance made her a citizen of that State. But
she states, at the same time, that she is a citizen of the United
States, and that she is now, and has been for many years past, a
resident of Chicago, in the State of Illinois.
The XIV. Amendment declares that citizens of the United States
are citizens of the State within which they reside; therefore
plaintiff was, at the time of making her application, a citizen
of the United States and a citizen of the State of Illinois. We
do not here mean to say that there may not be a temporary
residence in one State, with intent to return to another, which
will not create citizenship in the former. But plaintiff states
nothing to take her case out of the definition of citizenship of
a State as defined by the first section of the XIV. Amendment.
In regard to that amendment counsel for plaintiff in this court
truly says that there are certain privileges and immunities which
belong to a citizen of the United States as such; otherwise it
would be nonsense for the XIV. Amendment to prohibit a State from
abridging them, and he proceeds to argue that admission to the
bar of a State of a person who possesses the requisite learning
and character is one of those which a State may not deny. In this
latter proposition we are not able to concur with counsel. We
agree with him that there are privileges and immunities belonging
to citizens of the United States, in that relation and character,
and that it is these, and these alone, which a State is forbidden
to abridge. But the right to admission to practice in the courts
of a State is not one of them. The right in no sense depends on
citizenship of the United States. It has not, as far as we know,
ever been made in any State, or in any case, to depend on
citizenship at all. Certainly many prominent and distinguished
lawyers have been admitted to practice, both in the State and
Federal Courts, who were not citizens of the United States or of
any State. But, on whatever basis this right may be placed, so
far as it can have any relation to citizenship at all, it would
seem that, as to the courts of a State, it would relate to
citizenship of the State, and as to Federal Courts, it would
relate to citizenship of the United States.
The opinion just delivered in the Slaughter-house Cases from
Louisiana renders elaborate argument in the present case
unnecessary; for, unless we are wholly and radically mistaken in
the principles on which those cases are decided, the right to
control and regulate the granting of license to practice law in
the courts of a State is one of those powers which are not
transferred for its protection to the Federal Government, and its
exercise is in no manner governed or controlled by citizenship of
the United States in the party seeking such license. It is
unnecessary to repeat the argument on which the judgment in those
cases is founded. It is sufficient to say they are conclusive of
the present case.
The judgment of the State court is, therefore, affirmed.
D. W. MIDDLETON, C. S. C. U. S.
Mr. Justice BRADLEY gave the following: I concur in the judgment
of the court in this case by which the judgment of the Supreme
Court of Illinois is affirmed, but not for the reasons specified
in the opinion just read.
The claim of the plaintiff, who is a married woman, to be
admitted to practice as an attorney and counselor-at-law, is
based upon the supposed right of every person, man or woman, to
engage in any lawful employment for a livelihood. The Supreme
Court of Illinois denied the application on the ground that, by
the common law, which is the basis of laws of Illinois, only men
were admitted to the bar, and the Legislature had not made any
change in this respect, but had simply provided no person should
be admitted to practice as attorney or counselor without having
previously obtained a license for that purpose from two justices
of the Supreme Court, and that no person should receive a license
without first obtaining a certificate from the court of some
county of his good moral character. In other respects it was left
to the discretion of the court to establish the rules by which
admission to the profession should be determined. The court,
however, regarded itself as bound by at least two limitations.
One was that it should establish such terms of admission as would
promote the proper administration of justice, and the other that
it should not admit any persons, or class of persons, not
intended by the Legislature to be admitted, even though not
expressly excluded by statute. In view of this latter limitation
the court felt compelled to deny the application of females to be
admitted as members of the bar. Being contrary to the rules of
the common law and the usages of Westminster Hall from time
immemorial, it could not be supposed that the Legislature had
intended to adopt any different rule.
The claim that, under the XIV. Amendment of the Constitution,
which declares that no State shall make or enforce any law which
shall abridge the privileges and immunities of citizens of the
United States, the statute law of Illinois, or the common law
prevailing in that State, can no longer be set up as a barrier
against the right of females to pursue any lawful employment for
a livelihood (the practice of law included), assumes that it is
one of the privileges and immunities of women as citizens to
engage in any and every profession, occupation, or employment in
civil life.
It certainly can not be affirmed, as a historical fact, that this
has ever been established as one of the fundamental privileges
and immunities of the sex. On the contrary, the civil law, as
well as nature herself, has always recognized a wide difference
in the respective spheres and destinies of man and woman. Man is,
or should be, woman's protector and defender. The natural and
proper timidity and delicacy which belongs to the female sex
evidently unfits it for many of the occupations of civil life.
The constitution of the family organization, which is founded in
the divine ordinance, as well as in the nature of things,
indicates the domestic sphere as that which properly belongs to
the domain and functions of womanhood. The harmony, not to say
identity, of interests and views which belong, or should belong,
to the family institution is repugnant to the idea of a woman
adopting a distinct and independent career from that of her
husband. So firmly fixed was this sentiment in the founders of
the common law that it became a maxim of that system of
jurisprudence that a woman had no legal existence separate from
her husband, who was regarded as her head and representative in
the social state; and, notwithstanding some recent modifications
of this civil status, many of the special rules of law flowing
from and dependent upon this cardinal principle still exist in
full force in most States. One of these is, that a married woman
is incapable, without her husband's consent, of making contracts
which shall be binding on her or him. This very incapacity was
one circumstance which the Supreme Court of Illinois deemed
important in rendering a married woman incompetent fully to
perform the duties and trusts that belong to the office of an
attorney and counselor.
It is true that many women are unmarried and not affected by any
of the duties, complications, and incapacities arising out of the
married state, but these are exceptions to the general rule. The
paramount destiny and mission of woman are to fulfill the noble
and benign offices of wife and mother. This is the law of the
Creator. And the rules of civil society must be adapted to the
general constitution of things, and can not be based upon
exceptional cases.
The humane movements of modern society, which have for their
object the multiplication of avenues for woman's advancement, and
of occupations adapted to her condition and sex, have my
heartiest concurrence. But I am not prepared to say that it is
one of her fundamental rights and privileges to be admitted into
every office and position, including those which require highly
special qualifications and demanding special responsibilities. In
the nature of things it is not every citizen of every age, sex,
and condition that is qualified for every calling and position.
It is the prerogative of the legislator to prescribe regulations
founded on nature, reason, and experience for the due admission
of qualified persons to professions and callings demanding
special skill and confidence. This fairly belongs to the police
power of the State; and, in my opinion, in view of the peculiar
characteristics, destiny, and mission of woman, it is within the
province of the Legislature to ordain what offices, positions,
and callings shall be filled and discharged by men, and shall
receive the benefit of those energies and responsibilities, and
that decision and firmness which are presumed to predominate in
the sterner sex.
For these reasons I think that the laws of Illinois now
complained of are not obnoxious to the charge of abridging any of
the privileges and immunities of citizens of the United States.
* * * * *
I concur in the opinion of Mr. Justice Bradley. FIELD, J.
D. W. MIDDLETON, C. S. C. U. S.
The result of this suit taught woman that for her civil as well as
political rights she had no National protection. This was the first
case under the XIV. Amendment that was decided by the Supreme Court of
the United States. This august body based its decision against Mrs.
