ACCOUNT OF THE PROCEEDINGS
SUSAN B. ANTHONY,
Charge of Illegal Voting,
PRESIDENTIAL ELECTION IN NOV., 1872,
AND ON THE
BEVERLY W. JONES, EDWIN T. MARSH AND WILLIAM B. HALL,
THE INSPECTORS OF ELECTION BY WHOM HER VOTE WAS RECEIVED.
ROCHESTER, N.Y.: DAILY DEMOCRAT AND CHRONICLE BOOK PRINT, 3 WEST MAIN ST. 1874.
Anthony, S.B., Indictment, 1 Her speech on receiving her sentence, 82 Her campaign speech, 151
Crowley, Richard, Opening speech in Miss Anthony's case, 5
Gage, Mrs. M. Joslyn, Speech of 179
Hall, Wm. B., Indictment, 85
Hooker, John, Article on Judge Hunt and the Right of Trial by Jury, 206
Hunt, Judge, Opinion against Miss Anthony, 59 His refusal to submit her case to the jury, 68 His refusal to permit the jury to be polled, 68 His sentence of Miss Anthony, 81 His direction to the jury in the cases of Jones, Hall and Marsh, 144 Trial by jury "a matter of form", 145
Jones, Beverly W., Indictment, 85 Remarks on receiving sentence, 148
Marsh, Edwin T., Indictment, 85 Remarks on being sentenced, 149
Selden, H.R., Opening speech in Miss Anthony's case, 12 Argument in her case, 17 Argument on motion for new trial, 68
Van Voorhis, John, Argument of motion to quash the indictment in the case of Jones, Marsh and Hall, 94 Argument in the case of Jones, Marsh and Hall on the merits, 128 Motion for new trial in the case of Jones, Marsh and Hall, 147
At the election of President and Vice President of the United States, and members of Congress, in November, 1872, SUSAN B. ANTHONY, and several other women, offered their votes to the inspectors of election, claiming the right to vote, as among the privileges and immunities secured to them as citizens by the fourteenth amendment to the Constitution of the United States. The inspectors, JONES, HALL, and MARSH, by a majority, decided in favor of receiving the offered votes, against the dissent of HALL, and they were received and deposited in the ballot box. For this act, the women, fourteen in number, were arrested and held to bail, and indictments were found against them severally, under the 19th Section of the Act of Congress of May 30th, 1870, (16 St. at L. 144.) charging them with the offense of "knowingly voting without having a lawful right to vote." The three inspectors were also arrested, but only two of them were held to bail, HALL having been discharged by the Commissioner on whose warrant they were arrested. All three, however were jointly indicted under the same statute—for having "knowingly and wilfully received the votes of persons not entitled to vote."
Of the women voters, the case of Miss ANTHONY alone was brought to trial, a nolle prosequi having been entered upon the other indictments. Upon the trial of Miss ANTHONY before the U.S. Circuit Court for the Northern District of New York, at Canandaigua, in June, 1873, it was proved that before offering her vote she was advised by her counsel that she had a right to vote; and that she entertained no doubt, at the time of voting, that she was entitled to vote. It was claimed in her behalf:
I. That she was legally entitled to vote.
II. That if she was not so entitled, but voted in good faith in the belief that it was her right, she was guilty of no crime.
III. That she did vote in such good faith, and with such belief.
The court held that the defendant had no right to vote—that good faith constituted no defence—that there was nothing in the case for the jury to decide, and directed them to find a verdict of guilty; refusing to submit, at the request of the defendant's counsel, any question to the jury, or to allow the clerk to ask the jurors, severally, whether they assented to the verdict which the court had directed to be entered. The verdict of guilty was entered by the clerk, as directed by the court, without any express assent or dissent on the part of the jury. A fine of $100, and costs, was imposed upon the defendant.
Miss ANTHONY insists that in these proceedings, the fundamental principle of criminal law, that no person can be a criminal unless the mind be so—that an honest mistake is not a crime, has been disregarded; that she has been denied her constitutional right of trial by jury, the jury having had no voice in her conviction; that she has been denied her right to have the response of every juror to the question, whether he did or did not assent to the verdict which the court directed the clerk to enter.
The trial of the three inspectors followed that of Miss ANTHONY, and all were convicted, the court holding, as in the case of Miss ANTHONY, that good faith on their part in receiving the votes was not a protection; which they think a somewhat severe rule of law, inasmuch as the statute provides the same penalty, and in the same sentence, "for knowingly and wilfully receiving the vote of any person not entitled to vote, or refusing to receive the vote of any person entitled to vote." The inspectors claim, that according to this exposition of the law, they were placed in a position which required them, without any opportunity to investigate or take advice in regard to the right of any voter whose right was questioned, to decide the question correctly, at the peril of a term in the state's prison if they made a mistake; and, though this may be a correct exposition of the law in their case, they would be sorry to see it applied to the decisions of any court, not excepting the tribunal by which they were convicted.
The defendant, HALL, is at a loss to know how he could have avoided the penalty, inasmuch as he did all that he could in the way of rejecting the votes, without throttling his co-inspectors, and forcing them to desist from the wrong of receiving them. He is of opinion that by the ruling of the Court, he would have been equally guilty, if he had tried his strength in that direction, and had failed of success.
To preserve a full record of so important a judicial determination, and to enable the friends of the convicted parties to understand precisely the degree of criminality which attaches to them in consequence of these convictions, the following pamphlet has been prepared—giving a more full and accurate statement of the proceedings than can elsewhere be found.
AGAINST SUSAN B. ANTHONY.
DISTRICT COURT OF THE UNITED STATES OF AMERICA,
IN AND FOR THE
NORTHERN DISTRICT OF NEW YORK.
* * *
At a stated session of the District Court of the United States of America, held in and for the Northern District of New York, at the City Hall, in the city of Albany, in the said Northern District of New York, on the third Tuesday of January, in the year of our Lord one thousand eight hundred and seventy-three, before the Honorable Nathan K. Hall, Judge of the said Court, assigned to keep the peace of the said United States of America, in and for the said District, and also to hear and determine divers Felonies, Misdemeanors and other offenses against the said United States of America, in the said District committed.
Brace Millerd, James D. Wasson, Peter H. Bradt, James McGinty, Henry A. Davis, Loring W. Osborn, Thomas Whitbeck, John Mullen, Samuel G. Harris, Ralph Davis, Matthew Fanning, Abram Kimmey, Derrick B. Van Schoonhoven, Wilhelmus Van Natten, Adam Winne, James Goold, Samuel S. Fowler, Peter D.R. Johnson, Patrick Carroll,
good and lawful men of the said District, then and there sworn and charged to inquire for the said United States of America, and for the body of said District, do, upon their oaths, present, that Susan B. Anthony now or late of Rochester, in the county of Monroe, with force and arms, etc., to-wit: at and in the first election district of the eighth ward of the city of Rochester, in the county of Monroe, in said Northern District of New York, and within the jurisdiction of this Court, heretofore, to-wit: on the fifth day of November, in the year of our Lord one thousand eight hundred and seventy-two, at an election duly held at and in the first election district of the said eighth ward of the city of Rochester, in said county, and in said Northern District of New York, which said election was for Representatives in the Congress of the United States, to-wit: a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the twenty-ninth Congressional District of the State of New York, said first election district of said eighth ward of said city of Rochester, being then and there a part of said twenty-ninth Congressional District of the State of New York, did knowingly, wrongfully and unlawfully vote for a Representative in the Congress of the United States for the State of New York at large, and for a Representative in the Congress of the United States for said twenty-ninth Congressional District, without having a lawful right to vote in said election district (the said Susan B. Anthony being then and there a person of the female sex,) as she, the said Susan B. Anthony then and there well knew, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity.
Second Count—And the jurors aforesaid upon their oaths aforesaid do further present that said Susan B. Anthony, now or late of Rochester, in the county of Monroe, with force and arms, etc., to-wit: at and in the first election district of the eighth ward of the city of Rochester, in the county of Monroe, in said Northern District of New York, and within the jurisdiction of this Court, heretofore, to-wit: on the fifth day of November, in the year of our Lord one thousand eight hundred and seventy-two, at an election duly held at and in the first election district of the said eighth ward, of said city of Rochester, in said county, and in said Northern District of New York, which said election was for Representatives in the Congress of the United States, to-wit: a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the twenty-ninth Congressional District of the State of New York, said first election district of said eighth ward, of said city of Rochester, being then and there a part of said twenty-ninth Congressional District of the State of New York, did knowingly, wrongfully and unlawfully vote for a candidate for Representative in the Congress of the United States for the State of New York at large, and for a candidate for Representative in the Congress of the United States for said twenty-ninth Congressional District, without having a lawful right to vote in said first election district (the said Susan B. Anthony being then and there a person of the female sex,) as she, the said Susan B. Anthony then and there well knew, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity.
Attorney of the United States, For the Northern District Of New York.
(Endorsed.) Jan. 24, 1873.
Pleads not guilty.
RICHARD CROWLEY, U.S. Attorney.
UNITED STATES CIRCUIT COURT.
Northern District of New York.
THE UNITED STATES OF AMERICA
SUSAN B. ANTHONY.
* * *
HON. WARD HUNT, Presiding.
* * *
For the United States:
HON. RICHARD CROWLEY. U.S. District Attorney.
For the Defendant:
HON. HENRY R. SELDEN. JOHN VAN VOORHIS, ESQ.
Tried at Canandaigua. Tuesday and Wednesday, June 17th and 18th, 1873, before Hon. Ward Hunt, and a jury.
Jury impanneled at 2:30 P.M.
MR. CROWLEY opened the case as follows:
May it please the Court and Gentlemen of the Jury:
On the 5th of November, 1872, there was held in this State, as well as in other States of the Union, a general election for different officers, and among those, for candidates to represent several districts of this State in the Congress of the United States. The defendant, Miss Susan B. Anthony, at that time resided in the city of Rochester, in the county of Monroe, Northern District of New York, and upon the 5th day of November, 1872, she voted for a representative in the Congress of the United States, to represent the 29th Congressional District of this State, and also for a representative at large for the State of New York, to represent the State in the Congress of the United States. At that time she was a woman. I suppose there will be no question about that. The question in this case, if there be a question of fact about it at all, will, in my judgment, be rather a question of law than one of fact. I suppose that there will be no question of fact, substantially, in the case when all of the evidence is out, and it will be for you to decide under the charge of his honor, the Judge, whether or not the defendant committed the offence of voting for a representative in Congress upon that occasion. We think, on the part of the Government, that there is no question about it either one way or the other, neither a question of fact, nor a question of law, and that whatever Miss Anthony's intentions may have been—whether they were good or otherwise—she did not have a right to vote upon that question, and if she did vote without having a lawful right to vote, then there is no question but what she is guilty of violating a law of the United States in that behalf enacted by the Congress of the United States.
We don't claim in this case, gentlemen, that Miss Anthony is of that class of people who go about "repeating." We don't claim that she went from place to place for the purpose of offering her vote. But we do claim that upon the 5th of November, 1872, she voted, and whether she believed that she had a right to vote or not, it being a question of law, that she is within the Statute.
Congress in 1870 passed the following statute: (Reads 19th Section of the Act of 1870, page 144, 16th statutes at large.)
It is not necessary for me, gentlemen, at this stage of the case, to state all the facts which will be proven on the part of the Government. I shall leave that to be shown by the evidence and by the witnesses, and if any question of law shall arise his Honor will undoubtedly give you instructions as he shall deem proper.
Conceded, that on the 5th day of November, 1872, Miss Susan B. Anthony was a woman.
BEVERLY W. JONES, a witness, called in behalf of the United States, having been duly sworn, testified as follows:
Examined by Mr. Crowley:
Q. Mr. Jones, where do you reside?
A. 8th ward, Rochester.
Q. Where were you living on the 5th of November, 1872?
A. Same place.
Q. Do you know the defendant, Miss Susan B. Anthony?
A. Yes, sir.
Q. In what capacity were you acting upon that day, if any, in relation to elections?
A. Inspector of election.
Q. Into how many election districts is the 8th ward divided, if it contains more than one?
A. Two, sir.
Q. In what election district were you inspector of elections?
A. The first district.
Q. Who were inspectors with you?
A. Edwin T. Marsh and William B. Hall.
Q. Had the Board of Inspectors been regularly organized?
A. Yes, sir.
Q. Upon the 5th day of November, did the defendant, Susan B. Anthony, vote in the first election district of the 8th ward of the city of Rochester?
A. Yes, sir.
Q. Did you see her vote?
A. Yes, sir.
Q. Will you state to the jury what tickets she voted, whether State, Assembly, Congress and Electoral?
Objected to as calling for a conclusion.
Q. State what tickets she voted, if you know, Mr. Jones?
A. If I recollect right she voted the Electoral ticket, Congressional ticket, State ticket, and Assembly ticket.
Q. Was there an election for Member of Congress for that district and for Representative at Large in Congress, for the State of New York, held on the 5th of November, in the city of Rochester?
A. I think there was; yes, sir.
Q. In what Congressional District was the city of Rochester at the time?
A. The 29th.
Q. Did you receive the tickets from Miss Anthony?
A. Yes, sir.
Q. What did you do with them when you received them?
A. Put them in the separate boxes where they belonged.
Q. State to the jury whether you had separate boxes for the several tickets voted in that election district?
A. Yes, sir; we had.
Q. Was Miss Anthony challenged upon that occasion?
A. Yes, sir—no; not on that day she wasn't.
Q. She was not challenged on the day she voted?
A. No, sir.
Cross-Examination by Judge Selden:
Q. Prior to the election, was there a registry of voters in that district made?
A. Yes, sir.
Q. Was you one of the officers engaged in making that registry?
A. Yes, sir.
Q. When the registry was being made did Miss Anthony appear before the Board of Registry and claim to be registered as a voter?
A. She did.
Q. Was there any objection made, or any doubt raised as to her right to vote?
A. There was.
Q. On what ground?
A. On the ground that the Constitution of the State of New York did not allow women to vote.
Q. What was the defect in her right to vote as a citizen?
A. She was not a male citizen.
Q. That she was a woman?
A. Yes, sir.
Q. Did the Board consider that and decide that she was entitled to register?
Objected to. Objection overruled.
Q. Did the Board consider the question of her right to registry, and decide that she was entitled to registry as a voter?
A. Yes, sir.
Q. And she was registered accordingly?
A. Yes, sir.
Q. When she offered her vote, was the same objection brought up in the Board of Inspectors, or question made of her right to vote as a woman?
A. She was challenged previous to election day.
Q. It was canvassed previous to election day between them?
A. Yes, sir; she was challenged on the second day of registering names.
Q. At the time of the registry, when her name was registered, was the Supervisor of Election present at the Board?
A. He was.
Q. Was he consulted upon the question of whether she was entitled to registry, or did he express an opinion on the subject to the inspectors?
MR. CROWLEY: I submit that it is of no consequence whether he did or not.
JUDGE SELDEN: He was the Government Supervisor under this act of Congress.
MR. CROWLEY: The Board of Inspectors, under the State law, constitute the Board of Registry, and they are the only persons to pass upon that question.
THE COURT: You may take it.
A. Yes, sir; there was a United States Supervisor of Elections, two of them.
By JUDGE SELDEN:
Q. Did they advise the registry, or did they not?
A. One of them did.
Q. And on that advice the registry was made with the judgment of the inspectors.
A. It had a great deal of weight with the inspectors, I have no doubt.
Re-direct Examination by MR. CROWLEY:
Q. Was Miss Anthony challenged before the Board of Registry?
A. Not at the time she offered her name.
Q. Was she challenged at any time?
A. Yes, sir; the second day of the meeting of the Board.
Q. Was the preliminary and the general oath administered?
A. Yes, sir.
Q. Won't you state what Miss Anthony said, if she said anything, when she came there and offered her name for registration?
A. She stated that she did not claim any rights under the constitution of the State of New York; she claimed her right under the constitution of the United States.
Q. Did she name any particular amendment?
A. Yes, sir; she cited the 14th amendment.
Q. Under that she claimed her right to vote?
A. Yes, sir.
Q. Did the other Federal Supervisor who was present, state it as his opinion that she was entitled to vote under that amendment, or did he protest, claiming that she did not have the right to vote?
A. One of them said that there was no way for the inspectors to get around placing the name upon the register; the other one, when she came in, left the room.
Q. Did this one who said that there was no way to get around placing the name upon the register, state that she had her right to register but did not have the right to vote?
A. I didn't hear him make any such statement.
Q. You didn't hear any such statement as that?
A. No, sir.
Q. Was there a poll list kept of the voters of the first election district of the 8th ward on the day of election?
A. Yes, sir.
Q. (Handing witness two books.) State whether that is the poll list of voters kept upon the day of election in the first election district of the 8th ward, of the city of Rochester?
A. This is the poll list, and also the register.
Q. Turn to the name of Susan B. Anthony, if it is upon that poll list?
A. I have it.
Q. What number is it?
A. Number 22.
Q. From that poll list what tickets does it purport to show that she voted upon that occasion?
A. Electoral, State, Congress and Assembly.
United States rests.
JUDGE SELDEN opened the case in behalf of the defendant, as follows:
If the Court please, Gentlemen of the Jury:
This is a case of no ordinary magnitude, although many might regard it as one of very little importance. The question whether my client here has done anything to justify her being consigned to a felon's prison or not, is one that interests her very essentially, and that interests the people also essentially. I claim and shall endeavor to establish before you that when she offered to have her name registered as a voter, and when she offered her vote for Member of Congress, she was as much entitled to vote as any man that voted at that election, according to the Constitution and laws of the Government under which she lives. If I maintain that proposition, as a matter of course she has committed no offence, and is entitled to be discharged at your hands.
But, beyond that, whether she was a legal voter or not, whether she was entitled to vote or not, if she sincerely believed that she had a right to vote, and offered her ballot in good faith, under that belief, whether right or wrong, by the laws of this country she is guilty of no crime. I apprehend that that proposition, when it is discussed, will be maintained with a clearness and force that shall leave no doubt upon the mind of the Court or upon your minds as the gentlemen of the jury. If I maintain that proposition here, then the further question and the only question which, in my judgment, can come before you to be passed upon by you as a question of fact is whether or not she did vote in good faith, believing that she had a right to vote.
The public prosecutor assumes that, however honestly she may have offered her vote, however sincerely she may have believed that she had a right to vote, if she was mistaken in that judgment, her offering her vote and its being received makes a criminal offence—a proposition to me most abhorrent, as I believe it will be equally abhorrent to your judgment.
Before the registration, and before this election, Miss Anthony called upon me for advice upon the question whether, under the 14th Amendment of the Constitution of the United States, she had a right to vote. I had not examined the question. I told her I would examine it and give her my opinion upon the question of her legal right. She went away and came again after I had made the examination. I advised her that she was as lawful a voter as I am, or as any other man is, and advised her to go and offer her vote. I may have been mistaken in that, and if I was mistaken, I believe she acted in good faith. I believe she acted according to her right as the law and Constitution gave it to her. But whether she did or not, she acted in the most perfect good faith, and if she made a mistake, or if I made one, that is not a reason for committing her to a felon's cell.
For the second time in my life, in my professional practice, I am under the necessity of offering myself as a witness for my client.
HENRY R. SELDEN, a witness sworn in behalf of the defendant, testified as follows:
Before the last election, Miss Anthony called upon me for advice, upon the question whether she was or was not a legal voter. I examined the question, and gave her my opinion, unhesitatingly, that the laws and Constitution of the United States, authorized her to vote, as well as they authorize any man to vote; and I advised her to have her name placed upon the registry and to vote at the election, if the inspectors should receive her vote. I gave the advice in good faith, believing it to be accurate, and I believe it to be accurate still.
[This witness was not cross-examined.]
JUDGE SELDEN: I propose to call Miss Anthony as to the fact of her voting—on the question of the intention or belief under which she voted.
MR. CROWLEY: She is not competent as a witness in her own behalf.
[The Court so held.]
JOHN E. POUND, a witness sworn in behalf of the United States, testified as follows:
Examined by MR. CROWLEY.
Q. During the months of November and December, 1872, and January, 1873, were you Assistant United States Dist. Attorney for the Northern District of New York?
A. Yes, sir.
Q. Do you know the defendant, Susan B. Anthony?
A. Yes, sir.
Q. Did you attend an examination before Wm. C. Storrs, a United States Commissioner, in the city of Rochester, when her case was examined?
A. I did
Q. Was she called as a witness in her own behalf upon that examination?
A. She was.
Q. Was she sworn?
A. She was.
Q. Did she give evidence?
A. She did.
Q. Did you keep minutes of evidence on that occasion?
A. I did.
Q. (Handing the witness a paper.) Please look at the paper now shown you and see if it contains the minutes you kept upon that occasion?
A. It does.
Q. Turn to the evidence of Susan B. Anthony!
A. I have it.
Q. Did she, upon that occasion, state that she consulted or talked with Judge Henry R. Selden, of Rochester, in relation to her right to vote?
JUDGE SELDEN: I object to that upon the ground that it is incompetent, that if they refuse to allow her to be sworn here, they should be excluded from producing any evidence that she gave elsewhere, especially when they want to give the version which the United States officer took of her evidence.
THE COURT: Go on.
By MR. CROWLEY:
Q. State whether she stated on that examination, under oath, that she had talked or consulted with Judge Henry R. Selden in relation to her right to vote?
A. She did.
Q. State whether she was asked, upon that examination, if the advice given her by Judge Henry R. Selden would or did make any difference in her action in voting, or in substance that?
A. She stated on the cross-examination, "I should have made the same endeavor to vote that I did had I not consulted Judge Selden. I didn't consult any one before I registered. I was not influenced by his advice in the matter at all; have been resolved to vote, the first time I was at home 30 days, for a number of years."
Cross-examination by MR. VAN VOORHEES:
Q. Mr. Pound, was she asked there if she had any doubt about her right to vote, and did she answer "Not a particle?"
A. She stated "Had no doubt as to my right to vote," on the direct examination.
Q. There was a stenographic reporter there, was there not?
A. A reporter was there taking notes.
Q. Was not this question put to her "Did you have any doubt yourself of your right to vote?" and did she not answer "Not a particle?"
THE COURT: Well, he says so, that she had no doubt of her right to vote.
JUDGE SELDEN: I beg leave to state, in regard to my own testimony, Miss Anthony informs me that I was mistaken in the fact that my advice was before her registry. It was my recollection that it was on her way to the registry, but she states to me now that she was registered and came immediately to my office. In that respect I was under a mistake.
ARGUMENT OF MR. SELDEN FOR THE DEFENDANT.
The defendant is indicted under the 19th section of the Act of Congress of May 31, 1870 (16 St. at L., 144,), for "voting without having a lawful right to vote."
The words of the Statute, so far as they are material in this case, are as follows:
"If at any election for representative or delegate in the Congress of the United States, any person shall knowingly ... vote without having a lawful right to vote ... every such person shall be deemed guilty of a crime, ... and on conviction thereof shall be punished by a fine not exceeding $500, or by imprisonment for a term not exceeding three years, or by both, in the discretion of the court, and shall pay the costs of prosecution."
The only alleged ground of illegality of the defendant's vote is that she is a woman. If the same act had been done by her brother under the same circumstances, the act would have been not only innocent, but honorable and laudable; but having been done by a woman it is said to be a crime. The crime therefore consists not in the act done, but in the simple fact that the person doing it was a woman and not a man. I believe this is the first instance in which a woman has been arraigned in a criminal court, merely on account of her sex.
If the advocates of female suffrage had been allowed to choose the point of attack to be made upon their position, they could not have chosen it more favorably for themselves; and I am disposed to thank those who have been instrumental in this proceeding, for presenting it in the form of a criminal prosecution.
Women have the same interest that men have in the establishment and maintenance of good government; they are to the same extent as men bound to obey the laws; they suffer to the same extent by bad laws, and profit to the same extent by good laws; and upon principles of equal justice, as it would seem, should be allowed equally with men, to express their preference in the choice of law-makers and rulers. But however that may be, no greater absurdity, to use no harsher term, could be presented, than that of rewarding men and punishing women, for the same act, without giving to women any voice in the question which should be rewarded, and which punished.
I am aware, however, that we are here to be governed by the Constitution and laws as they are, and that if the defendant has been guilty of violating the law, she must submit to the penalty, however unjust or absurd the law may be. But courts are not required to so interpret laws or constitutions as to produce either absurdity or injustice, so long as they are open to a more reasonable interpretation. This must be my excuse for what I design to say in regard to the propriety of female suffrage, because with that propriety established there is very little difficulty in finding sufficient warrant in the constitution for its exercise.
This case, in its legal aspects, presents three questions, which I purpose to discuss.
1. Was the defendant legally entitled to vote at the election in question?
2. If she was not entitled to vote, but believed that she was, and voted in good faith in that belief, did such voting constitute a crime under the statute before referred to?
3. Did the defendant vote in good faith in that belief?
If the first question be decided in accordance with my views, the other questions become immaterial; if the second be decided adversely to my views, the first and third become immaterial. The two first are questions of law to be decided by the court, the other is a question for the jury.
[The Judge here suggested that the argument should be confined to the legal questions, and the argument on the other question suspended, until his opinion on those questions should be made known. This suggestion was assented to, and the counsel proceeded.]
My first position is that the defendant had the same right to vote as any other citizen who voted at that election.
Before proceeding to the discussion of the purely legal question, I desire, as already intimated, to pay some attention to the propriety and justice of the rule which I claim to have been established by the Constitution.
Miss Anthony, and those united with her in demanding the right of suffrage, claim, and with a strong appearance of justice, that upon the principles upon which our government is founded, and which lie at the basis of all just government, every citizen has a right to take part, upon equal terms with every other citizen, in the formation and administration of government. This claim on the part of the female sex presents a question the magnitude of which is not well appreciated by the writers and speakers who treat it with ridicule. Those engaged in the movement are able, sincere and earnest women, and they will not be silenced by such ridicule, nor even by the villainous caricatures of Nast. On the contrary, they justly place all those things to the account of the wrongs which they think their sex has suffered. They believe, with an intensity of feeling which men who have not associated with them have not yet learned, that their sex has not had, and has not now, its just and true position in the organization of government and society. They may be wrong in their position, but they will not be content until their arguments are fairly, truthfully and candidly answered.
In the most celebrated document which has been put forth on this side of the Atlantic, our ancestors declared that "governments derive their just powers from the consent of the governed."
Blackstone says, "The lawfulness of punishing such criminals (i.e., persons offending merely against the laws of society) is founded upon this principle: that the law by which they suffer was made by their own consent; it is a part of the original contract into which they entered when first they engaged in society; it was calculated for and has long contributed to their own security."
Quotations, to an unlimited extent, containing similar doctrines from eminent writers, both English and American, on government, from the time of John Locke to the present day, might be made. Without adopting this doctrine which bases the rightfulness of government upon the consent of the governed, I claim that there is implied in it the narrower and unassailable principle that all citizens of a State, who are bound by its laws, are entitled to an equal voice in the making and execution of such laws. The doctrine is well stated by Godwin in his treatise on Political Justice. He says: "The first and most important principle that can be imagined relative to the form and structure of government, seems to be this: that as government is a transaction in the name and for the benefit of the whole, every member of the community ought to have some share in its administration."
Again, "Government is a contrivance instituted for the security of individuals; and it seems both reasonable that each man should have a share in providing for his own security, and probable, that partiality and cabal should by this means be most effectually excluded."
And again, "To give each man a voice in the public concerns comes nearest to that admirable idea of which we should never lose sight, the uncontrolled exercise of private judgment. Each man would thus be inspired with a consciousness of his own importance, and the slavish feelings that shrink up the soul in the presence of an imagined superior would be unknown."
The mastery which this doctrine, whether right or wrong, has acquired over the public mind, has produced as its natural fruit, the extension of the right of suffrage to all the adult male population in nearly all the states of the Union; a result which was well epitomized by President Lincoln, in the expression, "government by the people for the people."
This extension of the suffrage is regarded by many as a source of danger to the stability of free government. I believe it furnishes the greatest security for free government, as it deprives the mass of the people of all motive for revolution; and that government so based is most safe, not because the whole people are less liable to make mistakes in government than a select few, but because they have no interest which can lead them to such mistakes, or to prevent their correction when made. On the contrary, the world has never seen an aristocracy, whether composed of few or many, powerful enough to control a government, who did not honestly believe that their interest was identical with the public interest, and who did not act persistently in accordance with such belief; and, unfortunately, an aristocracy of sex has not proved an exception to the rule. The only method yet discovered of overcoming this tendency to the selfish use of power, whether consciously or unconsciously, by those possessing it, is the distribution of the power among all who are its subjects. Short of this the name free government is a misnomer.
This principle, after long strife, not yet entirely ended has been, practically at least, very generally recognized on this side of the Atlantic, as far as relates to men; but when the attempt is made to extend it to women, political philosophers and practical politicians, those "inside of politics," two classes not often found acting in concert, join in denouncing it. It remains to be determined whether the reasons which have produced the extension of the franchise to all adult men, do not equally demand its extension to all adult women. If it be necessary for men that each should have a share in the administration of government for his security, and to exclude partiality, as alleged by Godwin, it would seem to be equally, if not more, necessary for women, on account of their inferior physical power: and if, as is persistently alleged by those who sneer at their claims, they are also inferior in mental power, that fact only gives additional weight to the argument in their behalf, as one of the primary objects of government, as acknowledged on all hands, is the protection of the weak against the power of the strong.
I can discover no ground consistent with the principle on which the franchise has been given to all men, upon which it can be denied to women. The principal argument against such extension, so far as argument upon that side of the question has fallen under my observation, is based upon the position that women are represented in the government by men, and that their rights and interests are better protected through that indirect representation than they would be by giving them a direct voice in the government.
The teachings of history in regard to the condition of women under the care of these self-constituted protectors, to which I can only briefly allude, show the value of this argument as applied to past ages; and in demonstration of its value as applied to more recent times, even at the risk of being tedious, I will give some examples from my own professional experience. I do this because nothing adds more to the efficacy of truth than the translation of the abstract into the concrete. Withholding names, I will state the facts with fullness and accuracy.
An educated and refined woman, who had been many years before deserted by her drunken husband, was living in a small village of Western New York, securing, by great economy and intense labor in fine needle work, the means of living, and of supporting her two daughters at an academy, the object of her life being to give them such an education as would enable them to become teachers, and thus secure to them some degree of independence when she could no longer provide for them. The daughters were good scholars, and favorites in the school, so long as the mother was able to maintain them there. A young man, the nephew and clerk of a wealthy but miserly merchant, became acquainted with the daughters, and was specially attentive to the older one. The uncle disapproved of the conduct of his nephew, and failing to control it by honorable means, resorted to the circulation of the vilest slanders against mother and daughters. He was a man of wealth and influence. They were almost unknown. The mother had but recently come to the village, her object having been to secure to her daughters the educational advantages which the academy afforded. Poverty, as well as perhaps an excusable if not laudable pride, compelled her to live in obscurity, and consequently the assault upon their characters fell upon her and her daughters with crushing force. Her employment mainly ceased, her daughters were of necessity withdrawn from school, and all were deprived of the means, from their own exertions, of sustaining life. Had they been in fact the harlots which the miserly scoundrel represented them to be, they would not have been so utterly powerless to resist his assault. The mother in her despair naturally sought legal redress. But how was it to be obtained? By the law the wife's rights were merged in those of the husband. She had in law no individual existence, and consequently no action could be brought by her to redress the grievous wrong; indeed according to the law she had suffered no wrong, but the husband had suffered all, and was entitled to all the redress. Where he was the lady did not know; she had not heard from him for many years. Her counsel, however, ventured to bring an action in her behalf, joining the husband's name with hers, as the law required. When the cause came to trial the defendant made no attempt to sustain the charges which he had made, well knowing that they were as groundless as they were cruel; but he introduced and proved a release of the cause of action, signed by the husband, reciting a consideration of fifty dollars paid to him. The defendant's counsel had some difficulty in proving the execution of the release, and was compelled to introduce as a witness, the constable who had been employed to find the vagabond husband and obtain his signature. His testimony disclosed the facts that he found the husband in the forest in one of our north-eastern counties, engaged in making shingles, (presumably stealing timber from the public lands and converting it into the means of indulging his habits of drunkenness,) and only five dollars of the fifty mentioned in the release had in fact been paid. The Court held, was compelled to hold, that the party injured in view of the law, had received full compensation for the wrong—and the mother and daughters with no means of redress were left to starve. This was the act of the representative of the wife and daughters to whom we are referred, as a better protector of their rights than they themselves could be.
It may properly be added, that if the action had proceeded to judgment without interference from the husband, and such amount of damages had been recovered as a jury might have thought it proper to award, the money would have belonged to the husband, and the wife could not lawfully have touched a cent of it. Her attorney might, and doubtless would have paid it to her, but he could only have done so at the peril of being compelled to pay it again to the drunken husband if he had demanded it.
In another case, two ladies, mother and daughter, some time prior to 1860 came from an eastern county of New York to Rochester, where a habeas corpus was obtained for a child of the daughter, less than two years of age. It appeared on the return of the writ, that the mother of the child had been previously abandoned by her husband, who had gone to a western state to reside, and his wife had returned with the child to her mother's house, and had resided there after her desertion. The husband had recently returned from the west, had succeeded in getting the child into his custody, and was stopping over night with it in Rochester on the way to his western home. No misconduct on the part of the wife was pretended, and none on the part of the husband, excepting that he had gone to the west leaving his wife and child behind, no cause appearing, and had returned, and somewhat clandestinely obtained possession of the child. The Judge, following Blackstone's views of husband's rights, remanded the infant to the custody of the father. He thought the law required it, and perhaps it did; but if mothers had had a voice, either in making or in administering the law, I think the result would have been different. The distress of the mother on being thus separated from her child can be better imagined than described. The separation proved a final one, as in less than a year neither father nor mother had any child on earth to love or care for. Whether the loss to the little one of a mother's love and watchfulness had any effect upon the result, cannot, of course, be known.
The state of the law a short time since, in other respects, in regard to the rights of married women, shows what kind of security had been provided for them by their assumed representatives. Prior to 1848, all the personal property of every woman on marriage became the absolute property of the husband—the use of all her real estate became his during coverture, and on the birth of a living child, it became his during his life. He could squander it in dissipation or bestow it upon harlots, and the wife could not touch or interfere with it. Prior to 1860, the husband could by will take the custody of his infant children away from the surviving mother, and give it to whom he pleased—and he could in like manner dispose of the control of the children's property, after his death, during their minority, without the mother's consent.
In most of these respects the state of the law has undergone great changes within the last 25 years. The property, real and personal, which a woman possesses before marriage, and such as may be given to her during coverture, remains her own, and is free from the control of her husband.
If a married woman is slandered she can prosecute in her own name the slanderer, and recover to her own use damages for the injury.
The mother now has an equal claim with the father to the custody of their minor children, and in case of controversy on the subject, courts may award the custody to either in their discretion.
The husband cannot now by will effectually appoint a guardian for his infant children without the consent of the mother, if living.
These are certainly great ameliorations of the law; but how have they been produced? Mainly as the result of the exertions of a few heroic women, one of the foremost of whom is her who stands arraigned as a criminal before this Court to-day. For a thousand years the absurdities and cruelties to which I have alluded have been embedded in the common law, and in the statute books, and men have not touched them, and would not until the end of time, had they not been goaded to it by the persistent efforts of the noble women to whom I have alluded.
Much has been done, but much more remains to be done by women. If they had possessed the elective franchise, the reforms which have cost them a quarter of a century of labor would have been accomplished in a year. They are still subject to taxation upon their property, without any voice as to the levying or destination of the tax; and are still subject to laws made by men, which subject them to fine and imprisonment for the same acts which men do with honor and reward—and when brought to trial no woman is allowed a place on the bench or in the jury box, or a voice in her behalf at the bar. They are bound to suffer the penalty of such laws, made and administered solely by men, and to be silent under the infliction. Give them the ballot, and, although I do not suppose that any great revolution will be produced, or that all political evils will be removed, (I am not a believer in political panaceas,) but if I mistake not, valuable reforms will be introduced which are not now thought of. Schools, almshouses, hospitals, drinking saloons, and those worse dens which are destroying the morals and the constitutions of so many of the young of both sexes, will feel their influence to an extent now little dreamed of. At all events women will not be taxed without an opportunity to be heard, and will not be subject to fine and imprisonment by laws made exclusively by men for doing what it is lawful and honorable for men to do.
It may be said in answer to the argument in favor of female suffrage derived from the cases to which I have referred, that men, not individually, but collectively, are the natural and appropriate representatives of women, and that, notwithstanding cases of individual wrong, the rights of women are, on the whole, best protected by being left to their care. It must be observed, however, that the cases which I have stated, and which are only types of thousands like them, in their cruelty and injustice, are the result of ages of legislation by these assumed protectors of women. The wrongs were less in the men than in the laws which sustained them, and which contained nothing for the protection of the women.
But passing this view, let us look at the matter historically and on a broader field.
If Chinese women were allowed an equal share with men in shaping the laws of that great empire, would they subject their female children to torture with bandaged feet, through the whole period of childhood and growth, in order that they might be cripples for the residue of their lives?
If Hindoo women could have shaped the laws of India, would widows for ages have been burned on the funeral pyres of their deceased husbands?
If Jewish women had had a voice in framing Jewish laws, would the husband, at his own pleasure, have been allowed to "write his wife a bill of divorcement and give it in her hand, and send her out of his house?"
Would women in Turkey or Persia have made it a heinous, if not capital, offence for a wife to be seen abroad with her face not covered by an impenetrable veil?
Would women in England, however learned, have been for ages subjected to execution for offences for which men, who could read, were only subjected to burning in the hand and a few months imprisonment?
The principle which governs in these cases, or which has done so hitherto, has been at all times and everywhere the same. Those who succeed in obtaining power, no matter by what means, will, with rare exceptions, use it for their exclusive benefit. Often, perhaps generally, this is done in the honest belief that such use is for the best good of all who are affected by it. A wrong, however, to those upon whom it is inflicted, is none the less a wrong by reason of the good motives of the party by whom it is inflicted.
The condition of subjection in which women have been held is the result of this principle; the result of superior strength, not of superior rights, on the part of men. Superior strength, combined with ignorance and selfishness, but not with malice. It is a relic of the barbarism in the shadow of which nations have grown up. Precisely as nations have receded from barbarism the severity of that subjection has been relaxed. So long as merely physical power governed in the affairs of the world, the wrongs done to women were without the possibility of redress or relief; but since nations have come to be governed by laws, there is room to hope, though the process may still be a slow one, that injustice in all its forms, or at least political injustice, may be extinguished. No injustice can be greater than to deny to any class of citizens not guilty of crime, all share in the political power of a state, that is, all share in the choice of rulers, and in the making and administration of the laws. Persons to which such share is denied, are essentially slaves, because they hold their rights, if they can be said to have any, subject to the will of those who hold the political power. For this reason it has been found necessary to give the ballot to the emancipated slaves. Until this was done their emancipation was far from complete. Without a share in the political powers of the state, no class of citizens has any security for its rights, and the history of nations to which I briefly alluded, shows that women constitute no exception to the universality of this rule.
Great errors, I think, exist in the minds of both the advocates and the opponents of this measure in their anticipation of the immediate effects to be produced by its adoption. On the one hand it is supposed by some that the character of women would be radically changed—that they would be unsexed, as it were, by clothing them with political rights, and that instead of modest, amiable and graceful beings, we should have bold, noisy and disgusting political demagogues, or something worse, if anything worse can be imagined. I think those who entertain such opinions are in error. The innate character of women is the result of God's laws, not of man's, nor can the laws of man affect that character beyond a very slight degree. Whatever rights may be given to them, and whatever duties may be charged upon them by human laws, their general character will remain unchanged. Their modesty, their delicacy, and intuitive sense of propriety, will never desert them, into whatever new positions their added rights or duties may carry them.
So far as women, without change of character as women, are qualified to discharge the duties of citizenship, they will discharge them if called upon to do so, and beyond that they will not go. Nature has put barriers in the way of any excessive devotion of women to public affairs, and it is not necessary that nature's work in that respect should be supplemented by additional barriers invented by men. Such offices as women are qualified to fill will be sought by those who do not find other employment, and others they will not seek, or if they do, will seek in vain. To aid in removing as far as possible the disheartening difficulties which women dependent upon their own exertions encounter, it is, I think, desirable that such official positions as they can fill should be thrown open to them, and that they should be given the same power that men have to aid each other by their votes. I would say, remove all legal barriers that stand in the way of their finding employment, official or unofficial, and leave them as men are left, to depend for success upon their character and their abilities. As long as men are allowed to act as milliners, with what propriety can they exclude women from the post of school commissioners when chosen to such positions by their neighbors? To deny them such rights, is to leave them in a condition of political servitude as absolute as that of the African slaves before their emancipation. This conclusion is readily to be deduced from the opinion of Chief Justice Jay in the case of Chisholm's Ex'rs vs. The State of Georgia (2 Dallas, 419-471), although the learned Chief Justice had of course no idea of any such application as I make of his opinion.
The action was assumpsit by a citizen of the State of South Carolina, and the question was, whether the United States Court had jurisdiction, the State of Georgia declining to appear.
The Chief Justice, in the course of his opinion, after alluding to the feudal idea of the character of the sovereign in England, and giving some of the reasons why he was not subject to suit before the courts of the kingdom, says:
"The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the prince and the subject. No such ideas obtain here. At the revolution the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called), and have none to govern but themselves; the citizens of America are equal as fellow-citizens, and as joint tenants in the sovereignty."
Now I beg leave to ask, in case this charge against Miss Anthony can be sustained, what equality and what sovereignty is enjoyed by the half of the citizens of these United States to which she belongs? Do they not, in that event, occupy, politically, exactly the position which the learned Chief Justice assigns to the African slaves? Are they not shown to be subjects of the other half, who are the sovereigns? And is not their political subjection as absolute as was that of the African slaves? If that charge has any basis to rest upon, the learned Chief Justice was wrong. The sovereigns of this country, according to the theory of this prosecution, are not sovereigns without subjects. Though two or three millions of their subjects have lately ceased to be such, and have become freemen, they still hold twenty millions of subjects in absolute political bondage.
If it be said that my language is stronger than the facts warrant, I appeal to the record in this case for its justification.
As deductions from what has been said, I respectfully insist, 1st. That upon the principles upon which our government is based, the privilege of the elective franchise cannot justly be denied to women. 2d. That women need it for their protection. 3d. That the welfare of both sexes will be promoted by granting it to them.
Having occupied much more time than I intended in showing the justice and propriety of the claim made by my client to the privileges of a voter, I proceed to the consideration of the present state of the law on that subject:
It would not become me, however clear my own convictions may be on the subject, to assert the right of women, under our constitution and laws as they now are, to vote at presidential and congressional elections, is free from doubt, because very able men have expressed contrary opinions on that question, and, so far as I am informed, there has been no authoritative adjudication upon it; or, at all events, none upon which the public mind has been content to rest as conclusive. I proceed, therefore, to offer such suggestions as occur to me, and to refer to such authorities bearing upon the question, as have fallen under my observation, hoping to satisfy your honor, not only that my client has committed no criminal offense, but that she has done nothing which she had not a legal and constitutional right to do.
It is not claimed that, under our State constitution and the laws made in pursuance of it, women are authorized to vote at elections, other than those of private corporations, and, consequently, the right of Miss Anthony to vote at the election in question, can only be established by reference to an authority superior to and sufficient to overcome the provisions of our State constitution. Such authority can only be found, and I claim that it is found in the constitution of the United States. For convenience I beg leave to bring together the various provisions of that constitution which bear more or less directly upon the question:
ARTICLE I, 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 for electors of the most numerous branch of the State legislature."
The same Article, Section 3, "The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof for six years; and each senator shall have one vote."
ARTICLE II, Section 1. "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 entitled in the Congress."
ARTICLE IV, Section 2. "The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States."
Same Article, Section 4. "The United States shall guarantee to every State in the union a republican form of government."
DECEMBER 18, 1865.
"1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
"2. Congress shall have power to enforce this article by appropriate legislation."
JULY 28, 1868.
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; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
Section 2. "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 participation in rebellion or other crime, 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."
* * * * *
Section 5. "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
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."
Section 2. "The Congress shall have power to enforce this article by appropriate legislation."
By reference to the provisions of the original Constitution, here recited, it appears that prior to the thirteenth, if not until the fourteenth, amendment, the whole power over the elective franchise, even in the choice of Federal officers, rested with the States. The Constitution contains no definition of the term "citizen," either of the United States, or of the several States, but contents itself with the provision that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." The States were thus left free to place such restrictions and limitations upon the "privileges and immunities" of citizens as they saw fit, so far as is consistent with a republican form of government, subject only to the condition that no State could place restrictions upon the "privileges or immunities" of the citizens of any other State, which would not be applicable to its own citizens under like circumstances.
It will be seen, therefore, that the whole subject, as to what should constitute the "privileges and immunities" of the citizen being left to the States, no question, such as we now present, could have arisen under the original constitution of the United States.
But now, by the fourteenth amendment, the United States have not only declared what constitutes citizenship, both in the United States and in the several States, securing the rights of citizens to "all persons born or naturalized in the United States;" but have absolutely prohibited the States from making or enforcing "any law which shall abridge the privileges or immunities of citizens of the United States."
By virtue of this provision, I insist that the act of Miss Anthony in voting was lawful.
It has never, since the adoption of the fourteenth amendment, been questioned, and cannot be questioned, that women as well as men are included in the terms of its first section, nor that the same "privileges and immunities of citizens" are equally secured to both.
What, then, are the "privileges and immunities of citizens of the United States" which are secured against such abridgement, by this section? I claim that these terms not only include the right of voting for public officers, but that they include that right as pre-eminently the most important of all the privileges and immunities to which the section refers. Among these privileges and immunities may doubtless be classed the right to life and liberty, to the acquisition and enjoyment of property, and to the free pursuit of one's own welfare, so far as such pursuit does not interfere with the rights and welfare of others; but what security has any one for the enjoyment of these rights when denied any voice in the making of the laws, or in the choice of those who make, and those who administer them? The possession of this voice, in the making and administration of the laws—this political right—is what gives security and value to the other rights, which are merely personal, not political. A person deprived of political rights is essentially a slave, because he holds his personal rights subject to the will of those who possess the political power. This principle constitutes the very corner-stone of our government—indeed, of all republican government. Upon that basis our separation from Great Britain was justified. "Taxation without representation is tyranny." This famous aphorism of James Otis, although sufficient for the occasion when it was put forth, expresses but a fragment of the principle, because government can be oppressive through means of many appliances besides that of taxation. The true principle is, that all government over persons deprived of any voice in such government, is tyranny. That is the principle of the declaration of independence. We were slow in allowing its application to the African race, and have been still slower in allowing its application to women; but it has been done by the fourteenth amendment, rightly construed, by a definition of "citizenship," which includes women as well as men, and in the declaration that "the privileges and immunities of citizens shall not be abridged." If there is any privilege of the citizen which is paramount to all others, it is the right of suffrage; and in a constitutional provision, designed to secure the most valuable rights of the citizen, the declaration that the privileges and immunities of the citizen shall not be abridged, must, as I conceive, be held to secure that right before all others. It is obvious, when the entire language of the section is examined, not only that this declaration was designed to secure to the citizen this political right, but that such was its principal, if not its sole object, those provisions of the section which follow it being devoted to securing the personal rights of "life, liberty, property, and the equal protection of the laws." The clause on which we rely, to wit:—"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," might be stricken out of the section, and the residue would secure to the citizen every right which is now secured, excepting the political rights of voting and holding office. If the clause in question does not secure those political rights, it is entirely nugatory, and might as well have been omitted.
If we go to the lexicographers and to the writers upon law, to learn what are the privileges and immunities of the "citizen" in a republican government, we shall find that the leading feature of citizenship is the enjoyment of the right of suffrage.
The definition of the term "citizen" by Bouvier is: "One who under the constitution and laws of the United States, has a right to vote for Representatives in Congress, and other public officers, and who is qualified to fill offices in the gift of the people."
By Worcester—"An inhabitant of a republic who enjoys the rights of a freeman, and has a right to vote for public officers."
By Webster—"In the United States, a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate."
The meaning of the word "citizen" is directly and plainly recognized by the latest amendment of the constitution (the fifteenth.)
"The right of the 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." This clause assumes that the right of citizens, as such, to vote, is an existing right.
Mr. Richard Grant White, in his late work on Words and their Uses, says of the word citizen: "A citizen is a person who has certain political rights, and the word is properly used only to imply or suggest the possession of these rights."
Mr. Justice Washington, in the case of Corfield vs. Coryell (4 Wash, C.C. Rep. 380), speaking of the "privileges and immunities" of the citizen, as mentioned in Sec. 2, Art. 4, of the constitution, after enumerating the personal rights mentioned above, and some others, as embraced by those terms, says, "to which may be added the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised." At that time the States had entire control of the subject, and could abridge this privilege of the citizen at its pleasure; but the judge recognizes the "elective franchise" as among the "privileges and immunities" secured, to a qualified extent, to the citizens of every State by the provisions of the constitution last referred to. When, therefore, the States were, by the fourteenth amendment, absolutely prohibited from abridging the privileges of the citizen, either by enforcing existing laws, or by the making of new laws, the right of every "citizen" to the full exercise of this privilege, as against State action, was absolutely secured.
Chancellor Kent and Judge Story both refer to the opinion of Mr. Justice Washington, above quoted, with approbation.
The Supreme Court of Kentucky, in the case of Amy, a woman of color, vs. Smith (1 Littell's Rep. 326), discussed with great ability the questions as to what constituted citizenship, and what were the "privileges and immunities of citizens" which were secured by Sec. 2, Art. 4, of the constitution, and they showed, by an unanswerable argument, that the term "citizens," as there used, was confined to those who were entitled to the enjoyment of the elective franchise, and that that was among the highest of the "privileges and immunities" secured to the citizen by that section. The court say that, "to be a citizen it is necessary that he should be entitled to the enjoyment of these privileges and immunities, upon the same terms upon which they are conferred upon other citizens; and unless he is so entitled, he cannot, in the proper sense of the term, be a citizen."
In the case of Scott vs. Sanford (19 How. 404), Chief Justice Taney says: "The words 'people of the United States,' and 'citizens,' are synonymous terms, and mean the same thing; they describe the political body, who, according to our republican institutions, form the sovereignty and hold the power, and conduct the government through their representatives. They are what we familiarly call the sovereign people, and every citizen is one of this people, and a constituent member of this sovereignty."
Mr. Justice Daniel, in the same case, (p. 476), says: "Upon the principles of etymology alone, the term citizen, as derived from civitas, conveys the idea of connection or identification with the state or government, and a participation in its functions. But beyond this, there is not, it is believed, to be found in the theories of writers on government, or in any actual experiment heretofore tried, an exposition of the term citizen, which has not been understood as conferring the actual possession and enjoyment, or the perfect right of acquisition and enjoyment of an entire equality of privileges, civil and political."
Similar references might be made to an indefinite extent, but enough has been said to show that the term citizen, in the language of Mr. Justice Daniel, conveys the idea "of identification with the state or government, and a participation in its functions."
Beyond question, therefore, the first section of the fourteenth amendment, by placing the citizenship of women upon a par with that of men, and declaring that the "privileges and immunities" of the citizen shall not be abridged, has secured to women, equally with men, the right of suffrage, unless that conclusion is overthrown by some other provision of the constitution.
It is not necessary for the purposes of this argument to claim that this amendment prohibits a state from making or enforcing any law whatever, regulating the elective franchise, or prescribing the conditions upon which it may be exercised. But we do claim that in every republic the right of suffrage, in some form and to some extent, is not only one of the privileges of its citizens, but is the first, most obvious and most important of all the privileges they enjoy; that in this respect all citizens are equal, and that the effect of this amendment is, to prohibit the States from enforcing any law which denies this right to any of its citizens, or which imposes any restrictions upon it, which are inconsistent with a republican form of government. Within this limit, it is unnecessary for us to deny that the States may still regulate and control the exercise of the right.
The only provisions of the constitution, which it can be contended conflict with the construction which has here been put upon the first section of the fourteenth amendment, are the fifteenth amendment, and the second section of the fourteenth.
In regard to the fifteenth amendment, I shall only say, that if my interpretation of the fourteenth amendment is correct, there was still an object to be accomplished and which was accomplished by the fifteenth. The prohibition of any action abridging the privileges and immunities of citizens, contained in the fourteenth amendment, applies only to the States, and leaves the United States government free to abridge the political privileges and immunities of citizens of the United States, as such, at its pleasure. By the fifteenth amendment both the United States and the State governments, are prohibited from exercising this power, "on account of race, color, or previous condition of servitude" of the citizen.
The first remark to be made upon the second section of the fourteenth amendment is, that it does not give and was not designed to give to the States any power to deny or abridge the right of any citizen to exercise the elective franchise. So far as it touches that subject, it was designed to be restrictive upon the States. It gives to them no power whatever. It takes away no power, but it gives none, and if the States possess the power to deny or abridge the right of citizens to vote, it must be derived from some other provision of the constitution. I believe none such can be found, which was not necessarily abrogated by the first section of this amendment.
It may be conceded that the persons who prepared this section supposed, that, by other parts of the constitution, or in some other way, the States would still be authorized, notwithstanding the provisions of the first section, to deny to the citizens the privilege of voting, as mentioned in the second section; but their mistake cannot be held to add to, or to take from the other provisions of the constitution. It is very clear that they did not intend, by this section, to give to the States any such power, but, believing that the States possessed it, they designed to hold the prospect of a reduction of their representation in Congress in terrorem over them to prevent them from exercising it. They seem not to have been able to emancipate themselves from the influence of the original constitution which conceded this power to the States, or to have realized the fact that the first section of the amendment, when adopted, would wholly deprive the States of that power.
But those who prepare constitutions are never those who adopt them, and consequently the views of those who frame them have little or no bearing upon their interpretation. The question for consideration here is, what the people, who, through their representatives in the legislatures, adopted the amendments, understood, or must be presumed to have understood, from their language. They must be presumed to have known that the "privileges and immunities" of citizens which were secured to them by the first section beyond the power of abridgment by the States, gave them the right to exercise the elective franchise, and they certainly cannot be presumed to have understood that the second section, which was also designed to be restrictive upon the States, would be held to confer by implication a power upon them, which the first section in the most express terms prohibited.
It has been, and may be again asserted, that the position which I have taken in regard to the second section is inadmissible, because it renders the section nugatory. That is, as I hold, an entire mistake. The leading object of the second section was the readjustment of the representation of the States in Congress, rendered necessary by the abolition of chattel slavery [not of political slavery], effected by the thirteenth amendment. This object the section accomplishes, and in this respect it remains wholly untouched, by my construction of it.
Neither do I think the position tenable which has been taken by one tribunal, to which the consideration of this subject was presented, that the constitutional provision does not execute itself.
The provisions on which we rely were negative merely, and were designed to nullify existing as well as any future State legislation interfering with our rights. This result was accomplished by the constitution itself. Undoubtedly before we could exercise our right, it was necessary that there should be a time and place appointed for holding the election and proper officers to hold it, with suitable arrangements for receiving and counting the votes. All this was properly done by existing laws, and our right being made complete by the Constitution, no further legislation was required in our behalf. When the State officers attempted to interpose between us and the ballot-box the State Constitution or State law, whether ancient or recent, abridging or denying our equal right to vote with other citizens, we had but to refer to the United States Constitution, prohibiting the States from enforcing any such constitutional provision or law, and our rights were complete; we needed neither Congressional nor State legislation in aid of them.
The opinion of Mr. Justice Bradley, in a case in the United States Circuit Court in New Orleans (1 Abb. U.S. Rep. 402) would seem to be decisive of this question, although the right involved in that case was not that of the elective franchise. The learned justice says: "It was very ably contended on the part of the defendants that the fourteenth amendment was intended only to secure to all citizens equal capacities before the law. That was at first our view of it. But it does not so read. The language is: 'No State shall abridge the privileges or immunities of citizens of the United States.' What are the privileges and immunities of citizens? Are they capacities merely? Are they not also rights?"
Senator Carpenter, who took part in the discussion of the fourteenth amendment in the Senate, and aided in its passage, says: "The fourteenth amendment executes itself in every State of the Union.... It is thus the will of the United States in every State, and silences every State Constitution, usage or law which conflicts with it.... And if this provision does protect the colored citizen, then it protects every citizen, black or white, male or female.... And all the privileges and immunities which I vindicate to a colored citizen, I vindicate to our mothers, our sisters and our daughters."—Chicago Legal News, vol. iv., No. 15.
It has been said, with how much or how little truth I do not know, that the subject of securing to women the elective franchise was not considered in the preparation, or in the adoption of these amendments. It is wholly immaterial whether that was so or not. It is never possible to arrive at the intention of the people in adopting constitutions, except by referring to the language used. As is said by Mr. Cooley, "the intent is to be found in the instrument itself" (p. 55), and to that I have confined my remarks. It is not a new thing for constitutional and legislative acts to have an effect beyond the anticipation of those who framed them. It is undoubtedly true, that in exacting Magna Charta from King John, the Barons of England provided better securities for the rights of the common people than they were aware of at the time, although the rights of the common people were neither forgotten nor neglected by them. It has also been said, perhaps with some truth, that the framers of the original Constitution of the United States "builded better than they knew;" and it is quite possible that in framing the amendments under consideration, those engaged in doing it have accomplished a much greater work than they were at the time aware of. I am quite sure that it will be fortunate for the country, if this great question of female suffrage, than which few greater were ever presented for the consideration of any people, shall be found, almost unexpectedly, to have been put at rest.
The opinion of Mr. Justice Bradley, in regard to this amendment, in the case before referred to, if I understand it, corresponds very nearly with what I have here said. The learned judge, in one part of his opinion, says: "It is possible that those who framed the article were not themselves aware of the far-reaching character of its terms. They may have had in mind but one particular phase of social and political wrong, which they desired to redress—yet, if the amendment, as framed and expressed, does, in fact, have a broader meaning, and does extend its protecting shield over those who were never thought of when it was conceived and put in form, and does reach such social evils which were never before prohibited by constitutional amendment, it is to be presumed that the American people, in giving it their imprimatur, understood what they were doing, and meant to decree what has, in fact, been done....
"It embraces much more. The 'privileges and immunities' secured by the original Constitution were only such as each State gave its own citizens. Each was prohibited from discriminating in favor of its own citizens, and against the citizens of other States.
"But the fourteenth amendment prohibits any State from abridging the privileges or immunities of the citizens of the United States, whether its own citizens or any others. It not merely requires equality of privileges, but it demands that the privileges and immunities of all citizens shall be absolutely unabridged, unimpaired. (1 Abbott's U.S. Rep. 397.)
It will doubtless be urged as an objection to my position (that citizenship carries with it the right to vote) that it would, in that case, follow that infants and lunatics, who, as well as adults and persons of sound mind, are citizens, would also have that right. This objection, which appears to have great weight with certain classes of persons, is entirely without force. It takes no note of the familiar fact, that every legislative provision, whether constitutional or statutory, which confers any discretionary power, is always confined in its operation to persons who are compos mentis. It is wholly unnecessary to except idiots and lunatics out of any such statute. They are excluded from the very nature of the case. The contrary supposition would be simply absurd. And, in respect to every such law, infants, during their minority, are in the same class. But are women, who are not infants, ever included in this category? Does any such principle of exclusion apply to them? Not at all. On the contrary, they stand, in this respect, upon the same footing as men, with the sole exception of the right to vote and the right to hold office. In every other respect, whatever rights and powers are conferred upon persons by law may be exercised by women as well as by men. They may transact any kind of business for themselves, or as agents or trustees for others; may be executors or administrators, with the same powers and responsibilities as men; and it ought not to be a matter of surprise or regret that they are now placed, by the fourteenth amendment, in other respects upon a footing of perfect equality.
Although not directly connected with the argument as to the right secured to women by the Constitution, I deem it not improper to allude briefly to some of the popular objections against the propriety of allowing females the privilege of voting. I do this because I know from past experience that these popular objections, having no logical bearing upon the subject, are yet, practically, among the most potent arguments against the interpretation of the fourteenth amendment, which I consider the only one that its language fairly admits of.
It is said that women do not desire to vote. Certainly many women do not, but that furnishes no reason for denying the right to those who do desire to vote. Many men decline to vote. Is that a reason for denying the right to those who would vote?
I believe, however, that the public mind is greatly in error in regard to the proportion of female citizens who would vote if their right to do so were recognized. In England there has been to some extent a test of that question, with the following result, as given in the newspapers, the correctness of which, in this respect, I think there is no reason to doubt:
"Woman suffrage is, to a certain extent, established in England, with the result as detailed in the London Examiner, that in 66 municipal elections, out of every 1,000 women who enjoy equal rights with men on the register, 516 went to the poll, which is but 48 less than the proportionate number of men. And out of 27,949 women registered, where a contest occurred, 14,416 voted. Of men there were 166,781 on the register, and 90,080 at the poll. The Examiner thereupon draws this conclusion: 'Making allowance for the reluctance of old spinsters to change their habits, and the more frequent illness of the sex, it is manifest that women, if they had opportunity, would exercise the franchise as freely as men. There is an end, therefore, of the argument that women would not vote if they had the power.'"