And as to what has been said of there being no such adjudged cases, I must say that it is perfectly clear that not perhaps in either of three cases reported by Mr. Shaen, but in those of Catharine vs. Surry, Coates vs. Lyle, and Holt vs. Lyle, three cases of somewhat greater antiquity, the right of women freeholders was allowed by the courts. These three cases were decided by the judges in the reign of James I. (A. D. 1612). Although no printed report of them exists, I find that in the case of Olive vs. Ingraham, they were repeatedly cited by the lord Chief Justice of the King's Bench in the course of four great arguments in that case, the case being reargued three times (7 Mod., 264), and the greatest respect was manifested by the whole court for those precedents. Their importance is all the greater when we consider what the matter was upon which King James' judges sitting in Westminster Hall had to decide. It was not simply the case of a mere occupier, inhabitant, or scot or lot voter. Therefore the question did not turn upon the purport of a special custom, or a charter, or a local act of Parliament, or even of the common right in this or that borough. But it was that very matter and question which has been mooted in the dictum of Lord Coke, the freeholder's franchise in the shire, and upon that the decision in each case expressly was, that a feme sole shall vote if she hath a freehold, and that if she be not a feme sole, but a feme covert having freehold, then her husband during her coverture shall vote in her right. These, then, are so many express decisions which at once displace Lord Coke's unsupported assertion and declare the law so as to constrain my judgment. It is sometimes said, when reference is made to precedents of this kind, that they have never been approved by the bar. But that can not be said of these. Hakewell, the contemporary of Lord Coke and one of the greatest of all parliamentary lawyers then living—for even Selden and Granvil were not greater than Hakewell—left behind him the manuscript to which I have referred, with his comments on those cases.
The case of Holt vs. Lyle, lately mentioned by our Lord Chief Justice, is a very strong case; "They who pay ought to choose whom they shall pay." And the Lord Chief Justice seemed to have assented to that general proposition, as authority for the correlative proposition, that "women, when sole, had a right to vote." At all events, there is here the strongest possible evidence that in the reign of James I., the feme sole, being a freeholder of a country, or what is the same thing, of a county, of a city, or town, or borough, where, of custom, freeholders had the right to vote, not only had, but exercised the parliamentary franchise. If married, she could not vote in respect merely of her freehold, not because of the incapacities of coverture, but for this simple reason, that, by the act of marriage, which is an act of law, the title of the feme sole freeholder becomes vested for life in the husband. The qualification to vote was not personal, but real; consequently, her right to vote became suspended as soon and for as long as she was married. I am bound to consider that the question as to what weight is due to the dictum of my Lord Coke is entirely disposed of by those cases from the reign of James I. and George II., and that the authority of the latter is unimpeached by any later authority, as the cases of Rex. vs. Stubles, and Regina vs. Aberavon, abundantly show.
It is submitted that the weight of authority is very greatly in favor of the female right of suffrage. Indeed, the authority against it is contained in the short and hasty dictum of Lord Coke, referred to above. It was set down by him in his last and least authoritative institute, and it is certain that he has been followed neither by the great lawyers of his time nor by the judicature. The principles of the law in relation to the suffrage of females will be found in Coates vs. Lyle, Holt vs. Ingraham, and The King vs. Stubles, cases decided under the strict rules for the construction of statutes.
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 law.
The new prohibition that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" is not identical with the clause in the Constitution which declared that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." It embraces much more. It is possible that those who framed the article were not themselves aware of the far-reaching character of its terms, yet if the amendment does in fact bear a broader meaning, and does extend its protecting shield over those who were never thought of when it was conceived and put in form, and does reach social evils which were never before prohibited by constitutional enactment, it is to be presumed that the American people, in giving it their imprimatur, understood what they were doing and meant to decree what in fact they have decreed. The "privileges and immunities" secured by the original Constitution were only such as each State gave to its own citizens, ... but the XIV. Amendment prohibits any State from abridging the privileges or immunities of citizens of the United States, whether its own citizens or any others. It not merely requires equality of privileges, but it demands that the privileges and immunities of all citizens shall be absolutely unabridged and unimpaired.
These privileges can not be invaded without sapping the foundation of Republican government. A Republican government is not merely a government of the people, but it is a free government.... It was very ably contended on the part of the defendants that the XIV. Amendment was intended only to secure to all citizens equal capacities before the law. That was at first our view of it. But it does not so read. The language is, "No State shall abridge the privileges or immunities of citizens of the United States." What are the privileges and immunities of the citizens of the United States? Are they capacities merely? Are they not also rights?
It is necessary to the decision of this case to inquire what are the "privileges and immunities" of a citizen, which are guaranteed by the XIV. Amendment to the Constitution of the United States. Whatever they may be, they are protected against all abridgment by legislation.... Whether the "privileges and immunities" of the citizens embrace political rights, including the right to hold office, I need not now inquire. If they do, that right is guaranteed alike by the Constitution of the United States and of Georgia, and is beyond the control of the legislature.
2d. The rights of the people of this State, white and black, are not granted to them by the constitution thereof; the object and effect of that instrument is not to give, but to restrain, deny, regulate and guarantee rights, and all persons recognized by that constitution as citizens of the State have equal, legal and political rights except as otherwise expressly declared.
3d. It is the settled and uniform sense of the word "citizen," when used in reference to the citizens of the separate States of the United States, and to their rights as such citizens, that it describes a person entitled to every right, legal and political, enjoyed by any person in that State, unless there he some express exceptions made by positive law covering the particular persons, whose rights are in question.
It may be profitable to inquire how the term (citizen) has been understood in Georgia.... It will be seen that men whom Georgians have been accustomed to revere believed that citizenship in Georgia carried with it the right to hold office in the absence of positive restrictions.
The right of suffrage was not included in the privileges of citizens as used in section 2, article 4, therefore that right is not included in the privileges of citizens of the United States, as used in the XIV. Amendment.