Bradwell on the ground of "no jurisdiction," declaring that the case
rested with the Legislature of the State of Illinois. In language
stripped of legal verbiage and obscurity, it decided that the civil
rights of women could be extended and restricted at the caprice of any
legislative body in the several States; that the methods for earning
their daily bread, in the trades and professions, the use of their
powers of mind and body, could be defined, permitted or denied for the
citizen by State authorities.
In Norwalk, Connecticut, long known as the Gibralter of republicanism
in that State, Mrs. Sarah M. T. Huntington was allowed to register by
sufferance of the selectmen whose objections she overcame by a logical
argument upon the constitutional provisions under the XIV. Amendment,
but she was not permitted to vote (see Connecticut chapter). At the
same election several ladies voted in Nyack, New York, and in Toledo,
Ohio, and many unsuccessful attempts were made by others in several
States of the Union.
It was on November 1st, 1872, at her quiet home in Rochester, while
reading her morning paper, that Miss Anthony's eye fell on the
following editorial:
Now Register? To-day and to-morrow are the only remaining
opportunities. If you were not permitted to vote, you would fight
for the right, undergo all privations for it, face death for it.
You have it now at the cost of five minutes' time to be spent in
seeking your place of registration, and having your name entered.
And yet, on election day, less than a week hence, hundreds of you
are likely to lose your votes because you have not thought it
worth while to give the five minutes. To-day and to-morrow are
your only opportunities. Register now!
She immediately threw aside her journal, and asking one of her sisters
to accompany her, made her determined way to the registration office.
The inspectors were young men, entirely unversed in the intricacies of
constitutional law, so that when Miss Anthony expounded to them the
XIV. Amendment, they were utterly incapable of answering her legal
argument. After some hesitation the two Republican members of the
board agreed to receive her name, while the Democratic official
remained obdurate. The United States Supervisor being present strongly
advised the young men against refusing to allow Miss Anthony to
register. A full report of this scene appeared in the afternoon papers
with varying comments; the Republican paper inclined toward a
favorable view of the right of women to vote, while the Democratic
paper denounced these proceedings and warned all inspectors that if
they received the names of women they would be liable to prosecution
under the 19th section of the enforcement act.
That if at any election for representative or delegate in the
Congress of the United States, any person shall knowingly
personate and vote, or attempt to vote, in the name of any other
person, whether living, dead, or fictitious; or vote more than
once at the same election for any candidate for the same office;
or vote at a place where he may not be lawfully entitled to vote;
or vote without having a lawful right to vote; or do any unlawful
act to secure a right to vote, or an opportunity to vote, for
himself or any other person; or by force, threats, menace,
intimidation, bribery, reward or offer, or promise thereof, or
otherwise unlawfully prevent any qualified voter of any State of
the United States of America, or of any Territory thereof, from
freely exercising the right of suffrage; or by any such means
induce any voter to refuse to exercise such right; or compel or
induce, by any such means or otherwise, any officer on any
election in any such State or Territory to receive a vote from a
person not legally qualified or entitled to vote or interfere in
any manner with any officer of said elections in the discharge of
his duties, shall be deemed guilty of a crime and shall for such
crime be liable to prosecution in any court of the United States,
and on conviction thereof shall be punished by a fine not
exceeding $500 or imprisonment for not exceeding three years or
both at the discretion of the court.
Upon reading this article Miss Anthony hastened back to the
registration office and assured the young men that she would be
personally responsible for all costs growing out of any suit that
might be instituted against them for having registered women. As an
outgrowth of all this discussion about fifty women registered in the
city, fourteen of them in Miss Anthony's own ward. As a whole, the
tone of the press was so adverse that all the inspectors except those
of the 8th ward were intimidated and refused to receive the votes of
women on election day.
Bright and early on the morning of November 5th, Miss Anthony and six
of the women presented themselves at the polling booth. The ladies
went early not in order to vote often, but to avoid any disturbance
which might result from so novel a scene if it were enacted when the
streets had become crowded. Each of these new voters was in turn
challenged, and each swore in her vote, except Rhoda De Garmo, who in
true Quaker fashion refused either to "swear" or to "affirm," simply
saying "I will tell the truth." Nevertheless her vote was also
received.
The discussion of this action continued in the papers and on November
28th, Thanksgiving day, those fourteen offending citizens were
informed that they were to be prosecuted by the United States
Government, and that Commissioner Storrs wished them to call at his
office. The ladies refusing to respond to this polite invitation,
Marshal Keeney made the circuit to collect the rebellious forces. It
was the afternoon of Thanksgiving day that Miss Anthony was summoned
to her parlor to receive a visitor. As she entered she saw her guest
was a tall gentleman in most irreproachable attire, nervously dandling
in his gloved hands a well-brushed high hat. After some incidental
remarks the visitor in a hesitating manner made known his mission.
"The Commissioner wishes to arrest you" were his first words touching
the object of his call. "Is this your usual method of serving a
warrant," asked Miss Anthony; whereupon the Marshal summoned courage
enough to serve the usual legal paper.[168] He gallantly offered to
leave his prisoner to go alone, but Miss Anthony refusing to take
herself to Court, the United States official meekly escorted her to
the Commissioner's office. When all the ladies had arrived, the
Commissioner, after hours of waiting, announced that the Assistant
District Attorney whom he had summoned to examine the culprits, was
unable to reach the city that afternoon, and so the ladies were
dismissed to appear the next morning.
The voters received their preliminary examination in the same small
dingy office where, in the days of slavery, fugitives escaping to
Canada had been examined and remanded to bondage. This historic little
room is a double disgrace to the American Republic, as within its
walls the rights of color and of sex have been equally trampled upon.
The fourteen women pleaded "not guilty," but the Commissioner ordered
bail of $500 each for their appearance at the Albany term of the
United States District Court January 21, 1873. Miss Anthony refused to
give bail, and petitioned for a writ of _habeas corpus_. The
Inspectors were also arrested, and had their final hearing the
afternoon of the same day before Commissioner Ely,--Hon. John Van
Voorhis their counsel--and were bound over to the Albany Term. The
hearing on Miss Anthony's petition was had before Judge Hall. The
decision was adverse, and bail of $1,000 demanded for her appearance
at the May term at Rochester. The Grand Jury found a true bill of
indictment against her, the fourteen other women, and the three
Inspectors. Miss Anthony objected to giving bail, but was overruled by
her counsel, Hon. Henry R. Selden, whose sense of gallantry made him
feel it a disgrace to allow his client to go to jail. This was a
source of deep regret to Miss Anthony, as it prevented her case going
to the Supreme Court of the United States for final adjudication.
During the intermediate period between November 28, 1872, and January
21, 1873, Miss Anthony, in the eye of the law, was imprisoned, but the
Marshal, though somewhat uneasy, left her free to fulfill her lyceum
engagements and attend woman suffrage conventions. A singularly
anomalous position for a criminal, traveling about the country as a
teacher of morals to the people! Learning that in case the jury
returned a verdict of guilty the judge must declare the costs of the
trial against the defendants, she determined to canvass Monroe County,
in order to make a verdict of "guilty" impossible. She held meetings
in twenty-nine of the post-office districts, speaking on the equal
rights of all citizens to the ballot. Hearing that District Attorney
Crowley threatened to move her trial out of that county, she sent him
word that she would then canvass the next with an army of speakers.
