History of Woman Suffrage Volume II Part 102

The following review of this important case is from the January number, 1876, of the _Central Law Journal_, St. Louis, Missouri:

WOMAN SUFFRAGE IN ITS LEGAL ASPECT--A REVIEW OF THE CASE OF MINOR _vs._ HAPPERSETT, 21 WALLACE, U. S. REPORTS.

As a rule, respect should undoubtedly be paid to judicial decisions. When the court of last resort has considered and pa.s.sed upon a question of law, especially if it be one involving a consideration of const.i.tutional power, as well as of private right, it is eminently proper that its conclusion should not be disturbed, unless for reasons of the gravest import. But cases present themselves at times, in which criticism is not only justified, but is demanded; and it is only through its aid that the ultimate truth of any question can be reached and its principles be correctly established. Nor can courts of justice take exception to such criticism, since the reports abound with evidences of the fact that there is no judicial immunity from error; and we believe that if the glamour of supposed legal impeccability, that shrouds the judiciary in the eyes of many, could be removed, a public service would be accomplished. In the case under consideration an important question of const.i.tutional law was involved, the construction of which affected not only the plaintiff therein, but the entire cla.s.s of persons to which she belonged, while the decision extends it still further, and makes it applicable to every citizen of the United States. Thus, while the particular case may be ended, the entire community has an interest in the conclusion announced. It is not our purpose to consider the subject of suffrage as an abstract right; with this aspect of it we have nothing to do in this article. We shall treat it solely as a legal right. Under a government of law, indeed, there are, properly speaking, no abstract rights. All rights, of person or of property, are legal rights, and it shall be our purpose to show that the right of Federal suffrage is recognized in the Const.i.tution of the United States, and certainly no one will deny its practical exercise during nearly ninety years. An inspection of the Opinion will show that the whole matter was summed up in the question, whether suffrage is a right or privilege appertaining to citizenship of the United States, for if it be, then the plaintiff's suit was rightly brought. The opinion, which was delivered by the Chief Justice, states the matter as follows:

It is contended that the provisions of the Const.i.tution and laws of the State of Missouri, which confine the right of suffrage and registration therefor to men, are in violation of the Const.i.tution of the United States, and therefore void. The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage, as one of the privileges and immunities of her citizenship, which the State can not by its laws or Const.i.tution abridge.

And on page 170:

If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the Const.i.tution and laws of Missouri confining it to men are in violation of the Const.i.tution of the United States, as amended, and consequently void. The direct question is therefore presented, whether all citizens are necessarily voters. The Const.i.tution does not define the privileges and immunities of citizens. For that definition we must look elsewhere. In this case we need not determine what they are, but only whether suffrage is necessarily one of them. It certainly is nowhere made so in express terms. The United States has no voters in the State, of its own creation. The elective officers of the United States are all elected directly or indirectly by State voters.

We had supposed that if there was any question that now, at least, might be regarded as finally settled, both by the late appeal to arms, and by the Const.i.tutional Amendments, it was that of the subordination of State to National authority, over any and all subjects in which the rights and privileges of citizens of the United States are involved. If the amendments do not cover this ground, then they are worse than useless. And yet this decision is a blow at all that const.i.tutes us a Nation. To declare that the United States has no voters--that its officers are all elected by State voters, is to completely reverse the order of things, and subordinate the citizens of the United States to State authority. It will be observed that this decision goes far beyond the ground hitherto and ordinarily claimed by the advocates of what are called "States' Rights."

