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 pet.i.tion 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 pet.i.tion referred to.
All of which appears by said pet.i.tion.
SMITH P. GALT, _Atty for Deft._
The defense, in substance, being based upon the Const.i.tution of Missouri, which provides (Art. II., Sec. 18) that "every male citizen of the United States, etc., ... shall be ent.i.tled 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 a.s.sembly 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 ent.i.tled to vote at such elections for all officers, State, county, or munic.i.p.al, 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 Const.i.tution.
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 Const.i.tution 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 s.e.x. The plaintiff, however, denies the validity of this clause of the Missouri Const.i.tution, and the registration act based thereon, and contends that they are in violation of, and repugnant to, the Const.i.tution of the United States, and particularly to those articles and clauses thereof which she has specified in her pet.i.tion.
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 s.e.x, as before stated).
The question is thus broadly presented of a conflict between the Const.i.tution 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.
a.s.sIGNMENT OF ERRORS.--And now comes Virginia L. Minor, the plaintiff in error in the above ent.i.tled cause, by her attorneys, John B. Henderson, John M. Krum, and Francis Minor, and says that in the records and proceedings in the above ent.i.tled 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 pet.i.tion 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 ent.i.tled 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 Const.i.tution and laws of Missouri, before recited, do not conflict with the Const.i.tution 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 pet.i.tion, the defense, in substance, being based upon the Const.i.tution of Missouri, which provides (Art 2, Sec. 18) that "every male citizen of the United States, etc., ... shall be ent.i.tled 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 s.e.x.
The plaintiff, however, denied the validity of this clause of the Missouri Const.i.tution, and the registration act based thereon, and contended that they are in violation of, and repugnant to, the Const.i.tution of the United States, and particularly to those articles and clauses thereof which she had specified in her pet.i.tion.
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 s.e.x, as before stated). The question was thus broadly presented of a conflict between the Const.i.tution 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 inst.i.tution. But this belief has pa.s.sed 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 Const.i.tution 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 a.s.serted 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 subst.i.tuted for that of "subject." But this was not a mere change of name; the men who framed the Const.i.tution 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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution terms it) is simply remitted to the States by the Const.i.tution, 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 ent.i.tled 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 pa.s.sports, 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 cla.s.s to which she belongs, the bar of perpetual disfranchis.e.m.e.nt, 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 Const.i.tution; 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 Const.i.tution 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 cla.s.s 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 Const.i.tution, to whom, indeed, has been applied the epithet of "Father of the Const.i.tution"--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 Const.i.tution:
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 Const.i.tution. 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 Const.i.tution. (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 Const.i.tution were then living--some of them in this very State; yet we hear no mention of its being unconst.i.tutional, no objection made to it whatever.
It is true that subsequently this provision was omitted (about 1807) in the revisal of the State Const.i.tution (as we think, very unjustly), but the fact remains of the unquestioned exercise of this privilege by women at the very time the Federal Const.i.tution 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 pa.s.s 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 Const.i.tution 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 Const.i.tution of the United States, then, whenever he goes into another State, the Const.i.tution 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 ent.i.tled 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 Const.i.tution 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 Const.i.tution 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, subst.i.tute 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 Const.i.tution before recited, somewhat in detail:
As to "bills of attainder," "due process of law," etc. "No State shall pa.s.s 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 Const.i.tution, 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 a.s.sumes, in the language of the text-book, judicial magistracy; it p.r.o.nounces 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 cla.s.s.