The court sat in Rochester May 13th, but several days passed without
calling the case. Finally, it was moved by District Attorney Crowley,
merely to ask its adjournment to the June United States Circuit Court
at Canandaigua. Counsel protested, but without avail, and both the
women and the Inspectors were again required to answer the charge and
renew bail. This motion for change of venue was made on Friday, and
the following Monday night Miss Anthony held her first meeting in
Ontario County. In the twenty-two days before the convening of the
Court she made twenty-one speeches. Matilda Joslyn Gage came to her
aid, and spoke in sixteen townships, thus together making a thorough
canvass of that county. Miss Anthony's speech, "Is it a crime for a
United States citizen to vote," and that of Mrs. Gage, "The United
States on trial, not Susan B. Anthony," were most effective in rousing
general thought on the vital principles of republican government, and
did much toward enlightening the possible jury in the coming trial.
The last meeting of the series was held at Canandaigua on the evening
before the trial. Strong resolutions against these acts of injustice
toward woman were introduced by Mrs. Gage, and unanimously indorsed by
the audience. Thus the case went to trial with ample opportunity for
the District Attorney and the Judge to know the opinions of the
people, and for the men of Ontario to be too generally enlightened on
the subject to find any twelve who could be trusted to bring in a
verdict of guilty against the women for voting, or the inspectors for
receiving their votes.
The following is the argument which Miss Anthony made in twenty-nine
of the post office-districts of Monroe, and twenty-one of Ontario, in
her canvass of those counties, prior to her trial, June 17, 1873:
FRIENDS AND FELLOW CITIZENS:--I stand before you to-night, under
indictment for the alleged crime of having voted illegally at the
last Presidential election. I shall endeavor this evening to
prove to you that in voting, I not only committed no crime, but
simply exercised my "citizen's right," guaranteed to me and all
United States citizens by the National Constitution, beyond the
power of any State to deny.
Our democratic republican government is based on the idea of the
natural right of every individual member thereof to a voice and a
vote in making and executing the laws. We assert the province of
government to be to secure the people in the enjoyment of their
inalienable rights. We throw to the winds the old dogma that
governments can give rights. Before governments were organized,
no one denies that each individual possessed the right to protect
his own life, liberty, and property. And when 100 or 1,000,000
people enter into a free government, they do not barter away
their natural rights; they simply pledge themselves to protect
each other in the enjoyment of them, through prescribed judicial
and legislative tribunals. They agree to abandon the methods of
brute force in the adjustment of their differences, and adopt
those of civilization. The Declaration of Independence, the
National and State Constitutions, and the organic laws of the
Territories, all alike propose to protect the people in the
exercise of their God-given rights. Not one of them pretends to
bestow rights.
All men are created equal, and endowed by their Creator with
certain inalienable rights. Among these are life, liberty,
and the pursuit of happiness. That to secure these,
governments are instituted among men, deriving their just
powers from the consent of the governed.
Here is no shadow of government authority over rights, nor
exclusion of any class from their full and equal enjoyment. Here
is pronounced the rights of all men, and "consequently," as the
Quaker preacher said, "of all women," to a voice in the
government. And here, in this very first paragraph of the
Declaration, is the assertion of the natural right of all to the
ballot; for, how can "the consent of the governed" be given, if
the right to vote be denied. Again:
That whenever any form of government becomes destructive of
these ends, it is the right of the people to alter or
abolish it, and to institute a new government, laying its
foundations on such principles, and organizing its powers in
such forms as to them shall seem most likely to effect their
safety and happiness.
Surely, the right of the whole people to vote is here clearly
implied. For, however destructive to their happiness this
government might become, a disfranchised class could neither
alter nor abolish it, nor institute a new one, except by the old
brute force method of insurrection and rebellion. One half of the
people of this Nation to-day are utterly powerless to blot from
the statute books an unjust law, or to write there a new and a
just one. The women, dissatisfied as they are with this form of
government, that enforces taxation without representation,--that
compels them to obey laws to which they have never given their
consent--that imprisons and hangs them without a trial by a jury
of their peers--that robs them, in marriage, of the custody of
their own persons, wages, and children--are this half of the
people left wholly at the mercy of the other half, in direct
violation of the spirit and letter of the declarations of the
framers of this government, every one of which was based on the
immutable principle of equal rights to all. By those
declarations, kings, priests, popes, aristocrats, were all alike
dethroned, and placed on a common level, politically, with the
lowliest born subject or serf. By them, too, men, as such, were
deprived of their divine right to rule, and placed on a political
level with women. By the practice of those declarations all class
and caste distinction will be abolished; and slave, serf,
plebeian, wife, woman, all alike, will bound from their subject
position to the proud platform of equality.
The preamble of the Federal Constitution says:
We, the people of the United States, in order to form a more
perfect union, establish justice, insure domestic
tranquillity, provide for the common defense, promote the
general welfare, and secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this
Constitution for the United States of America.
It was we, the people, not we, the white male citizens, nor yet
we, the male citizens, but we, the whole people, who formed this
Union. And we formed it, not to give the blessings of liberty,
but to secure them; not to the half of ourselves and the half of
our posterity, but to the whole people--women as well as men. And
it is downright mockery to talk to women of their enjoyment of
the blessings of liberty while they are denied the use of the
only means of securing them provided by this democratic
republican government--the ballot.
The early journals of Congress show that when the Committee
reported to that body the original Articles of Confederation, the
very first article which became the subject of discussion was
that respecting equality of suffrage. Article 4th said:
The better to secure and perpetuate mutual friendship and
intercourse between the people of the different States of
this Union, the free inhabitants of each of the States
(paupers, vagabonds, and fugitives from justice excepted),
shall be entitled to all the privileges and immunities of
the free citizens of the several States.
Thus, at the very beginning, did the fathers see the necessity of
the universal application of the great principle of equal rights
to all--in order to produce the desired result--a harmonious
union and a homogeneous people. Luther Martin, Attorney-General
of Maryland, in his report to the Legislature of that State of
the convention that framed the United States Constitution, said:
Those who advocated the equality of suffrage took the matter
up on the original principles of government; that the reason
why each individual man in forming a State government should
have an equal vote, is because each individual, before he
enters into government, is equally free and equally
independent.
James Madison said:
Under every view of the subject, it seems indispensable that
the mass of the citizens should not be without a voice in
making the laws which they are to obey, and in choosing the
magistrates who are to administer them.
Also,
Let it be remembered, finally, that it has ever been the
pride and the boast of America that the rights for which she
contended were the rights of human nature.
And these assertions of the framers of the United States
Constitution of the equal and natural rights of all the people to
a voice in the government, have been affirmed and reaffirmed by
the leading statesmen of the nation, throughout the entire
history of our Government.
Thaddeus Stevens, of Pennsylvania, said in 1866:
I have made up my mind that the elective franchise is one of
the inalienable rights meant to be secured by the
Declaration of Independence.
B. Gratz Brown, of Missouri, in the three days' discussion in the
United States Senate in 1866, on Senator Cowan's motion to strike
"male" from the District of Columbia suffrage bill, said:
Mr. President, I say here on the floor of the American
Senate, I stand for universal suffrage; and as a matter of
fundamental principle, do not recognize the right of society
to limit it on any ground of race or sex. I will go farther,
and say that I recognize the right of franchise as being
intrinsically a natural right. I do not believe that society
is authorized to impose any limitations upon it that do not
spring out of the necessities of the social state itself.
