History of Woman Suffrage Volume II Part 83

The plaintiff in error, residing in the State of Illinois, made application to the judges of the Supreme Court of that State for a license to practice law. She accompanied her pet.i.tion with the usual certificate from an inferior court of her good character, and that on due examination she had been found to possess the requisite qualifications. Pending this application she also filed an affidavit, to the effect "that she was born in the State of Vermont; that she was (had been) a citizen of that State; that she is now a citizen of the United States, and has been for many years past a resident of the city of Chicago, in the State of Illinois." And with this affidavit she also filed a paper claiming that, under the foregoing facts, she was ent.i.tled to the license prayed for by virtue of the second section of the fourth article of the Const.i.tution of the United States, and of the XIV.

Article of Amendment of that instrument.

The statute of Illinois on this subject enacts that no person shall be permitted to practice as an attorney or counselor-at-law, or to commence, conduct, or defend any action, suit, or plaint, in which he is not a party concerned, in any court of record within this State, either by using or subscribing his own name or the name of any other person, without having previously obtained a license for that purpose from some two of the justices of the Supreme Court, which license shall const.i.tute the person receiving the same an attorney and counselor-at-law, and shall authorize him to appear in all the courts of record within this State, and there to practice as an attorney and counselor-at-law, according to the laws and customs thereof.

The Supreme Court denied the application, apparently upon the ground that it was a woman who made it. The record is not very perfect, but it may be fairly taken that the plaintiff a.s.serted her right to a license on the grounds, among others, that she was a citizen of the United States, and that having been a citizen of Vermont at one time, she was, in the State of Illinois, ent.i.tled to any right granted to citizens of the latter State. The court having overruled these claims of right, founded on the clauses of the Federal Const.i.tution before referred, those propositions may be considered as properly before this court.

As regards the provision of the Const.i.tution that citizens of each State shall be ent.i.tled to all the privileges and immunities of citizens in the several States, the plaintiff in her affidavit has stated very clearly a case to which it is inapplicable. The protection designed by that clause, as has been repeatedly held, has no application to a citizen of the State whose laws are complained of. If the plaintiff was a citizen of the State of Illinois, that provision of the Const.i.tution gave her no protection against its courts or its legislation. The plaintiff seems to have seen this difficulty, and attempts to avoid it by stating that she was born in Vermont. While she remained in Vermont that circ.u.mstance made her a citizen of that State. But she states, at the same time, that she is a citizen of the United States, and that she is now, and has been for many years past, a resident of Chicago, in the State of Illinois.

The XIV. Amendment declares that citizens of the United States are citizens of the State within which they reside; therefore plaintiff was, at the time of making her application, a citizen of the United States and a citizen of the State of Illinois. We do not here mean to say that there may not be a temporary residence in one State, with intent to return to another, which will not create citizenship in the former. But plaintiff states nothing to take her case out of the definition of citizenship of a State as defined by the first section of the XIV. Amendment.

In regard to that amendment counsel for plaintiff in this court truly says that there are certain privileges and immunities which belong to a citizen of the United States as such; otherwise it would be nonsense for the XIV. Amendment to prohibit a State from abridging them, and he proceeds to argue that admission to the bar of a State of a person who possesses the requisite learning and character is one of those which a State may not deny. In this latter proposition we are not able to concur with counsel. We agree with him that there are privileges and immunities belonging to citizens of the United States, in that relation and character, and that it is these, and these alone, which a State is forbidden to abridge. But the right to admission to practice in the courts of a State is not one of them. The right in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any State, or in any case, to depend on citizenship at all. Certainly many prominent and distinguished lawyers have been admitted to practice, both in the State and Federal Courts, who were not citizens of the United States or of any State. But, on whatever basis this right may be placed, so far as it can have any relation to citizenship at all, it would seem that, as to the courts of a State, it would relate to citizenship of the State, and as to Federal Courts, it would relate to citizenship of the United States.

