The Amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens ent.i.tled to suffrage under the Const.i.tution and laws of the States, but it operates for this purpose, if at all, through the States and the State laws, and not directly upon the citizen.
It is clear, therefore, we think, that the Const.i.tution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was co-extensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be a.s.sumed.
When the Const.i.tution of the United States was adopted, all the several States, with the exception of Rhode Island, had const.i.tutions of their own. Rhode Island continued to act under its charter from the Crown. Upon an examination of those const.i.tutions, we find that in no State were all citizens permitted to vote. Each State determined for itself who should have that power.
Thus, in New Hampshire, "every male inhabitant of each town and parish, with town privileges and places unincorporated in the State, of twenty-one years of age and upwards, excepting paupers and persons excused from paying taxes at their own request," were its voters; in Ma.s.sachusetts, "every male inhabitant of twenty-one years of age and upwards, having a freehold estate within the Commonwealth of the annual income of three pounds, or any estate of the value of sixty pounds"; in Rhode Island, "such as are admitted free of the company and society" of the colony; in Connecticut, such persons as had "maturity in years, quiet and peaceful behavior, a civil conversation, and forty shillings freehold or forty pounds personal estate," if so certified by the selectmen; in New York, "every male inhabitant of full age, who shall have personally resided within one of the counties of the State for six months immediately preceding the day of election, ... if during the time aforesaid he shall have been a freeholder, possessing a freehold of the value of twenty pounds within the country, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to the State"; in New Jersey, all inhabitants ... of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided in the county in which they claim a vote for twelve months immediately preceding the election"; in Pennsylvania, "every freeman at the age of twenty-one years, having resided in the State two years next before the election, and within that time paid a State or county tax which shall have been a.s.sessed at least six months before the election"; in Delaware and Virginia, "as exercised by law at present"; in Maryland, "all freeman above twenty-one years of age, having a freehold of fifty acres of land in the county in which they offer to vote and residing therein, and all freemen having property in the State above the value of thirty pounds current money, and having resided in the county in which they offer to vote one whole year next preceding the election"; in North Carolina, for Senators, "all freemen of the age of twenty-one years, who have been inhabitants of any one county within the State twelve months immediately preceding the day of election, and possessed of a freehold within the same county of fifty acres of land for six months next before and at the day of election," and for members of the House of Commons, "all freemen of the age of twenty-one years, who have been inhabitants in any one county within the State twelve months immediately preceding the day of any election, and shall have paid public taxes"; in South Carolina, "every free white man of the age of twenty-one years, being a citizen of the State, and having resided therein two years previous to the day of election, and who hath a freehold of fifty acres of land, or a town lot of which he hath been legally seized and possessed at least six months before such election, or (not having such freehold or town lot), hath been a resident within the election district in which he offers to give his vote six months before said election, and hath paid a tax the preceding year of three shillings sterling toward the support of the Government"; and, in Georgia, such "citizens and inhabitants of the State as shall have attained to the age of twenty-one years, and shall have paid tax for the year next preceding the election, and shall have resided six months within the county."
In this condition of the law in respect to suffrage in the several States, it can not for a moment be doubted that, if it had been intended to make all citizens of the United States voters, the framers of the Const.i.tution would not have left it to implication. So important a change in the condition of citizenship as it actually existed, if intended, would have been expressly declared.
But if further proof is necessary to show that no such change was intended, it can easily be found both in and out of the Const.i.tution. By article 4, section 2, it is provided that "the citizens of each State shall be ent.i.tled to all the privileges and immunities of citizens in the several States." If suffrage is necessarily a part of citizenship, then the citizens of each State must be ent.i.tled to vote in the several States precisely as their citizens are. This is more than a.s.serting that they may change their residence and become citizens of the State and thus be voters. It goes to the extent of insisting that, while retaining their original citizenship, they may vote in any State.
This, we think, has never been claimed. And again, by the very terms of the Amendment we have been considering (the XIV).
"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the Members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged, except for partic.i.p.ation in the Rebellion or other crimes, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."
Why this, if it was not in the power of the Legislature to deny the right of suffrage to some male inhabitants? And if suffrage was necessarily one of the absolute rights of citizenship, why confine the operation of the limitation to male inhabitants?
Women and children are, as we have seen, "persons." They are counted in the enumeration upon which the apportionment is to be made; but if they were necessarily voters because of their citizenship unless clearly excluded, why inflict the penalty for the exclusion of males alone? Clearly, no such form of words would have been selected to express the idea here indicated if suffrage was the absolute right of all citizens.
And still again, after the adoption of the XIV. Amendment, it was deemed necessary to adopt a XV., as follows: "The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude." The XIV.
Amendment had already provided that no State should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Const.i.tution to prevent its being denied on account of race, etc.? Nothing is more evident than that the greater must include the less; and if all were already protected, why go through with the form of amending the Const.i.tution to protect a part?
It is true that the United States guarantees to every State a republican form of government (art. 4, sec. 4). It is also true that no State can pa.s.s a bill of attainder (art. 1, section 10), and that no person can be deprived of life, liberty, or property, without due process of law (Amendment V). All these several provisions of the Const.i.tution must be construed in connection with the other parts of the instrument, and in the light of the surrounding circ.u.mstances.
The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended. The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Const.i.tution was adopted. In all, the people partic.i.p.ated to some extent through their representatives elected in the manner specially provided. These governments the Const.i.tution did not change. They were accepted precisely as they were, and it is therefore to be presumed that they were such as it was the duty of the States to provide. Thus, we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Const.i.tution. As has been seen, all the citizens of the States were not invested with the right of suffrage. In all, save perhaps New Jersey, this right was only bestowed upon men, and not upon all of them. Under these circ.u.mstances, it is certainly now too late to contend that a Government is not republican within the meaning of this guaranty in the Const.i.tution because women are not made voters.
The same maybe said of the other provisions just quoted. Women were excluded from suffrage in nearly all the States by the express provision of their const.i.tutions and laws. If that had been equivalent to a bill of attainder, certainly its abrogation would not have been left to implication. Nothing less than express language would have been employed to effect so radical a change. So also of the Amendment which declares that no person shall be deprived of life, liberty, or property, without due process of law; adopted as it was as early as 1791. If suffrage was intended to be included within its obligations, language better adapted to express that intent would most certainly have been employed. The right of suffrage, when granted, will be protected. He who has it can only be deprived of it by due process of law; but, in order to claim protection, he must first show that he has the right. But we have already sufficiently considered the proof found upon the inside of the Const.i.tution.
That upon the outside is equally effective.
The Const.i.tution was submitted to the States for adoption in 1787, and was ratified by nine States in 1788, and, finally, by the thirteen original States in 1790. "Vermont was the first new State admitted to the Union, and it came in under a Const.i.tution which conferred the right of suffrage only upon men of the full age of twenty-one years, having resided in the State for the s.p.a.ce of one whole year next before the election, and who were of quiet and peaceable behavior. This was in 1791. The next year (1792) Kentucky followed, with a Const.i.tution confining the right of suffrage to free male citizens of the age of twenty-one years, who had resided in the State two years, or, in the county in which they offered to vote, one year next before the election.
Then followed Tennessee in 1796, with voters of freemen of the age of twenty-one years and upward, possessing a freehold in the county wherein they may vote, and being inhabitants of the State or freemen being inhabitants of any one county in the State six months immediately preceding the day of election. But we need not particularize further. No new State has ever been admitted to the Union which has conferred the right of suffrage upon women, and this has never been considered a valid objection to her admission. On the contrary, as is claimed in the argument, the right of suffrage was withdrawn from women as early as 1807 in the State of New Jersey, without any attempt to obtain the interference of the United States to prevent it. Since then the governments of the insurgent States have been reorganized under a requirement that, before their Representatives could be admitted to seats in Congress, they must have adopted new Const.i.tutions, republican in form. In no one of these Const.i.tutions was suffrage conferred upon women, and yet the States have all been restored to their original position as States in the Union.
Besides this, citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage.
Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circ.u.mstances vote. The same provision is to be found in the Const.i.tutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas.
Certainly if the courts can consider any question settled, this is one. For near ninety years the people have acted upon the idea that the Const.i.tution, when it conferred citizenship, did not necessarily confer the right of suffrage. If uniform practice long continued can settle the construction of so important an instrument as the Const.i.tution of the United States confessedly is, most certainly it has been done here. Our province is to decide what the law is, not to declare what it should be.
We have given this case the careful consideration its importance demands. If the law is wrong it ought to be changed, but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. No argument as to woman"s need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end, if we find it is within the power of a State to withhold.
Being unanimously of the opinion that the Const.i.tution of the United States does not confer the right of suffrage upon any one, and that the Const.i.tutions and laws of the several States which commit that important trust to men alone are not necessarily void, we affirm the judgment of the court below.
Soon after the decision on Mrs. Minor"s case, Mrs. Gage, in a convention at Washington, ably reviewed Judge Waite"s opinion, showing that the United States has eight cla.s.ses of voters. She said:
Chief justice Waite, in rendering the opinion of the Supreme Court of the United States, in the Minor _vs._ Happersett case, which was an appeal from the Supreme Court of Missouri, on the question of woman"s right to vote under the provisions of the XIV. Amendment, decided against this right. The court maintained that the United States Const.i.tution does not confer the right of suffrage on any person, and that the matter is regulated by State Const.i.tutions, and that when provision is made in them extending the right of suffrage to men only, such provisions are binding. It also declared that the United States had no voters in the States of its own creation. But this a.s.sertion was false upon the very face of it.
1st. Every enfranchised male slave had the ballot secured him under United States law--a law which annulled all State provisions against color. At the time of ratification of the last amendments, the State of New York possessed a property qualification of $250. The moment these amendments were ratified, that law became dead on the statute book. The New York Legislature did not repeal it. The United States repealed this property prohibition, by creating a cla.s.s of United States voters out of colored men. So here is one cla.s.s of United States voters, and a clear mistake on the part of Chief-Justice Waite and the Supreme Court. But the United States has often exercised its power over the ballot more directly than through const.i.tutional amendments; for,
2d. Every Southern man disfranchised because of having taken part in the war, and who has since been granted amnesty, has again been made a voter through United States law; all such men then became United States voters. Here is a second cla.s.s of United States voters, and a second mistake of Chief Justice Waite and the Supreme Court. It may be answered that the revolted States were in the condition of Territories at the time of this disfranchis.e.m.e.nt, and therefore under direct control of the National Government. Admitting this, we still know that general amnesty was granted after reconstruction; after State forms of government had again been organized, the nation exercised its power over the ballot by restoring thousands of men to their political rights--to citizenship. And from the general law of amnesty for the rank and file, the leaders in the rebellion were again and again, by special Acts of Congress, re-endowed with the ballot. No amendment was submitted or expected. The authority of Congress thus to restore to these men the use of the ballot was unquestioned.
3d. The naturalized foreigner secures his right to vote under United States law, and can not vote unless he first becomes an United States citizen, or announces his intention of so becoming.
In Missouri, Nebraska, and some other States, the declaration of such intention permits him to vote. This is a State regulation, but the fact of his United States citizenship must in some form first exist. In the naturalized man is a third cla.s.s of United States voters. With one and the same hand he at the same moment picks up his naturalization papers and his ballot. It matters not what the State law may be, the foreigner secures his vote under United States law. And here is a third cla.s.s of United States voters and a third mistake of Chief-Justice Waite and the Supreme Court.
4th. The Thirty-ninth or Fortieth Congress took a step farther than this, pa.s.sing a law that all foreigners who had served in, and been honorably discharged from the army, should possess the right to vote, even though they had not previously filed intention of naturalization, thus again proving that Congress itself, without an amendment to the Const.i.tution, or the authorization of States, possessed power over the ballot. If it has this power of securing the use of the ballot to foreigners who have never intimated a desire to become citizens, it surely can enfranchise its own native-born citizens irrespective of s.e.x. The denial of the ballot to all women by the Supreme Court, in the person of Virginia L. Minor, under the pretense that the United States possesses no voters in the States of its own creation is thus shown to be a false a.s.sumption. But this is not all.
5th and 6th. And oldest of all these cla.s.ses of United States voters are those men who vote for members of the House of Representatives, and for Presidential Electors in the several States.
NATIONAL CONSt.i.tUTION.--ARTICLE 1, Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.
ARTICLE 2, Section 1, Clause 2. Each State shall appoint in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be ent.i.tled in Congress.... Clause 3. The Congress may determine the time of choosing the electors and the day on which they shall give their votes; which day shall be the same throughout the United States.
The United States by these articles guarantees: 1st. To every person who has a right under State action to vote for the most numerous branch of his State Legislature, the United States right to vote at a peaceable election for members of Congress. 2d. The United States directs the appointment of Presidential Electors, and declares that Congress may not only determine the time of choosing such electors, but shall also fix the day upon which such votes shall be given. The United States secures the right, merely leaving the States to prescribe the qualifications of voters. This is all, with one exception that woman asks; she demands that her right shall be recognized and secured by the United States, which shall then prohibit the States from prescribing qualifications not within the reach of all citizens.
A 7th cla.s.s of United States voters are those men who having been deprived of citizenship through civil offenses against the power and majesty of the United States are afterward pardoned, or "restored to citizenship."
Still an 8th cla.s.s over whom the United States exercises its authority are deserters from the army--military criminals. An act of Congress of March 3, 1865, imposed forfeiture of citizenship and its rights, as an additional penalty for the crime of desertion. In accordance with this act, the President issued a proclamation the eleventh of that same month, declaring that all deserters who failed to report themselves to a Provost Marshal within sixty days thereafter should be deemed to have forfeited their rights of citizenship, and should be declared forever incapable of holding any office of interest or profit under the United States. This act was pa.s.sed previous to the submission of the XIV. Amendment.
Thus at the time of Chief-Justice Waite"s decision a.s.serting National want of power over the ballot, and declaring the United States possessed no voters of its own creation in the States (where else would it have them?), the country already possessed eight cla.s.ses of voters, or persons whose right to the ballot was in some form under the control or sanction of the United States.
The black man, the amnestied man, the naturalized man, the foreigner honorably discharged from the Union army, voters for the lower House of Congress, voters for Presidential electors, pardoned civil and military criminals. Further research may bring still other cla.s.ses to light.
Thus when woman claims that her right to the use of the ballot shall be secured by the United States, she has eight distinguished precedents in favor of her demand for National protection. No more inconsistent a.s.sertion was ever made than that the United States possesses no control over the suffrage.
While by Circuit Court decisions, Supreme Court decisions, and decisions of courts of lesser degree, theoretically denying its control over the suffrage, the United States in many ways besides those mentioned, practically acknowledges its possession of this right. In the case of Miss Anthony and the fourteen other women of Rochester, N. Y., who voted in 1872, the great State of New York took no action at all in the matter; it was the General Government which thrust itself forward and took up the question.
If the United States has no control over the suffrage then Miss Anthony"s trial was a clear interference of the United States with the rights of States. And so great was this interference, it is believed the judge appointed to try her case left Washington with his verdict in his pocket already written.
Let none of my audience forget the various great trials of woman"s right to vote under the XIV. Amendment, especially that of Mrs. Virginia L. Minor, who prosecuted the Inspector of Election in St. Louis for refusing to receive her vote, and whose case, coming finally for adjudication to the Supreme Court of the United States, decision was rendered against her on the plea that the ballot was under control of the respective States, and that the United States has no voters in the States of its own creation; which I have shown to be an ignorant, imbecile, and false plea. Neither let them forget that of Susan B. Anthony, decided against her on the ground that she was a woman at the time she voted. If States have the sole control of the suffrage, there was interference in the rights of the State of New York by her trial; and if United States citizens of any cla.s.s have a right to be protected in the use of the ballot, then the United States very flagrantly and tyrannously interfered in Miss Anthony"s individual right as a citizen of the United States.
In the near future these trials of women under the XIV. Amendment will be looked upon as the great State trials of the world; trials on which a republic, founded upon the acknowledged rights of all persons to self-government, through its courts decided against the right of one half of its citizens on the ground that s.e.x was a barrier and a crime.
Then let us look at the territory of Wyoming. Much has of late been said in regard to women not making use of the ballot there.
I care little about that statement one way or the other, as long as her right to vote is not interfered with. It will be time to require all women to vote when we have such a law for men; until then let each voter refrain from voting at his or her own option; it is not the vital question. But there is a point connected with woman"s voting in Wyoming that is well worthy of our consideration. That is, the interference of the United States with the concomitants of this right. For a time the women of Wyoming sat upon juries, and the fact was heralded over the country that thieves, gamblers, murderers fled the territory rather than fall into the hands of these women jurors. The first conviction for a murder in that territory, not committed in self-defense, came from a mixed jury.
But of late we have ceased hearing of women jurors. And why?
Because that sacred right has been interfered with by the United States. The Marshal of the Territory, an officer appointed by the United States Government, has absolutely refused to place the names of women on the jury lists. Consequently the women of Wyoming are denied the exercise of this right by United States power. Whether the Marshal has been ordered by the National Government to omit the names of women, we do not know, and it does not signify. The duty of the United States is none the less clear; the Territories are in an especial way the wards of the nation, and should be protected in all territorial rights. The Territory of Wyoming having secured to women the exercise of their right to vote, it is the duty of the General Government to protect them in the exercise of all concomitant rights, of which the jury is one.
This deprivation of jury rights in Wyoming is not only an United States interference with woman"s political rights, but also an interference with her industrial rights. It is a well-known fact that some women earned their first independent dollar by sitting in the jury box. And whatever interferes with woman"s industrial rights helps to send her down to those depths where want of bread has forced so many women: into the gutters of shame. This is a question of morality as well as of industrial and political rights. Every infringement of a person"s political rights, touches a hundred other rights adversely. Let me show you one good that has come to woman through her ballot in Wyoming. The payment of men and women teachers has been equalized by direct statute, for political power always benefits the parties holding it.
Let us look at a few other ways in which the United States has touched the rights of women where protection has been secured her by legislation outside of itself. One instance that has come to my knowledge since I have been in your city, is in the case of pensions for colored women. The United States not only secured the ballot to the black male citizen outside of State authority, but it has touched the family relation with its powerful hand. It has a.s.sumed that the woman with whom a colored soldier was living at the time of his death was his wife, notwithstanding he may have lived for many years in recognized married relations with another woman, and become the father of children by her during this period. In one case coming under the cognizance of our Washington lawyer, Mrs. Lockwood, a pension was, by United States authority, thus granted to a woman living with such colored soldier at the time of his death, although she had no other claim upon it. This soldier, during the period of slavery, had been married in his master"s house to another woman by a regularly ordained clergyman, and by that wife had become the father of five or six children. This woman was his lawful widow, according to State and church law. These children were his lawful children, according to State and church law, but the United States stepped in, and made this married woman an outcast, and left her children in the world with the brand of illegitimacy. The women of the Territories of Wyoming and Utah are not secure in their political rights, because the women of the Nation have none. Scarcely a session of Congress but some politician introduces a bill to disfranchise the women of these Territories.
In regard to the religious aspects of this Utah question. I care for it only so far as it touches woman"s political rights, although I do know that woman"s political wrongs and her religious wrongs have been very closely intermingled in the past.
I recall a Papal Bull of Urban II., in the 12th century, which compelled priests to discard their wives, making of thousands of women in England, wives who were not wed; of children, offspring who had no recognized fathers. We of the National Woman Suffrage a.s.sociation have nothing to do with the religious rights of women in Utah, except in so far as they intermingle with and touch woman"s political rights. But the Utah question, which now comes up again, is not simply a religious question. The Government is continuously striving to destroy the political rights of the women of this Territory. Its Governor is a United States officer, and in his last report to the Secretary of the Interior, he so far transcended the duties of his office as to suggest the disfranchis.e.m.e.nt of Utah women. Almost every session of Congress sees some bill of similar import introduced.
The General Government did not confer this right, did not secure even the exercise of it. The territorial Legislature, the same as in Wyoming, secured to women the exercise of the right of suffrage; the United States, according to its own theory, has no authority to interfere with this right, because, according to that theory, it has nothing at all to do with the suffrage question. Yet it proposes to disfranchise those women as a punishment for their religious belief; it proposes to make social outcasts of them, as it has already done with the wives of some of its black soldier voters.
Looking back through history we find no act of the Romish Church more vile than that which compelled its priests to disown their wives and legitimate children--none which so utterly demoralized society, and destroyed its tens of thousands of women. And although, as a body of reformers, I again say we do not touch religion except where it, and politics together, infringe upon the rights of women, I do not hesitate to say for myself individually, that I have no faith in any form of religion, be it what it may, Christian, Mohammedan, Buddhist, that receives revelation only through some man; or farther than that, I will say, I have no faith in any form of religion that does not place man and woman on an exact equality of religious rights. Two forms of religion of the present day which have risen through woman, or as revelations to her, namely the Shaker and the Spiritual, do give us equality of religious rights, for man and woman. But I call your attention to the inconsistency of United States laws, and their especial injustice to women by interference with those rights secured them by State or Territorial laws, as in case of the colored soldier"s wife; as in case the a.s.sumption that the United States had a right to prohibit the exercise of the suffrage by a woman in New York, although New York itself did not interfere; as in case of the virtual prohibition by the United States of jury rights to the women of Wyoming; as in case of the presumptuous suggestion of the Governor of Utah that its women should be disfranchised; as in case of such bills so often introduced in Congress.
I know something of the opinion of the women of the Nation, and I know they intend to be recognized as citizens secured in the exercise of all the powers and rights of citizens. If this security has not come under the XIV. Amendment, it must come under a XVI., for woman intends to possess "equal personal rights and equal political privileges with all other citizens." She asks for nothing outside the power of the United States, she asks for nothing outside the duty of the United States to secure.
Politicians may as well look this fact squarely in the face and become wise after the wisdom of the world, for in just so far as they ignore and forget the women of the country, in just so far will they themselves be ignored and forgotten by future generations.
The following review of this important case is from the January number, 1876, of the _Central Law Journal_, St. Louis, Missouri:
WOMAN SUFFRAGE IN ITS LEGAL ASPECT--A REVIEW OF THE CASE OF MINOR _vs._ HAPPERSETT, 21 WALLACE, U. S. REPORTS.