History of Woman Suffrage Volume II Part 58

Mr. LOUGHRIDGE, from the Committee on the Judiciary, submitted the following as the view of the minority:

_In the matter of the Memorial of Victoria C. Woodhull, referred by the House to the Committee on the Judiciary, the undersigned, members of the Committee, being unable to agree to the report of the Committee, present the following as their views upon the subject of the Memorial:_

The memorialist sets forth that she is a native born citizen of the United States, and a resident thereof; that she is of adult age, and has resided in the State of New York for three years past; that by the Const.i.tution of the United States she is guaranteed the right of suffrage; but that she is, by the laws of the State of New York, denied the exercise of that right; and that by the laws of different States and Territories the privilege of voting is denied to all the female citizens of the United States; and pet.i.tions for relief by the enactment of some law to enforce the provisions of the Const.i.tution, by which such right is guaranteed.

The question presented is one of exceeding interest and importance, involving as it does the const.i.tutional rights not only of the memorialist but of more than one-half of the citizens of the United States--a question of const.i.tutional law in which the civil and natural rights of the citizen are involved.

Questions of property or of expediency have nothing to do with it. The question is not "Would it be expedient to extend the right of suffrage to women," but, "Have women citizens that right by the Const.i.tution as it is." A question of this kind should be met fairly and investigated in that generous and liberal spirit characteristic of the age, and decided upon principles of justice, of right, and of law.

It is claimed by many that to concede to woman the right of suffrage would be an innovation upon the laws of nature, and upon the theory and practice of the world for ages in the past, and especially an innovation upon the common law of England, which was originally the law of this country, and which is the foundation of our legal fabric. If we were to admit the truth of this, it is yet no argument against the proposition, if the right claimed exists, and is established by the Const.i.tution of the United States. The question is to be decided by the Const.i.tution and the fundamental principles of our Government, and not by the usage and dogmas of the past. It is a gratifying fact that the world is advancing in political science, and gradually adopting more liberal and rational theories of government. The establishment of this Government upon the principles of the Declaration of Independence was in itself a great innovation upon the theories and practice of the world, and opened a new chapter in the history of the human race, and its progress toward perfect civil and political liberty.

But it is not admitted that the universal usage of the past has been in opposition to the exercise of political power by women.

The highest positions of civil power have from time to time been filled by women in all ages of the world, and the question of the right of woman to a voice in government is not a new one by any means, but has been agitated, and the right acknowledged and exercised, in governments far less free and liberal than ours. In the Roman Republic, during its long and glorious career, women occupied a higher position, as to political rights and privileges, than in any other contemporaneous government. In England unmarried women have, by the laws of that country, always been competent to vote and to hold civil offices, if qualified in other respects; at least such is the weight of authority. In "Callis upon Sewers," an old English work, will be found a discussion of the question as to the right of women to hold office in England. The learned and distinguished author uses the following language:

And for temporal governments I have observed women to have from time to time been admitted to the highest places; for in ancient Roman histories I find Eudocia and Theodora admitted at several times into the sole government of the empire; and here in England our late famous Queen Elizabeth, whose government was most renowned; and Semiramis governed Syria; and the Queen of the South, who came to visit Solomon, for anything that appears to the contrary, was a sole queen; and to fall a degree lower, we have precedents that King Richard the First and King Henry the Fifth appointed by commissions their mothers to be regents of this realm in their absence in France.

But yet I will descend a step lower; and doth not our law, temporal and spiritual, admit of women to be executrixes and administratrixes? And thereby they have the rule or ordering of great estates, and many times they are guardianesses in chivalry, and have hereby also the government of many great heirs in the kingdom and of their own estates.

So by these cases it appeareth that the common law of this kingdom submitted many things to their government; yet the statute of justices of the peace is like to Jethro's counsel to Moses, for there they speak of men to be justices, and thereby seemeth to exclude women; but our statute of sewers is, "Commission of sewers shall be granted by the King to such person and persons as the lords should appoint." So the word persons stands indifferently for either s.e.x. I am of the opinion, for the authorities, reasons and causes aforesaid, that this honorable countess being put into the commission of the sewers, the same is warrantable by the law; and the ordinances and decrees made by her and the other commissions of sewers are not to be impeached for that cause of her s.e.x.

And it is said by a recent writer:

Even at present in England the idea of women holding official station is not so strange as in the United States.

The Countess of Pembroke had the office of sheriff of Westmoreland and exercised it in person. At the a.s.sizes she sat with the judges on the bench. In a reported case it is stated by counsel and a.s.sented to by the court that a woman is capable of serving in almost all the offices of the kingdom.

As to the right of women to vote by the common law of England, the authorities are clear. In the English Law Magazine for 1868-'69, vol. 26, page 120, will be found reported the case of the application of JANE ALLEN, who claimed to be entered upon the list of voters of the Parish of St. Giles, under the reform act of 1867, which act provides as follows: Every man shall, in and after the year 1868, be ent.i.tled to be registered as a voter, and when registered to vote for a member or members to serve in Parliament, who is qualified as follows: 1st. Is of full age and not subject to any legal incapacity, etc., etc. It was decided by the court that the claimant had the right to be registered and to vote; that by the English law, the term man, as used in that statute, included woman. In that case the common law of England upon that question was fully and ably reviewed, and we may be excused for quoting at some length:

And as to what has been said of there being no such adjudged cases, I must say that it is perfectly clear that not perhaps in either of three cases reported by Mr. Shaen, but in those of Catharine _vs._ Surry, Coates _vs._ Lyle, and Holt _vs._ Lyle, three cases of somewhat greater antiquity, the right of women freeholders was allowed by the courts.

These three cases were decided by the judges in the reign of James I. (A. D. 1612). Although no printed report of them exists, I find that in the case of Olive _vs._ Ingraham, they were repeatedly cited by the lord Chief Justice of the King's Bench in the course of four great arguments in that case, the case being reargued three times (7 Mod., 264), and the greatest respect was manifested by the whole court for those precedents. Their importance is all the greater when we consider what the matter was upon which King James'

judges sitting in Westminster Hall had to decide. It was not simply the case of a mere occupier, inhabitant, or scot or lot voter. Therefore the question did not turn upon the purport of a special custom, or a charter, or a local act of Parliament, or even of the common right in this or that borough. But it was that very matter and question which has been mooted in the dictum of Lord c.o.ke, the freeholder's franchise in the shire, and upon that the decision in each case expressly was, that a feme sole shall vote if she hath a freehold, and that if she be not a feme sole, but a feme covert having freehold, then her husband during her coverture shall vote in her right. These, then, are so many express decisions which at once displace Lord c.o.ke's unsupported a.s.sertion and declare the law so as to constrain my judgment. It is sometimes said, when reference is made to precedents of this kind, that they have never been approved by the bar. But that can not be said of these. Hakewell, the contemporary of Lord c.o.ke and one of the greatest of all parliamentary lawyers then living--for even Selden and Granvil were not greater than Hakewell--left behind him the ma.n.u.script to which I have referred, with his comments on those cases.

Sir William Lee, Chief Justice, in his judgment in the case of Olive _vs._ Ingraham, expressly says that he had perused them, and that they contained the expression of Hakewell's entire approval of the principles upon which they were decided, and of the results deduced; and we have the statement of Lord Chief Justice Lee, who had carefully examined those cases, that in the case of Holt _vs._ Lyle, it was determined that a feme sole freeholder may claim a vote for Parliament men; but if married, her husband must vote for her. In the case of Olive _vs._ Ingraham, Justice Probyn says:

The case of Holt _vs._ Lyle, lately mentioned by our Lord Chief Justice, is a very strong case; "_They who pay ought to choose whom they shall pay._" And the Lord Chief Justice seemed to have a.s.sented to that general proposition, as authority for the correlative proposition, that "women, when _sole_, had a right to vote." At all events, there is here the strongest possible evidence that in the reign of James I., the _feme sole_, being a freeholder of a country, or what is the same thing, of a county, of a city, or town, or borough, where, of custom, freeholders had the right to vote, not only had, but exercised the parliamentary franchise. If married, she could not vote in respect merely of her freehold, not because of the incapacities of coverture, but for this simple reason, that, by the act of marriage, which is an act of law, the t.i.tle of the _feme sole_ freeholder becomes vested for life in the husband. The qualification to vote was not personal, but real; consequently, her right to vote became suspended as soon and for as long as she was married. I am bound to consider that the question as to what weight is due to the dictum of my Lord c.o.ke is entirely disposed of by those cases from the reign of James I. and George II., and that the authority of the latter is unimpeached by any later authority, as the cases of Rex. _vs._ Stubles, and Regina _vs._ Aberavon, abundantly show.

In Anstey's Notes on the New Reform Act of 1867, the authorities and precedents upon the right of women to vote in England are examined and summed up, and the author concludes:

It is submitted that the weight of authority is very greatly in favor of the female right of suffrage. Indeed, the authority against it is contained in the short and hasty dictum of Lord c.o.ke, referred to above. It was set down by him in his last and least authoritative inst.i.tute, and it is certain that he has been followed neither by the great lawyers of his time nor by the judicature. The principles of the law in relation to the suffrage of females will be found in Coates _vs._ Lyle, Holt _vs._ Ingraham, and The King _vs._ Stubles, cases decided under the strict rules for the construction of statutes.

It can not be questioned that from time whereof the memory of man runneth not to the contrary, unmarried women have been by the laws of England competent voters, subject to the freehold qualification which applied alike to men and women. Married women could not vote because they were not freeholders; by the common law their property upon marriage became vested in the husband. So that it appears that the admission of woman to partic.i.p.ation in the affairs of government would not be so much of an innovation upon the theories and usage of the past as is by some supposed.

In England the theory was that in property representation, all property should be represented. Here the theory is that of personal representation, which of course, if carried out fully, includes the representation of all property. In England, as we have seen, the owner of the property, whether male or female was ent.i.tled to representation, no distinction being made on account of s.e.x. If the doctrine contended for by the majority of the committee be correct, then this Government is less liberal upon this question than the government of England has been for hundreds of years, for there is in this country a large cla.s.s of citizens of adult age, and owners in their own right of large amounts of property, and who pay a large proportion of the taxes to support the Government, who are denied any representation whatever, either for themselves or their property--unmarried women, of whom it can not be said that their interests are represented by their husbands. In their case, neither the English nor the American theory of representation is carried out, and this utter denial of representation is justified upon the ground alone that this cla.s.s of citizens are women. Surely we can not be so much less liberal than our English ancestors! Surely the Const.i.tution of this Republic does not sanction an injustice so indefensible as that!

By the XIV. Amendment of the Const.i.tution of the United States, what const.i.tutes citizenship of the United States, is for the first time declared, and who are included by the term citizen.

Upon this question, before that time, there had been much discussion judicial, political, and general, and no distinct and definite definition of qualification had been settled. The people of the United States determined this question by the XIV.

Amendment to the Const.i.tution, which declares that--

All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States, and of the State wherein they reside. 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 law.

This amendment, after declaring who are citizens of the United States, and thus fixing but one grade of citizenship, which insures to all citizens alike all the privileges, immunities and rights which accrue to that condition, goes on in the same section and prohibits these privileges and immunities from abridgment by the States. Whatever these "privileges and immunities" are, they attach to the female citizen equally with the male. It is implied by this amendment that they are inherent, that they belong to citizenship as such, for they are not therein specified or enumerated.

The majority of the committee hold that the privileges guaranteed by the XIV. Amendment do not refer to any other than the privilege embraced in section 2, of article 4, of the original text. The committee certainly did not duly consider this unjustified statement. Section 2, of article 4, provides for the privileges of "citizens of the _States_," while the first section of the XIV. Amendment protects the privileges of "_citizens of the United States_." The term citizens of the _States_ and citizens of the _United States_ are by no means convertible.

A circuit court of the United States seems to hold a different view of this question from that stated by the committee. In the case of The Live Stock a.s.sociation _vs._ Crescent City (1st Abbott, 396), Justice Bradley, of the Supreme Court of the United States, delivering the opinion, uses the following language in relation to the first clause of the XIV. Amendment:

The new prohibition that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" is not identical with the clause in the Const.i.tution which declared that "the citizens of each State shall be ent.i.tled to all the privileges and immunities of citizens in the several States." It embraces much more. It is possible that those who framed the article were not themselves aware of the far-reaching character of its terms, yet if the amendment does in fact bear 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 social evils which were never before prohibited by const.i.tutional enactment, it is to be presumed that the American people, in giving it their _imprimatur_, understood what they were doing and meant to decree what in fact they have decreed. The "privileges and immunities"

secured by the original Const.i.tution were only such as each State gave to its own citizens, ... but the XIV. Amendment prohibits any State from abridging the privileges or immunities of 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 and unimpaired.

In the same opinion, after enumerating some "privileges" of the citizens, such as were pertinent to the case on trial, but declining to enumerate all, the Court further says:

These privileges can not be invaded without sapping the foundation of Republican government. A Republican government is not merely a government of the people, but it is a free government.... It was very ably contended on the part of the defendants that the XIV. 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 the citizens of the United States? Are they capacities merely? Are they not also rights?

The Court in this seems to intimate very strongly that the amendment was intended to secure the natural rights of citizens, as well as their equal capacities before the law.

In a case in the Supreme Court of Georgia, in 1869, the question was before the court whether a negro was competent to hold office in the State of Georgia. The case was ably argued on both sides, Mr. Akerman, the present Attorney General of the United States, being of counsel for the pet.i.tioner. Although the point was made and argued fully, that the right to vote and hold office were both included in the privileges and immunities of citizens, and were thus guaranteed by the XIV. Amendment, yet that point was not directly pa.s.sed upon by the court, the court holding that under the laws and const.i.tution of Georgia, the negro citizen had the right claimed. In delivering the opinion, Chief Justice Brown said:

It is necessary to the decision of this case to inquire what are the "privileges and immunities" of a citizen, which are guaranteed by the XIV. Amendment to the Const.i.tution of the United States. Whatever they may be, they are protected against all abridgment by legislation.... Whether the "privileges and immunities" of the citizens embrace political rights, including the right to hold office, I need not now inquire. If they do, that right is guaranteed alike by the Const.i.tution of the United States and of Georgia, and is beyond the control of the legislature.

In the opinion of Justice McKay, among other propositions, he lays down the following:

2d. The rights of the people of this State, white and black, are not granted to them by the const.i.tution thereof; the object and effect of that instrument is not to _give_, but to restrain, deny, regulate and guarantee rights, and all persons recognized by that const.i.tution as citizens of the State have _equal, legal and political rights_ except as _otherwise expressly declared_.

3d. It is the settled and uniform sense of the word "citizen," when used in reference to the citizens of the separate States of the United States, and to their rights as such citizens, that it describes a person ent.i.tled to every right, _legal and political_, enjoyed by any person in that State, unless there he some express exceptions made by positive law covering the particular persons, whose rights are in question.

In the course of the argument of this case, Mr. Akerman used the following language upon the point, as to whether citizenship carried with it the right to hold office:

It may be profitable to inquire how the term (citizen) has been understood in Georgia.... It will be seen that men whom Georgians have been accustomed to revere believed that citizenship in Georgia carried with it the right to hold office in the absence of positive restrictions.

The majority of the committee having started out with the erroneous hypothesis that the term "privileges of citizens of the United States," as used in the XIV. Amendment, means no more than the term "privileges of citizens," as used in section 2 of article 4, discuss the question thus:

The right of suffrage was not included in the privileges of citizens as used in section 2, article 4, therefore that right is not included in the privileges of citizens of the United States, as used in the XIV. Amendment.

Their premise being erroneous their whole argument fails. But if they were correct in their premise, we yet claim that their second position is not sustained by the authorities, and is shown to be fallacious by a consideration of the principles of free government. We claim that from the very nature of our Government, the right of suffrage is a fundamental right of citizenship, not only included in the term "privileges of citizens of the United States," as used in the XIV. Amendment, but also included in the term as used in section 2, of article 4, and in this we claim we are sustained both by the authorities and by reason. In Abbott _vs._ Bayley, (6 Pick., 92,) the Supreme Court of Ma.s.sachusetts says:

"The privileges and immunities" secured to the people of each State, in every other State, can be applied only to the case of a removal from one State into another. By such removal they become citizens of the adopted State without naturalization, and have a right to sue and be sued as citizens; and yet this privilege is qualified and not absolute, for they can not enjoy the right of suffrage or eligibility to office without such term of residence as shall be prescribed by the const.i.tution and laws of the State into which they shall remove.

This case fully recognizes the right of suffrage as one of the "privileges of the citizen," subject to the right of the State to regulate as to the term of residence--the same principle was laid down in the case of Corfield _vs._ Coryell in the Supreme Court of the United States. Justice Washington, in delivering the opinion of the court, used the following language:

"The privileges and immunities conceded by the Const.i.tution of the United States to citizens in the several States," are to be confined to those which are in their nature fundamental, and belong of right to the citizens of all free governments. Such are the rights of protection of life and liberty, and to acquire and enjoy property, and to pay no higher impositions than other citizens, and to pa.s.s through or reside in the State at pleasure, and to enjoy the elective franchise as regulated and established by the laws or const.i.tution of the State in which it is to be exercised.

And this is cited approvingly by Chancellor Kent. (2 Kent, sec.

72).

This case is cited by the majority of the Committee, as sustaining their view of the law, but we are unable so to understand it. It is for them an exceedingly unfortunate citation.

In that case the court enumerated some of the "privileges of citizens," such as are "in their nature fundamental and belong of right to the citizens of all free governments" (mark the language), and among those rights, place the "right of the elective franchise" in the same category with those great rights of life, liberty, and property. And yet the Committee cite this case to show that this right is not a fundamental right of the citizen! But it is added by the Court that the right of the elective franchise "is to be enjoyed as regulated and established by the State in which it is to be exercised." These words are supposed to qualify the right, or rather take it out of the list of fundamental rights, where the Court had just placed it. The Court is made to say by this attempt in the same sentence, "the elective franchise is a fundamental right of the citizen, and it is not a fundamental right." It is a "fundamental right,"

provided the State sees fit to grant the right. It is a "fundamental right of the citizen," but it does not exist, unless the laws of the State give it. A singular species of "fundamental rights!" Is there not a clear distinction between the regulation of a right and its destruction? The State may regulate the right, but it may not destroy it.

What is the meaning of "regulate" and "establish?" Webster says: Regulate--to put in good order. Establish--to make stable or firm. This decision then is, that "the elective franchise is a fundamental right of the citizen of all free governments, to be enjoyed by the citizen, under such laws as the State may enact to regulate the right and make it stable or firm." Chancellor Kent, in the section referred to, in giving the substance of this opinion, leaves out the word establish, regarding the word regulate as sufficiently giving the meaning of the Court. This case is, in our opinion, a very strong one against the theory of the majority of the Committee.