MY DEAR MISS ANTHONY:--In regard to the Inspectors of Election, I
would not, if I were they, pay, but allow any process to be
served; and I have no doubt the President will remit the fine if
they are pressed too far.
I am yours truly, BENJAMIN F. BUTLER.
On Miss Anthony's return home, February 26, 1874, she found the three
Inspectors lodged in jail. She at once called on Judge Selden, and
after consultation with him as to what could be done for their
protection, telegrams were sent to influential friends in Washington,
to which the following reply was received:
WASHINGTON, D. C., March 2, 1874--12 noon.
TO MISS SUSAN B. ANTHONY:--I laid the case of the Inspectors
before the President to-day. He kindly orders their pardon.
Papers are being prepared.
A. A. SARGENT.
An Associated Press dispatch, dated Washington, March 2, 1874, said:
At the written request of Senator Sargent, the President to-day
directed the Attorney-General to prepare the necessary papers to
remit the fine and imprisonment of Hall, Marsh, and others, the
Rochester Election Inspectors, who were tried and convicted in
June, 1873, of registering Susan B. Anthony and other women, and
receiving their votes.
The Rochester _Evening Express_ of Feb. 26, 1874, said:
TYRANNY IN ROCHESTER.--The arrest and imprisonment in our city
jail of the Election Inspectors who received the votes of Susan
B. Anthony and other ladies, at the polls of the Eighth Ward,
some months ago, is a petty but malicious act of tyranny, of
which the officers who are responsible for it will yet be
ashamed. It should be known to the public that these young men
received Miss Anthony's vote by the advice of the best legal
talent that could be procured. The ladies themselves took oath
that they were citizens of the United States and entitled to
vote.... The Court, however, fined these inspectors $25 and
costs, for an offense which at the worst is merely technical, and
now, nearly nine months after conviction, in default of payment,
they are seized and shut up in jail, away from their families and
their business, and subjected to all the inconvenience to say
nothing of the odium of such an incarceration. This is an outrage
which ought not to be tolerated in this country, and we shall be
disappointed if public sentiment does not yet rebuke, in
thunder-tones, the authorities who have perpetrated it. Miss
Anthony is willing to fight her own battles and take the
consequences, but she naturally feels indignant that others
should suffer in this matter through no fault of their own....
The Rochester _Democrat and Chronicle_ of March 26th, said:
AN OUTRAGE.--.... We regard this action on the part of District
Attorney Crowley as an outrage, in that these young men, who, at
the worst, are but accessories in the violation of law, are made
to feel its terrors, while the chief criminal is allowed to defy
the law with impunity. No effort has been made to satisfy the
judgment of the court against Miss Anthony. She contemns the law
which adjudged her guilty, and its duly appointed administrators
are either too timid or too negligent of duty to endeavor to
enforce it.... It is doubtful whether they had the right to
refuse those votes. In any event their offense is venial as
compared with hers. It does not look well for the District
Attorney thus to proceed against the lesser offenders, while the
chief offender snaps her fingers at the law, and dares its
ministers to make her a martyr.... We write in no spirit of
vindictiveness, nor even in one of antagonism toward Miss
Anthony; but in the name of justice we are called upon to protest
against the unseemly proceeding which persecutes those excellent
young men and hesitates to attack this woman, who stands as a
representative of what she regards a great reform, and in its
advocacy shrinks not from any of the terrors the law may have in
store for her. Mr. District Attorney, it is your duty to arrest
Miss Anthony; to cross swords with an antagonist worthy of your
steel. Your present action looks ignoble, and is unworthy of you
or of the office you fill.
More than a week elapsed before the arrival of President Grant's
pardon papers, and during that time hundreds of the people of
Rochester visited the "boys" in jail, and the best of dinners were
furnished them daily by the fourteen women voters of the Eighth Ward.
VIRGINIA L. MINOR'S PETITION
IN THE CIRCUIT COURT OF ST. LOUIS COUNTY, DECEMBER TERM, 1872.
_St. Louis County, ss.:_ Virginia L. Minor and Francis Minor, her
husband, Plaintiffs, _vs._ Reese Happersett, Defendant.
The plaintiff, Virginia L. Minor (with whom is joined her
husband, Francis Minor, as required by the law of Missouri),
states, that under the Constitution and law of Missouri, all
persons wishing to vote at any election, must previously have
been registered in the manner pointed out by law, this being a
condition precedent to the exercise of the elective franchise.
That on the fifteenth day of October, 1872 (one of the days fixed
by law for the registration of voters), and long prior thereto,
she was a native-born, free white citizen of the United States,
and of the State of Missouri, and on the day last mentioned she
was over the age of twenty-one years.
That on said day, the plaintiff was a resident of the thirteenth
election district of the city and county of St. Louis, in the
State of Missouri, and had been so residing in said county and
election district, for the entire period of twelve months and
more, immediately preceding said fifteenth day of October, 1872,
and for more than twenty years had been and is a tax-paying,
law-abiding citizen of the county and State aforesaid.
That on said last mentioned day, the defendant, having been duly
and legally appointed Registrar for said election district, and
having accepted the said office of Registrar and entered upon the
discharge of the duties thereof at the office of registration, to
wit: No. 2004 Market Street, in said city and county of St.
Louis, it became and was then and there his duty to register all
citizens, resident in said district as aforesaid, entitled to the
elective franchise, who might apply to him for that purpose.
The plaintiff further states, that wishing to exercise her
privilege as a citizen of the United States, and vote for
Electors for President and Vice-President of the United States,
and for a Representative in Congress, and for other officers, at
the General Election held in November, 1872: While said defendant
was so acting as Registrar, on said 15th day of October, 1872,
she appeared before him, at his office aforesaid, and then and
there offered to take and subscribe the oath to support the
Constitution of the United States and of the State of Missouri,
as required by the registration law of said State, approved March
10, 1871, and respectfully applied to him to be registered as a
lawful voter, which said defendant then and there refused to do.
The plaintiff further states, that the defendant, well knowing
that she, as a citizen of the United States and of the State of
Missouri, resident as aforesaid, was then and there entitled to
all the privileges and immunities of citizenship, chief among
which is the elective franchise, and as such, was entitled to be
registered, in order to exercise said privilege: yet, unlawfully
intending, contriving, and designing to deprive the plaintiff of
said franchise or privilege, then and there knowingly, willfully,
maliciously, and corruptly refused to place her name upon the
list of registered voters, whereby she was deprived of her right
to vote.
Defendant stated to plaintiff, that she was not entitled to be
registered, or to vote, because she was not a "male" citizen, but
a woman! That by the Constitution of Missouri, Art. II., Sec. 18,
and by the aforesaid registration law of said State, approved
March 10, 1871, it is provided and declared, that only "male
citizens" of the United States, etc., are entitled or permitted
to vote.
But the plaintiff protests against such decision, and she
declares and maintains that said provisions of the Constitution
and registration law of Missouri aforesaid, are in conflict with,
and repugnant to the Constitution of the United States, which is
paramount to State authority; and that they are especially in
conflict with the following articles and clauses of said
Constitution of the United States, to wit:
Art. I. Sec. 9.--Which declares that no Bill of Attainder
shall be passed.
Art. I. Sec. 10.--No State shall pass any Bill of Attainder,
or grant any title of nobility.
Art. IV. Sec. 2.--The citizens of each State shall be
entitled to all privileges and immunities of citizens in the
several States.
Art. IV. Sec. 4.--The United States shall guarantee to every
State a republican form of government.
Art. VI.--This Constitution and the laws of the United
States which shall be made in pursuance thereof, shall be
the supreme law of the land, anything in the Constitutions
or laws of any State to the contrary notwithstanding.
AMENDMENTS.
Art. V.--No person shall be ... deprived of life, liberty,
or property without due process of law.
Art. IX.--The enumeration in the Constitution of certain
rights, shall not be construed to deny or disparage others
retained by the people.
Art. XIV. Sec. 1.--All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States. Nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction, the equal
protection of the laws.
The plaintiff states, that by reason of the wrongful act of the
defendant as aforesaid, she has been damaged in the sum of ten
thousand dollars, for which she prays judgment.
JOHN M. KRUM, }
FRANCIS MINOR, } _Att'ys for Plffs._
JOHN B. HENDERSON, }
_Demurrer. In the Circuit Court of St. Louis County:_ Virginia L.
Minor and Francis Minor, her husband, Plaintiffs, _vs._ Reese
Happersett.
The defendant, Reese Happersett, demurs to the petition of
plaintiffs, and for cause of demurrer defendant states that said
petition does not state facts sufficient to constitute a cause of
action, for the following reasons:
1. Because said Virginia L. Minor, plaintiff, had no right
to vote at the general election held in November, 1872, in
said petition referred to.
2. Because said Virginia L. Minor had no right to be
registered for voting by said defendant, at the time and in
the manner in said petition alleged.
3. Because it was the duty of the defendant to refuse to
place said Virginia L. Minor's name upon the list of
registered voters in said petition referred to.
All of which appears by said petition.
SMITH P. GALT, _Atty for Deft._
The defense, in substance, being based upon the Constitution of
Missouri, which provides (Art. II., Sec. 18) that "every male
citizen of the United States, etc., ... shall be entitled to
vote"; and also upon the registration law of said State, approved
March 10, 1871, which is as follows:
An act to provide for a uniform registration of voters, the
appointment of judges of elections, and repealing all former
acts relating thereto.
_Be it enacted by the General Assembly of the State of
Missouri, as follows:_
SECTION 1.--Every male citizen of the United States, and
every person of foreign birth who may have declared his
intention to become a citizen of the United States,
according to law, not less than one year nor more than five
years before he offers to vote, who is over the age of
twenty-one years, who has resided in this State one year
next preceding his registration as a voter, and during the
last sixty days of that period shall have resided in the
county, city, or town where he seeks registration as a
voter, who is not convicted of bribery, perjury, or other
infamous crime, nor directly or indirectly interested in any
bet or wager depending upon the result of the election for
which such registration is made, nor serving at the time of
such registration in the regular army or navy of the United
States, shall be entitled to vote at such elections for all
officers, State, county, or municipal, made elective by the
people, or any other election held in pursuance of the laws
of this State; but he shall not vote elsewhere than in the
election district where his name is registered, except as
provided in the twenty-first section of the second article
of the Constitution.
SEC. 2.--The several clerks of the County Courts in this
State shall provide a suitable registration book for each
election district in their several counties, which shall
have written or printed therein the following oath: "We the
undersigned, do solemnly swear or affirm that we will
support the Constitution of the United States and of the
State of Missouri."
SEC. 3.--On or before the 9th day of March, 1871, the
several County Courts in this State shall appoint some
competent person to act as Registrar in each election
district in their respective counties, who shall have the
qualifications of an elector in his election district, and
who shall hold his office until the general election in
1872, and until his successor is elected and qualified. Said
Registrar shall have authority to administer all oaths which
may be necessary in the registration of voters.
SEC. 4.--Any person having the qualification of a voter as
prescribed in the first section of this act, and who shall
take and subscribe the oath required of voters by the second
section of this act, and who applies for registration at the
time and in the manner prescribed by law, and any
naturalized citizen who shall subscribe to a written
statement, under oath, before the Registrar, that he is
naturalized according to the laws of the United States and
of this State, and has resided in this State, according to
the first section of this act, and that his naturalization
papers or evidence of his citizenship have been lost or
destroyed, or that the same are not accessible to him, and
shall state where he was naturalized, shall be accepted by
the registering officer, and duly registered as a qualified
voter.