Charles Sumner, in his brave protests against the XIV. and XV.
Amendments, insisted that, so soon as by the XIII. Amendment the
slaves became free men, the original powers of the United States
Constitution guaranteed to them equal rights--the right to vote
and to be voted for:
I do not hesitate to say that when the slaves of our country
became "citizens," they took their place in the body politic
as a component part of the "people," entitled to equal
rights, and under the protection of these two guardian
principles: First, that all just governments stand on the
consent of the governed; and second, that taxation without
representation is tyranny; and these rights it is the duty
of Congress to guarantee as essential to the idea of a
Republic.
The preamble of the Constitution of the State of New York
declares:
We, the people of the State of New York, grateful to
Almighty God for our freedom, in order to secure its
blessings, do establish this Constitution.
Here is not the slightest intimation, either of receiving freedom
from the United States Constitution, or of the State conferring
the blessings of liberty upon the people; and the same is true of
every one of the thirty-six State Constitutions. Each and all
alike declare rights God-given, and that to secure the people in
the enjoyment of their inalienable rights, is their one and only
object in ordaining and establishing government. And all of the
State constitutions are equally emphatic in their recognition of
the ballot as the means of securing the people in the enjoyment
of these rights. Article 1 of the New York State Constitution
says:
No member of this State shall be disfranchised or deprived
of the rights or privileges secured to any citizen thereof,
unless by the law of the land or the judgment of his peers.
And so carefully guarded is the citizen's right to vote, that the
Constitution makes special mention of all who may not vote:
Laws may be passed excluding from the right of suffrage all
persons who have been or may be convicted of bribery,
larceny, or any infamous crime.
In naming the various employments that shall not affect the
residence of voters, the 3d section of Article 2d says
That being kept at any almshouse or other asylum, at public
expense, nor being confined at any public prison, shall
deprive a person of his residence,
and hence his vote. Thus is the right of voting most sacredly
hedged about. The only seeming permission in our constitution for
the disfranchisement of women is in section 1st of Article 2d:
Every male citizen of the age of twenty-one years, etc.,
shall be entitled to vote.
But I insist that in view of the explicit assertions of the equal
right of the whole people, both in the preamble and previous
article of the constitution, this omission of the adjective
"female" in the second, should not be construed into a denial;
but, instead, counted as of no effect. Mark the direct
prohibition:
"No member of this State shall be disfranchised, unless by
the 'law of the land,' or the judgment of his peers."
"The law of the land," is the United States Constitution; and
there is no provision in that document that can be fairly
construed into a permission to the States to deprive any class of
their citizens of their right to vote. Hence New York can get no
power from that source to disfranchise one entire half of her
members. Nor has "the judgment of their peers" been pronounced
against women exercising their right to vote. No disfranchised
person is allowed to be judge or juror--and none but
disfranchised persons can be women's peers; nor has the
Legislature passed laws excluding them on account of idiocy or
lunacy; nor yet the courts convicted them of bribery, larceny, or
any infamous crime. Clearly, then, there is no constitutional
ground for the exclusion of women from the ballot-box in the
State of New York. No barriers whatever stand to-day between
women and the exercise of their right to vote save those of
precedent and prejudice.
The clauses of the United States Constitution, cited by our
opponents as giving power to the States to disfranchise any
classes of citizens they shall please, are contained in sections
2d and 4th of article 1st. The second says:
The House of Representatives shall be composed of members
chosen every second year by the people of the several
States; and the electors in each State shall have the
qualifications requisite for electors of the most numerous
branch of the State Legislature.
This can not be construed into a concession to the States of the
power to destroy the right to become an elector, but simply to
prescribe what shall be the qualifications, such as competency of
intellect, maturity of age, length of residence, that shall be
deemed necessary to enable them to make an intelligent choice of
candidates. If, as our opponents assert, the last clause of this
section makes it the duty of the United States to protect
citizens in the several States against higher or different
qualifications for electors for Representatives in Congress, than
for members of Assembly, then must the first clause make it
equally imperative for the national government to interfere with
the States, and forbid them from arbitrarily cutting off the
right of one half of the people to become electors altogether.
Section 4th says:
The times, places, and manner of holding elections for
Senators and Representatives shall be prescribed in each
State by the Legislature thereof; but Congress may at any
time, by law, make or alter such regulations, except as to
the places of choosing Senators.
Here is conceded the power only to prescribe times, places, and
manner of holding the elections; and even with these Congress may
interfere, with all excepting the mere place of choosing
Senators. Thus you see, there is not the slightest permission in
either section for the States to discriminate against the right
of any class of citizens to vote. Surely to regulate can not be
to annihilate! nor to qualify to wholly deprive! And to this
principle every true Democrat and Republican said amen, when
applied to black men by Senator Sumner in his great speeches for
EQUAL RIGHTS TO ALL from 1865 to 1869; and when, in 1871, I asked
that Senator to declare the power of the United States
Constitution to protect women in their right to vote--as he had
done for black men--he handed me a copy of all his speeches
during that reconstruction period, saying:
Miss Anthony, put "sex" where I have "race" or "color," and
you have here the best and strongest argument I can make for
woman. There is not a doubt but women have the
constitutional right to vote, and I will never vote for a
XVI. Amendment to guarantee it to them. I voted for both the
XIV. and XV. under protest; would never have done it but for
the pressing emergency of that hour; would have insisted
that the power of the original Constitution to protect all
citizens in the equal enjoyment of their rights should have
been vindicated through the courts. But the newly made
freedmen had neither the intelligence, wealth, nor time to
wait that slow process. Women possess all these in an
eminent degree; and I insist that they shall appeal to the
courts, and through them establish the powers of our
American _magna charta_, to protect every citizen of the
Republic.
But, friends, when in accordance with Senator Sumner's counsel, I
went to the ballot-box, last November, and exercised my citizen's
right to vote, the courts did not wait for me to appeal to
them--they appealed to me, and indicted me on the charge of
having voted illegally. Senator Sumner, putting sex where he did
color, would have said:
Qualifications can not be in their nature permanent or
insurmountable. Sex can not be a qualification any more than
size, race, color, or previous condition of servitude. A
permanent or insurmountable qualification is equivalent to a
deprivation of the suffrage. In other words, it is the
tyranny of taxation without representation, against which
our revolutionary mothers, as well as fathers, rebelled.
For any State to make sex a qualification that must ever result
in the disfranchisement of one entire half of the people, is to
pass a bill of attainder, or an _ex post facto_ law, and is
therefore a violation of the supreme law of the land. By it, the
blessings of liberty are forever withheld from women and their
female posterity. To them, this government has no just powers
derived from the consent of the governed. To them this government
is not a democracy. It is not a republic. It is an odious
aristocracy; a hateful oligarchy; the most hateful ever
established on the face of the globe. An oligarchy of wealth,
where the rich govern the poor; an oligarchy of learning, where
the educated govern the ignorant; or even an oligarchy of race,
where the Saxon rules the African, might be endured; but surely
this oligarchy of sex, which makes the men of every household
sovereigns, masters; the women subjects, slaves; carrying
dissension, rebellion into every home of the Nation, can not be
endured. And yet this odious aristocracy exists in the face of
Section 4, of Article 4, which says:
The United States shall guarantee to every State in the
Union a Republican form of government.
