History of Woman Suffrage, Volume II

by Unknown

CHAPTER XXV.

TRIALS AND DECISIONS.

Women voting under the XIV. Amendment—Appeals to the Courts—Marilla M. Ricker, of New Hampshire, 1870—Nannette B. Gardner, Michigan—Sarah Andrews Spencer, District of Columbia—Ellen Rand Van Valkenburgh, California—Catharine V. Waite, Illinois—Carrie S. Burnham, Pennsylvania—Sarah M. T. Huntingdon, Connecticut—Susan B. Anthony, New York—Virginia L. Minor, Missouri—Judges McKee, Jameson, Sharswood, Cartter—Associate Justice Hunt—Chief Justice Waite—Myra Bradwell—Hon. Matt. H. Carpenter—Supreme Court Decisions—Mrs. Gage's Review.

We have already shown in previous chapters that by a fair interpretation of the XIV. Amendment women were logically secured in their right to vote. Encouraged by the opinions of able lawyers and judges, they promptly made a practical test of this question by registering and voting during the State and Presidential elections of 1871 and '72. This transferred the discussion, for a time, from the platform and halls of legislation to the courts for final adjudication.

The first woman to offer her vote was Marilla M. Ricker, of Dover, New Hampshire, a young widow of large property. In March,[164] 1870, the day previous to the election, she made application to the selectmen for registry. No objection being made, and one of the Board, promising to put her name on the check-list, she departed, leaving with them several copies of a speech she had prepared in case of a refusal. On election day she appeared at the polls and offered a straight Republican ticket. It was received by the moderator and her name called, but on examination of the list it was found that the selectman had been false to his promise, and her vote was refused. Extended comments were made by the press of the State, Democrats generally sustaining her, while Republicans were bitter in opposition. Mrs. Ricker in the meantime prepared to sue the selectmen, but being strongly opposed by her republican friends, she silently submitted to the injustice, and thus lost the opportunity of being the first woman to prosecute the authorities for refusing the vote of a citizen on the ground of sex. However, she still enjoys the distinction of being the first woman to cast a vote under the XIV. Amendment, as the following spring she saw that her name was on the registry list, and her vote was received without opposition.

The next case was that of Nannette B. Gardner, in Detroit, Michigan. She registered her name in that city March 25, 1871, and voted,[165] unquestioned, April 3d. April 20th, of the same year, Sara Andrews Spencer and Sarah E. Webster, with seventy other women of the District of Columbia, marched in a body to the polls, but their votes were refused at the election as they had been previously refused registration. They immediately took steps to prosecute the Board of Inspectors, and suit was brought in the Supreme Court of the District at the general term, October, 1871. Albert G. Riddle and Francis Miller, able lawyers of the District, and well known advocates of woman suffrage, were retained by the plaintiffs, and in their defense made the following arguments:

Mr. Riddle said: May it please the Court; ... These plaintiffs, describing themselves as women, claim to be citizens of the United States and of this District, with the right of the elective franchise, which they attempted to exercise at the election of April 20th last past, and were prevented. They say that as registration was a prerequisite of the right to vote, they tendered themselves in due form, and demanded it, under the second section of the Act of May 31, 1870 (16th U.S. Stats., 140). That is the "Act to enforce the right of citizens of the United States to vote," etc., and authorizes a suit for refusing registration. They say, that being refused registration, they tendered their votes to the proper inspectors of said election, with proof of their attempt to register, citizenship, etc., as authorized by the third section of said Act, and their votes were refused; and, thereupon, Spencer brings her suit under said second section, against the registering officers, and Webster hers under the third section, which authorizes it, for rejecting her vote. The questions in both cases are identical and presented together.

To the declarations the defendants demur, and thereby raise the only questions we desire to have adjudicated. The defendants, by their demurrer, admit all the allegations of the plaintiffs, severally, but say, that as they are women, they are not entitled to vote in the District of Columbia. That the seventh section of the organic Act, the Constitution of the District, provides, "That all male citizens," etc., "shall be entitled to vote," etc., and that this word male excludes women, of course.

To this the plaintiffs reply that the language of the statute does exclude women, but they say that in the presence of the first section of the XIV. Amendment, which confers the elective franchise upon "all persons," this word "male" is as if unwritten, and that the statute, constitutionally, reads, "That all citizens shall be entitled to vote." For we contend, your honors, that although the Congress "has exclusive legislation in all cases over this District," it can legislate only, as could the States, from which it was taken. It must legislate in accordance with American ideas, and can exercise no power not granted by the Constitution; and that instrument certainly confers no power to limit the right of suffrage. And so we are at issue....

As the first proposition of my brief, I contend, that under our system the right to vote is a natural right.

Obviously, government is of right or it is an usurpation. If of right, it sprang from some right older than itself; and this older right must have existed in persons (people), in each and all alike, male and female. And having this right, they used it to form for themselves a government. Of course, this supposes that all joined in and consented to the government having the power to dissent; for, to just the extent that a government got itself agoing without the free consent of its people, it is without right. The right of self-government, and from that springs our right to govern others, is a natural right. This is the primary idea of American politics, and the foundation of our Government. This was formulated in the second clause of our great Declaration, and no man has dared to deny it....

It follows, then, if the right of government is a natural right, and to be exercised alone by the ballot, that the right to vote is a natural right. This never has been and never can be successfully controverted....

I will read from the highest American authority upon our politico-constitutional questions, partly in support of my proposition that the right to vote is a natural right, and also to show that the assumed claim of one part of the people to exclude another from all share in the Government has the most doubtful and shadowy foundation in right, and to an American it needs no evidence to show that a portion of the people thus excluded are in a state of vassalage. I read from Story on the Constitution, volume 1st, commencing at

Sec. 578. The most strenuous advocate for universal suffrage has never yet contended that the right should be absolutely universal. No one has ever been sufficiently visionary to hold that all persons of every age, degree, and character, should be entitled to vote in all elections of all public officers. Idiots, infants, minors, and persons insane or utterly imbecile, have been, without scruple, denied the right as not having the sound judgment and discretion fit for its exercise. In many countries, persons guilty of crimes have also been denied the right as a personal punishment, or as a security to society. In most countries, females, whether married or single, have been purposely excluded from voting, as interfering with sound policy and the harmony of social life ... And yet it would be extremely difficult, upon any mere theoretical reasoning, to establish any satisfactory principle upon which the one-half of every society has thus been systematically excluded by the other half from all right of participating in government, which would not at the same time apply to and justify many other exclusions. If it be said that all men have a natural, equal, and inalienable right to vote, because they are all born free and equal; that they all have common rights and interests entitled to protection; and, therefore, have an equal right to decide, either personally or by their chosen representatives, upon the laws and regulations which shall control, measure, and sustain those rights and interests; that they can not be compelled to surrender, except by their free consent, what by the bounty and order of Providence belongs to them in common with all their race. What is there in these considerations which is not equally applicable to females as free, intelligent, moral, responsible beings, entitled to equal rights and interests and protection, and having a vital stake in all the regulations and laws of society? And, if an exception, from the nature of the case, could be felt in regard to persons who are idiots, infants, and insane, how can this apply to persons who are of more mature growth, and are yet deemed minors by the municipal law?

Sec. 580. If, then, every well-organized society has the right to consult for the common good of the whole; and if, upon the principle of natural law, this right is conceded by the very union of society, it seems difficult to assign any limit to this right which is compatible with the due attainment of the end proposed. If, therefore, any society shall deem the common good and interests of the whole society best promoted under the particular circumstances in which it is placed by a restriction of the right of suffrage, it is not easy to state any solid ground of objection to its exercise of such an authority. At least, if any society has a clear right to deprive females, constituting one-half of the whole population, of the right of suffrage (which, with scarcely an exception, has been uniformly maintained), it will require some astuteness to find upon what ground this exclusion can be vindicated, which does justify, or at least excuse, many other exclusions.

Sec. 581. Without laying any stress upon this theoretical reasoning which is brought before the reader, not so much because it solves all doubts and objections, as because it presents a view of the serious difficulties attendant upon the assumption of an original and inalienable right of suffrage, as originating in natural law, and independent of civil law, it may be proper to state that every civilized society has uniformly fixed, modified, and regulated the right of suffrage for itself according to its own free will and pleasure. Every constitution of government in these United States has assumed, as a fundamental principle, the right of the people of the State to alter, abolish, and modify the form of its own government according to the sovereign pleasure of the people. In fact, the people of each State have gone much further, and settled a far more critical question, by deciding who shall be the voters entitled to approve and reject the constitution framed by a delegated body under their direction. In the adoption of no State constitution has the assent been asked of any but the qualified voters; and women, and minors, and other persons not recognized as voters by existing laws, have been studiously excluded. And yet the constitution has been deemed entirely obligatory upon them as well as upon the minority, who voted against it. From this it will be seen how little, even in the most free of republican governments, any abstract right of suffrage, or any original and indefeasible privilege, has been recognized in practice.

This, remember, was written thirty years ago. Where would Story be now, if living? I beg also to read a single paragraph from the "Spirit of Laws," London edition, vol. I., p. 220:

"All the inhabitants of the several districts ought to have the right to vote at the election of the representatives," etc.

All of the inhabitants, says Montesquieu, ought to have the right to vote. Under such a rule I suppose my learned opponent would contend that a woman could not be an inhabitant, of course. I feel that I ought to apologize for presenting this point to this extent; it is so obvious, and rests on such broad and ample ground, that argument for it is without excuse, and I rest it here. So that if you consider this XIV. Amendment as a grant from the sovereign, then, like all such grants, you must take it most strongly against the grantor, and most favorable to the subject. And if, as I have shown, it is in favor of natural right, then must you construe it most strongly to extend that right. No court needs authority for these propositions.

The second proposition of my brief is, that by the old common law of our English ancestors, the old storehouse of our rights and liberties, as well as the arsenal where we find weapons for their defense, woman always possessed this right of suffrage.

I will show by several English cases, by long usage, and general understanding, by principle and precedent, that the English woman both voted and held office; and I will show that not a single case, that not a single resolution of the House of Commons exists to the contrary; and that in all the now innumerable tomes of the common law, of judicial decision, commentary, or essay, but a single dictum exists to the contrary. And if I thus establish that the construction of the XIV. Amendment, for which I this day contend, is in favor of a common law right, is in accordance with its scope and spirit, every lawyer understands by how much I strengthen my position. And for the satisfaction of the court I am glad to state that this part of my argument will consist entirely of extracts from recent English text-writers, and a reference to two or three old cases. I read first from Mr. Anstey's Notes upon the Reform Act of Great Britain of 1867. The writer in his comment upon the words of the act, "every man of full age," etc., commences by showing that the term man in the act, as in Magna Charta and other statutes, is epicene—means both men and women. And he then goes on to show that to construe this phrase, "every man," to include every woman also, is in strict accordance with the common law from old times to the present. I read from p. 87:

That the rights in question (the right of suffrage) are not incompatible with the legal status of the woman, the following authorities seem to show. On the other hand, there can not be adduced any one authority against the position that the franchise of the shire and the borough were enjoyed by the female "resiants" equally with those of the male sex in times when "resiants," as such, and not as "tenants," had the franchise. The statutes by which the parliamentary franchise in counties was taken away from the "resiants" and vested in the "tenants," and at length restricted to those of freehold tenure (8 Hen., 6, c. 7; 18 Geo., 2, c. 18; 31 Geo., 2 c. 14), did not in any manner create or recognize any such distinction as that of the male and the female freeholders. Those acts had relation to tenure, not to sex. For the same reason, in all those boroughs where the "common right" prevailed, the suffrage would naturally be exercisable by the female no less than by the male "inhabitants" or "residants." It is believed that in not one of the boroughs where the suffrage was said to be regulated by "charter," or by "custom," or by "prescription" or even where it was regulated by a local act of Parliament, there can be found one instance of any provision or usage whatsoever whereby any voter was excluded from the enjoyment of the suffrage by reason of sex. That a woman may be a householder, or freeholder, or burgage tenant, parishioner, is plain enough. That she may answer the description of "a person paying scot and lot" within the "city of London," has been solemnly decided by the Court of King's Bench (Olive vs. Ingram, 7 Mod. 264, 267, 270, 271,) and that determination was expressly grounded by their Lordships "singly upon the foot of the common law, without regard to the usages of the parishes in London," which usage, nevertheless, had been also shown to be in favor of the same construction. In all cases, whether of statutory, of customary, or of common law qualification for the suffrage, the general rule is that which was laid down by the Court of King's Bench with respect to the choice of parochial officers under the first "Act for the Relief of the Poor," which directed them to be made from among the "substantial householders" of the place. The court held (Rex. vs. Stubbs, 2 T. R., 395)—overruling a dictum in Viner's Abridgment to the contrary—that a woman, being a "substantial householder," was properly chosen under that act to the office of overseer of the poor, notwithstanding the objections raised at the bar that it was a burthensome office and one of which, being once appointed to it, she would be called upon to perform duties some of which were above the bodily and mental powers, and others were inconsistent with the morality, or, at least, the decency of that sex.—(Id. 400.)

And so again on pages 90 and 91:

That there are some offices as to which it is the practice, by the "custom of England," to exclude them, is undoubtedly the fact. But it has been well said, as to these, that "there is a difference between being exempted and being incapacitated," and that "an excuse from acting, etc., is different from an incapacity of doing so. For it must not be forgotten, that it is upon the footing, not of disability, but of exemption, that those exclusions are vested, by the authorities which declare them." Thus, Whitelocke: "By the custom of England, women are not returned of juries, nor put into offices or commissions, nor eligible to serve in Parliament, or admitted to be members of the House of Peers; but, by reason of their sex, they are exempted from such employment. The omission of the electoral franchise from that enumeration [of exemption] is remarkable. If women were, at that time, considered to be excluded by any "custom of England" from the Parliamentary franchise, as well as from Parliament, it is scarcely conceivable that Whitelocke would have omitted to mention so important a fact. Singular to say, there is no trace of any such custom or usage in the reports or amongst the records, not even, so far as the author's researches have been successful, in the Journals of the House of Commons itself; and yet the right of the returning officer to reject the vote of a female elector when tendered at the polling-booth is always assumed to be an adjudged point. Mr. Oldfield appears to have been under the impression that the resolution of the House of Commons upon the occasion of the Westminster election, asserting the incapacity of an alien to vote in elections of members to serve in Parliament, extended to "women" also. If it were so, the incident would have no weight, for the enactment, which, according to a second resolution of the same date, was to be prepared for carrying into effect that intention, never received the sanction even of that House. But, in truth, no mention of "women" appears in either resolution. Nor was there, in that year, or at any other period, any resolution or determination of the House, so far as the author's information goes, directly impeaching the capacity of any female, in respect of her sex, to vote at an election to Parliament. He is aware that the House of Commons did, upon one remarkable occasion, deny the capacity of a female to be heard even as a witness at their bar; and that this extraordinary vote was obtained through the influence of Sir Edward Coke, the only text-writer who can be vouched for the position, that a woman's vote ought not to be received at a parliamentary election.

Further on, pages 94 and 95;

On the other hand, there are extant many parliamentary returns for counties and boroughs from the earliest times, which were made by female electors, and yet were received. Some of them are enumerated in Prynne's Collections of Parliamentary Writs. Some of later dates are mentioned in the Commons' Journals themselves. Others are to be found in the repositories of the learned or the curious.

Three of the returns in question which related to one and the same borough, were, at a period long subsequent, produced before a "Committee of Privilege and Election," presided over by the great parliamentary lawyer, Mr. Hakewell, as evidence for and against the respective parties in an election trial then pending. The question was whether the borough was close or open; that is to say, whether amongst the former returns so produced, those by "Mrs. Copley, as sole inhabitant," showed the suffrage to be limited to the Lord or Lady of Gatton for the time being, or whether those by "Mrs. Copley, et omnes inhabitantes," showed the suffrage to be of a more popular character. No question of sex was raised on either side, and neither the report of the committee which found for the popular right, nor the resolution of the house for giving effect thereto, and for taking the Lord of the Manor's return off the file, contain any allusion to the question of sex.

At that time the House of Commons was not prepared to enter into conflict with the courts of law, and "privilege" had not attained to the height which, amid the excitement of the era of 1688, it was doomed to reach. It was impossible for the Committee of Privileges, in the Gatton case, to deny the female suffrage without coming into collision with the law, which had been declared but a few years previously by the judges. (Holt vs. Lyle and Coates vs. Lyle, 14 Jac., 1 and Catherine vs. Surrey, (Hakewell MSS.,) Append., 7 Mod., 264-5.) "The opinion of the judges," it was said by Sir William Lee, a chief justice of the King's Bench in 1739, "was that a feme-sole, if she has a freehold," in a county (as it seems) "may vote for members of Parliament," and that women when sole had a power to vote.... In Lady Packington's case (she) returns to Parliament; that the sheriff made a precept to her, as lady of the manor, to return two members to Parliament.... In the case of Holt vs. Lyle it is determined that a feme-sole freeholder, in counties, may claim a vote for Parliament men, but, if married, her husband must vote for her.... I only mention what I found in a manuscript by the famous Hakewell.

Chief-Justice—Coverture then incapacitated a woman from voting?

Mr. Riddle.—No, your honor; the right to vote attached to the freehold, and by the old law that by marriage vested in the husband.

In the case of Olive vs. Ingram, 7th Mod. Reps., already recited by the author, it was urged that the right of woman suffrage was lost by non-user, which is thus disposed of. I quote from page 97:

The same can not be said of the learned Solicitor General's objection of non-user. "As their claim," he argued, "is at common law, and usage is the only evidence of right at common law, they ought to show it, or else non-user shall be evidence of a waiver of the right, if they ever had any." The reply was conclusive enough. "There was a difference between being exempted and being incapacitated." But there was another and a not less conclusive reply. The franchise was a public, not a private right—omnis libertas regia est, et ad coronam pertinet—[every liberty is royal and pertinent to the crown]—and of such there can be no waiver, for the right implies a duty, and the duty is co-equal and co-extensive with the right.

I now ask your attention to the case of Jane Allen, which came before Mr. Anstey in the Revising Court, a tribunal created by the parliamentary elector's trial bill of 1868, and which sits to revise the registration of voters, under the Act of 1867, and from whom appeals lie to the Court of Common Pleas. The case came up in 1868, and was fully and ably argued, and the Revising Barrister went luminously over the whole ground in an exhaustive opinion when he rendered judgment. I find the case in the Eng. Law Mag. and Law Rev. for 1868, at p. 121:

In re Jane Allen (Parish of St. Giles-in-the-Fields). September 23, 1868.

This was a claim to be entered on the St. Giles' list of occupiers for the borough, under the "Representation of the People Act, 1867," s. 3; the claimant's name, in common with those of all female occupiers, having been omitted by the overseers.

. . . . . . . . . . .

The Revising Barrister said, p. 132: In the meantime, and dealing with the case according to my own opinion of what the law is, I hold, in the first place, that this incapacity of mere sex, as it is called, did not exist at common law in any constituency; and (on the authority of the cases cited already of Catherine vs. Surrey, Holt vs. Lyle, and Coates vs. Lyle, which show that there is in counties no such incapacity even as to the freehold franchise, even under the acts passed before 1832, greatly narrowing the basis of that suffrage there), that, à fortiori, there was no such incapacity in boroughs of the common right at least, and also of many, perhaps all, of those by custom also, as appears by the valuable records preserved from the time of the Conquest down to our own time, including the Damesday and the Doom Books of the various boroughs. For I find that (although in some boroughs, a later charter or special act of Parliament was to the contrary), where the common right obtained, the woman burgess took her place, and her name was inscribed on the burgess roll with the male burgesses, enjoying the same rights and liable to the same heavy duties—such as watch and ward, scot and lot, and the like, as the burgesses of the male sex. Curiously enough, I see that it has been objected to the right of female suffrage within the last few days, that there is this analogy between the right of franchise and the liability to watch and ward. It is because that analogy exists, that I think that the claim of franchise must surely prevail, it being clear that, under the common law, a woman was liable to the former burthen, as she is still liable to serve as a constable, as an overseer of the poor, and the like offices, and, therefore, was rightfully put upon the burgess roll, and voted in the borough court equally with the male burgess.

But the matter does not rest there. The Rolls of Parliament, which end with the reign of Queen Mary, certainly contain no notice of the right of women to vote at common law, because they contain no entries relating to the right of suffrage at all, and I, therefore, pass them by. But I make this observation upon them, that they do contain not unfrequent notices of the presence of women in Parliament itself. But the returns to the parliamentary writs of the period are more to the purpose. Take, for instance, those relating to the county of York, collected by Prynne for quite another purpose than the present. He had to show that the lords and esquires of that great county, and not the freeholders at large, had for the long period of time which began with the reign of Henry IV. and ended with that of Edward IV., alone returned the knights of that shire to Parliament, and among those lords and esquires not a few clearly appear to have been of the female sex. But now I pass to the period of the journal.

It was said by Mr. Bennett [who argued against woman suffrage], that if a single instance could be shown in which a woman had voted, and not simply claimed the right to vote, then cadit questio. But two such cases, Lady Packington's case and Mrs. Copley's case, were admitted by Mr. Bennett himself. I do not think that he explained away the effect of that admission. It was certainly not as a mere returning officer that either of those ladies signed and returned the indenture. It was as a person having or claiming to have, the sole property in the soil of the whole of the populous borough of Aylesbury, that Lady Packington made her return; and during two or three generations the Packington family had, or had claimed to have, precisely that right.

. . . . . . . . . . .

It is thus made broad and clear that the right of woman to the elective franchise was one of the best acknowledged and clearest of common law rights; and that in the whole circle of English authority the ghost of a dictum can alone be raised to question it. So that if the force of its language compels you to construe the XIV. Amendment as authorizing woman to vote, you will have the satisfaction of knowing that it but restores her to her old common law right in the persons of her American daughters.

Third. I am now to deal directly with the Amendments. The first clause of Section 1 of the XIV Amendment I now read:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Until this was promulgated there was no absolute standard or rule of citizenship in the United States. Each State made a rule for itself, and its rule was not always clearly expressed, as you will see by these constitutions. Some of them say that the male citizens of the State, being inhabitants, etc., shall vote, yet do not declare in what citizenship shall consist. Others, that citizens of the United States, etc., shall vote, while no person was a citizen of the United States except as he had become a citizen of a State. Many States permitted aliens, on a short residence, to vote, without naturalization, and they, in that indirect way, became citizens of such State, and hence of the United States. This Amendment puts an end to doubt and cavil, and broadly declares that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside, etc....

By an unwritten article of the American Constitution—for whoever looks to the written text will not find the whole of the Constitution—persons, no matter where born, or however unnatural they may be, are permitted to become domiciled, gain settlements, hold lands, bring suits, and acquire and enjoy every possible right, privilege, and immunity of native born persons. Nor has Congress, nor has any State ever attempted, by law or ordinance, to discriminate against them, nor will either ever dare to do so, nor could or would such a law be enforced. The unwritten Constitution, by the name of public policy, or without any name, would prevent it. The only possible things which a resident alien may not do, are, he can not vote or hold office. There need be no mistake about this, and it can be reduced to an absolute certainty. What, pray, does the resident alien acquire by the transmuting process of naturalization? What is the sum total of his citizenship? He acquires the right of suffrage, and the right to hold office, and no other thing under the heavens and the Star-Spangled Banner. Does he acquire these rights by virtue of any word or special provision of our naturalization laws, which annexes suffrage to naturalization as its special perquisite? Not a word of it. Nor is there a word in any act of Congress or law of a State that confers suffrage upon the naturalized American as a thing incident to or consequent upon his act of naturalization. He thereby becomes a citizen, and takes up and enjoys its peculiar and distinguishing right. He gets naturalized for that and for no other purpose. Naturalization confers suffrage, then, because suffrage is a property of citizenship.

. . . . . . . . . . .

Colored male citizens now vote constitutionally and rightfully, although the word "white" stands as before in most of the State constitutions; and yet they vote in spite of it. Some potent alembic has destroyed the force of this word, although the text remains as of old. We are at once referred to the XV. Amendment for a solution. That has conferred the power of voting upon them, and it is superior to the State constitutions and statutes, and executes itself, as is claimed. I concede, your honors, that if the XV. Amendment does confer suffrage, or remove the exclusion so that colored citizens can vote; if they have derived the franchise from that, then the argument is against me. But, if it does confer it, then judgment must go for me. Let us read it:

Article XV., Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Sec. 2. The Congress shall have power to enforce this article by appropriate legislation. (15 Stat., p. 316.)

You see in a moment this does not confer anything. It uses no words of grant or grace, apt or otherwise, nor does it profess to. It expressly recognizes, as an already existing fact, that the citizens of the United States have the right to vote. The right which shall thus be respected is a right peculiar to the citizen—it is not a personal right, but a political right; and a right to vote, the same one mentioned in the second section of the XIV. Amendment—a right not created or conferred by the XV. Amendment. It could not be, for it existed, and, as I have just said, was spoken of in the XIV. Amendment; so that it must be as old as that at the least. This amendment is a solemn mandate to all concerned not to deny this right, because it existed, and because it was of the highest value.

Justice Wylie: It is not to be denied for either of the three reasons mentioned.

Mr. Riddle: Yes, your honor, I have not reached that; I am now only showing that it is a right—a citizen right—and older than the XV. Amendment; but, if your honor intends to infer that, because the right can not be denied in any one of those cases, that, therefore, it may be in all others, then you have another instance of a constitutional right to deny a constitutional right; and, without vanity, I have already pulverized that assumption. It is thus absolutely certain that colored male citizens do not claim their admitted right to vote from this XV. Amendment. They had it before, and this came in to protect and secure them in its enjoyment. Whence did they derive it? From the XIV. Amendment? If so, then did women acquire it by the same amendment? Was it an inherent right in them as a part of "the people?" So women are a much larger and more important part of "the people."

The right to vote shall not be denied on account of race, color, or previous condition of servitude, was not used to make the right sacred in male negroes alone, while the rights of all others were left to political caprice, or to be controlled hereafter by these same colored males mayhap; but this amendment was aimed fully at the mischief of the second section of the XIV. Amendment, and there its force is expended. It fossilizes the second section of that amendment. While the broad language of its first section secures, beyond the abridging hand of the States, the great rights it secures—rights which Congress can not abridge on any pretext, for it can exercise no power not granted, and the Constitution confers on it no power to abridge the "privileges or immunities of the citizen" in any instance.

And here I rest this solemn argument. I have brought this cause of woman, and of man as well—of the race—into the presence of the court, surrounded by the severe atmosphere of the law, beyond the reach of chronic ribaldry, and into the region of argument, where it must be estimated by its legal merits. I have applied to it the rules of law. I have pushed away the dead exfoliations that cumber the path; and have gone to the foundations, to the ever fresh and preserving spirit of the rules of the common law, and have sought to apply them with candor....

Francis Miller following Mr. Riddle, said: May it please the Court; ... Clearly the XV. Amendment does not confer any right of suffrage. Clearly, prior to the XIV. Amendment, colored men had no right to vote. The XIII. Amendment, which emancipated them, did not give them the right of suffrage, because the States had the constitutional power to say they should not vote. But between the XIII. and XV. Amendments, in some way or other, the colored man came into possession of this right of suffrage; and the question is, where did he get it? If he did not get it under the XIV. Amendment, by what possible authority are they voting by hundreds of thousands throughout this country? The legislative and constitutional provisions that prohibit their voting still remain unrepealed upon the statute books of many of the States, but yet they do vote. There is no possible, no conceivable, means by which they legally can vote, except by the operation of the XIV. Amendment. It may be said that if that is the case the XV. Amendment was not necessary. Well, admit it was not. It was very well said by Justice Swayne, in the case of the United States vs. Rhodes, in answer to the argument that if the XIII. Amendment conferred certain rights upon the colored man it was unnecessary to pass the Civil Rights Bill; "that it was not necessary, but it was well to do it to prevent doubts and differences of opinion." It is not well to leave any man's rights and liberties subject even to a doubt, and the Congress of the United States had better adopt amendment after amendment than to allow the slightest cloud to rest upon the tenure of the rights of the American citizen....

The Constitution has formulated into law the Declaration of Independence. We were one hundred years coming to it; but we have reached it at last—certainly by recognizing the political rights of the black man—and, as I believe, those of woman; and that is all this Court is called upon here to declare, to wit: that the Declaration of Independence has been enacted into law, and that you will see that that law is enforced.

. . . . . . . . . . .

If I have established, as I believe I have, that under the first section of the XIV. Amendment women have the right to vote, and there is any particular limitation in the second section that contradicts it, that part of the amendment falls void and useless, so far as its effect upon woman is concerned. There is the declaration of the general principles expressly stated; and, if there is anything contradictory, "the particular and inferior can not defeat the general and superior." (Lieber's Hermeneutics, p. 120.) The great object of that XIV. Amendment, so far as it can be deduced from the words in which it is expressed, is this: that the rights of the citizens of the United States shall not be abridged. If there is anything contradictory of that in the subsequent sections, those sections must fall. But if the second section affects this argument at all, it is because it seems, by implication, to admit that the rights of certain male citizens of the United States can be denied. That is the whole force and effect of it—I mean so far as this argument is concerned. All that can be claimed for it is, that by implication, perhaps, it would permit that to be done. The XV. Amendment comes in and says, in express terms, that that which the second section by implication permits, shall not be done; and by this declaration it strikes out that section, and it is no more in the Constitution now than is that clause of the second section of the first article of the Constitution which permitted States to deny suffrage to any of their citizens—black or white. That section is gone. It is no more a part of the Constitution, because it has been absolutely repealed by the adoption of the XIV. Amendment. Just so this second section of the XIV. Amendment disappeared by the operation of the XV. Amendment.

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Sec. 2. The Congress shall have power to enforce this article by appropriate legislation. (15 Stat., p. 345.)

The Chief Justice.—There is a very strong implication, is there not, in that Amendment, that you may deny the right of suffrage for other causes.

Mr. Miller.—I do not think there can be any implication by which a citizen may be robbed of a fundamental right. It must be something expressed. I do not believe in any power of taking away the rights of citizens by construction. No human being can be robbed of his God-given rights by implication. You can not take away his property by implication. You can not take away his liberty. I think it is equally true that you can not take away his right of self-government by implication.

Finally, in regard to the construction of this XIV. Amendment, it must be observed that it is remedial in its character, and it must be "construed liberally to carry out the beneficent principles it was intended to embody," (Dwarris on Statutory Law, p. 632,) and that "its construction must be extended to other cases within the reason and rule of it." (Lord Mansfield in Atcheson vs. Everett, Cowper, 382, 391.) Lieber's fourteenth rule of construction is:

Let the weak have the benefit of a doubt without defeating the general object of a law. Let mercy prevail, if there be real doubt. (Lieber's Hermeneutics, p. 144.)

Now, if mercy must prevail when there is real doubt, still more should justice prevail if there is any doubt. If your honors have any doubt in regard to this decision, I call upon you, not in the name of mercy, but in the name of justice, to give us the benefit of that doubt, and to recognize the right of all human beings to govern themselves.

Sec. 578. The most strenuous advocate for universal suffrage has never yet contended that the right should be absolutely universal. No one has ever been sufficiently visionary to hold that all persons of every age, degree, and character, should be entitled to vote in all elections of all public officers. Idiots, infants, minors, and persons insane or utterly imbecile, have been, without scruple, denied the right as not having the sound judgment and discretion fit for its exercise. In many countries, persons guilty of crimes have also been denied the right as a personal punishment, or as a security to society. In most countries, females, whether married or single, have been purposely excluded from voting, as interfering with sound policy and the harmony of social life ... And yet it would be extremely difficult, upon any mere theoretical reasoning, to establish any satisfactory principle upon which the one-half of every society has thus been systematically excluded by the other half from all right of participating in government, which would not at the same time apply to and justify many other exclusions. If it be said that all men have a natural, equal, and inalienable right to vote, because they are all born free and equal; that they all have common rights and interests entitled to protection; and, therefore, have an equal right to decide, either personally or by their chosen representatives, upon the laws and regulations which shall control, measure, and sustain those rights and interests; that they can not be compelled to surrender, except by their free consent, what by the bounty and order of Providence belongs to them in common with all their race. What is there in these considerations which is not equally applicable to females as free, intelligent, moral, responsible beings, entitled to equal rights and interests and protection, and having a vital stake in all the regulations and laws of society? And, if an exception, from the nature of the case, could be felt in regard to persons who are idiots, infants, and insane, how can this apply to persons who are of more mature growth, and are yet deemed minors by the municipal law?

Sec. 580. If, then, every well-organized society has the right to consult for the common good of the whole; and if, upon the principle of natural law, this right is conceded by the very union of society, it seems difficult to assign any limit to this right which is compatible with the due attainment of the end proposed. If, therefore, any society shall deem the common good and interests of the whole society best promoted under the particular circumstances in which it is placed by a restriction of the right of suffrage, it is not easy to state any solid ground of objection to its exercise of such an authority. At least, if any society has a clear right to deprive females, constituting one-half of the whole population, of the right of suffrage (which, with scarcely an exception, has been uniformly maintained), it will require some astuteness to find upon what ground this exclusion can be vindicated, which does justify, or at least excuse, many other exclusions.

Sec. 581. Without laying any stress upon this theoretical reasoning which is brought before the reader, not so much because it solves all doubts and objections, as because it presents a view of the serious difficulties attendant upon the assumption of an original and inalienable right of suffrage, as originating in natural law, and independent of civil law, it may be proper to state that every civilized society has uniformly fixed, modified, and regulated the right of suffrage for itself according to its own free will and pleasure. Every constitution of government in these United States has assumed, as a fundamental principle, the right of the people of the State to alter, abolish, and modify the form of its own government according to the sovereign pleasure of the people. In fact, the people of each State have gone much further, and settled a far more critical question, by deciding who shall be the voters entitled to approve and reject the constitution framed by a delegated body under their direction. In the adoption of no State constitution has the assent been asked of any but the qualified voters; and women, and minors, and other persons not recognized as voters by existing laws, have been studiously excluded. And yet the constitution has been deemed entirely obligatory upon them as well as upon the minority, who voted against it. From this it will be seen how little, even in the most free of republican governments, any abstract right of suffrage, or any original and indefeasible privilege, has been recognized in practice.

"All the inhabitants of the several districts ought to have the right to vote at the election of the representatives," etc.

That the rights in question (the right of suffrage) are not incompatible with the legal status of the woman, the following authorities seem to show. On the other hand, there can not be adduced any one authority against the position that the franchise of the shire and the borough were enjoyed by the female "resiants" equally with those of the male sex in times when "resiants," as such, and not as "tenants," had the franchise. The statutes by which the parliamentary franchise in counties was taken away from the "resiants" and vested in the "tenants," and at length restricted to those of freehold tenure (8 Hen., 6, c. 7; 18 Geo., 2, c. 18; 31 Geo., 2 c. 14), did not in any manner create or recognize any such distinction as that of the male and the female freeholders. Those acts had relation to tenure, not to sex. For the same reason, in all those boroughs where the "common right" prevailed, the suffrage would naturally be exercisable by the female no less than by the male "inhabitants" or "residants." It is believed that in not one of the boroughs where the suffrage was said to be regulated by "charter," or by "custom," or by "prescription" or even where it was regulated by a local act of Parliament, there can be found one instance of any provision or usage whatsoever whereby any voter was excluded from the enjoyment of the suffrage by reason of sex. That a woman may be a householder, or freeholder, or burgage tenant, parishioner, is plain enough. That she may answer the description of "a person paying scot and lot" within the "city of London," has been solemnly decided by the Court of King's Bench (Olive vs. Ingram, 7 Mod. 264, 267, 270, 271,) and that determination was expressly grounded by their Lordships "singly upon the foot of the common law, without regard to the usages of the parishes in London," which usage, nevertheless, had been also shown to be in favor of the same construction. In all cases, whether of statutory, of customary, or of common law qualification for the suffrage, the general rule is that which was laid down by the Court of King's Bench with respect to the choice of parochial officers under the first "Act for the Relief of the Poor," which directed them to be made from among the "substantial householders" of the place. The court held (Rex. vs. Stubbs, 2 T. R., 395)—overruling a dictum in Viner's Abridgment to the contrary—that a woman, being a "substantial householder," was properly chosen under that act to the office of overseer of the poor, notwithstanding the objections raised at the bar that it was a burthensome office and one of which, being once appointed to it, she would be called upon to perform duties some of which were above the bodily and mental powers, and others were inconsistent with the morality, or, at least, the decency of that sex.—(Id. 400.)