It is claimed, therefore, that the defendant was justified in
refusing to register the plaintiff on account of her sex. The
plaintiff, however, denies the validity of this clause of the
Missouri Constitution, and the registration act based thereon,
and contends that they are in violation of, and repugnant to, the
Constitution of the United States, and particularly to those
articles and clauses thereof which she has specified in her
petition.
It is admitted, by the pleadings, that the plaintiff is a
native-born, free white citizen of the United States and of the
State of Missouri; that the defendant is a Registrar, qualified
and acting as such; that the plaintiff, in proper time and in
proper form made application to him to be registered, and that
the defendant refused to register the plaintiff solely for the
reason that she is a female (and that she possesses the
qualifications of an elector, in all respects, except as to the
matter of sex, as before stated).
The question is thus broadly presented of a conflict between the
Constitution of the State of Missouri and that of the United
States, as contemplated by the twenty-fifth section of the
judiciary act of 1789, and the supplemental act of February 5,
1867.
ASSIGNMENT OF ERRORS.--And now comes Virginia L. Minor, the
plaintiff in error in the above entitled cause, by her attorneys,
John B. Henderson, John M. Krum, and Francis Minor, and says that
in the records and proceedings in the above entitled cause, in
said Supreme Court of the State of Missouri, there is manifest
error in this, to wit:
1st. Because the said Supreme Court erred in affirming the
judgment of the St. Louis Circuit Court--thereby, in effect,
sustaining the demurrer filed in said Circuit Court by the
defendant to the petition of the plaintiff.
2d. Because the said Supreme Court erred in its judgment
affirming the judgment of the St. Louis Circuit
Court--thereby, in effect, declaring that the plaintiff in
error was not entitled to vote at the election mentioned in
the record.
3. Because the said Supreme Court of Missouri erred in
affirming the judgment of the St. Louis Circuit
Court--thereby, in effect, declaring that the Constitution
and laws of Missouri, before recited, do not conflict with
the Constitution of the United States.
STATEMENT.--This was an action, brought by the plaintiff, against
the defendant, a registering officer, for refusing to register
her as a lawful voter.
The defendant demurred to the petition, the defense, in
substance, being based upon the Constitution of Missouri, which
provides (Art 2, Sec. 18) that "every male citizen of the United
States, etc., ... shall be entitled to vote";--and also upon the
registration law of said State, approved March 10, 1871, to the
same effect; and it was claimed, therefore, that the defendant
was justified in refusing to register the plaintiff on account of
her sex.
The plaintiff, however, denied the validity of this clause of the
Missouri Constitution, and the registration act based thereon,
and contended that they are in violation of, and repugnant to,
the Constitution of the United States, and particularly to those
articles and clauses thereof which she had specified in her
petition.
It was admitted, by the pleadings, that the plaintiff was a
native-born, free, white citizen of the United States, and of the
State of Missouri; that the defendant was a Registrar, qualified
and acting as such; that the plaintiff, in proper time, and in
proper form, made application to him to be registered, and that
the defendant refused to register the plaintiff solely for the
reason that she was a female (and that she possessed the
qualifications of an elector, in all respects, except as to the
matter of sex, as before stated). The question was thus broadly
presented of a conflict between the Constitution of the State of
Missouri and that of the United States, as contemplated by the
25th section of the Judiciary act of 1789, and 5th February,
1867.
* * * * *
ARGUMENT AND BRIEF.--We think the chief difficulty in this case
is one of fact rather than of law. The practice is against the
plaintiff. The States, with one exception, which we shall notice
hereafter more in detail, have uniformly claimed and exercised
the right to act, as to the matter of suffrage, just as they
pleased--to limit or extend it, as they saw proper. And this is
the popular idea on the subject. Men accept it as a matter of
fact, and take for granted it must be right. So in the days of
African slavery, thousands believed it to be right--even a Divine
institution. But this belief has passed away; and, in like
manner, this doctrine of the right of the States to exercise
unlimited and absolute control over the elective franchise of
citizens of the United States, must and will give way to a truer
and better understanding of the subject. The plaintiff's case is
simply one of the means by which this end will ultimately be
reached.
We claim, and presume it will not be disputed, that the elective
franchise is a privilege of citizenship within the meaning of the
Constitution of the United States. In order to get a clearer idea
of the true meaning of this term citizenship, it may be well to
recur for a moment to its first introduction and use in American
law.
Before the colonists asserted their independence they were
politically bound to the sovereign of Great Britain, by what is
termed in English law, "allegiance"; and those from whom this
allegiance was due were termed "subjects." But when these
"bands," as they are termed in the Declaration of Independence,
were dissolved, the political relation became changed, and we no
longer hear in the United States the term "subject" and
"allegiance," except the latter, which is used to express the
paramount duty of our citizens to our own government. The term
citizen was substituted for that of "subject." But this was not a
mere change of name; the men who framed the Constitution of the
United States had all been "subjects" of the English king, and
they well knew the radical change wrought by the revolution.
In the new political sovereignty thus created, the feudal idea of
dependence gave way to that of independence, and the people
became their own sovereigns or rulers in the government of their
own creation. Of this body politic, represented by the
Constitution of the United States, all persons born or
naturalized therein and subject to the jurisdiction thereof, are
members; without distinction as to political rights or
privileges, except that the head or chief of the new government
must be native-born--and this exception the more strongly proves
the rule. It is to this Constitution, therefore, we must look for
the limitations, if any, that may be placed upon the political
rights of the people or citizens of the United States. A
limitation not found there, or authorized by that instrument, can
not be legally exercised by any lesser or inferior jurisdiction.
But the subject of suffrage (or the qualifications of electors,
as the Constitution terms it) is simply remitted to the States by
the Constitution, to be regulated by them; not to limit or
restrict the right of suffrage, but to carry the same fully into
effect. It is impossible to believe that anything more than this
was intended. In the first place, it would be inconsistent and at
variance with the idea of the supremacy of the Federal
government; and, next, if the absolute, ultimate, and
unconditional control of the matter had been intended to be given
to the States, it would have been so expressed. It would not have
been left to doubt or implication. In so important a matter as
suffrage, the chief of all political rights or privileges, by
which, indeed, life, liberty, and all others are guarded and
maintained, and without which they would be held completely at
the mercy of others; we repeat, it is impossible to conceive that
this was intended to be left wholly and entirely at the
discretion of the States.
A right so important must not be the subject of implication.[177]
Some positive warrant or authority must be shown for it, and in
the case at bar we challenge its production. There is another
view of the subject that is important to be considered. There can
be no division of citizenship, either of its rights or its
duties. There can be no half-way citizenship. Woman, as a citizen
of the United States, is entitled to all the benefits of that
position, and liable to all its obligations, or to none. Only
citizens are permitted to pre-empt land, obtain passports, etc.,
all of which woman can do; and, on the other hand, she is taxed
(without her "consent") in further recognition of her
citizenship; and yet, as to this chief privilege of all, she is
forbidden to exercise it. We call upon the State to show its
warrant for so doing--for inflicting upon the plaintiff and the
class to which she belongs, the bar of perpetual
disfranchisement, where no crime or offense is alleged or
pretended, and without "due process of law."
We charge it as a "bill of attainder" of the most odious and
oppressive character. The State can no more deprive a citizen of
the United States of one privilege than of another, except by the
"law of the land." There is no security for freedom if this be
denied. To use the language of Mr. Madison, such a course
"violates the vital principle of free government, that those who
are to be bound by laws, ought to have a voice in making them."
(Madison Papers, vol. 3--appendix, p. 12.)
It is sometimes said this is one of the "reserved rights" of the
States. But this can not be, for the simple reason that, as to
the "privileges and immunities" of federal citizenship, they had
no existence prior to the adoption of the Federal Constitution;
how then could they be reserved?
As Mr. Justice Story says: "The States can exercise no powers
whatsoever, which exclusively spring out of the existence of the
National Government, which the Constitution does not delegate to
them.... No State can say that it has reserved what it never
possessed." (Commentaries, §§ 624-627.)
We say, then, that the States may regulate, but they have no
right to prohibit the franchise to citizens of the United States.
They may prescribe the qualifications of the electors. They may
require that they shall be of a certain age, be of sane mind, be
free from crime, etc., because these are conditions for the good
of the whole, and to which all citizens, sooner or later, may
attain. But to single out a class of citizens and say to them,
"Notwithstanding you possess all these qualifications, you shall
never vote, or take part in your government," what is it but a
bill of attainder?
To show that the mere regulation of this matter of suffrage was
left to the States for the purpose we have indicated, and not to
their absolute and ultimate control, we will now quote the
language of one of the framers of the Constitution, to whom,
indeed, has been applied the epithet of "Father of the
Constitution"--James Madison; and this, too, in reply to
questions by Mr. Monroe, who sought an explanation on these very
points. We quote from the debates in the Virginia convention upon
the adoption of the Federal Constitution:
Mr. MONROE wished that the honorable gentleman who had been
in the Federal Convention would give information respecting
the clause concerning elections. He wished to know why
Congress had an ultimate control over the time, place, and
manner of elections of Representatives, and the time and
manner of that of Senators, and also why there was an
exception as to the place of electing Senators.
Mr. MADISON: Mr. Chairman, the reason of the exception was,
that if Congress could fix the place of choosing the
Senators, it might compel the State Legislatures to elect
them in a different place from that of their usual sessions,
which would produce some inconvenience, and was not
necessary for the object of regulating the elections. But it
was necessary to give the General Government a control over
the time and manner of choosing the Senators, to prevent its
own dissolution.
With respect to the other point, it was thought that the
regulation of time, place, and manner of electing the
Representatives should be uniform throughout the continent.
Some States might regulate the elections on the principles
of equality, and others might regulate them otherwise. This
diversity would be obviously unjust. Elections are regulated
now unequally in some States, particularly South Carolina,
with respect to Charleston, which is represented by thirty
members.
Should the people of any State by any means be deprived of
the right of suffrage, it was judged proper that it should
be remedied by the General Government.
It was found impossible to fix the time, place, and manner
of the election of Representatives in the Constitution. It
was found necessary to leave the regulation of these, in the
first place, to the State Government, as being best
acquainted with the situation of the people, subject to the
control of the General Government, in order to enable it to
produce uniformity, and prevent its own dissolution. And,
considering the State Governments and General Government as
distinct bodies, acting in different and independent
capacities for the people, it was thought the particular
regulations should be submitted to the former and the
general regulations to the latter. Were they exclusively
under the control of the State Governments, the General
Government might easily be dissolved. But if they be
regulated properly by the State Legislature, the
Congressional control will very properly never be exercised.
The power appears to me satisfactory, and as unlikely to be
abused as any part of the Constitution. (Elliot's Debates,
vol. 2, pages 276-7.)
It seems to us that nothing can be clearer or plainer than this,
coming to us, as it does, with all the weight and authority of
Mr. Madison himself. But it may be asked: If this be so, why was
not the question sooner raised? We answer, at that very time, and
for nearly twenty years afterward, women did vote, unquestioned
and undisputed, in one of the States (New Jersey). The men who
framed the Constitution were then living--some of them in this
very State; yet we hear no mention of its being unconstitutional,
no objection made to it whatever.
It is true that subsequently this provision was omitted (about
1807) in the revisal of the State Constitution (as we think, very
unjustly), but the fact remains of the unquestioned exercise of
this privilege by women at the very time the Federal Constitution
was adopted, and for years afterward. This fact is worth a
thousand theories. Again, we think that one of the causes of the
popular error on this subject arises from forgetting or
overlooking the dual nature of our citizenship.
We are citizens of a State, as well as of the United States. This
is alluded to in several of the early cases, and its importance
is clearly pointed out. We quote, first, from Talbut _vs._
Jansen, 3 Dallas, Sup. Ct. Rep., 153 (1795), in which Mr. Justice
Patterson says: "The act of the Legislature of Virginia does not
apply. Ballard was a citizen of Virginia, and also of the United
States. If the Legislature of Virginia pass an act specifying the
causes of expatriation and prescribing the manner in which it is
to be effected by the citizens of that State, what can be its
operation on the citizens of the United States?"
If the act of Virginia affects Ballard's citizenship so far as
respects that State, can it touch his citizenship so far as
regards the United States? Allegiance to a particular State is
one thing; allegiance to the United States is another. Will it be
said that the renunciation of allegiance to the former implies or
draws after it a renunciation of allegiance to the latter? The
sovereignties are different; the allegiance is different; the
right, too, may be different. Our situation being new,
unavoidably creates new and intricate questions. We have
sovereignties moving within a sovereignty.
Judge Cabell, also of the Supreme Court of Appeals of Virginia,
alludes to it briefly in the case of Murray _vs._ McCarty, 2
Munford, 398. He says: "But although the Constitution of the
United States has wisely given to the citizens of each State the
privileges of a citizen of any other State, yet it clearly
recognizes the distinction between the character of a citizen of
the United States and a citizen of any individual State, and also
of citizens of different States," etc. Or, if a still further and
later authority be desired, we have it in the language of
Chief-Justice Taney, who says, in the Dred Scott case:
In discussing this question we must not confound the rights
of citizenship, which a State may confer within its own
limits, and the rights of citizenship as a member of the
Union. It does not by any means follow, because he has all
the rights and privileges of a citizen of a State, that he
must be a citizen of the United States.... But if he rank as
a citizen of the State to which he belongs, within the
meaning of the Constitution of the United States, then,
whenever he goes into another State, the Constitution
clothes him as to the rights of person, with all the
privileges and immunities which belong to citizens of the
State. And if persons of the African race are citizens of a
State, and of the United States, they would be entitled to
all of these privileges and immunities in every State, and
the State could not restrict them; for they would hold these
privileges and immunities under the paramount authority of
the Federal Government, and its courts would be bound to
maintain and enforce them, the Constitution and laws of the
State to the contrary notwithstanding. And if the States
could limit or restrict them, or place the party in an
inferior grade, this clause of the Constitution would be
unmeaning, and could have no operation, and would give no
rights to the citizen when in another State. He would have
none but what the State itself chose to allow him. This is
evidently not the construction or meaning of the clause in
question. It guarantees rights to the citizen, and the State
can not withhold them. (Dred Scott _vs._ Sanford, 19
Howard's Rep., pp. 405 and 422.)
Now, substitute in the above, for "persons of the African race,"
women, who are "citizens of the State and of the United States,"
and you have the key to the whole position. We will now consider
the clauses of the Constitution before recited, somewhat in
detail:
As to "bills of attainder," "due process of law," etc. "No State
shall pass any bill of attainder," etc. A bill of attainder is a
legislative act which inflicts punishment without a judicial
trial. If the punishment be less than death, the act is termed a
bill of pains and penalties. Within the meaning of the
Constitution, bills of attainder include bills of pains and
penalties. In these cases the legislative body, in addition to
its legitimate functions, exercises the powers and office of
judge; it assumes, in the language of the text-book, judicial
magistracy; it pronounces upon the guilt of the party, without
any of the forms or safeguards of trial; it determines the
sufficiency of the proofs produced, whether conformable to the
rules of evidence or otherwise, and it fixes the degree of
punishment in accordance with its own notions of the enormity of
the offense. These bills are generally directed against the
individuals by name, but they may be directed against a whole
class.
The theory upon which our political institutions rest, is, that
all men have certain inalienable rights--that among these are
life, liberty, and the pursuit of happiness; and that, in the
pursuit of happiness, all avocations, all honors, all positions
are alike open to every one, and that, in the protection of these
rights, all are equal before the law. Any deprivation or
suspension of any of these rights, for past conduct, is
punishment, and can be in no otherwise defined.
Punishment not being therefore restricted, as contended by
counsel, to the deprivation of life, liberty, or property, but
also embracing deprivation or suspension of political or civil
rights, and the disabilities prescribed by the provisions of the
Missouri Constitution being in effect punishment, we proceed to
consider whether there is any inhibition in the Constitution of
the United States against their enforcement.--(Cummings _vs._ The
State of Missouri, 4 Wallace, 351-323, and _ex parte_
Garland--same volume.)
We are aware that the Supreme Court of Missouri, in the case of
Blair _vs._ Ridgley, hold a different view, but we submit that
the cases differ in a most material point, to wit: In the Blair
case he was merely required to take the oath taken by all voters;
and, by refusing to do so, he virtually disfranchised himself. In
this case, however, the disfranchisement of the plaintiff is
arbitrary and insurmountable; and we further submit, that the
arguments in this case present it in a different, and, we think,
a broader view than was taken in the Blair case. But to show that
we are not unsupported by authority in this matter, we will now
quote from a New York case, very similar to the Blair case, where
the elector was required, but refused to take the oath, etc.
MILLER, J.: This case involves the constitutional validity
of that portion of the act to provide for a convention to
revise and amend the Constitution of this State, which
excludes from the privilege of voting all who refuse to take
the test oath prescribed by the act in question.
I think that the oath in question was unconstitutional and
invalid, for the reasons which I will proceed to state. The
first subdivision of the tenth section of the first article
of the Constitution of the United States provides, that "no
State shall pass any bill of attainder, _ex post facto_ law,
or laws impairing the obligations of contracts, or grant any
title of nobility." The provision of the act which is to be
considered declares, that no person shall vote at the
election for delegates to said convention who will not, if
duly challenged, take and subscribe an oath that he has not
done certain acts mentioned therein, and inflicts the
penalty of political disfranchisement without any
preliminary examination or trial, for a refusal to take said
oath.
By this enactment the citizen is deprived, upon declining to
conform to its mandate, of a right guaranteed to him by the
Constitution and laws of the land, and one of the most
inestimable and invaluable privileges of a free government.
There can be no doubt, I think, that to deprive a citizen of
the privileges of exercising the elective franchise, for any
conduct of which he has previously been guilty, is to
inflict a punishment for the act done.
It imposes upon him a severe penalty, which interferes with
his privileges as a citizen, affects his respectability and
standing in the community, degrades him in the estimation of
his fellow-men, and reduces him below the level of those who
constitute the great body of the people of which the
Government is composed. It moreover inflicts a penalty
which, by the laws of this State, is a part of the
punishment inflicted for a felony, and which follows
conviction for such a crime. It is one of the peculiar
characteristics of our free institutions, that every citizen
is permitted to enjoy certain rights and privileges, which
place him upon an equality with his neighbors. Any law which
takes away or abridges these rights, or suspends their
exercise, is not only an infringement upon their enjoyment,
but an actual punishment. That such is the practical effect
of the test oath required by the act in question, can admit
of no doubt, in my judgment. It arbitrarily and summarily,
and without any of the forms of law, punishes for an offense
created by the law itself. In the formation of our National
Constitution, its framers designed to prevent and guard
against the exercise of the power of the Legislature, by
usurping judicial functions, and for the punishment of
alleged offenses in advance of trial, for offenses unknown
to the law, and by bill of attainder and _ex post facto
enactments_, etc.--(Green _vs._ Shumway, 36 Howard's
Practice Rep., pp. 7, 8.)
On the same subject, we will next quote from a decision by the
Supreme Court of Nevada:
LEWIS, C. J.--The form of the law by which an individual is
deprived of a constitutional right is immaterial. The test
of its constitutionality is, whether it operates to deprive
any person of a right guaranteed or given to him by the
Constitution. If it does, it is a nullity, whatever may be
its form. Surely a law which deprives a person of a right,
by requiring him to take an oath which he can not take, is
no less objectionable than one depriving him of such right
in direct terms.
To make the enjoyment of a right depend upon an impossible
condition, or upon the doing of that which can not legally
be done, is equivalent to an absolute denial of the right
under any condition. The effect, and not the language of the
law, in such case, must determine its constitutionality. It
would not be doubted for a moment that a law expressly
denying the elective franchise to any person upon whom the
Constitution confers it would be unconstitutional. Why,
then, is a law less objectionable which, although not
expressly and directly, yet no less certainly denies the
right, etc.--(Davies _vs._ McKeeby, 5 Nevada Rep. 7,371.)
We quote next from a Tennessee case:
The elective franchise is a right which the law protects and
enforces as jealously as it does property in chattels or
lands. It matters not by what name it is designated--the
right to vote, the elective franchise, or the privilege of
the elective franchise--the person who, under the
Constitution and laws of the State is entitled to it, has a
property in it, which the law maintains and vindicates as
vigorously as it does any right of any kind which men may
have and enjoy.
The rules of law which guard against deprivation or injury, the
rights of persons in corporeal properties, are alike and equally
applicable to the elective franchise, and alike and equally guard
persons invested with it against deprivation of or injury to it.
Persons invested with it can not be deprived of it otherwise than
by "due process of law." See
The State _vs._ Staten, 6 Caldwell's Rep., p. 243. See also
Rison _vs._ Farr, 25 Ark. Rep., p. 173; Winehamer _vs._
People, 13 N. Y., 378; State _vs._ Symonds, 57 Maine, 150,
511; Huber _vs._ Riley, 53 Penn., 112; Cooley's
Constitutional Limitations.
We conclude this list of references with Mr. Webster's celebrated
definition in the Dartmouth College case (4 Wheaton, 581):
By the law of the land is most clearly intended the general
law; a law which hears before it condemns, which proceeds
upon inquiry, and renders judgment only after trial. The
meaning is, that every citizen shall hold his life, liberty,
property, and immunities, under the protection of the
general rules which govern society. Everything which may
pass under the form of an enactment is not, therefore, to be
considered the law of the land. If this were so, acts of
attainder, bills of pains and penalties, acts of
confiscation, acts reversing judgments, and acts directly
transferring one man's estate to another, legislative
judgments, decrees and forfeiture, in all possible forms,
would be the law of the land.
Such a strange construction would render constitutional
provisions of the highest importance completely inoperative
and void. It would tend directly to establish the union of
all powers in the Legislature. There would be no general
permanent law for courts to administer, or for men to live
under. The administration of justice would be an empty
form--an idle ceremony. Judges would sit to execute
legislative judgments and decrees; not to declare the law,
or to administer the justice of the country.
That the elective franchise is a privilege of citizenship, we
have the authority of Judge Washington, for he says:
What are the privileges and immunities of citizens in the
several States? We feel no hesitation in confining these
expressions to those privileges and immunities which are in
their nature fundamental; which belong of right to the
citizens of all free governments; and which have, at all
times, been enjoyed by the citizens of the several States
which compose this Union, from the time of their becoming
free, independent, and sovereign. What those fundamental
principles are, it would perhaps be more tedious than
difficult to enumerate.
They may, however, be all comprehended under the following
general heads: Protection by the Government, the enjoyment
of life and liberty, with the right to acquire and possess
property of every kind, and to pursue and obtain happiness
and safety, subject, nevertheless, to such restraints as the
Government may justly prescribe for the general good of the
whole; the right of a citizen of one State to pass through,
or to reside in any other State for purposes of trade,
agriculture, professional pursuits, or otherwise; to claim
the benefit of the writ of _habeas corpus_; to institute and
maintain actions of every kind in the courts of the State;
to take, hold, and dispose of property, either real or
personal; and an exemption from higher taxes or imposition
than are paid by the citizens of the other State, may be
mentioned as some of the particular privileges and
immunities of citizens, which are clearly embraced by the
general description of privileges deemed to be fundamental;
to which may be added, the elective franchise, as regulated
and established by the laws or Constitution of the State in
which it is to be exercised (Corfield _vs._ Corryell, 4
Wash. C.C., 380). Cited and approved in Dunham _vs._
Lamphere, 3 Gray, 276 (Mass.); Bennett _vs._ Boggs, Baldwin
Rep., 72.
A proper construction of Art. 1, Sec. 2, of the Constitution of
the United States will further demonstrate the proposition we are
endeavoring to uphold. That section is as follows:
ARTICLE 1, Section 2. The House of Representatives shall be
composed of members chosen every second year by the people
of the several States; and the electors in each State shall
have the qualifications for electors of the most numerous
branch of the State Legislature.
This section consists of two clauses, but in neither is there a
word as to the sex of the elector. He, or she, must be one of the
people, or "citizens," as they are designated in the
Constitution, that is all.--(Story's Comms. § 579.)
The "people" are to elect. This clause fixes the class of voters;
the other clause is in subordination to that, and merely
provides, that as touching qualifications, there shall be one and
the same standard for the Federal and for the State elector. Both
are mentioned and neither is or can be excluded by the other.
The right to vote is very different from the qualification
necessary in a voter. A person may have the right to vote, and
yet not possess the necessary qualifications for exercising it.
In this case, the right to vote is derived from the Federal
Constitution, which designates the class of persons who may
exercise it, and provides that the Federal elector shall conform
to the regulations of the State, so far as time, place, and
manner of exercising it are concerned. But it is clear that under
this authority the State has no right to lay down an arbitrary
and impossible rule. As before stated by the Chief-Justice of
Nevada: "To make the enjoyment of a right depend upon an
impossible condition, is equivalent to an absolute denial of it
under any condition."
In conclusion, we will consider, as briefly as possible, the
points made by the Supreme Court of Missouri. We quote from the
opinion:
The question presented then is, whether there is a conflict
between the Constitution of the United States and the
Constitution and laws of the State of Missouri on this
subject. That the different States of the Union had a right,
previous to the adoption of what is known as the XIV.
Amendment to the Constitution of the United States, to limit
the right to vote at election by their constitutions and
laws to the male sex, I think can not at this day be
questioned.
Undoubtedly the practice in the different States, as we have
before said, is against the claim made by the plaintiff,
although, as we shall show, in the early days of the Republic
this practice was by no means universal. But when the Court
states that the right of the States to do this can not be
questioned, it assumes the very point in controversy, and it
fails to notice the distinction between "the rights of
citizenship which a State may confer within its own limits, and
the rights of citizenship as a member of the Union."
(Chief-Justice Taney in Scott _vs._ Sandford, 19 Howard, 405.)
"The difference," says Judge Cooley (Story on Constitution,
section 1937), "is in a high degree important." And while it may
be true that the voter himself rarely, if ever, thinks of any
difference between his vote for State and for Federal officers,
yet, in law, there is a wide distinction.
In the one case he exercises the franchise under one jurisdiction
or sovereignty, and in the other under a totally different one.
In voting for Federal officers he exercises the freeman's right
to take part in the government of his own creation, and he does
this in contemplation of law, in his character or capacity of a
citizen of the United States, and his right so to vote legally
depends upon such status or character. Clearly, then, the right
of a citizen of the United States to vote for Federal officers
can only be exercised under the authority or sovereignty of the
United States, not under some other authority or sovereignty, and
consequently the citizen of the United States could not justly
have been deprived of such right by the State, even before the
adoption of the XIV. Amendment.
But whatever doubt there may have been as to this, we hold that
the adoption of the XIV. Amendment put an end to it and placed
the matter beyond controversy. The history of that Amendment
shows that it was designed as a limitation on the powers of the
States, in many important particulars, and its language is clear
and unmistakable. "No State shall make or enforce any law which
shall abridge the privileges and immunities of citizens of the
United States." Of course all the citizens of the United States
are by this protected in the enjoyment of their privileges and
immunities. Among the privileges, that of voting is the highest
and greatest. To an American citizen there can be none greater or
more highly to be prized; and the preservation of this privilege
to the citizens of the United States respectively is, by this
Amendment, placed under the immediate supervision and care of the
Government of the United States, who are thus charged with its
fulfillment and guaranty.
By ratifying this Amendment the several States have relinquished
and quit-claimed, so to speak, to the United States, all claim or
right, on their part, to "make or enforce any law which shall
abridge the privileges and immunities of citizens of the United
States." The State of Missouri, therefore, is estopped from
longer claiming this right to limit the franchise to "males," as
a State prerogative; and the Supreme Court of Missouri should
have so declared, and its failure to do so is error; because, by
retaining that word in the State Constitution and laws, not this
plaintiff only, but large numbers of other citizens of the United
States are "abridged" in the exercise of their "privileges and
immunities as citizens of the United States," by being deprived
of their right or privilege to vote for United States officers,
as claimed by the plaintiff in her petition. Not only this, but
we say further, that the ratification of this amendment was, in
intendment of law, a solemn agreement, on the part of the States,
that all existing legislation inconsistent therewith should be
repealed, or considered as repealed, and that none of like
character should take place in the future. The State of Missouri
has acted upon this idea in part, and its subsequent legislation,
on the subject of the ballot, has been as follows: The
ratification of the XV. Amendment (which we do not consider as
having any direct bearing on the point now being considered,
inasmuch as this Amendment is merely prohibitory--not conferring
any right, but treating the ballot in the hands of the negro as
an existing fact, and forbidding his deprivation thereof). Next,
amending the State Constitution and registration law, by simply
omitting the word "white" from the clause "white male citizens."
This constitutes the entire legislation of the State of Missouri
on this subject since the adoption of the XIV. Amendment, and
this omission of the word "white" was designed to make the State
Constitution conform to the Amendment, so far as the negro was
concerned, leaving the women citizens of the United States still
under the ban of "involuntary servitude," in plain violation of
the Amendment.
So that, while the negro votes to-day in Missouri, there is not a
syllable of affirmative legislation by the State conferring the
right upon him. Whence, then, does he derive it? There is but one
reply. The XIV. Amendment conferred upon the negro race in this
country citizenship of the United States, and the ballot followed
as an incident to that condition. Or, to use the more forcible
language of this Court, in the Slaughter-house cases (16 Wall.,
71), "the negro having, by the XIV. Amendment, been declared a
citizen of the United States, is thus made a voter in every State
of the Union." If this be true of the negro citizen of the United
States, it is equally true of the woman citizen. And we invoke
the interposition of of this Court to effect, by its decree, that
which the Supreme Court of Missouri should have done, and declare
that this objectionable word must be omitted, or considered as
omitted from the Constitution and registration law of said State.
It can not be pretended that the Constitution of the United
States makes, or permits to be made, any distinction between its
citizens in their rights and privileges; that the negro has a
right which is denied to the woman. The discrimination,
therefore, made and continued by the State of Missouri, of which
we complain, is an unjustifiable act of arbitrary power, not of
right, and can be designated by no other term.
We proceed with our quotation from the opinion:
In this changed state of affairs, it was thought by those
who originated and adopted this Amendment, that it was
absolutely necessary that these emancipated people should
have the elective franchise, in order to enable them to
protect themselves against unfriendly legislation, in which
they could take no part; that unless these people had the
right to vote, and thus protect themselves against
oppression, their freedom from slavery would be a mockery,
and their condition but little improved. It was to remedy
this that the XIV. Amendment to the Constitution was
adopted. It was to compel the former slave States to give
these freedmen the right of suffrage, and to give them all
of the rights of other citizens of the respective States,
and thus make them equal with other citizens before the law.
It would be impossible for us to give any better reason for
woman's need of the ballot than the court has here given for that
of the negro, except that woman's condition is even more helpless
than his--"unless these people had the right to vote, and thus
protect themselves against oppression, their freedom from slavery
would be a mockery." How an American judge, with the claim of an
American citizen before him, for the protection, which, as he
truly says, this ballot alone can give, could see its lawfulness
and justice in the one case, and not in the other, passes our
comprehension.
We again quote from the opinion:
It was only intended to give the freedmen the same rights
that were secured to all other classes of citizens in the
State, and that if the other male inhabitants of the State
over the age of twenty-one years enjoyed the right of
suffrage, so should the males among the freedmen over the
age of twenty-one years enjoy the same right; it was not
intended that females, or persons under the age of
twenty-one years, should have the right of suffrage
conferred on them.
In reply to this, we might content ourselves with saying that it
is mere assertion, and can hardly be dignified as argument; but
we answer, that if the XIV. Amendment does not secure the ballot
to woman, neither does it to the negro; for it does not in terms
confer the ballot upon any one. As we have already shown, it is
the altered condition of citizenship that secures to the negro
this right; but this plaintiff might well reply, I was born to
that condition, and yet am denied its privileges.
We quote again, and finally, from the opinion:
This is not only shown by the history of the times when the
Amendment was adopted, and the circumstances which produced
it, but by reference to the second section of said
Amendment, it will be seen that the right to restrict the
right of suffrage to the male inhabitants by a State is
clearly recognized. If "the right to vote, etc., is denied
to any of the male inhabitants of such State, being
twenty-one years of age," etc., is the language used. This
clearly recognizes the right, and seems to anticipate the
exercise of the right on the part of the States, to restrict
the right of suffrage to the male inhabitants.
We doubt if an instance can be found of a more complete
misconception of the meaning and intention of the law. So far
from its being a recognition of the right of the States to
restrict the right to suffrage of males, it has an exactly
opposite meaning. It was intended as a punishment on the States
if they did this thing. It is no more a justification or
authorization of the act than is the law punishing larceny an
authority for stealing! Its object was to punish the States as
such, which, but for this provision, could not have been done by
diminishing their representation accordingly; and it was designed
as a still further security for the rights of the colored
population. But, even if it could be held to recognize a right on
the part of the State to disfranchise any one, it would only
extend to "males," not to females. They, as "citizens of the
United States," are embraced in, and protected by, the broad
language of the Amendment; a right that is fundamental, can not
be taken away by implication. But more than this, the XIV.
Amendment was an addition to the organic law of a great nation,
intended to enlarge the area of human freedom, and secure more
firmly individual rights. It is absurd to impute to the
law-makers a design at the same time to restrict those rights.
Although the point is not alluded to by the Supreme Court of
Missouri, yet, as we desire to meet every possible objection, we
think this a proper place to notice an argument sometimes put
forward, based upon the XV. Amendment. It is of the nature of
what is termed in law a negative pregnant, or, the familiar maxim
of "the expression of one thing is the exclusion of another." As
this Amendment says, that the right of citizens of the United
States to vote shall not be denied or abridged by the United
States, or by any State, on account of race, color, or previous
condition of servitude, it is claimed by some that it may be
abridged on other grounds. But, aside from the well-known history
of this Amendment, as shown by the debates in Congress, of which
this court will take notice when necessary, and which show that
the sole object and purpose of this Amendment was to still
further protect the negro race, the IX. Amendment to the
Constitution effectually puts an end to the application of this
principle by declaring that the enumeration in the Constitution
of certain rights shall not be construed to deny or disparage
others retained by the people. And Mr. Justice Story, in his
Commentary says, § 1905:
This clause was manifestly introduced to prevent any
perverse or ingenious misapplication of the well-known
maxim, that an affirmative in particular cases implies a
negative in all others; and, _e converso_, that a negative
in particular cases implies an affirmative in all others.
The maxim, rightly understood, is perfectly sound and safe;
but it has often been forced from its natural meaning into
the support of the most dangerous political heresies. The
Amendment was undoubtedly suggested by the reasoning of the
Federalist on the subject of a general bill of rights and
trial by jury. Federalist No. 83-84.
We ask the court to consider what it is to be disfranchised; not
this plaintiff only, but an entire class of people, utterly
deprived of all voice in the government under which they live! We
say it is to her, and to them, a Despotism, and not a Republic.
What matters it that the tyranny be of many instead of one?
Society shudders at the thought of putting a fraudulent ballot
into the ballot-box! What is the difference between putting a
fraudulent ballot in, and keeping a lawful ballot out? Her
disfranchised condition is a badge of servitude. [Mr. Justice
Bradley in the Grant parish case.] Take one illustration,
evidenced by a recent decision of the Supreme Court of Missouri,
in Clark _vs._ The National Bank of the State of Missouri, 47 Mo.
Rep., 1. We use our own words, but we state it correctly; that a
married woman can not, by the law of Missouri, own a dollar's
worth of personal property, except by the consent of another! it
makes no difference that that other is her husband. This, it is
true, is a State law, a matter exclusively of State legislation;
but we mention it to show how utterly helpless and powerless her
condition is without the ballot.
Either we must give up the principles announced in the
Declaration of Independence, that governments derive their just
powers from the consent of the governed; and are formed by the
people to protect their rights, not to withhold them; or we must
acknowledge the truth contended for by the plaintiff, that
citizenship carries with it every incident to every citizen
alike. It can not be disputed, that upon this principle of
absolute political equality, our Government is founded. So
thought the Hon. Luther Martin, of Maryland, one of the most
distinguished lawyers of his day, and a member of the convention
that framed our Constitution. We quote his own words. (Elliott's
Debates, Vol. 4.)
This, sir, is the substance of the arguments, if arguments
they may be called, which were used in favor of inequality
of suffrage. Those who advocated the equality of suffrage,
took the matter up on the original principles of government;
they urged that all men considered in a state of nature,
before any government is formed, are equally free and
independent, no one having any right or authority to
exercise power over another, and this, without any regard to
difference in personal strength, understanding, or wealth.
That when such individuals enter into government, they have
each a right to an equal voice in its first formation, and
afterward have each a right to an equal vote in every matter
which relates to their government; that if it could be done
conveniently, they have a right to exercise it in person;
when it can not be done in person but for convenience,
representatives are appointed to act for them; every person
has a right to an equal vote in choosing that representative
who is entrusted to do for the whole, that which the whole,
if they could assemble, might do in person, and in the
transacting of which each would have an equal voice. That if
we were to admit, because a man was more wise, more strong,
or more wealthy, he should be entitled to more votes than
another, it would be inconsistent with the freedom and
liberty of that other, and would reduce him to slavery.
Suppose, for instance, ten individuals in a state of nature
about to enter into government, nine of whom are equally
wise, equally strong, and equally wealthy, the tenth is ten
times as wise, ten times as strong, or ten times as rich; if
for this reason he is to have ten votes for each vote of
either of the others, the nine might as well have no vote at
all; since, though the whole nine might assent to a measure,
yet the vote of the tenth would countervail and set aside
all their votes.
If this tenth approved of what they wished to adopt, it
would be well, but if he disapproved, he could prevent it,
and in the same manner he could carry into execution any
measure he wished, contrary to the opinion of all the
others, he having ten votes, and the others all together but
nine. It is evident that on these principles the nine would
have no will or discretion of their own, but must be totally
dependent on the will and discretion of the tenth; to him
they would be as absolutely slaves as any negro is to his
master; if he did not attempt to carry into execution any
measure injurious to the other nine, it could only be said
that they had a good master; they would not be the less
slaves, because they would be totally dependent on the will
of another, and not on their own will. They might not feel
their chains, but they would notwithstanding wear them, and
whenever their master pleased he might draw them so tight as
to gall them to the bone. Hence it was urged the inequality
of representation, or giving to one man more votes than
another on account of his wealth, etc., was altogether
inconsistent with the principles of liberty, and in the same
proportion as it should be adopted in favor of one or more,
in that proportion are the others enslaved.
These are the words, not lightly uttered, nor to be by us lightly
considered, of one of the framers of the Constitution; and in
complete accord with this principle of entire equality of
individual right, see how those men who had fought through the
War of Independence did their work. Upon what broad and
comprehensive foundations it is laid. Examine the Constitution,
the work of their hands. Do we find any recognition of inequality
of rights? Not a syllable. On the contrary, every safeguard is
thrown around them; "no State shall pass any bill of attainder,"
or "grant any title of nobility." So, too, when it comes to the
practical recognition of these rights at the ballot-box, all are
included. "The House of Representatives shall be composed of
members chosen every second year by the people of the several
States," not by a part--not by the "males"--but simply by "the
people of the several States." The same "people" who ordain and
establish that Constitution as the supreme law of the land, they
are to do the voting, they are to elect. There is not one word as
to sex. The elector, male or female, must be one of the people or
citizens, that is all. But when these electors come to exercise
this right or privilege, then the matter of qualification arises,
the age of the elector, the time, place, and manner of the
exercise of the right, are to be considered, and the convention,
instead of laying down a uniform rule or standard for all the
States, which would have produced change and confusion, thought
it best to leave this feature of it as it already stood in the
several States. But the right itself is secured to the people of
the United States, and in its very nature can not be derived from
any other authority.
We deem it proper, in this connection, to refer to the well-known
fact that women voted in one of the States (New Jersey) down to
the year 1807, when they were unjustly deprived of the right, by
an act of the Legislature of that State. We say unjustly, because
no Legislature can deprive a citizen of a constitutional right,
and the matter has slumbered ever since. The Constitution of New
Jersey, adopted in 1776, used the term "inhabitants" in
describing electors, and under this Constitution women were
recognized as voters, as well as men. In conformity with this
constitutional provision the statute law was so worded as to read
"he or she," in speaking of electors thus affording a
contemporaneous and legislative attestation of the truth of our
statement. This law of 1776 could not, of course, be the source
of authority to any one for voting under a sovereignty not then
in existence, not created until 1789, thirteen years afterward.
Therefore, when the elector, male or female, in New Jersey, voted
for Federal officers in 1789, it was done by virtue of his or her
status of citizenship, under the new and paramount sovereignty,
and not under the law of 1776; and so it has continued ever
since, the elector voting for United States officers by virtue of
his citizenship of the United States, and for State officers as a
citizen of the State. We believe, then, we are justified in the
statement that white women in New Jersey voted, under State
authority, for the members of the Constitutional Convention of
1787. That they next voted, under like authority, for the
ratification of the newly framed Constitution of the United
States; and then, that Constitution having been adopted, as
newly-created citizens of the newly-created sovereignty, the
white women of New Jersey voted at the five succeeding
Presidential elections--for Washington, for Adams, and for
Jefferson. The contest in 1800 was bitter beyond all precedent,
and we are told that all the women of the State entitled to vote
did so. We refer to the Constitution and laws of New Jersey; to a
work entitled _The Historical Magazine_, published in Boston in
1857, Vol. I., p. 361; to the _National Intelligencer_,
Washington, October 3, 1857; to _Notes and Queries_, Vol. VIII.,
p. 171, August, 1853.
But apart from these considerations, which we deem amply
sufficient to sustain our position, an examination into the
nature and character of the right itself will further show that
it is one of which the citizen can not justly be deprived, save
for cause.
The first amendment to the Constitution declares that Congress
shall make no law abridging freedom of speech or of the press,
thus incorporating into the organic law of this country absolute
freedom of thought or opinion. We presume it will not be doubted
that the States are equally bound with Congress by this
prohibition, not only because, as Chief-Justice Taney says, "the
Constitution of the United States, and every article and clause
in it, is a part of the law of every State in the Union, and is
the paramount law" (Prigg _vs._ The Comm., 16 Peters R., 628),
but because, in the very nature of things, freedom of speech or
of thought can not be divided. It is a personal attribute, and
once secured is forever secured. To vote is but one form or
method of expressing this freedom of speech. Speech is a
declaration of thought. A vote is the expression of the will,
preference, or choice. Suffrage is one definition of the word,
while the verb is defined, to choose by suffrage, to elect, to
express or signify the mind, will, or preference, either _viva
voce_, or by ballot. We claim then that the right to vote, or
express one's wish at the polls, is embraced in the spirit, if
not the letter, of the First Amendment, and every citizen is
entitled to the protection it affords. It is the merest mockery
to say to this plaintiff, you may write, print, publish, or
speak your thoughts upon every occasion, except at the polls.
There your lips shall be sealed. It is impossible that this can
be American law!
Again, it is the opinion of some that suffrage is somehow lodged
in the government, whence it is dispensed, or conferred upon the
citizen, thus completely reversing the actual fact. Suffrage is
never conferred by government upon the citizen. He holds it by a
higher title. In this country government is the source of power,
not of rights. These are vested in the individual--are personal
and inalienable. Society can only acquire the authority to
regulate these rights, or declare them forfeited, for cause. The
time, place, and manner of their exercise are under governmental
control, but their origin and source are in the individual
himself.
I shall, therefore, says a writer on government, assume it
as an incontrovertible position, as a first principle, that
the right of private opinion, which is, in fact, no other
than the right of private judgment upon any subject
presented to the mind, is a sacred right, with which society
can, on no pretense, authoritatively interfere, without a
violation of the first principles of the law of nature.
(Chipman on Government, chap. 5.)
Other liberties, says Erskine, are held under governments,
but the liberty of opinion keeps governments themselves in
due subjection to their duties. (Speech in defense of Thomas
Paine.)
But this clause of the Missouri law further violates the XIII.
Amendment, which declares that neither slavery nor involuntary
servitude shall exist in the United States, except for crime,
etc. This Amendment is a copy of the 6th clause of the famous
Ordinance of 1787, which secured freedom for the Northwest
Territory, and has now become the organic law for the entire
Union. This Ordinance was drawn by the Hon. Nathan Dane, of
Massachusetts.[178]
We say that this Missouri law violates this amendment, inasmuch
as it places the plaintiff in a disfranchised condition, which is
none other than a condition of servitude--of "involuntary
servitude," because, although a citizen in the fullest
acceptation of the term--a member of this body politic--one of
the "people"--she has never consented to this law; has never been
permitted to express either consent or dissent, nor given any
opportunity to express her opinion thereon, in the manner pointed
out by law, while at the same time she is taxed, and her property
taken to pay the very men who sat in judgment upon and condemned
her!
Finally--Such is the nature of this privilege--so individual--so
purely personal is its character, that its indefinite extension
detracts not in the slightest degree from those who already enjoy
it, and by an affirmation of the plaintiff's claim all womanhood
would be elevated into that condition of self-respect that
perfect freedom alone can give.
RESUME--(Minor _vs._ Happersett, 21 Wallace Rep., p. 164.)
1st. As a citizen of the United States, the plaintiff is entitled
to any and all the "privileges and immunities" that belong to
such position however defined; and as are held, exercised, and
enjoyed by other citizens of the United States.
2d. The elective franchise is a "privilege" of citizenship, in
the highest sense of the word. It is the privilege preservative
of all rights and privileges; and especially of the right of the
citizen to participate in his or her government.
3d. The denial or abridgment of this privilege, if it exist at
all, must be sought only in the fundamental charter of
government--the Constitution of the United States. If not found
there, no inferior power or jurisdiction can legally claim the
right to exercise it.
4th. But the Constitution of the United States, so far from
recognizing or permitting any denial or abridgment of the
privileges of its citizens, expressly declares that "no State
shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States."
5th. It follows that the provisions of the Missouri Constitution
and registry law before recited, are in conflict with and must
yield to the paramount authority of the Constitution of the
United States.
A few words more and we have done. The plaintiff has sought, by
this action, for the establishment of a great principle of
fundamental right, applicable not only to herself, but to the
class to which she belongs; for the principles here laid down (as
in the Dred Scott case) extend far beyond the limits of the
particular suit, and embrace the rights of millions of others,
who are thus represented through her. She has a right, therefore,
to be heard for her cause; and in making this plea, she seeks
only to give expression to those principles upon which, as upon a
rock, our Government is founded.
It is impossible that that can be a Republican government in
which one half the citizens thereof are forever disfranchised. A
citizen disfranchised is a citizen attainted; and this, too, in
face of the fact, that you look in vain in the great charter of
government, the Constitution of the United States, for any
warrant or authority for such discrimination. To that instrument
she appeals for protection.
SUPREME COURT OF THE UNITED STATES. No. 182.--October Term, 1874.
Virginia L. Minor and Francis Minor, her husband, Plaintiffs in
Error, _vs._ Reese Happersett. In error to the Supreme Court of
the State of Missouri.
Mr. Chief Justice Waite delivered the opinion of the court.
(March 29. 1875.)
The question is presented in this case, whether, since the
adoption of the XIV. Amendment, a woman, who is a citizen of the
United States and of the State of Missouri, is a voter in that
State, notwithstanding the provision of the Constitution and laws
of the State, which confine the right of suffrage to men alone.
We might perhaps decide the case upon other grounds, but this
question is fairly made. From the opinion, we find that it was
the only one decided in the court below, and it is the only one
which has been argued here. The case was undoubtedly brought to
this court for the sole purpose of having that question decided
by us, and, in view of the evident propriety there is of having
it settled, so far as it can be by such a decision, we have
concluded to waive all other considerations and proceed at once
to its determination.
It is contended that the provisions of the Constitution and laws
of the State of Missouri, which confine the right of suffrage and
registration therefor to men, are in violation of the
Constitution of the United States, and therefore void. The
argument is, that as a woman, born or naturalized in the United
States and subject to the jurisdiction thereof, is a citizen of
the United States and of the State in which she resides, she has
the right of suffrage as one of the privileges and immunities of
her citizenship, which the State can not by its laws or
constitution abridge.
There is no doubt that women may be citizens. They are persons,
and, by the XIV. Amendment, "all persons born or naturalized in
the United States and subject to the jurisdiction thereof" are
expressly declared to be "citizens of the United States and of
the State wherein they reside" But, in our opinion, it did not
need this Amendment to give them that position. Before its
adoption, the Constitution of the United States did not in terms
prescribe who should be citizens of the United States or of the
several States, yet there were necessarily such citizens without
such provision. There can not be a nation without a people. The
very idea of a political community, such as a nation is, implies
an association of persons for the promotion of their general
welfare. Each one of the persons associated becomes a member of
the nation formed by the association. He owes it allegiance, and
is entitled to its protection. Allegiance and protection are in
this connection, reciprocal obligations. The one is a
compensation for the other; allegiance for protection and
protection for allegiance.
For convenience, it has been found necessary to give a name to
this membership. The object is to designate by a title the person
and the relation he bears to the nation. For this purpose the
words "subject," "inhabitant," and "citizen" have been used, and
the choice between them is sometimes made to depend upon the form
of the government. Citizen is now more commonly employed,
however, and as it has been considered better suited to the
description of one living under a republican government, it was
adopted by nearly all of the States upon their separation from
Great Britain, and was afterward adopted in the articles of
confederation and in the Constitution of the United States. When
used in this sense, it is understood as conveying the idea of
membership of a nation, and nothing more.
To determine, then, who were citizens of the United States before
the adoption of the Amendment, it is necessary to ascertain what
persons originally associated themselves together to form the
nation, and what were afterward admitted to membership. Looking
at the Constitution itself, we find that it was ordained and
established by "the people of the United States" (Preamble, 1
Stat., 10), and then, going further back, we find that these were
the people of the several States that had before dissolved the
political bands which connected them with Great Britain and
assumed a separate and equal station among the powers of the
earth (Dec. of Ind., 1 Stat., 1), and that had by articles of
confederation and perpetual union, in which they took the name of
"the United States of America," entered into a firm league of
friendship with each other for their common defense, the security
of their liberties and their mutual and general welfare, binding
themselves to assist each other against all force offered to or
attack made upon them, or any of them, on account of religion,
sovereignty, trade, or any other pretense whatever (Art. Confed.,
sec. 3, 1 Stat. 4).
Whoever then was one of the people of either of these States when
the Constitution of the United States was adopted, became _ipso
facto_ a citizen--a member of the nation created by its adoption.
He was one of the persons associating together to form the
nation, and was, consequently, one of its original citizens. As
to this there has never been a doubt. Disputes have arisen as to
whether or not certain persons or certain classes of persons were
part of the people at the time, but never as to their citizenship
if they were.
Additions might always be made to the citizenship of the United
States in two ways--first by birth and second by naturalization.
This is apparent from the Constitution itself, for it provides
(Art. 2, Sec. 1) that "no person except a natural born citizen,
or a citizen of the United States at the time of the adoption of
the Constitution, shall be eligible to the office of President,"
and (Art. 1, Sec. 8) that Congress shall have power "to establish
a uniform rule of naturalization." Thus, new citizens may be born
or they may be created by naturalization.
The Constitution does not in words say who shall be natural-born
citizens. Resort must be had elsewhere to ascertain that. At
common law, with the nomenclature of which the framers of the
Constitution were familiar, it was never doubted that all
children born in a country of parents who were its citizens
became themselves upon their birth citizens also. These were
natives, or natural-born citizens as distinguished from aliens or
foreigners. Some authorities go further and include as citizens
children born within the jurisdiction, without reference to the
citizenship of their parents. As to this class there have been
doubts, but never as to the first. For the purposes of this case
it is not necessary to solve these doubts. It is sufficient for
everything we have now to consider, that all children born of
citizen parents within the jurisdiction are themselves citizens.
The words "all children" are certainly as comprehensive when used
in this connection as "all persons," and if females are included
in the last, they must be in the first. That they are included in
the last is not denied. In fact, the whole argument of the
plaintiffs proceeds upon that idea.
Under the power to adopt a uniform system of naturalization,
Congress as early as 1790 provided "that any alien, being a free
white person," might be admitted as a citizen of the United
States, and that the children of such persons so naturalized,
dwelling within the United States, being under twenty-one years
of age at the time of such naturalization, should also be
considered citizens of the United States, and that the children
of citizens of the United States that might be born beyond the
sea, or out of the limits of the United States, should be
considered as natural-born citizens (1 Stat. 103). These
provisions thus enacted have, in substance, been retained in all
the naturalization laws adopted since. In 1855, however, the last
provision was somewhat extended, and all persons theretofore born
or thereafter to be born out of the limits of the jurisdiction of
the United States, whose fathers were, or should be at the time
of their birth, citizens of the United States, were declared to
be citizens also (10 Stat. 604).
As early as 1804 it was enacted by Congress that when any alien,
who had declared his intention to become a citizen in the manner
provided by law, died before he was actually naturalized, his
widow and children should be considered as citizens of the United
States, and entitled to all rights and privileges as such upon
taking the necessary oath (2 Stat., 293); and in 1855 it was
further provided that any woman who might lawfully be naturalized
under the existing laws, married, or who should be married to a
citizen of the United States, should be deemed and taken to be a
citizen (10 Stat., 604). From this it is apparent, that, from the
commencement of the legislation upon this subject, alien women
and alien minors could be made citizens by naturalization; and we
think it will not be contended that this would have been done if
it had not been supposed that native women and native minors were
already citizens by birth.
But if more is necessary to show that women have always been
considered as citizens the same as men, abundant proof is to be
found in the legislative and judicial history of the country.
Thus, by the Constitution, the judicial power of the United
States is made to extend to controversies between citizens of
different States. Under this it has been uniformly held, that the
citizenship necessary to give the courts of the United States
jurisdiction of a cause must be affirmatively shown on the
record. Its existence as a fact may be put in issue and tried. If
found not to exist, the case must be dismissed. Notwithstanding
this, the records of the courts are full of cases in which the
jurisdiction depends upon the citizenship of women, and not one
can be found, we think, in which objection was made on that
account. Certainly none can be found in which it has been held
that women could not sue or be sued in the courts of the United
States. Again, at the time of the adoption of the Constitution,
in many of the States (and in some probably now) aliens could not
inherit or transmit inheritance. There are a multitude of cases
to be found in which the question has been presented whether a
woman was or was not an alien, and as such capable or incapable
of inheritance, but in no one has it been insisted that she was
not a citizen because she was a woman. On the contrary, her right
to citizenship has been in all cases assumed. The only question
has been whether, in the particular ease under consideration, she
had availed herself of the right.
In the legislative department of the Government similar proof
will be found. Thus, in the pre-emption laws (5 Stat., 455, sec.
10), a widow, "being a citizen of the United States," is allowed
to make settlement on the public lands and purchase upon the
terms specified, and women, "being citizens of the United
States," are permitted to avail themselves of the benefit of the
homestead law (12 Stat., 392).
Other proof of like character might be found, but certainly more
can not be necessary to establish the fact that sex has never
been made one of the elements of citizenship in the United
States. In this respect men have never had an advantage over
women. The same laws precisely apply to both. The XIV. Amendment
did not affect the citizenship of women any more than it did of
men. In this particular, therefore, the rights of Mrs. Minor do
not depend upon the Amendment. She has always been a citizen
from her birth, and entitled to all the privileges and immunities
of citizenship. The Amendment prohibited the State, of which she
is a citizen, from abridging any of her privileges and immunities
as a citizen of the United States, but it did not confer
citizenship on her; that she had before its adoption.
If the right of suffrage is one of the necessary privileges of a
citizen of the United States, then the Constitution and laws of
Missouri confining it to men are in violation of the Constitution
of the United States as amended, and consequently void. The
direct question is, therefore, presented whether all citizens are
necessarily voters (p. 170, Wallace).
The Constitution does not define the privileges and immunities of
citizens. For that definition we must look elsewhere. In this
case we need not determine what they are, but only whether
suffrage is necessarily one of them.
It certainly is nowhere made so in express terms. The United
States has no voters in the States of its own creation. The
elective officers of the United States are all elected directly
or indirectly by State voters. The members of the House of
Representatives are to be chosen by the people of the States, and
the electors in each State must have the qualifications requisite
for electors of the most numerous branch of the State Legislature
(art. 1, sec. 2, Const.) Senators are to be chosen by the
Legislatures of the States, and, necessarily, the members of the
Legislature required to make the choice are elected by the voters
of the State (art. 1, sec. 3). Each State must appoint, in such
manner as the Legislature thereof may direct, the electors to
elect the President and Vice-President (art. 2, sec. 2). The
times, places, and manner of holding elections for Senators and
Representatives are to be prescribed in each State by the
Legislature thereof; but Congress may at any time by law make or
alter such regulations, except as to the place of choosing
Senators (art. 1, sec. 4). It is not necessary to inquire whether
this power of supervision thus given to Congress is sufficient to
authorize any interference with the State laws prescribing the
qualifications of voters, for no such interference has ever been
attempted. The power of the State in this particular is certainly
supreme until Congress acts.
The Amendment did not add to the privileges and immunities of a
citizen. It simply furnished an additional guaranty for the
protection of such as he already had. No new voters were
necessarily made by it. Indirectly it may have had that effect,
because it may have increased the number of citizens entitled to
suffrage under the Constitution and laws of the States, but it
operates for this purpose, if at all, through the States and the
State laws, and not directly upon the citizen.
It is clear, therefore, we think, that the Constitution has not
added the right of suffrage to the privileges and immunities of
citizenship as they existed at the time it was adopted. This
makes it proper to inquire whether suffrage was co-extensive with
the citizenship of the States at the time of its adoption. If it
was, then it may with force be argued that suffrage was one of
the rights which belonged to citizenship, and in the enjoyment of
which every citizen must be protected. But if it was not, the
contrary may with propriety be assumed.
When the Constitution of the United States was adopted, all the
several States, with the exception of Rhode Island, had
constitutions of their own. Rhode Island continued to act under
its charter from the Crown. Upon an examination of those
constitutions, we find that in no State were all citizens
permitted to vote. Each State determined for itself who should
have that power.
Thus, in New Hampshire, "every male inhabitant of each town
and parish, with town privileges and places unincorporated
in the State, of twenty-one years of age and upwards,
excepting paupers and persons excused from paying taxes at
their own request," were its voters; in Massachusetts,
"every male inhabitant of twenty-one years of age and
upwards, having a freehold estate within the Commonwealth of
the annual income of three pounds, or any estate of the
value of sixty pounds"; in Rhode Island, "such as are
admitted free of the company and society" of the colony; in
Connecticut, such persons as had "maturity in years, quiet
and peaceful behavior, a civil conversation, and forty
shillings freehold or forty pounds personal estate," if so
certified by the selectmen; in New York, "every male
inhabitant of full age, who shall have personally resided
within one of the counties of the State for six months
immediately preceding the day of election, ... if during the
time aforesaid he shall have been a freeholder, possessing a
freehold of the value of twenty pounds within the country,
or have rented a tenement therein of the yearly value of
forty shillings, and been rated and actually paid taxes to
the State"; in New Jersey, all inhabitants ... of full age,
who are worth fifty pounds proclamation money, clear estate
in the same, and have resided in the county in which they
claim a vote for twelve months immediately preceding the
election"; in Pennsylvania, "every freeman at the age of
twenty-one years, having resided in the State two years next
before the election, and within that time paid a State or
county tax which shall have been assessed at least six
months before the election"; in Delaware and Virginia, "as
exercised by law at present"; in Maryland, "all freeman
above twenty-one years of age, having a freehold of fifty
acres of land in the county in which they offer to vote and
residing therein, and all freemen having property in the
State above the value of thirty pounds current money, and
having resided in the county in which they offer to vote one
whole year next preceding the election"; in North Carolina,
for Senators, "all freemen of the age of twenty-one years,
who have been inhabitants of any one county within the State
twelve months immediately preceding the day of election, and
possessed of a freehold within the same county of fifty
acres of land for six months next before and at the day of
election," and for members of the House of Commons, "all
freemen of the age of twenty-one years, who have been
inhabitants in any one county within the State twelve months
immediately preceding the day of any election, and shall
have paid public taxes"; in South Carolina, "every free
white man of the age of twenty-one years, being a citizen of
the State, and having resided therein two years previous to
the day of election, and who hath a freehold of fifty acres
of land, or a town lot of which he hath been legally seized
and possessed at least six months before such election, or
(not having such freehold or town lot), hath been a resident
within the election district in which he offers to give his
vote six months before said election, and hath paid a tax
the preceding year of three shillings sterling toward the
support of the Government"; and, in Georgia, such "citizens
and inhabitants of the State as shall have attained to the
age of twenty-one years, and shall have paid tax for the
year next preceding the election, and shall have resided six
months within the county."
In this condition of the law in respect to suffrage in the
several States, it can not for a moment be doubted that, if it
had been intended to make all citizens of the United States
voters, the framers of the Constitution would not have left it to
implication. So important a change in the condition of
citizenship as it actually existed, if intended, would have been
expressly declared.
But if further proof is necessary to show that no such change was
intended, it can easily be found both in and out of the
Constitution. By article 4, section 2, it is provided that "the
citizens of each State shall be entitled to all the privileges
and immunities of citizens in the several States." If suffrage is
necessarily a part of citizenship, then the citizens of each
State must be entitled to vote in the several States precisely as
their citizens are. This is more than asserting that they may
change their residence and become citizens of the State and thus
be voters. It goes to the extent of insisting that, while
retaining their original citizenship, they may vote in any State.
This, we think, has never been claimed. And again, by the very
terms of the Amendment we have been considering (the XIV).
"Representatives shall be apportioned among the several
States according to their respective numbers, counting the
whole number of persons in each State, excluding Indians not
taxed. But when the right to vote at any election for the
choice of electors for President and Vice-President of the
United States, Representatives in Congress, the Executive
and Judicial officers of a State, or the Members of the
Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age and
citizens of the United States, or in any way abridged,
except for participation in the Rebellion or other crimes,
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."
Why this, if it was not in the power of the Legislature to deny
the right of suffrage to some male inhabitants? And if suffrage
was necessarily one of the absolute rights of citizenship, why
confine the operation of the limitation to male inhabitants?
Women and children are, as we have seen, "persons." They are
counted in the enumeration upon which the apportionment is to be
made; but if they were necessarily voters because of their
citizenship unless clearly excluded, why inflict the penalty for
the exclusion of males alone? Clearly, no such form of words
would have been selected to express the idea here indicated if
suffrage was the absolute right of all citizens.
And still again, after the adoption of the XIV. Amendment, it was
deemed necessary to adopt a XV., as follows: "The right of
citizens of the United States to vote shall not be denied or
abridged by the United States, or by any State, on account of
race, color, or previous condition of servitude." The XIV.
Amendment had already provided that no State should make or
enforce any law which should abridge the privileges or immunities
of citizens of the United States. If suffrage was one of these
privileges or immunities, why amend the Constitution to prevent
its being denied on account of race, etc.? Nothing is more
evident than that the greater must include the less; and if all
were already protected, why go through with the form of amending
the Constitution to protect a part?
It is true that the United States guarantees to every State a
republican form of government (art. 4, sec. 4). It is also true
that no State can pass a bill of attainder (art. 1, section 10),
and that no person can be deprived of life, liberty, or property,
without due process of law (Amendment V). All these several
provisions of the Constitution must be construed in connection
with the other parts of the instrument, and in the light of the
surrounding circumstances.
The guaranty is of a republican form of government. No
particular government is designated as republican, neither is
the exact form to be guaranteed, in any manner especially
designated. Here, as in other parts of the instrument, we are
compelled to resort elsewhere to ascertain what was intended. The
guaranty necessarily implies a duty on the part of the States
themselves to provide such a government. All the States had
governments when the Constitution was adopted. In all, the people
participated to some extent through their representatives elected
in the manner specially provided. These governments the
Constitution did not change. They were accepted precisely as they
were, and it is therefore to be presumed that they were such as
it was the duty of the States to provide. Thus, we have
unmistakable evidence of what was republican in form, within the
meaning of that term as employed in the Constitution. As has been
seen, all the citizens of the States were not invested with the
right of suffrage. In all, save perhaps New Jersey, this right
was only bestowed upon men, and not upon all of them. Under these
circumstances, it is certainly now too late to contend that a
Government is not republican within the meaning of this guaranty
in the Constitution because women are not made voters.
The same maybe said of the other provisions just quoted. Women
were excluded from suffrage in nearly all the States by the
express provision of their constitutions and laws. If that had
been equivalent to a bill of attainder, certainly its abrogation
would not have been left to implication. Nothing less than
express language would have been employed to effect so radical a
change. So also of the Amendment which declares that no person
shall be deprived of life, liberty, or property, without due
process of law; adopted as it was as early as 1791. If suffrage
was intended to be included within its obligations, language
better adapted to express that intent would most certainly have
been employed. The right of suffrage, when granted, will be
protected. He who has it can only be deprived of it by due
process of law; but, in order to claim protection, he must first
show that he has the right. But we have already sufficiently
considered the proof found upon the inside of the Constitution.
That upon the outside is equally effective.
The Constitution was submitted to the States for adoption in
1787, and was ratified by nine States in 1788, and, finally, by
the thirteen original States in 1790. "Vermont was the first new
State admitted to the Union, and it came in under a Constitution
which conferred the right of suffrage only upon men of the full
age of twenty-one years, having resided in the State for the
space of one whole year next before the election, and who were of
quiet and peaceable behavior. This was in 1791. The next year
(1792) Kentucky followed, with a Constitution confining the right
of suffrage to free male citizens of the age of twenty-one years,
who had resided in the State two years, or, in the county in
which they offered to vote, one year next before the election.
Then followed Tennessee in 1796, with voters of freemen of the
age of twenty-one years and upward, possessing a freehold in the
county wherein they may vote, and being inhabitants of the State
or freemen being inhabitants of any one county in the State six
months immediately preceding the day of election. But we need not
particularize further. No new State has ever been admitted to
the Union which has conferred the right of suffrage upon women,
and this has never been considered a valid objection to her
admission. On the contrary, as is claimed in the argument, the
right of suffrage was withdrawn from women as early as 1807 in
the State of New Jersey, without any attempt to obtain the
interference of the United States to prevent it. Since then the
governments of the insurgent States have been reorganized under a
requirement that, before their Representatives could be admitted
to seats in Congress, they must have adopted new Constitutions,
republican in form. In no one of these Constitutions was suffrage
conferred upon women, and yet the States have all been restored
to their original position as States in the Union.
Besides this, citizenship has not in all cases been made a
condition precedent to the enjoyment of the right of suffrage.
Thus, in Missouri, persons of foreign birth, who have declared
their intention to become citizens of the United States, may
under certain circumstances vote. The same provision is to be
found in the Constitutions of Alabama, Arkansas, Florida,
Georgia, Indiana, Kansas, Minnesota, and Texas.
Certainly if the courts can consider any question settled, this
is one. For near ninety years the people have acted upon the idea
that the Constitution, when it conferred citizenship, did not
necessarily confer the right of suffrage. If uniform practice
long continued can settle the construction of so important an
instrument as the Constitution of the United States confessedly
is, most certainly it has been done here. Our province is to
decide what the law is, not to declare what it should be.
We have given this case the careful consideration its importance
demands. If the law is wrong it ought to be changed, but the
power for that is not with us. The arguments addressed to us
bearing upon such a view of the subject may perhaps be sufficient
to induce those having the power to make the alteration, but they
ought not to be permitted to influence our judgment in
determining the present rights of the parties now litigating
before us. No argument as to woman's need of suffrage can be
considered. We can only act upon her rights as they exist. It is
not for us to look at the hardship of withholding. Our duty is at
an end, if we find it is within the power of a State to withhold.
Being unanimously of the opinion that the Constitution of the
United States does not confer the right of suffrage upon any one,
and that the Constitutions and laws of the several States which
commit that important trust to men alone are not necessarily
void, we affirm the judgment of the court below.
Soon after the decision on Mrs. Minor's case, Mrs. Gage, in a
convention at Washington, ably reviewed Judge Waite's opinion, showing
that the United States has eight classes of voters. She said:
Chief justice Waite, in rendering the opinion of the Supreme
Court of the United States, in the Minor _vs._ Happersett case,
which was an appeal from the Supreme Court of Missouri, on the
question of woman's right to vote under the provisions of the
XIV. Amendment, decided against this right. The court maintained
that the United States Constitution does not confer the right of
suffrage on any person, and that the matter is regulated by
State Constitutions, and that when provision is made in them
extending the right of suffrage to men only, such provisions are
binding. It also declared that the United States had no voters in
the States of its own creation. But this assertion was false upon
the very face of it.
1st. Every enfranchised male slave had the ballot secured him
under United States law--a law which annulled all State
provisions against color. At the time of ratification of the last
amendments, the State of New York possessed a property
qualification of $250. The moment these amendments were ratified,
that law became dead on the statute book. The New York
Legislature did not repeal it. The United States repealed this
property prohibition, by creating a class of United States voters
out of colored men. So here is one class of United States voters,
and a clear mistake on the part of Chief-Justice Waite and the
Supreme Court. But the United States has often exercised its
power over the ballot more directly than through constitutional
amendments; for,
2d. Every Southern man disfranchised because of having taken part
in the war, and who has since been granted amnesty, has again
been made a voter through United States law; all such men then
became United States voters. Here is a second class of United
States voters, and a second mistake of Chief Justice Waite and
the Supreme Court. It may be answered that the revolted States
were in the condition of Territories at the time of this
disfranchisement, and therefore under direct control of the
National Government. Admitting this, we still know that general
amnesty was granted after reconstruction; after State forms of
government had again been organized, the nation exercised its
power over the ballot by restoring thousands of men to their
political rights--to citizenship. And from the general law of
amnesty for the rank and file, the leaders in the rebellion were
again and again, by special Acts of Congress, re-endowed with the
ballot. No amendment was submitted or expected. The authority of
Congress thus to restore to these men the use of the ballot was
unquestioned.
3d. The naturalized foreigner secures his right to vote under
United States law, and can not vote unless he first becomes an
United States citizen, or announces his intention of so becoming.
In Missouri, Nebraska, and some other States, the declaration of
such intention permits him to vote. This is a State regulation,
but the fact of his United States citizenship must in some form
first exist. In the naturalized man is a third class of United
States voters. With one and the same hand he at the same moment
picks up his naturalization papers and his ballot. It matters not
what the State law may be, the foreigner secures his vote under
United States law. And here is a third class of United States
voters and a third mistake of Chief-Justice Waite and the Supreme
Court.
4th. The Thirty-ninth or Fortieth Congress took a step farther
than this, passing a law that all foreigners who had served in,
and been honorably discharged from the army, should possess the
right to vote, even though they had not previously filed
intention of naturalization, thus again proving that Congress
itself, without an amendment to the Constitution, or the
authorization of States, possessed power over the ballot. If it
has this power of securing the use of the ballot to foreigners
who have never intimated a desire to become citizens, it surely
can enfranchise its own native-born citizens irrespective of
sex. The denial of the ballot to all women by the Supreme Court,
in the person of Virginia L. Minor, under the pretense that the
United States possesses no voters in the States of its own
creation is thus shown to be a false assumption. But this is not
all.
5th and 6th. And oldest of all these classes of United States
voters are those men who vote for members of the House of
Representatives, and for Presidential Electors in the several
States.
NATIONAL CONSTITUTION.--ARTICLE 1, Section 2. The House of
Representatives shall be composed of members chosen every
second year by the people of the several States, and the
electors in each State shall have the qualifications
requisite for electors of the most numerous branch of the
State Legislature.
ARTICLE 2, Section 1, Clause 2. Each State shall appoint in
such manner as the Legislature thereof may direct, a number
of electors equal to the whole number of Senators and
Representatives to which the State may be entitled in
Congress.... Clause 3. The Congress may determine the time
of choosing the electors and the day on which they shall
give their votes; which day shall be the same throughout the
United States.
The United States by these articles guarantees: 1st. To every
person who has a right under State action to vote for the most
numerous branch of his State Legislature, the United States right
to vote at a peaceable election for members of Congress. 2d. The
United States directs the appointment of Presidential Electors,
and declares that Congress may not only determine the time of
choosing such electors, but shall also fix the day upon which
such votes shall be given. The United States secures the right,
merely leaving the States to prescribe the qualifications of
voters. This is all, with one exception that woman asks; she
demands that her right shall be recognized and secured by the
United States, which shall then prohibit the States from
prescribing qualifications not within the reach of all citizens.
A 7th class of United States voters are those men who having been
deprived of citizenship through civil offenses against the power
and majesty of the United States are afterward pardoned, or
"restored to citizenship."
Still an 8th class over whom the United States exercises its
authority are deserters from the army--military criminals. An act
of Congress of March 3, 1865, imposed forfeiture of citizenship
and its rights, as an additional penalty for the crime of
desertion. In accordance with this act, the President issued a
proclamation the eleventh of that same month, declaring that all
deserters who failed to report themselves to a Provost Marshal
within sixty days thereafter should be deemed to have forfeited
their rights of citizenship, and should be declared forever
incapable of holding any office of interest or profit under the
United States. This act was passed previous to the submission of
the XIV. Amendment.
Thus at the time of Chief-Justice Waite's decision asserting
National want of power over the ballot, and declaring the United
States possessed no voters of its own creation in the States
(where else would it have them?), the country already possessed
eight classes of voters, or persons whose right to the ballot was
in some form under the control or sanction of the United States.
The black man, the amnestied man, the naturalized man, the
foreigner honorably discharged from the Union army, voters for
the lower House of Congress, voters for Presidential electors,
pardoned civil and military criminals. Further research may bring
still other classes to light.
Thus when woman claims that her right to the use of the ballot
shall be secured by the United States, she has eight
distinguished precedents in favor of her demand for National
protection. No more inconsistent assertion was ever made than
that the United States possesses no control over the suffrage.
While by Circuit Court decisions, Supreme Court decisions, and
decisions of courts of lesser degree, theoretically denying its
control over the suffrage, the United States in many ways besides
those mentioned, practically acknowledges its possession of this
right. In the case of Miss Anthony and the fourteen other women
of Rochester, N. Y., who voted in 1872, the great State of New
York took no action at all in the matter; it was the General
Government which thrust itself forward and took up the question.
If the United States has no control over the suffrage then Miss
Anthony's trial was a clear interference of the United States
with the rights of States. And so great was this interference, it
is believed the judge appointed to try her case left Washington
with his verdict in his pocket already written.
Let none of my audience forget the various great trials of
woman's right to vote under the XIV. Amendment, especially that
of Mrs. Virginia L. Minor, who prosecuted the Inspector of
Election in St. Louis for refusing to receive her vote, and whose
case, coming finally for adjudication to the Supreme Court of the
United States, decision was rendered against her on the plea that
the ballot was under control of the respective States, and that
the United States has no voters in the States of its own
creation; which I have shown to be an ignorant, imbecile, and
false plea. Neither let them forget that of Susan B. Anthony,
decided against her on the ground that she was a woman at the
time she voted. If States have the sole control of the suffrage,
there was interference in the rights of the State of New York by
her trial; and if United States citizens of any class have a
right to be protected in the use of the ballot, then the United
States very flagrantly and tyrannously interfered in Miss
Anthony's individual right as a citizen of the United States.
In the near future these trials of women under the XIV. Amendment
will be looked upon as the great State trials of the world;
trials on which a republic, founded upon the acknowledged rights
of all persons to self-government, through its courts decided
against the right of one half of its citizens on the ground that
sex was a barrier and a crime.
Then let us look at the territory of Wyoming. Much has of late
been said in regard to women not making use of the ballot there.
I care little about that statement one way or the other, as long
as her right to vote is not interfered with. It will be time to
require all women to vote when we have such a law for men; until
then let each voter refrain from voting at his or her own option;
it is not the vital question. But there is a point connected with
woman's voting in Wyoming that is well worthy of our
consideration. That is, the interference of the United States
with the concomitants of this right. For a time the women of
Wyoming sat upon juries, and the fact was heralded over the
country that thieves, gamblers, murderers fled the territory
rather than fall into the hands of these women jurors. The first
conviction for a murder in that territory, not committed in
self-defense, came from a mixed jury.
But of late we have ceased hearing of women jurors. And why?
Because that sacred right has been interfered with by the United
States. The Marshal of the Territory, an officer appointed by
the United States Government, has absolutely refused to place the
names of women on the jury lists. Consequently the women of
Wyoming are denied the exercise of this right by United States
power. Whether the Marshal has been ordered by the National
Government to omit the names of women, we do not know, and it
does not signify. The duty of the United States is none the less
clear; the Territories are in an especial way the wards of the
nation, and should be protected in all territorial rights. The
Territory of Wyoming having secured to women the exercise of
their right to vote, it is the duty of the General Government to
protect them in the exercise of all concomitant rights, of which
the jury is one.
This deprivation of jury rights in Wyoming is not only an United
States interference with woman's political rights, but also an
interference with her industrial rights. It is a well-known fact
that some women earned their first independent dollar by sitting
in the jury box. And whatever interferes with woman's industrial
rights helps to send her down to those depths where want of bread
has forced so many women: into the gutters of shame. This is a
question of morality as well as of industrial and political
rights. Every infringement of a person's political rights,
touches a hundred other rights adversely. Let me show you one
good that has come to woman through her ballot in Wyoming. The
payment of men and women teachers has been equalized by direct
statute, for political power always benefits the parties holding
it.