What, I ask you, is the distinctive difference between the
inhabitants of a Monarchical and those of a Republican form of
government, save that in the Monarchical the people are subjects,
helpless, powerless, bound to obey laws made by superiors--while
in the Republican, the people are citizens, individual
sovereigns, all clothed with equal power, to make and unmake both
their laws and their law makers. And the moment you deprive a
person of his right to a voice in the government, you degrade him
from the status of a citizen to that of a subject, and it matters
very little to him whether his monarch be an individual tyrant,
as is the Czar of Russia, or a 15,000,000 headed monster, as here
in the United States.
But, it is urged, the use of the masculine pronouns he, his, and
him, in all the constitutions and laws, is proof that only men
were meant to be included in their provisions. If you insist on
this version of the letter of the law, we shall insist that you
be consistent, and accept the other horn of the dilemma, which
would compel you to exempt women from taxation for the support of
the government, and from penalties for the violation of laws.
A year and a half ago I was at Walla Walla, Washington Territory.
I saw there a theatrical company, the "Pixley Sisters," playing
before crowded houses every night of the whole week of the
Territorial fair. The eldest of those three fatherless girls was
scarce eighteen. Yet every night a United States officer
stretched out his long fingers, and clutched six dollars of the
proceeds of the exhibitions of those orphan girls, who, but a few
years before, were starvelings in the streets of Olympia, the
capital of that far-off north-west territory. So the poor widow,
who keeps a boarding-house, manufactures shirts, or sells apples
and peanuts on the street corners of our cities, is compelled to
pay taxes from her scanty pittance. I would that the women of
this republic at once resolve, never again to submit to taxation
until their right to vote be recognized. Miss Sarah E. Wall, of
Worcester, Mass., twenty years ago, took this position. For
several years, the officers of the law distrained her property
and sold it to meet the necessary amount; still she persisted,
and would not yield an iota, though every foot of her lands
should be struck off under the hammer. And now, for several
years, the assessor has left her name off the tax list, and the
collector passed her by without a call. Mrs. J. S. Weeden, of
Viroqua, Wis., for the past six years has refused to pay her
taxes, though the annual assessment is $75. Mrs. Ellen Van
Valkenburg, of Santa Cruz, Cal., who sued the County Clerk for
refusing to register her name, declares she will never pay
another dollar of tax until allowed to vote; and all over the
country, women property holders are waking up to the injustice of
taxation without representation, and ere long will refuse, _en
masse_, to submit to the imposition.
There is no she, or her, or hers, in the tax laws. The statute of
New York reads:
Every person shall be assessed in the town or ward where he
resides when the assessment is made, for the lands owned by
him, etc. Every collector shall call at least once on the
person taxed, or at his usual place of residence, and shall
demand payment of the taxes charged on him. If any one shall
refuse to pay the tax imposed on him, the collector shall
levy the same by distress and sale of his property.
The same is true of all the criminal laws:
No person shall be compelled to be a witness against
himself, etc.
In the law of May 31, 1870, the 19th section of which I am
charged with having violated; not only are all the pronouns
masculine, but everybody knows that that particular section was
intended expressly to hinder the rebels from voting. It reads:
If any person shall knowingly vote without his having a
lawful right, etc.
Precisely so with all the papers served on me--the U. S.
Marshal's warrant, the bail-bond, the petition for habeas corpus,
the bill of indictment--not one of them had a feminine pronoun
printed in it; but, to make them applicable to me, the Clerk of
the Court made a little carat at the left of "he" and placed an
"s" over it, thus making she out of he. Then the letters "is"
were scratched out, the little carat placed under and "er" over,
to make her out of his, and I insist if government officials may
thus manipulate the pronouns to tax, fine, imprison, and hang
women, women may take the same liberty with them to secure to
themselves their right to a voice in the government.
So long as any classes of men were denied their right to vote,
the government made a show of consistency, by exempting them from
taxation. When a property qualification of $250 was required of
black men in New York, they were not compelled to pay taxes, so
long as they were content to report themselves worth less than
that sum; but the moment the black man died, and his property
fell to his widow, the black woman's name would be put on the
assessor's list, and she be compelled to pay taxes on the same
property exempted to her husband. The same is true of ministers
in New York. So long as the minister lives, he is exempted from
taxation on $1,500 of property, but the moment the breath goes
out of his body, his widow's name will go down on the assessor's
list, and she will have to pay taxes on the $1,500. So much for
the special legislation in favor of women. In all the penalties
and burdens of the government (except the military), women are
reckoned as citizens, equally with men. Also, in all the
privileges and immunities, save those of the jury-box and
ballot-box, the two fundamental privileges on which rest all the
others. The United States government not only taxes, fines,
imprisons, and hangs women, but it allows them to pre-empt lands,
register ships, and take out passport and naturalization papers.
Not only does the law permit single women and widows to the right
of naturalization, but Section 2 says:
A married woman may be naturalized without the concurrence
of her husband. (I wonder the fathers were not afraid of
creating discord in the families of foreigners); and again:
When an alien, having complied with the law, and declared
his intention to become a citizen, dies before he is
actually naturalized, his widow and children shall be
considered citizens, entitled to all rights and privileges
as such, on taking the required oath.
If a foreign-born woman, by becoming a naturalized, citizen, is
entitled to all rights and privileges of citizenship, is not a
native-born woman by her National citizenship, possessed of equal
rights and privileges?
The question of the masculine pronouns, yes and nouns too, has
been settled by the United States Supreme Court, in the case of
Silver _vs._ Ladd, December, 1868, in a decision as to whether a
woman was entitled to lands under the Oregon donation law of
1850. Elizabeth Cruthers, a widow, settled upon a claim and
received patents. She died, and her son was heir. He died. Then
Messrs. Ladd & Nott took possession, under the general
pre-emption law, December, 1861. The administrator, E. P. Silver,
applied for a writ of ejectment at the land office in Oregon
City. Both the Register and Receiver decided that an unmarried
woman could not hold land under that law. The Commissioner of the
General Land Office, at Washington, and the Secretary of the
Interior, also gave adverse opinions. Here patents were issued to
Ladd & Nott, and duly recorded. Then a suit was brought to set
aside Ladd's patent, and it was carried through all the State
Courts and the Supreme Court of Oregon; each, in turn, giving
adverse decisions. At last, in the United States Supreme Court,
Associate Justice Miller reversed the decisions of all the lower
tribunals, and ordered the land back to the heirs of Mrs.
Cruthers. The Court said:
In construing a benevolent statute of the government, made
for the benefit of its own citizens, inviting and
encouraging them to settle on its distant public lands, the
words "single man," and "unmarried man" may, especially if
aided by the context and other parts of the statute, be
taken in a generic sense. Held, accordingly, that the fourth
section of the Act of Congress, of September 27th, 1850,
granting by way of donation, lands in Oregon Territory, to
every white settler or occupant, American half-breed Indians
included, embraced within the term single man an unmarried
woman.
And the attorney, who carried this question to its final success,
is now the Senator elect from Oregon, Hon. J. H. Mitchell, in
whom the cause of equal rights to women has an added power on the
floor of the United States Senate.
Though the words persons, people, inhabitants, electors,
citizens, are all used indiscriminately in the National and State
constitutions, there was always a conflict of opinion, prior to
the war, as to whether they were synonymous terms, as for
instance:
No _person_ shall be a representative who shall not have
been seven years a _citizen_, and who shall not, when
elected, be an _inhabitant_ of that State in which he is
chosen. No _person_ shall be a senator who shall not have
been a _citizen_ of the United States, and an _inhabitant_
of that State in which he is chosen.
But, whatever room there was for a doubt, under the old regime,
the adoption of the XIV. Amendment settled that question forever,
in its first sentence:
All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside.
And the second settles the equal status of all persons--all
citizens:
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens; nor shall any
State deprive any person of life, liberty or property,
without due process of law, nor deny to any person within
its jurisdiction the equal protection of the laws.
The only question left to be settled now, is: Are women persons?
And I hardly believe any of our opponents will have the hardihood
to say they are not. Being persons, then, women are citizens, and
no State has a right to make any new law, or to enforce any old
law, that shall abridge their privileges or immunities. Hence,
every discrimination against women in the constitutions and laws
of the several States, is to-day null and void, precisely as is
every one against negroes. Is the right to vote one of the
privileges or immunities of citizens? I think the disfranchised
ex-rebels, and the ex-state prisoners will all agree with me,
that it is not only one of them, but _the one without which all
the others are nothing_. Seek first the kingdom of the ballot,
and all things else shall be given thee, is the political
injunction.
Webster, Worcester and Bouvier all define citizen to be a person,
in the United States, entitled to vote and hold office. And prior
to the adoption of the XIII. Amendment, by which slavery was
forever abolished, and black men transformed from property to
persons, the judicial opinions of the country had always been in
harmony with these definitions. To be a person was to be a
citizen, and to be a citizen was to be a voter. Associate Justice
Washington, in defining the privileges and immunities of the
citizen, more than fifty years ago, said:
They included all such privileges as were fundamental in
their nature. And among them is the right to exercise the
elective franchise and to hold office.
Even the "Dred Scott" decision, pronounced by the Abolitionists
and Republicans infamous, because it virtually declared "black
men had no rights white men were bound to respect," gave this
true and logical conclusion, that to be one of the people was to
be a citizen and a voter. Chief Judge Daniels said:
There is not, it is believed, to be found in the theories of
writers on government, or in any actual experiment
heretofore tried, an exposition of the term citizen, which
has not been considered as conferring the actual possession
and enjoyment of the perfect right of acquisition and
enjoyment of an entire equality of privileges, civil and
political.
Associate Justice Taney said:
The words "people of the United States" and "citizens," are
synonymous terms, and mean the same thing. They both
describe the political body, who, according to our
republican institutions, form the sovereignty, and who hold
the power and conduct the government, through their
representatives. They are what we familiarly call the
sovereign people, and every citizen is one of this people,
and a constituent member of this sovereignty.
Thus does Judge Taney's decision, which was such a terrible ban
to the black man while he was a slave, now that he is a person,
no longer property, pronounce him a citizen, possessed of an
entire equality of privileges, civil and political. And not only
the black man, but the black woman, and all women as well. And it
was not until after the abolition of slavery, by which the
negroes became free men, hence citizens, that the United States
Attorney-General Bates rendered a contrary opinion:
The Constitution uses the word "citizen" only to express the
political quality (not equality, mark) of the individual in
his relation to the nation; to declare that he is a member
of the body politic, and bound to it by the reciprocal
obligations of allegiance on the one side, and protection on
the other. The phrase "a citizen of the United States,"
without addition or qualification, means neither more nor
less than a member of the nation.
Then, to be a citizen of this Republic, is no more than to be a
subject of an Empire. You and I, and all true and patriotic
citizens must repudiate this base conclusion. We all know that
American citizenship, without addition or qualification, means
the possession of equal rights, civil and political. We all know
that the crowning glory of every citizen of the United States is,
that he can either give or withhold his vote from every law and
every legislator under the government. Did "I am a Roman
citizen," mean nothing more than that I am a "member" of the body
politic of the Republic of Rome, bound to it by the reciprocal
obligations of allegiance on the one side, and protection on the
other? When you, young man, shall travel abroad among the
monarchies of the old world, and there proudly boast yourself an
"American citizen," will you thereby declare yourself neither
more nor less than a "member" of the American nation?
And this opinion of Attorney-General Bates, that a black citizen
was not a voter, made merely to suit the political exigency of
the Republican party in that transition hour between emancipation
and enfranchisement, was no less infamous, in spirit or purpose,
than was the decision of Judge Taney, that a black man was not
one of the people, rendered in the interest and at the behest of
the old Democratic party, in its darkest hour of subjection to
the Slave power. Nevertheless, all of the adverse arguments,
adverse congressional reports and judicial opinions, thus far,
have been based on this purely partisan, time-serving opinion of
General Bates, that the normal condition of the citizen of the
United States is that of disfranchisement. That only such classes
of citizens as have had special legislative guarantee have a
legal right to vote. And if this decision of Attorney-General
Bates was infamous, as against black men, but yesterday
plantation slaves, what shall we pronounce upon Judge Bingham, in
the House of Representatives, and Carpenter, in the Senate of the
United States, for citing it against the women of the entire
nation, vast numbers of whom are the peers of those honorable
gentlemen themselves, in morals, intellect, culture, wealth,
family--paying taxes on large estates, and contributing equally
with them and their sex, in every direction, to the growth,
prosperity, and well-being of the Republic? And what shall be
said of the judicial opinions of Judges Cartter, Jameson, McKay,
and Sharswood, all based upon this aristocratic monarchical idea,
of the right of one class to govern another?
I am proud to mention the names of the two United States judges
who have given opinions honorable to our Republican idea, and
honorable to themselves--Judge Howe, of Wyoming Territory, and
Judge Underwood, of Virginia. The former gave it as his opinion a
year ago, when the Legislature seemed likely to revoke the law
enfranchising the women of that Territory, that, in case they
succeeded, the women would still possess the right to vote under
the XIV. Amendment. Judge Underwood, of Virginia, in noticing the
recent decision of the Supreme Court of the District of Columbia,
denying to women the right to vote, under the XIV. Amendment,
says:
If the people of the United States, by amendment of their
Constitution, could expunge, without any explanatory or
assisting legislation, an adjective of five letters from all
State constitutions, and thereby raise millions of our most
ignorant fellow-citizens to all the rights and privileges of
electors, why should not the same people, by the same
Amendment, expunge an adjective of four letters from the
same State constitutions, and thereby raise other millions
of more educated and better informed citizens to equal
rights and privileges, without explanatory or assisting
legislation?
If the XIV. Amendment does not secure to all citizens the right
to vote, for what purpose was that grand old charter of the
fathers lumbered with its unwieldy proportions? The Republican
party, and Judges Howard and Bingham, who drafted the document,
pretended it was to do something for black men; and if that
something was not to secure them in their right to vote and hold
office, what could it have been? For, by the XIII. Amendment,
black men had become people, and hence were entitled to all the
privileges and immunities of the Government, precisely as were
the women of the country and foreign men not naturalized.
According to Associate Justice Washington, they already had the
Protection of the Government, the enjoyment of life and
liberty, with the right to acquire and possess property of
every kind, and to pursue and obtain happiness and safety,
subject to such restraints as the Government may justly
prescribe for the general welfare of the whole; the right of
a citizen of one State to pass through or to reside in any
other State for the purpose of trade, agriculture,
professional pursuit, or otherwise; to claim the benefit of
the writ of habeas corpus, to institute and maintain actions
of any kind in the courts of the State; to take, hold, and
dispose of property, either real or personal, and an
exemption from higher taxes or impositions than are paid by
the other citizens of the State.
Thus, you see, those newly-made freed men were in possession of
every possible right, privilege, and immunity of the Government,
except that of suffrage, and hence, needed no constitutional
amendment for any other purpose. What right, I ask you, has the
Irishman the day after he receives his naturalization papers that
he did not possess the day before, save the right to vote and
hold office? And the Chinamen, now crowding our Pacific coast,
are in precisely the same position. What privilege or immunity
has California or Oregon the constitutional right to deny them,
save that of the ballot? Clearly, then, if the XIV. Amendment was
not to secure to black men their right to vote, it did nothing
for them, since they possessed everything else before. But if it
was meant to be a prohibition of the States to deny or abridge
their right to vote--which I fully believe--then it did the same
for all persons, white women included, born or naturalized in the
United States, for the amendment does not say all male persons of
African descent, but all persons are citizens.
The second section is simply a threat to punish the States, by
reducing their representation on the floor of Congress, should
they disfranchise any class of male citizens, and does not allow
of the inference that the States may disfranchise from any, or
all other causes; nor in anywise weaken or invalidate the
universal guarantee of the first section. What rule of law or
logic would allow the conclusion, that the prohibition of a crime
to one person, on severe pains and penalties, was a sanction of
that crime to any and all other persons save that one? But,
however much the doctors of the law may disagree, as to whether
people and citizens, in the original constitution, were one and
the same, or whether the privileges and immunities in the XIV.
Amendment include the right of suffrage, the question of the
right of the citizen to vote is settled forever by the XV.
Amendment:
The citizen's right to vote shall not be denied by the
United States, nor any State thereof; on account of race,
color, or previous condition of servitude.
How can the State deny or abridge the right of the citizen, if
the citizen does not possess it? There is no escape from the
conclusion, that to vote is the citizen's right, and the
specifications of race, color, or previous condition of servitude
can, in no way, impair the force of the emphatic assertion, that
the citizen's right to vote shall not be denied or abridged. The
political strategy of the second section of the XIV. Amendment,
failing to coerce the rebel States into enfranchising their
negroes, and the necessities of the Republican party demanding
their votes throughout the South, to insure the re-election of
Grant in 1872, that party was compelled to place this positive
prohibition of the XV. Amendment upon the United States and all
the States thereof.
If we once establish the false principle, that United States
citizenship does not carry with it the right to vote in every
State in this Union, there is no end to the petty freaks and
cunning devices that will be resorted to, to exclude one and
another class of citizens from the right of suffrage. It will not
always be men combining to disfranchise women; native-born men
combining to abridge the rights of naturalized citizens, as in
Rhode Island; it will not always be the rich and educated who may
combine to cut off the poor and ignorant; but we may live to see
the poor, hard-working, uncultivated day laborers, foreign and
native born, learning the power of the ballot and their vast
majority of numbers, combine and amend State constitutions so as
to disfranchise the Vanderbilts and A. T. Stewarts, the Conklings
and Fentons. It is a poor rule that won't work more ways than
one. Establish this precedent, admit the right of the States to
deny suffrage, and there is no power to foresee the confusion,
discord, and disruption that may await us. There is, and can be,
but one safe principle of government--equal rights to all. And
any and every discrimination against any class, whether on
account of color, race, nativity, sex, property, culture, can but
embitter and disaffect that class, and thereby endanger the
safety of the whole people. Clearly, then, the National
government must not only define the rights of citizens, but it
must stretch out its powerful hand and protect them in every
State in this Union.
But if you will insist that the XV. Amendment's emphatic
interdiction against robbing United States citizens of their
right to vote, "on account of race, color, or previous condition
of servitude," is a recognition of the right, either of the
United States or any State, to rob citizens of that right for any
or all other reasons, I will prove to you that the class of
citizens for which I now plead, and to which I belong, may be,
and are, by all the principles of our Government, and many of the
laws of the States, included under the term "previous condition
of servitude."
First.--The married women and their legal status. What is
servitude? "The condition of a slave." What is a slave? "A person
who is robbed of the proceeds of his labor; a person who is
subject to the will of another."
By the law of Georgia, South Carolina, and all the States of the
South, the negro had no right to the custody and control of his
person. He belonged to his master. If he was disobedient, the
master had the right to use correction. If the negro didn't like
the correction, and attempted to run away, the master had a right
to use coercion to bring him back. By the law of every State in
this Union to-day, North as well as South, the married woman has
no right to the custody and control of her person. The wife
belongs to her husband; and if she refuses obedience to his will,
he may use moderate correction, and if she doesn't like his
moderate correction, and attempts to leave his "bed and board,"
the husband may use moderate coercion to bring her back. The
little word "moderate," you see, is the saving clause for the
wife, and would doubtless be overstepped should her offended
husband administer his correction with the "cat-o'-nine-tails,"
or accomplish his coercion with blood-hounds.
Again, the slave had no right to the earnings of his hands, they
belonged to his master; no right to the custody of his children,
they belonged to his master; no right to sue or be sued, or
testify in the courts. If he committed a crime, it was the master
who must sue or be sued. In many of the States there has been
special legislation, giving to married women the right to
property inherited, or received by bequest, or earned by the
pursuit of any avocation outside of the home; also, giving her
the right to sue and be sued in matters pertaining to such
separate property; but _not a single State of this Union has ever
secured the wife in the enjoyment of her right to the joint
ownership of the joint earnings of the marriage copartnership_.
And since, in the nature of things, the vast majority of married
women never earn a dollar by work outside of their families, nor
inherit a dollar from their fathers, it follows that from the day
of their marriage to the day of the death of their husbands, not
one of them ever has a dollar, except it shall please her
husband to let her have it. In some of the States, also, there
have been laws passed giving to the mother a joint right with the
father in the guardianship of the children. But twenty years ago,
when our woman's rights movement commenced, by the laws of the
State of New York, and all the States, the father had the sole
custody and control of the children. No matter if he were a
brutal, drunken libertine, he had the legal right, without the
mother's consent, to apprentice her sons to rumsellers, or her
daughters to brothel keepers. He could even will away an unborn
child, to some other person than the mother. And in many of the
States the law still prevails, and legal mothers are still
utterly powerless under the common law.
I doubt if there is, to-day, a State in this Union where a
married woman can sue or be sued for slander of character, and
until quite recently there was not one in which she could sue or
be sued for injury of person. However damaging to the wife's
reputation any slander may be, she is wholly powerless to
institute legal proceedings against her accuser, unless her
husband shall join with her; and how often have we heard of the
husband conspiring with some outside barbarian to blast the good
name of his wife. A married woman can not testify in the courts
in cases of joint interest with her husband. A good farmer's wife
near Earlville, Ill., who had all the rights she wanted, went to
the dentist of the village, who made her a full set of false
teeth, both upper and under. The dentist pronounced them an
admirable fit, and the wife declared they gave her fits to wear
them; that she could neither chew nor talk with them in her
mouth. The dentist sued the husband; his counsel brought the wife
as witness; the judge ruled her off the stand, saying:
A married woman can not be a witness in matters of joint
interest between herself and her husband.
Think of it, ye good wives, the false teeth in your mouths a
joint interest with your husbands, about which you are legally
incompetent to speak! If in our frequent and shocking railroad
accidents a married woman is injured in her person, in nearly all
of the States, it is her husband who must sue the company, and it
is to her husband that the damages, if there are any, will be
awarded. In Ashfield, Mass., supposed to be the most advanced of
any State in the Union in all things, humanitarian as well as
intellectual, a married woman was severely injured by a defective
sidewalk. Her husband sued the corporation and recovered $13,000
damages. And those $13,000 belong to him _bona fide_; and
whenever that unfortunate wife wishes a dollar of it to supply
her needs she must ask her husband for it; and if the man be of a
narrow, selfish, niggardly nature, she will have to hear him say,
every time:
"What have you done, my dear, with the twenty-five cents I
gave you yesterday?"
Isn't such a position, I ask you, humiliating enough to be called
"servitude"? That husband, as would any other husband, in nearly
every State of this Union, sued and obtained damages for the loss
of the services of his wife, precisely as the master, under the
old slave regime, would have done, had his slave been thus
injured, and precisely as he himself would have done had it been
his ox, cow, or horse instead of his wife. There is an old saying
that "a rose by any other name would smell as sweet," and I
submit if the deprivation by law of the ownership of one's own
person, wages, property, children, the denial of the right as an
individual, to sue and be sued, and to testify in the courts, is
not a condition of servitude most bitter and absolute, though
under the sacred name of marriage?
Does any lawyer doubt my statement of the legal status of married
women? I will remind him of the fact that the old common law of
England prevails in every State in this Union, except where the
Legislature has enacted special laws annulling it. And I am
ashamed that not one State has yet blotted from its statute books
the old common law of marriage, by which Blackstone, summed up in
the fewest words possible, is made to say: "Husband and wife are
one, and that one is the husband."
Thus may all married women, wives, and widows, by the laws of the
several States, be technically included in the XV. Amendment's
specification of "condition of servitude," present or previous.
And not only married women, but I will also prove to you that by
all the great fundamental principles of our free government, the
entire womanhood of the nation is in a "condition of servitude"
as surely as were our revolutionary fathers, when they rebelled
against old King George. Women are taxed without representation,
governed without their consent, tried, convicted, and punished
without a jury of their peers. And is all this tyranny any less
humiliating and degrading to women under our
democratic-republican government to-day than it was to men under
their aristocratic, monarchical government one hundred years ago?
There is not an utterance of old John Adams, John Hancock, or
Patrick Henry, but finds a living response in the soul of every
intelligent, patriotic woman of the nation. Bring to me a
common-sense woman property holder, and I will show you one whose
soul is fired with all the indignation of 1776, every time the
tax-gatherer presents himself at her door. You will not find one
such but feels her condition of servitude as galling as did James
Otis when he said:
The very act of taxing exercised over those who are not
represented appears to me to be depriving them of one of
their most essential rights, and if continued, seems to be
in effect an entire disfranchisement of every civil right.
For, what one civil right is worth a rush after a man's
property is subject to be taken from him at pleasure without
his consent? If a man is not his own assessor in person, or
by deputy, his liberty is gone, or he is wholly at the mercy
of others.
What was the three-penny tax on tea, or the paltry tax on paper
and sugar to which our revolutionary fathers were subjected, when
compared with the taxation of the women of this Republic? The
orphaned Pixley sisters, six dollars a day; and even the women
who are proclaiming the tyranny of taxation without
representation, from city to city throughout the country, are
often compelled to pay a tax for the poor privilege of protesting
against the outrage. And again, to show that disfranchisement was
precisely the slavery of which the fathers complained, allow me
to cite to you old Ben. Franklin, who in those olden times was
admitted to be good authority, not merely in domestic economy,
but in political as well:
Every man of the commonalty, except infants, insane persons
and criminals, is, of common right and the law of God, a
freeman and entitled to the free enjoyment of liberty. That
liberty or freedom consists in having an actual share in the
appointment of those who are to frame the laws, and who are
to be the guardians of every man's life, property, and
peace. For the all of one man is as dear to him as the all
of another; and the poor man has an equal right, but more
need to have representatives in the Legislature than the
rich one. That they who have no voice or vote in the
electing of representatives do not enjoy liberty, but are
absolutely enslaved to those who have votes and their
representatives; for to be enslaved is to have governors
whom other men have set over us, and to be subject to laws
made by the representatives of others, without having had
representatives of our own to give consent in our behalf.
Suppose I read it with the feminine gender:
That women who have no voice nor vote in the electing of
representatives, do not enjoy liberty, but are absolutely
enslaved to men who have votes and their representatives;
for to be enslaved is to have governors whom men have set
over us, and to be subject to the laws made by the
representatives of men, without having representatives of
our own to give consent in our behalf.
And yet one more authority; that of Thomas Paine, than whom not
one of the Revolutionary patriots more ably vindicated the
principles upon which our government is founded:
The right of voting for representatives is the primary right
by which other rights are protected. To take away this right
is to reduce man to a state of slavery; for slavery consists
in being subject to the will of another; and he that has not
a vote in the election of representatives is in this case.
The proposal, therefore, to disfranchise any class of men is
as criminal as the proposal to take away property.
Is anything further needed to prove woman's condition of
servitude sufficiently orthodox to entitle her to the guarantees
of the XV. Amendment? Is there a man who will not agree with me,
that to talk of freedom without the ballot, is mockery--is
slavery--to the women of this Republic, precisely as New
England's orator, Wendell Phillips, at the close of the late war,
declared it to be to the newly emancipated black men?
I admit that prior to the rebellion, by common consent, the right
to enslave, as well as to disfranchise both native and foreign
born citizens, was conceded to the States. But the one grand
principle, settled by the war and the reconstruction legislation,
is the supremacy of National power to protect the citizens of the
United States in their right to freedom and the elective
franchise, against any and every interference on the part of the
several States. And again and again, have the American people
asserted the triumph of this principle, by their overwhelming
majorities for Lincoln and Grant. The one issue of the last two
Presidential elections was, whether the XIV. and XV. Amendments
should be considered the irrevocable will of the people; and the
decision was, they shall be--and that it is not only the right,
but the duty of the National government to protect all United
States citizens in the full enjoyment and free exercise of all
their privileges and immunities against any attempt of any State
to deny or abridge. And in this conclusion Republicans and
Democrats alike agree.
Senator FRELINGHUYSEN said--The heresy of State rights has
been completely buried in these amendments, that as amended,
the Constitution confers not only National but State
citizenship upon all persons born or naturalized within our
limits.
The CALL for the NATIONAL REPUBLICAN Convention said--Equal
suffrage has been engrafted on the National Constitution;
the privileges and immunities of American citizenship have
become a part of the organic law.
The NATIONAL REPUBLICAN Platform said--Complete liberty and
exact equality in the enjoyment of all civil, political, and
public rights, should be established and maintained
throughout the Union by efficient and appropriate State and
Federal legislation.