It has usually been supposed that the States possessed the authority to regulate the exercise of the franchise by the Federal voter, but never before was the right itself denied as appurtenant to Federal citizenship. But now the franchise itself is declared to be non-existent--Federal officers are elected by State voters. The subject itself is wholly withdrawn from Federal supervision and control. Even the amendments can not confer authority over a matter that has no existence. If, then, the United States has no voters in the States, it can properly have nothing to do with the subject of elections. If the citizen of the United States has no right to vote except as a citizen of a State, his Federal citizenship is, of course, subordinated to his State citizenship. It logically follows that much of the recent legislation on this subject by Congress is dest.i.tute of authority. If members of the House of Representatives are elected by State voters, as here declared, there is no reason why the States may not, at their pleasure, recall their representatives, or refuse to elect them, as in 1860 the Southern States claimed it to be their right to do; and if a sufficient number can be united in such a movement, the Federal Government will be completely at their mercy. It may also well be doubted how far the Southern States are bound by legislation in which they had no part. Notwithstanding the provision of the XIV. Amendment, that neither the United States nor any State shall a.s.sume or pay any claim for the loss or emanc.i.p.ation of any slave; it (as held by the Supreme Court in two cases in 13th Wallace, Chief Justice Chase dissenting), contracts for the sale or hire of slaves effected before emanc.i.p.ation are valid, upon the ground that to take away the remedy for their enforcement would be to impair their obligation, how much less can the owner of a slave be deprived of his property, which forms the subject-matter of that contract, without compensation? If his contract can not be impaired, surely the thing to which that contract relates can not be taken from him, except upon compensation. Chief Justice Chase was of the opinion that the above quoted provision of the XIV.

Amendment could be sustained only upon the ground that the XIII.

Amendment wiped out everything, contracts as well as slavery. Yet the Court held all such contracts to be valid. And see, in this connection, the case of Wilkinson _vs_. Leland, 2d Peters, 657.

It is idle to say that these suppositions are visionary. What has happened once, may occur again. It can hardly be questioned that if in 1860 the seceding States could have pointed to a decision of the Supreme Court of the United States such as this, the whole face of affairs might have been different, and the "erring sisters" permitted to "go in peace"! The "lost cause" may not be "lost," after all.

But to resume: The Court tells us in its opinion in this case, that "there can not be a Nation without a people," but it seems there may be a Nation without voters! Now the people of the United States may not have a very profound knowledge of their inst.i.tutions, but their intelligence certainly rises to the level of comprehending that a republican government can not be established or maintained without voters. It would be a manifest absurdity to say that in a government created by the people, they are not voters. Inasmuch, then, as it is admitted by the Court, if the right of suffrage be a privilege of the citizen of the United States, that the State Const.i.tution and laws confining it to men are in violation of the Const.i.tution of the United States and, consequently, void; as contended for by the plaintiff in this case, we have really only to examine this single point: Does the Const.i.tution of the United States recognize the right of suffrage as belonging to its citizens?

Future generations will look with astonishment at the fact that such a question could be asked seriously. Not only was the subject debated in the convention that framed the instrument, but one of its ablest members, Alexander Hamilton, in the fifty-second number of the _Federalist_, says:

The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.

It was inc.u.mbent on the convention, therefore, to define and establish this right in the Const.i.tution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason, that it would have rendered too dependent on the State Governments that branch of the Federal Government which ought to be dependent on the people alone.

To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State; because it is conformable to the standard already established, or which may be established by the State itself. It will be safe to the United States; because, being fixed by the State Const.i.tutions, it is not alterable by the State Governments, and it can not be feared that the people of the States will alter this part of their const.i.tutions in such a manner as to abridge the rights secured to them by the Federal Const.i.tution.

Again, in the XV. Amendment, suffrage is recognized as an existing right of Federal citizenship. It is not created by that Amendment. It was already existing. The language is:

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.

A right must exist before it can be denied. There can be no denial of a thing that has no existence. If it should be said the XV. Amendment relates only to the negro, we reply that this would be no answer, even if true, which may be doubted; but the point we are now discussing is the statement of the Court that the United States has no voters in the States of its own creation, or in other words, that Federal suffrage does not exist; we have shown that this a mistake, it being recognized in the Const.i.tution; and as the argument of the Court was based on its non-existence it consequently falls to the ground. This really disposes of the case, but we will notice other points. The Court says:

After the adoption of the XIV. Amendment, it was deemed necessary to have a XV: ... The XIV. Amendment had already provided that no State should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Const.i.tution to prevent its being denied on account of race, etc.? Nothing is more evident than that the greater must include the less, and if all were already protected, why go through with the form of amending the Const.i.tution to protect a part?

It is sometimes perilous in argument to ask questions--we will answer the Court in its own words. In the Slaughter-house cases, the Court then said:

A few years' experience satisfied the thoughtful men who had been the authors of the other two amendments, that, notwithstanding the restraints of those articles on the States, and the laws pa.s.sed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered by the white man alone. It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage. Hence the XV. Amendment, which declares that the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude. The negro having, by the XIV. Amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union. (16 Wallace, 71.)

For the present argument, it is immaterial whether this result is effected by the XIV., or XV. Amendment, or both. The point is, that the Supreme Court here declares the negro to be a voter in every State of the Union, by virtue of one or both amendments. He is made a voter (a Federal voter) by the law of the United States, and not by the State law. Being made a citizen of the United States, he is thus made a voter in every State of the Union. This is the very gist of the matter. The whole principle is summed up in these few words. The franchise is an incident of the status, or condition of citizenship. Freedom alone was not enough. The XIII. Amendment made the negro free, but citizenship was additionally necessary before he became a voter. As soon as that was achieved, in that moment the franchise followed; to be enjoyed, in the same manner as by other citizens. If ever a suitor was ent.i.tled to rely with confidence upon judicial utterances of great principles of law, Mrs. Minor was thus ent.i.tled, in her case. She was a citizen of the United States by birth; admitted to be possessed of every qualification but that of s.e.x. Her counsel appeared before this court and quoted its very language above given, and asked the court to be consistent with its own teachings. But no. There was no great and powerful party to back her demand, as in the case of the negro. She was merely a private individual, and the court contented itself with saying that the right of suffrage when granted would be protected! To which it may be replied, if women ever vote, they will protect themselves; but, if their right should subsequently be denied by the State, the Supreme Court, according to its own rulings in this case, could give no protection, since it declares the right to be wholly within the control of each State. But why should the court require the women citizens of the United States to produce a special grant of the right, when it required nothing of the kind from the negro? Are there two laws in this country, one for the negro, and another for woman? Does the Const.i.tution of the United States recognize or permit cla.s.s distinctions to be made between its citizens? Yet by this decision, the negro is placed above the woman. He is her superior. His position is above her. For our own part, we decline to accept any such construction of that instrument, knowing that the time will ultimately come when some claim similar to that of Mrs. Minor will meet with proper recognition. To make its inconsistency still greater, the court in this case declares that "allegiance and protection are reciprocal obligations. The very idea of a political community, such as a nation is, implies an a.s.sociation of persons for the promotion of their general welfare. Each one of the persons a.s.sociated becomes a member of the nation formed by the a.s.sociation. He owes it allegiance and is ent.i.tled to its protection," yet in this case that protection is denied. While the negro, then, is thus declared to be a voter, by reason of his citizenship, in every State of the Union, there is no law either of the State or of the Nation, which in terms or by words confers the ballot upon him. The XV. Amendment does not confer it, but treats it as a right already existing, and forbids its deprivation. Likewise the State law a.s.sumes its existence, and makes no change, except to conform to the new condition of the negro's citizenship. There is no change in the State laws, except the omission of a word--the word "white"--from the clause "white male citizens," in the State Const.i.tution. But who ever heard of a right being conferred by omission? And yet this change of a single word by the State was an acknowledgment by it of the supremacy of Federal law touching this subject; and was designed to make the State law conform to the Federal law, which declares (XIV. Amendment) that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This conformity extends, however, only so far as to embrace the negro citizen of the United States, leaving the far larger cla.s.s of women citizens of the United States still under ban of disfranchis.e.m.e.nt, in plain violation of the amendment. Under these circ.u.mstances, in the case under consideration, the Supreme Court of the United States was asked to interpose its authority, and effect by its decree that which the State should have done, and declare that the word "male" must be dropped, as well as the word "white."

Had this been done, the State law in its entirety would have conformed to the paramount law of the United States, while as it is, it conforms only in part. We are told that slavery was abolished in Ma.s.sachusetts, not by an enactment expressly adopted for the purpose, but by a decision of the Supreme Court in 1781, that its existence was inconsistent with the declaration in the Bill of Rights that "all men are born free and equal."

(Bradford's History of Ma.s.s., 11, 227; Draper's Civil War, 1, 318; Story on Const., 11, p. 634, note.) So far, however, from interfering, as it was its plain duty to have done, to protect this cla.s.s of United States citizens, the court has gone further than perhaps it intended, and possibly destroyed the rights of another cla.s.s, for the decision, by declaring that the United States has no voters, virtually renders the XV. Amendment of no effect. There is nothing upon which it can operate. There being no voters, there is of course no "right to vote," to be "protected." So that every citizen of the United States is left completely at the mercy of the State.

We will now consider that clause of the Const.i.tution of the United States in which, _as Hamilton said_, the right of suffrage is defined and established for the citizens of the United States; which, nevertheless, has most strangely been regarded as conferring upon the States authority to disfranchise them.

Article 1, sec. 2. "The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature." The section, it will be seen, consists of two clauses, but there _is not a word as to the s.e.x_ of the elector. He or she must be one of the people, or citizens--that is all. The "People" elect. They vote in their respective States, of course; or, to use the words of Chief Justice Marshall, "when they act, they act in their States." (4 Wheaton, 403.) This first clause, then, fixes the cla.s.s of persons to whom belong this right of suffrage--_Federal suffrage_--not State suffrage. It would be absurd in the Federal Const.i.tution to undertake to deal with State suffrage, and it attempts nothing of the kind. The right of Federal suffrage, then, attaches or belongs to this cla.s.s. The subsequent clause is subordinate to this, and relates not to the right, but to the exercise of it by the voter. In other words, it prescribes the qualifications of the elector, as to how he shall exercise the right; the time, place, and manner of voting, and the age at which the right shall be enjoyed. As to all these matters, which are included in the subject of "qualifications," instead of laying down a uniform rule, to be applicable all over the Union, the convention thought it best to adopt the regulations on this subject already in force in the several States. When the Federal elector, therefore, comes to vote for United States officers, he finds that he must simply conform to the regulations laid down by the State for State voters. But this confers upon the State no authority over the Federal elector's right of suffrage; far less does it give the State authority to deprive the Federal elector of this right, under pretense of laying down for its own citizens an arbitrary and impossible condition. In the nature of things, a republican government could not part with this right of suffrage. As Hamilton says, such right is justly regarded as a fundamental article in such government. To part with it, would be to part with its chiefest attribute of sovereignty, and nothing of the kind was done, or intended.

Except so far, then, as this decision makes it so, there is not a particle of authority vested in the States to deny this right of Federal suffrage to the citizen of the United States. The regulation of the exercise of the franchise is within their control, as above stated, but the right itself is not theirs to give or to withhold. _The right to vote for Federal officers_ is wholly distinct from the right to vote for State officers; but the fact of these two rights being blended in one and the same person, and being usually exercised at the same time, has given rise to the whole difficulty. In consequence of the fact of the election being conducted by State officers, the State providing all the machinery for voting, etc., we have become accustomed, from long habit, to a.s.sociate in our minds the one franchise with the other, and thus confound rights that are wholly separate and distinct.

We notice, in conclusion, the remark of the court touching the non-a.s.sertion heretofore of this right by any one of the cla.s.s now claiming to be ent.i.tled to it, and the intimation, or insinuation, that if the right really existed, it would have been claimed before, etc. It is true that Mrs. Minor's case is of "first impression," in the Supreme Court of the United States; but we fail to see that this fact has anything to do with the principle involved, or that there can be any such thing as a "limitation" of rights that are fundamental. If the right exists, and has a const.i.tutional recognition, the time of its a.s.sertion has nothing to do with it. Only weak minds will be influenced by a fallacy like this. Because the women of a former day did not see and feel the necessity of making this claim, is no reason why those who do now see and feel that necessity should have that claim denied. "Time has no more connection with, nor influence upon principle, than principle has upon time. The wrong which began a thousand years ago, is as much a wrong as if it began to-day; and the right which originates to-day, is as much a right as if it had the sanction of a thousand years. Time, with respect to principles, is an eternal now. It has no operation upon them, it changes nothing of their nature and qualities." (Paine's Political Works, vol. 2, p. 328--Dissertation on Government.)

We are fully conscious that the subject upon which we have written is by no means exhausted; the point, especially in reference to bills of attainder, being wholly untouched. But the limits of a single article will not admit of a full discussion of the subject. Indeed, a treatise upon suffrage is one of the wants of the profession. We leave it, however, to the candid judgment of our readers, if we have not fully demonstrated the right of Federal suffrage to be a necessary privilege of a citizen of the United States, and, according to the court's own admission, such being the case, the plaintiff was ent.i.tled to the relief sought.

Thus closed woman's struggle for National protection of her civil and political rights under the XIV. Amendment. In the case of Myra Bradwell, which was commenced in September, 1869, two years before the others, Chief-Justice Chase, one of the best and wisest Judges that ever honored the American bench, dissented from the opinion of the Supreme Court: that the fact of United States citizenship did not secure to woman the right to practice law, and that a married woman rested under a special disability in regard to her civil rights, thus sustaining the action of Illinois in refusing to admit Mrs. Bradwell to the bar of that State.

The decision in the case of Mrs. Minor, that the political rights of women were wholly under the control of their respective States was still more emphatic and discouraging. Had Judge Chase lived, we have every reason to believe that in this case too, he would have dissented, and that his opinion would have had great weight in the general discussion. Although defeated at every point, woman's claim as a citizen of the United States to the Federal franchise is placed upon record in the highest court of the Nation, and there it will remain forever. As Milton so grandly says in Paradise Lost:

What though the field be lost?

All is not lost: th' unconquerable will And courage never to submit or yield!

FOOTNOTES:

[164] The elections in New Hampshire were held in the spring in former years.

[165] An account of Mrs. Gardner's voting will be found in the Michigan chapter.

[166] WOMAN SUFFRAGE IN THE COURTS.--SHAKESPEARE REVIVED.

In the case of Hamlet _vs._ Rex, Shakespeare's reports, occurs the following:

SCENE--CHURCHYARD.--_Enter two clowns with spades._

_First Clown._ Is she to be buried in Christian burial that wilfully seeks her own salvation?

_Second Clown._ I tell thee, she is; therefore make her grave straight. The crowner hath set on her and finds it Christian burial.

_First Clown._ How can that be, unless she drowned herself in her own defense?

_Second Clown._ Why,'tis found so.

_First Clown._ It must be so, _se offendendo_; it can not be else. For here lies the point. If I drown myself wittingly, it argues an act; and an act has three branches--it is to act, to do, and to perform.

Argal, she drowned herself wittingly.

_Second Clown._ Nay, but hear you good man, deliver.

_First Clown._ Give me leave. Here lies the water. Good. Here stands the man. Good. If the man goes to this water and drowns himself, it is nil he, will he, he goes. Mark you that. But if the water come to him and drown him, he drowns not himself. Argal, he that is not guilty of his own death shortens not his own life.

_Second Clown._ But is this law?

_First Clown._ Ay, marry is't, crowner quest law.

It hardly needed any better authority than the above to convince simple-minded people of the truth of the observation made by Blackstone that "law is the perfection of human reason." But if law is great, those who expound it are greater.

The woman suffrage trial came on. The judges endeavored to follow the arguments as far as possible, and to religiously earn their salaries by the attention given, if no more. The arguments were finally finished, and the women of the country waited expectantly to hear their legal status defined.

It took just one week for the united judicial wisdom of this District to consider this case in all its bearings, and then the decision came.

It was about as follows:

SCENE--DISTRICT COURT-ROOM.--_Enter Judges with law books._