The History of Woman Suffrage Volume II Part 89

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 Const.i.tution last referred to. When, therefore, the States were, by the XIV.

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 const.i.tuted citizenship, and what were the "privileges and immunities of citizens" which were secured by Sec. 2, Art. 4, of the Const.i.tution, and they showed, by an unanswerable argument, that the term "citizens," as there used, was confined to those who were ent.i.tled 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 ent.i.tled 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 ent.i.tled he can not, 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 inst.i.tutions, 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 const.i.tuent 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 partic.i.p.ation 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 Justice Daniel, conveys the idea "of identification with the State or Government, and a partic.i.p.ation in its functions." Beyond question, therefore, the first section of the XIV. 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 Const.i.tution.

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 Const.i.tution which it can be contended conflict with the construction which has here been put upon the first section of the XIV. Amendment, are the XV. Amendment, and the second section of the XIV. In regard to the XV. Amendment, I shall only say, that if my interpretation of the XIV. is correct, there was still an object to be accomplished and which was accomplished by the XV. The prohibition of any action abridging the privileges and immunities of citizens, contained in the XIV.

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 XV. 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 XIV.

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, and it gives none; but 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 Const.i.tution. 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 Const.i.tution, 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 can not be held to add to, or to take from the other provisions of the Const.i.tution. 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 emanc.i.p.ate themselves from the influence of the original Const.i.tution 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 const.i.tutions 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 can not 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 a.s.serted, 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 XIII. 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 const.i.tutional 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 const.i.tution 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 Const.i.tution, no further legislation was required in our behalf. When the State officers attempted to interpose between us and the ballot-box the State Const.i.tution 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 Const.i.tution, prohibiting the States from enforcing any such const.i.tutional 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 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 citizens? Are they capacities merely? Are they not also rights?

Senator Carpenter, who took part in the discussion of the XIV.

Amendment in the Senate, and aided in its pa.s.sage, says:

The XIV. 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 Const.i.tution, 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 const.i.tutions, 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 const.i.tutional and legislative acts to have an effect beyond the antic.i.p.ation 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 Const.i.tution 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 above 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 const.i.tutional 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 Const.i.tution 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 XIV. 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 cla.s.ses of persons, is entirely without force. It takes no note of the familiar fact, that every legislative provision, whether const.i.tutional 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 cla.s.s. 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 and 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 XIV.

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 Const.i.tution, 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 XIV. 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 munic.i.p.al 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 s.e.x, 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."

Our law books furnish, perhaps, more satisfactory evidence of the earnestness with which women in England are claiming the right to vote, under the reform act of 1867, aided by Lord Brougham's act of 1850. The case of Chorlton, appellant, _vs._ Lings, respondent, came before the Court of Common Pleas in England in 1869. It was an appeal from the decision of the revising barrister, for the borough of Manchester, to the effect "that Mary Abbott, being a woman, was not ent.i.tled to be placed on the register." Her right was perfect in all respects excepting that of s.e.x. The court, after a very full and able discussion of the subject, sustained the decision of the revising barrister, denying to women the right to be placed on the register, and consequently denying their right to vote. The decision rested upon the peculiar phraseology of several Acts of Parliament, and the point decided has no applicability here. My object in referring to the case has been to call attention to the fact stated by the reporter, that appeals of 5,436 other women were consolidated and decided with this. No better evidence could be furnished of the extent and earnestness of the claim of women in England to exercise the elective franchise.--Law Rep. Com. Pleas, 4-374. I infer, without being able to say how the fact is, that the votes given by women, as mentioned in the newspapers, were given at munic.i.p.al elections merely, and that the cases decided by the Court of Common Pleas relate to elections for members of Parliament.

Another objection is, that the right to hold office must attend the right to vote, and that women are not qualified to discharge the duties of responsible offices. I beg leave to answer this objection by asking one or more questions. How many of the male bipeds who do our voting are qualified to hold high offices? How many of the large cla.s.s to whom the right of voting is supposed to have been secured by the XV. Amendment, are qualified to hold office? Whenever the qualifications of persons to discharge the duties of responsible offices is made the test of their right to vote, and we are to have a compet.i.tive examination on that subject, open to all claimants, my client will be content to enter the lists, and take her chances among the candidates for such honors.

But the practice of the world, and our own practice, give the lie to this objection. Compare the administration of female sovereigns of great kingdoms, from Semiramis to Victoria, with the average administration of male sovereigns, and which will suffer by the comparison? How often have mothers governed large kingdoms, as regents, during the minority of their sons, and governed them well? Such offices as the "sovereigns" who rule them in this country have allowed women to hold (they having no voice on the subject), they have discharged the duties of with ever-increasing satisfaction to the public; and Congress has lately pa.s.sed an act, making the official bonds of married women valid, so that they could be appointed to the office of postmaster.

The case of Olive _vs._ Ingraham (7 Modern Rep. 263) was an action brought to try the t.i.tle to an office. On the death of the s.e.xton of the parish of St. Butolph, the place was to be filled by election, the voters being the housekeepers who "paid Scot and lot" in the parish. The widow of the deceased s.e.xton (Sarah Bly) entered the lists against Olive, the plaintiff in the suit, and received 169 indisputable votes, and 40 votes given by women who were "housekeepers, and paid to church and poor." The plaintiff had 174 indisputable votes, and 22 votes given by such women as voted for Mrs. Bly. Mrs. Bly was declared elected. The action was brought to test two questions: 1. Whether women were legal voters; and 2. Whether a woman was capable of holding the office.

The case was four times argued in the King's Bench, and all the Judges delivered opinions, holding that the women were competent voters; that the widow was properly elected, and could hold the office. In the course of the discussion it was shown that women had held many offices, those of constable, church warden, overseer of the poor, keeper of the "gate house" (a public prison), governess of a house of correction, keeper of castles, sheriffs of counties, and high constable of England. If women are legally competent to hold minor offices, I would be glad to have the rule of law, or of propriety, shown which should exclude them from higher offices, and which marks the line between those which they may and those which they may not hold.

Another objection is that women can not serve as soldiers. To this I answer that capacity for military service has never been made a test of the right to vote. If it were, young men from sixteen to twenty-one would be ent.i.tled to vote, and old men from sixty and upward would not. If that were the test, some women would present much stronger claims than many of the male s.e.x.

Another objection is that engaging in political controversies is not consistent with the feminine character. Upon that subject, women themselves are the best judges, and if political duties should be found inconsistent with female delicacy, we may rest a.s.sured that women will either effect a change in the character of political contests, or decline to engage in them. This subject may be safely left to their sense of delicacy and propriety. If any difficulty on this account should occur, it may not be impossible to receive the votes of women at their places of residence. This method of voting was practiced in ancient Rome under the republic; and it will be remembered that when the votes of the soldiers who were fighting our battles in the Southern States were needed to sustain their friends at home, no difficulty was found in the way of taking their votes at their respective camps.

I humbly submit to your honor, therefore, that on the Const.i.tutional grounds to which I have referred, Miss Anthony had a lawful right to vote; that her vote was properly received and counted; that the first section of the XIV. Amendment secured to her that right, and did not need the aid of any further legislation. But conceding that I may be in error in supposing that Miss Anthony had a right to vote, she has been guilty of no crime, if she voted in good faith believing that she had such right. This proposition appears to me so obvious, that were it not for the severity to my client of the consequences which may follow a conviction, I should not deem it necessary to discuss it.

To make out the offense, it is inc.u.mbent on the prosecution to show affirmatively, not only that the defendant knowingly voted, but that she so voted knowing that she had no right to vote. That is, the term "knowingly" applies, not to the fact of voting, but to the fact of want of right. Any other interpretation of the language would be absurd. We can not conceive of a case where a party could vote without knowledge of the fact of voting, and to apply the term "knowingly" to the mere act of voting, would make nonsense of the statute. This word was inserted as defining the essence of the offense, and it limits the criminality to cases where the voting is not only without right, but where it is done willfully, with a knowledge that it is without right. Short of that there is no offense within the statute. This would be so upon well-established principles, even if the word "knowingly"

had been omitted, but that word was inserted to prevent the possibility of doubt on the subject, and to furnish security against the inability of stupid or prejudiced judges or jurors, to distinguish between willful wrong and innocent mistake. If the statute had been merely that "if at any election for representative in Congress any person shall vote without having a lawful right to vote, such person shall be deemed guilty of a crime," there could have been justly no conviction under it without proof that the party voted knowing that he had not a right to vote. If he voted innocently supposing he had the right to vote, but had not, it would not be an offense within the statute. An innocent mistake is not a crime, and no amount of judicial decisions can make it such. Mr. Bishop says, (I Cr. Law, -- 205),

There can be no crime unless a culpable intent accompanies the criminal act. The same author (1 Cr. Prac. -- 521), repeated in other words, the same idea: In order to render a party criminally responsible, a vicious will must concur with a wrongful act.

I quote from a more distinguished author:

Felony is always accompanied with an evil intention, and therefore shall not be imputed to a mere mistake or misanimadversion, as where persons break open a door, in order to execute a warrant, which will not justify such proceeding: _Affectio enim tua nomen imponit operi tuo: item crimen non contrahitur nisi nocendi, voluntas intercedat_, which, as I understand, may read: For your violation puts the name upon your act; and a crime is not committed unless the will of the offender takes part in it. (1 Hawk. P. C., p. 99, Ch. 25, -- 3.)

This quotation by Hawkins is, I believe, from Bracton, which carries the principle back to a very early period in the existence of the common law. It is a principle, however, which underlies all law, and must have been recognized at all times, wherever criminal law has been administered, with even the slightest reference to the principles of common morality and justice. I quote again on this subject from Mr. Bishop:

The doctrine of the intent as it prevails in the criminal law, is necessarily one of the foundation principles of public justice. There is only one criterion by which the guilt of man is to be tested. It is whether the mind is criminal. Criminal law relates only to crime. And neither in philosophical speculation, nor in religious or moral sentiment, would any people in any age allow that a man should be deemed guilty unless his mind was so. It is, therefore, a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent without which it can not exist. (1 Bishop's Crim. Law, -- 287.)

Again, the same author, writing on the subject of knowledge, as necessary to establish the intent, says:

It is absolutely necessary to const.i.tute guilt, as in indictments for uttering forged tokens, or other attempts to defraud, or for receiving stolen goods, and offenses of a similar description. (1 Crim. Prac. -- 504.)

In regard to the offense of obtaining property by false pretenses, the author says:

The indictment must allege that the defendant knew the pretenses to be false. This is necessary upon the general principles of the law, in order to show an offense, even though the statute does not contain the word "knowingly." (2 Id. -- 172.)

As to a presumed knowledge of the law, where the fact involves a question of law, the same author says:

The general doctrine laid down in the foregoing sections (_i.e._, that every man is presumed to know the law, and that ignorance of the law does not excuse), is plain in itself and plain in its application. Still, there are cases, the precise nature and extent of which are not so obvious, wherein ignorance of the law const.i.tutes, in a sort of indirect way, not in itself a defense, but a foundation on which another defense rests. Thus, if the guilt or innocence of a prisoner depends on the fact to be found by the jury, of his having been or not, when he did the act, in some precise mental condition, which mental condition is the gist of the offense, the jury in determining this question of mental condition, may take into consideration his ignorance or misinformation in a matter of law. For example, to const.i.tute larceny, there must be an intent to steal, which involves the knowledge that the property taken does not belong to the taker; yet, if all the facts concerning the t.i.tle are known to the accused, and so the question is one merely of law whether the property is his or not; still he may show, and the showing will be a defense to him against the criminal proceeding, that he honestly believed it his through a misapprehension of the law.

The conclusions of the writer here are correct, but in a part of the statement the learned author has thrown some obscurity over his own principles. The doctrines elsewhere enunciated by him, show with great clearness, that in such cases the state of the mind const.i.tutes the essence of the offense, and if the state of the mind which the law condemns does not exist, in connection with the act, there is no offense. It is immaterial whether its non-existence be owing to ignorance of law or ignorance of fact, in either case the fact which the law condemns, the criminal intent, is wanting. It is not, therefore, in an "indirect way,"

that ignorance of the law in such cases const.i.tutes a defense, but in the most direct way possible. It is not a fact which jurors "may take into consideration" or not, at their pleasure, but which they must take into consideration, because, in case the ignorance exists, no matter from what cause, the offense which the statute describes is not committed. In such case, ignorance of the law is not interposed as a shield to one committing a criminal act, but merely to show, as it does show, that no criminal act has been committed. I quote from Sir Matthew Hale on the subject. Speaking of larceny, the learned author says: