HOUSE OF REPRESENTATIVES, Washington, Feb. 22, 1874.

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.

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