The opinion just delivered in the Slaughter-house Cases from Louisiana renders elaborate argument in the present case unnecessary; for, unless we are wholly and radically mistaken in the principles on which those cases are decided, the right to control and regulate the granting of license to practice law in the courts of a State is one of those powers which are not transferred for its protection to the Federal Government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license. It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is sufficient to say they are conclusive of the present case.

The judgment of the State court is, therefore, affirmed.

D. W. MIDDLETON, C. S. C. U. S.

Mr. Justice BRADLEY gave the following: I concur in the judgment of the court in this case by which the judgment of the Supreme Court of Illinois is affirmed, but not for the reasons specified in the opinion just read.

The claim of the plaintiff, who is a married woman, to be admitted to practice as an attorney and counselor-at-law, is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood. The Supreme Court of Illinois denied the application on the ground that, by the common law, which is the basis of laws of Illinois, only men were admitted to the bar, and the Legislature had not made any change in this respect, but had simply provided no person should be admitted to practice as attorney or counselor without having previously obtained a license for that purpose from two justices of the Supreme Court, and that no person should receive a license without first obtaining a certificate from the court of some county of his good moral character. In other respects it was left to the discretion of the court to establish the rules by which admission to the profession should be determined. The court, however, regarded itself as bound by at least two limitations.

One was that it should establish such terms of admission as would promote the proper administration of justice, and the other that it should not admit any persons, or cla.s.s of persons, not intended by the Legislature to be admitted, even though not expressly excluded by statute. In view of this latter limitation the court felt compelled to deny the application of females to be admitted as members of the bar. Being contrary to the rules of the common law and the usages of Westminster Hall from time immemorial, it could not be supposed that the Legislature had intended to adopt any different rule.

The claim that, under the XIV. Amendment of the Const.i.tution, which declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that State, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), a.s.sumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life.

It certainly can not be affirmed, as a historical fact, that this has ever been established as one of the fundamental privileges and immunities of the s.e.x. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female s.e.x evidently unfits it for many of the occupations of civil life.

The const.i.tution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say ident.i.ty, of interests and views which belong, or should belong, to the family inst.i.tution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him. This very incapacity was one circ.u.mstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor.

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the n.o.ble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general const.i.tution of things, and can not be based upon exceptional cases.

The humane movements of modern society, which have for their object the multiplication of avenues for woman's advancement, and of occupations adapted to her condition and s.e.x, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things it is not every citizen of every age, s.e.x, and condition that is qualified for every calling and position.

It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the Legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner s.e.x.

For these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.

I concur in the opinion of Mr. Justice Bradley. FIELD, J.

D. W. MIDDLETON, C. S. C. U. S.

The result of this suit taught woman that for her civil as well as political rights she had no National protection. This was the first case under the XIV. Amendment that was decided by the Supreme Court of the United States. This august body based its decision against Mrs.

Bradwell on the ground of "no jurisdiction," declaring that the case rested with the Legislature of the State of Illinois. In language stripped of legal verbiage and obscurity, it decided that the civil rights of women could be extended and restricted at the caprice of any legislative body in the several States; that the methods for earning their daily bread, in the trades and professions, the use of their powers of mind and body, could be defined, permitted or denied for the citizen by State authorities.

In Norwalk, Connecticut, long known as the Gibralter of republicanism in that State, Mrs. Sarah M. T. Huntington was allowed to register by sufferance of the selectmen whose objections she overcame by a logical argument upon the const.i.tutional provisions under the XIV. Amendment, but she was not permitted to vote (see Connecticut chapter). At the same election several ladies voted in Nyack, New York, and in Toledo, Ohio, and many unsuccessful attempts were made by others in several States of the Union.

It was on November 1st, 1872, at her quiet home in Rochester, while reading her morning paper, that Miss Anthony's eye fell on the following editorial:

Now Register? To-day and to-morrow are the only remaining opportunities. If you were not permitted to vote, you would fight for the right, undergo all privations for it, face death for it.

You have it now at the cost of five minutes' time to be spent in seeking your place of registration, and having your name entered.

And yet, on election day, less than a week hence, hundreds of you are likely to lose your votes because you have not thought it worth while to give the five minutes. To-day and to-morrow are your only opportunities. Register now!

She immediately threw aside her journal, and asking one of her sisters to accompany her, made her determined way to the registration office.

The inspectors were young men, entirely unversed in the intricacies of const.i.tutional law, so that when Miss Anthony expounded to them the XIV. Amendment, they were utterly incapable of answering her legal argument. After some hesitation the two Republican members of the board agreed to receive her name, while the Democratic official remained obdurate. The United States Supervisor being present strongly advised the young men against refusing to allow Miss Anthony to register. A full report of this scene appeared in the afternoon papers with varying comments; the Republican paper inclined toward a favorable view of the right of women to vote, while the Democratic paper denounced these proceedings and warned all inspectors that if they received the names of women they would be liable to prosecution under the 19th section of the enforcement act.

That if at any election for representative or delegate in the Congress of the United States, any person shall knowingly personate and vote, or attempt to vote, in the name of any other person, whether living, dead, or fict.i.tious; or vote more than once at the same election for any candidate for the same office; or vote at a place where he may not be lawfully ent.i.tled to vote; or vote without having a lawful right to vote; or do any unlawful act to secure a right to vote, or an opportunity to vote, for himself or any other person; or by force, threats, menace, intimidation, bribery, reward or offer, or promise thereof, or otherwise unlawfully prevent any qualified voter of any State of the United States of America, or of any Territory thereof, from freely exercising the right of suffrage; or by any such means induce any voter to refuse to exercise such right; or compel or induce, by any such means or otherwise, any officer on any election in any such State or Territory to receive a vote from a person not legally qualified or ent.i.tled to vote or interfere in any manner with any officer of said elections in the discharge of his duties, shall be deemed guilty of a crime and shall for such crime be liable to prosecution in any court of the United States, and on conviction thereof shall be punished by a fine not exceeding $500 or imprisonment for not exceeding three years or both at the discretion of the court.

Upon reading this article Miss Anthony hastened back to the registration office and a.s.sured the young men that she would be personally responsible for all costs growing out of any suit that might be inst.i.tuted against them for having registered women. As an outgrowth of all this discussion about fifty women registered in the city, fourteen of them in Miss Anthony's own ward. As a whole, the tone of the press was so adverse that all the inspectors except those of the 8th ward were intimidated and refused to receive the votes of women on election day.

Bright and early on the morning of November 5th, Miss Anthony and six of the women presented themselves at the polling booth. The ladies went early not in order to vote often, but to avoid any disturbance which might result from so novel a scene if it were enacted when the streets had become crowded. Each of these new voters was in turn challenged, and each swore in her vote, except Rhoda De Garmo, who in true Quaker fashion refused either to "swear" or to "affirm," simply saying "I will tell the truth." Nevertheless her vote was also received.

The discussion of this action continued in the papers and on November 28th, Thanksgiving day, those fourteen offending citizens were informed that they were to be prosecuted by the United States Government, and that Commissioner Storrs wished them to call at his office. The ladies refusing to respond to this polite invitation, Marshal Keeney made the circuit to collect the rebellious forces. It was the afternoon of Thanksgiving day that Miss Anthony was summoned to her parlor to receive a visitor. As she entered she saw her guest was a tall gentleman in most irreproachable attire, nervously dandling in his gloved hands a well-brushed high hat. After some incidental remarks the visitor in a hesitating manner made known his mission.

"The Commissioner wishes to arrest you" were his first words touching the object of his call. "Is this your usual method of serving a warrant," asked Miss Anthony; whereupon the Marshal summoned courage enough to serve the usual legal paper.[168] He gallantly offered to leave his prisoner to go alone, but Miss Anthony refusing to take herself to Court, the United States official meekly escorted her to the Commissioner's office. When all the ladies had arrived, the Commissioner, after hours of waiting, announced that the a.s.sistant District Attorney whom he had summoned to examine the culprits, was unable to reach the city that afternoon, and so the ladies were dismissed to appear the next morning.

The voters received their preliminary examination in the same small dingy office where, in the days of slavery, fugitives escaping to Canada had been examined and remanded to bondage. This historic little room is a double disgrace to the American Republic, as within its walls the rights of color and of s.e.x have been equally trampled upon.

The fourteen women pleaded "not guilty," but the Commissioner ordered bail of $500 each for their appearance at the Albany term of the United States District Court January 21, 1873. Miss Anthony refused to give bail, and pet.i.tioned for a writ of _habeas corpus_. The Inspectors were also arrested, and had their final hearing the afternoon of the same day before Commissioner Ely,--Hon. John Van Voorhis their counsel--and were bound over to the Albany Term. The hearing on Miss Anthony's pet.i.tion was had before Judge Hall. The decision was adverse, and bail of $1,000 demanded for her appearance at the May term at Rochester. The Grand Jury found a true bill of indictment against her, the fourteen other women, and the three Inspectors. Miss Anthony objected to giving bail, but was overruled by her counsel, Hon. Henry R. Selden, whose sense of gallantry made him feel it a disgrace to allow his client to go to jail. This was a source of deep regret to Miss Anthony, as it prevented her case going to the Supreme Court of the United States for final adjudication.

During the intermediate period between November 28, 1872, and January 21, 1873, Miss Anthony, in the eye of the law, was imprisoned, but the Marshal, though somewhat uneasy, left her free to fulfill her lyceum engagements and attend woman suffrage conventions. A singularly anomalous position for a criminal, traveling about the country as a teacher of morals to the people! Learning that in case the jury returned a verdict of guilty the judge must declare the costs of the trial against the defendants, she determined to canva.s.s Monroe County, in order to make a verdict of "guilty" impossible. She held meetings in twenty-nine of the post-office districts, speaking on the equal rights of all citizens to the ballot. Hearing that District Attorney Crowley threatened to move her trial out of that county, she sent him word that she would then canva.s.s the next with an army of speakers.

The court sat in Rochester May 13th, but several days pa.s.sed without calling the case. Finally, it was moved by District Attorney Crowley, merely to ask its adjournment to the June United States Circuit Court at Canandaigua. Counsel protested, but without avail, and both the women and the Inspectors were again required to answer the charge and renew bail. This motion for change of venue was made on Friday, and the following Monday night Miss Anthony held her first meeting in Ontario County. In the twenty-two days before the convening of the Court she made twenty-one speeches. Matilda Joslyn Gage came to her aid, and spoke in sixteen townships, thus together making a thorough canva.s.s of that county. Miss Anthony's speech, "Is it a crime for a United States citizen to vote," and that of Mrs. Gage, "The United States on trial, not Susan B. Anthony," were most effective in rousing general thought on the vital principles of republican government, and did much toward enlightening the possible jury in the coming trial.

The last meeting of the series was held at Canandaigua on the evening before the trial. Strong resolutions against these acts of injustice toward woman were introduced by Mrs. Gage, and unanimously indorsed by the audience. Thus the case went to trial with ample opportunity for the District Attorney and the Judge to know the opinions of the people, and for the men of Ontario to be too generally enlightened on the subject to find any twelve who could be trusted to bring in a verdict of guilty against the women for voting, or the inspectors for receiving their votes.

The following is the argument which Miss Anthony made in twenty-nine of the post office-districts of Monroe, and twenty-one of Ontario, in her canva.s.s of those counties, prior to her trial, June 17, 1873:

FRIENDS AND FELLOW CITIZENS:--I stand before you to-night, under indictment for the alleged crime of having voted illegally at the last Presidential election. I shall endeavor this evening to prove to you that in voting, I not only committed no crime, but simply exercised my "citizen's right," guaranteed to me and all United States citizens by the National Const.i.tution, beyond the power of any State to deny.

Our democratic republican government is based on the idea of the natural right of every individual member thereof to a voice and a vote in making and executing the laws. We a.s.sert the province of government to be to secure the people in the enjoyment of their inalienable rights. We throw to the winds the old dogma that governments can give rights. Before governments were organized, no one denies that each individual possessed the right to protect his own life, liberty, and property. And when 100 or 1,000,000 people enter into a free government, they do not barter away their natural rights; they simply pledge themselves to protect each other in the enjoyment of them, through prescribed judicial and legislative tribunals. They agree to abandon the methods of brute force in the adjustment of their differences, and adopt those of civilization. The Declaration of Independence, the National and State Const.i.tutions, and the organic laws of the Territories, all alike propose to protect the people in the exercise of their G.o.d-given rights. Not one of them pretends to bestow rights.

All men are created equal, and endowed by their Creator with certain inalienable rights. Among these are life, liberty, and the pursuit of happiness. That to secure these, governments are inst.i.tuted among men, deriving their just powers from the consent of the governed.

Here is no shadow of government authority over rights, nor exclusion of any cla.s.s from their full and equal enjoyment. Here is p.r.o.nounced the rights of all men, and "consequently," as the Quaker preacher said, "of all women," to a voice in the government. And here, in this very first paragraph of the Declaration, is the a.s.sertion of the natural right of all to the ballot; for, how can "the consent of the governed" be given, if the right to vote be denied. Again:

That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to inst.i.tute a new government, laying its foundations on such principles, and organizing its powers in such forms as to them shall seem most likely to effect their safety and happiness.

Surely, the right of the whole people to vote is here clearly implied. For, however destructive to their happiness this government might become, a disfranchised cla.s.s could neither alter nor abolish it, nor inst.i.tute a new one, except by the old brute force method of insurrection and rebellion. One half of the people of this Nation to-day are utterly powerless to blot from the statute books an unjust law, or to write there a new and a just one. The women, dissatisfied as they are with this form of government, that enforces taxation without representation,--that compels them to obey laws to which they have never given their consent--that imprisons and hangs them without a trial by a jury of their peers--that robs them, in marriage, of the custody of their own persons, wages, and children--are this half of the people left wholly at the mercy of the other half, in direct violation of the spirit and letter of the declarations of the framers of this government, every one of which was based on the immutable principle of equal rights to all. By those declarations, kings, priests, popes, aristocrats, were all alike dethroned, and placed on a common level, politically, with the lowliest born subject or serf. By them, too, men, as such, were deprived of their divine right to rule, and placed on a political level with women. By the practice of those declarations all cla.s.s and caste distinction will be abolished; and slave, serf, plebeian, wife, woman, all alike, will bound from their subject position to the proud platform of equality.

The preamble of the Federal Const.i.tution says:

We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Const.i.tution for the United States of America.

It was we, the people, not we, the white male citizens, nor yet we, the male citizens, but we, the whole people, who formed this Union. And we formed it, not to give the blessings of liberty, but to secure them; not to the half of ourselves and the half of our posterity, but to the whole people--women as well as men. And it is downright mockery to talk to women of their enjoyment of the blessings of liberty while they are denied the use of the only means of securing them provided by this democratic republican government--the ballot.

The early journals of Congress show that when the Committee reported to that body the original Articles of Confederation, the very first article which became the subject of discussion was that respecting equality of suffrage. Article 4th said:

The better to secure and perpetuate mutual friendship and intercourse between the people of the different States of this Union, the free inhabitants of each of the States (paupers, vagabonds, and fugitives from justice excepted), shall be ent.i.tled to all the privileges and immunities of the free citizens of the several States.

Thus, at the very beginning, did the fathers see the necessity of the universal application of the great principle of equal rights to all--in order to produce the desired result--a harmonious union and a h.o.m.ogeneous people. Luther Martin, Attorney-General of Maryland, in his report to the Legislature of that State of the convention that framed the United States Const.i.tution, said: