_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 s.e.x, as it is called, did not exist at common law in any const.i.tuency; 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 pa.s.sed before 1832, greatly narrowing the basis of that suffrage there), that, _a 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 s.e.x. Curiously enough, I see that it has been objected to the right of female suffrage within the last few days, that there is this a.n.a.logy between the right of franchise and the liability to watch and ward.
It is because that a.n.a.logy 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, pa.s.s 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 s.e.x. But now I pa.s.s 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 const.i.tutions. 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 Const.i.tution--for whoever looks to the written text will not find the whole of the Const.i.tution--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 Const.i.tution, 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 trans.m.u.ting 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 const.i.tutionally and rightfully, although the word "white" stands as before in most of the State const.i.tutions; 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 const.i.tutions 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 const.i.tutional right to deny a const.i.tutional right; and, without vanity, I have already pulverized that a.s.sumption. 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 Const.i.tution 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 c.u.mber 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 emanc.i.p.ated them, did not give them the right of suffrage, because the States had the const.i.tutional 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 const.i.tutional 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 pa.s.s 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 Const.i.tution 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 Const.i.tution now than is that clause of the second section of the first article of the Const.i.tution 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 Const.i.tution, 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 G.o.d-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.
Chief Justice Cartter then delivered the opinion of the court, sustaining the demurrer, which is as follows:
These cases, involving the same questions, are presented together. As shown by the plaintiffs" brief, the plaintiffs claim the elective franchise under the first section of the XIV.
Amendment of the Const.i.tution. The fourth paragraph of the regulations of the Governor and Judges of the District, made registration a condition precedent to the right of voting at the election of April 20th, 1871. The plaintiffs, being otherwise qualified, offered to register, and were refused. They then tendered their ballots at the polls, with evidence of qualification and offer to register, etc., when their ballots were rejected under the seventh section of the act providing a government for the District of Columbia. Mrs. Spencer brings her suit for this refusal of registration, and Mrs. Webster for the rejection of her vote, under the second and third sections of the act of May 31, 1870. The seventh section of the organic act above referred to, limits the right to vote to "all male citizens," but it is contended that in the presence of the XIV. Amendment, the word male is without effect, and the act authorizes "all citizens" to exercise the elective franchise. The question involved in the two actions which have been argued, and which, for the purposes of judgment, may be regarded as one, is, whether the plaintiffs have a right to exercise within this jurisdiction, the elective franchise. The letter of the law controlling the subject is to be found in the seventh section of the act of February 21, 1871, ent.i.tled, "An Act to provide a government for the District of Columbia," as follows:
_And be it further enacted_, That all male citizens of the United States, above the age of twenty-one years, who shall have been actual residents of said District for three months prior to the pa.s.sage of this act, except such as are _non compos mentis_, and persons convicted of infamous crimes, shall be ent.i.tled to vote at said election, in the election district or precinct in which he shall then reside, and shall have so resided for thirty days immediately preceding said election, and shall be eligible to any office within the said district, and for all subsequent elections, twelve months prior residence shall be required to const.i.tute a voter; but the Legislative a.s.sembly shall have no right to abridge or limit the right of suffrage.
It will be seen by the terms of this act that females are not included within its privileges. On the contrary, by implication, they are excluded. We do not understand that it is even insisted in argument that authority for the exercise of the franchise is to be derived from law. The position taken is, that the plaintiffs have a right to vote, independent of the law; even in defiance of the terms of the law. The claim, as we understand it, is, that they have an inherent right, resting in nature, and guaranteed by the Const.i.tution in such wise that it may not be defeated by legislation. In virtue of this natural and const.i.tutional right, the plaintiffs ask the court to overrule the law, and give effect to rights lying behind it, and rising superior to its authority.
The Court has listened patiently and with interest to ingenious argument in support of the claim, but have failed to be convinced of the correctness of the position, whether on authority or in reason. In all periods, and in all countries, it may be safely a.s.sumed that no privilege has been held to be more exclusively within the control of conventional power than the privilege of voting, each State in turn regulating the subject by the sovereign political will. The nearest approach to the natural right to vote, or govern--two words in this connection signifying the same thing--is to be found in those countries and governments that a.s.sert the hereditary right to rule. The a.s.sumption of Divine right would be a full vindication of the natural right contended for here, provided it did not involve the hereditary obligation to obey.
Again, in other States, embracing the Republics, and especially our own, including the States which make up the United States, this right has been made to rest upon the authority of political power, defining who may be an elector, and what shall const.i.tute his qualification; most States in the past period declaring property as the familiar basis of a right to vote; others, intelligence; others, more numerous, extending the right to all male persons who have attained the age of majority. While the conditions of the right have varied in several States, and from time to time been modified in the same State, the right has uniformly rested upon the express authority of the political power, and been made to revolve within the limitations of express law.
Pa.s.sing from this brief allusion to the political history of the question to the consideration of its inherent merits, we do not hesitate to believe that the legal vindication of the natural right of all citizens to vote would, at this stage of popular intelligence, involve the destruction of civil government. There is nothing in the history of the past that teaches us otherwise.
There is little in current history that promises a better result.
The right of all men to vote is as fully recognized in the population of our large centres and cities as can well be done, short of an absolute declaration that all men shall vote, irrespective of qualifications. The result in these centres is political profligacy and violence verging upon anarchy. The influences working out this result are apparent in the utter neglect of all agencies to conserve the virtue, integrity and wisdom of government, and the appropriation of all agencies calculated to demoralize and debase the integrity of the elector.
Inst.i.tutions of learning, calculated to bring men up to their highest state of political citizenship, and indispensable to the qualifications of the mind and morals of the responsible voter, are postponed to the agency of the dram-shop and gambling h.e.l.l; and men of conscience and capacity are discarded, to the promotion of vagabonds to power.
This condition demonstrates that the right to vote ought not to be, and is not, an absolute right. The fact that the practical working of the a.s.sumed right would be destructive of civilization is decisive that the right does not exist.... It will be seen by the first clause of the XIV. Amendment, that the plaintiffs, in common with all other persons born in the United States, are citizens thereof, and, if to make them citizens is to make them voters, the plaintiffs may, of right, vote. It will be inferred from what has already been said, that to make a person a citizen is not to make him or her a voter. All that has been accomplished by this Amendment to the Const.i.tution, or by its previous provisions, is to distinguish them from aliens, and make them capable of becoming voters.
In giving expression to my own judgment, this clause does advance them to full citizenship, and clothes them with the capacity to become voters. The provision ends with the declaration of their citizenship. It is a const.i.tutional provision that does not execute itself. It is the creation of a const.i.tutional condition that requires the supervention of legislative power in the exercise of legislative discretion to give it effect. The const.i.tutional capability of becoming a voter created by this Amendment lies dormant, as in the case of an infant, until made effective by legislative action. Congress, the legislative power of this jurisdiction, as yet, has not seen fit to carry the inchoate right into effect, as is apparent in the law regulating the franchise of this District. When that shall have been done, it will be the pleasure of this court to administer the law as they find it. Until this shall be done, the consideration of fitness and unfitness, merit and demerit, are considerations for the law-making power. The demurrer in these cases is sustained.
After the reading of the opinion of the Court by Chief Justice Cartter, Mr. Riddle, counsel for the plaintiffs, in open court, prayed an appeal to the Supreme Court of the United States. And that highest tribunal affirmed the decision of Judge Cartter.