The History of Woman Suffrage Volume II Part 98

The theory upon which our political inst.i.tutions rest, is, that all men have certain inalienable rights--that among these are life, liberty, and the pursuit of happiness; and that, in the pursuit of happiness, all avocations, all honors, all positions are alike open to every one, and that, in the protection of these rights, all are equal before the law. Any deprivation or suspension of any of these rights, for past conduct, is punishment, and can be in no otherwise defined.

Punishment not being therefore restricted, as contended by counsel, to the deprivation of life, liberty, or property, but also embracing deprivation or suspension of political or civil rights, and the disabilities prescribed by the provisions of the Missouri Const.i.tution being in effect punishment, we proceed to consider whether there is any inhibition in the Const.i.tution of the United States against their enforcement.--(c.u.mmings _vs._ The State of Missouri, 4 Wallace, 351-323, and _ex parte_ Garland--same volume.)

We are aware that the Supreme Court of Missouri, in the case of Blair _vs._ Ridgley, hold a different view, but we submit that the cases differ in a most material point, to wit: In the Blair case he was merely required to take the oath taken by all voters; and, by refusing to do so, he virtually disfranchised himself. In this case, however, the disfranchis.e.m.e.nt of the plaintiff is arbitrary and insurmountable; and we further submit, that the arguments in this case present it in a different, and, we think, a broader view than was taken in the Blair case. But to show that we are not unsupported by authority in this matter, we will now quote from a New York case, very similar to the Blair case, where the elector was required, but refused to take the oath, etc.

MILLER, J.: This case involves the const.i.tutional validity of that portion of the act to provide for a convention to revise and amend the Const.i.tution of this State, which excludes from the privilege of voting all who refuse to take the test oath prescribed by the act in question.

I think that the oath in question was unconst.i.tutional and invalid, for the reasons which I will proceed to state. The first subdivision of the tenth section of the first article of the Const.i.tution of the United States provides, that "no State shall pa.s.s any bill of attainder, _ex post facto_ law, or laws impairing the obligations of contracts, or grant any t.i.tle of n.o.bility." The provision of the act which is to be considered declares, that no person shall vote at the election for delegates to said convention who will not, if duly challenged, take and subscribe an oath that he has not done certain acts mentioned therein, and inflicts the penalty of political disfranchis.e.m.e.nt without any preliminary examination or trial, for a refusal to take said oath.

By this enactment the citizen is deprived, upon declining to conform to its mandate, of a right guaranteed to him by the Const.i.tution and laws of the land, and one of the most inestimable and invaluable privileges of a free government.

There can be no doubt, I think, that to deprive a citizen of the privileges of exercising the elective franchise, for any conduct of which he has previously been guilty, is to inflict a punishment for the act done.

It imposes upon him a severe penalty, which interferes with his privileges as a citizen, affects his respectability and standing in the community, degrades him in the estimation of his fellow-men, and reduces him below the level of those who const.i.tute the great body of the people of which the Government is composed. It moreover inflicts a penalty which, by the laws of this State, is a part of the punishment inflicted for a felony, and which follows conviction for such a crime. It is one of the peculiar characteristics of our free inst.i.tutions, that every citizen is permitted to enjoy certain rights and privileges, which place him upon an equality with his neighbors. Any law which takes away or abridges these rights, or suspends their exercise, is not only an infringement upon their enjoyment, but an actual punishment. That such is the practical effect of the test oath required by the act in question, can admit of no doubt, in my judgment. It arbitrarily and summarily, and without any of the forms of law, punishes for an offense created by the law itself. In the formation of our National Const.i.tution, its framers designed to prevent and guard against the exercise of the power of the Legislature, by usurping judicial functions, and for the punishment of alleged offenses in advance of trial, for offenses unknown to the law, and by bill of attainder and _ex post facto enactments_, etc.--(Green _vs._ Shumway, 36 Howard's Practice Rep., pp. 7, 8.)

On the same subject, we will next quote from a decision by the Supreme Court of Nevada:

LEWIS, C. J.--The form of the law by which an individual is deprived of a const.i.tutional right is immaterial. The test of its const.i.tutionality is, whether it operates to deprive any person of a right guaranteed or given to him by the Const.i.tution. If it does, it is a nullity, whatever may be its form. Surely a law which deprives a person of a right, by requiring him to take an oath which he can not take, is no less objectionable than one depriving him of such right in direct terms.

To make the enjoyment of a right depend upon an impossible condition, or upon the doing of that which can not legally be done, is equivalent to an absolute denial of the right under any condition. The effect, and not the language of the law, in such case, must determine its const.i.tutionality. It would not be doubted for a moment that a law expressly denying the elective franchise to any person upon whom the Const.i.tution confers it would be unconst.i.tutional. Why, then, is a law less objectionable which, although not expressly and directly, yet no less certainly denies the right, etc.--(Davies _vs._ McKeeby, 5 Nevada Rep. 7,371.)

We quote next from a Tennessee case:

The elective franchise is a right which the law protects and enforces as jealously as it does property in chattels or lands. It matters not by what name it is designated--the right to vote, the elective franchise, or the privilege of the elective franchise--the person who, under the Const.i.tution and laws of the State is ent.i.tled to it, has a property in it, which the law maintains and vindicates as vigorously as it does any right of any kind which men may have and enjoy.

The rules of law which guard against deprivation or injury, the rights of persons in corporeal properties, are alike and equally applicable to the elective franchise, and alike and equally guard persons invested with it against deprivation of or injury to it.

Persons invested with it can not be deprived of it otherwise than by "due process of law." See

The State _vs._ Staten, 6 Caldwell's Rep., p. 243. See also Rison _vs._ Farr, 25 Ark. Rep., p. 173; Winehamer _vs._ People, 13 N. Y., 378; State _vs._ Symonds, 57 Maine, 150, 511; Huber _vs._ Riley, 53 Penn., 112; Cooley's Const.i.tutional Limitations.

We conclude this list of references with Mr. Webster's celebrated definition in the Dartmouth College case (4 Wheaton, 581):

By the law of the land is most clearly intended the general law; a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pa.s.s under the form of an enactment is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeiture, in all possible forms, would be the law of the land.

Such a strange construction would render const.i.tutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the Legislature. There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form--an idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare the law, or to administer the justice of the country.

That the elective franchise is a privilege of citizenship, we have the authority of Judge Washington, for he says:

What are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What those fundamental principles are, it would perhaps be more tedious than difficult to enumerate.

They may, however, be all comprehended under the following general heads: Protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may justly prescribe for the general good of the whole; the right of a citizen of one State to pa.s.s through, or to reside in any other State for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of _habeas corpus_; to inst.i.tute and maintain actions of every kind in the courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or imposition than are paid by the citizens of the other State, may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added, the elective franchise, as regulated and established by the laws or Const.i.tution of the State in which it is to be exercised (Corfield _vs._ Corryell, 4 Wash. C.C., 380). Cited and approved in Dunham _vs._ Lamphere, 3 Gray, 276 (Ma.s.s.); Bennett _vs._ Boggs, Baldwin Rep., 72.

A proper construction of Art. 1, Sec. 2, of the Const.i.tution of the United States will further demonstrate the proposition we are endeavoring to uphold. That section is as follows:

ARTICLE 1, Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications for electors of the most numerous branch of the State Legislature.

This section consists of two clauses, but in neither is there a word as to the s.e.x of the elector. He, or she, must be one of the people, or "citizens," as they are designated in the Const.i.tution, that is all.--(Story's Comms. -- 579.)

The "people" are to elect. This clause fixes the cla.s.s of voters; the other clause is in subordination to that, and merely provides, that as touching qualifications, there shall be one and the same standard for the Federal and for the State elector. Both are mentioned and neither is or can be excluded by the other.

The right to vote is very different from the qualification necessary in a voter. A person may have the right to vote, and yet not possess the necessary qualifications for exercising it.

In this case, the right to vote is derived from the Federal Const.i.tution, which designates the cla.s.s of persons who may exercise it, and provides that the Federal elector shall conform to the regulations of the State, so far as time, place, and manner of exercising it are concerned. But it is clear that under this authority the State has no right to lay down an arbitrary and impossible rule. As before stated by the Chief-Justice of Nevada: "To make the enjoyment of a right depend upon an impossible condition, is equivalent to an absolute denial of it under any condition."

In conclusion, we will consider, as briefly as possible, the points made by the Supreme Court of Missouri. We quote from the opinion:

The question presented then is, whether there is a conflict between the Const.i.tution of the United States and the Const.i.tution and laws of the State of Missouri on this subject. That the different States of the Union had a right, previous to the adoption of what is known as the XIV.

Amendment to the Const.i.tution of the United States, to limit the right to vote at election by their const.i.tutions and laws to the male s.e.x, I think can not at this day be questioned.

Undoubtedly the practice in the different States, as we have before said, is against the claim made by the plaintiff, although, as we shall show, in the early days of the Republic this practice was by no means universal. But when the Court states that the right of the States to do this can not be questioned, it a.s.sumes the very point in controversy, and it fails to notice the distinction between "the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union."

(Chief-Justice Taney in Scott _vs._ Sandford, 19 Howard, 405.)

"The difference," says Judge Cooley (Story on Const.i.tution, section 1937), "is in a high degree important." And while it may be true that the voter himself rarely, if ever, thinks of any difference between his vote for State and for Federal officers, yet, in law, there is a wide distinction.

In the one case he exercises the franchise under one jurisdiction or sovereignty, and in the other under a totally different one.

In voting for Federal officers he exercises the freeman's right to take part in the government of his own creation, and he does this in contemplation of law, in his character or capacity of a citizen of the United States, and his right so to vote legally depends upon such status or character. Clearly, then, the right of a citizen of the United States to vote for Federal officers can only be exercised under the authority or sovereignty of the United States, not under some other authority or sovereignty, and consequently the citizen of the United States could not justly have been deprived of such right by the State, even before the adoption of the XIV. Amendment.

But whatever doubt there may have been as to this, we hold that the adoption of the XIV. Amendment put an end to it and placed the matter beyond controversy. The history of that Amendment shows that it was designed as a limitation on the powers of the States, in many important particulars, and its language is clear and unmistakable. "No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States." Of course all the citizens of the United States are by this protected in the enjoyment of their privileges and immunities. Among the privileges, that of voting is the highest and greatest. To an American citizen there can be none greater or more highly to be prized; and the preservation of this privilege to the citizens of the United States respectively is, by this Amendment, placed under the immediate supervision and care of the Government of the United States, who are thus charged with its fulfillment and guaranty.

By ratifying this Amendment the several States have relinquished and quit-claimed, so to speak, to the United States, all claim or right, on their part, to "make or enforce any law which shall abridge the privileges and immunities of citizens of the United States." The State of Missouri, therefore, is estopped from longer claiming this right to limit the franchise to "males," as a State prerogative; and the Supreme Court of Missouri should have so declared, and its failure to do so is error; because, by retaining that word in the State Const.i.tution and laws, not this plaintiff only, but large numbers of other citizens of the United States are "abridged" in the exercise of their "privileges and immunities as citizens of the United States," by being deprived of their right or privilege to vote for United States officers, as claimed by the plaintiff in her pet.i.tion. Not only this, but we say further, that the ratification of this amendment was, in intendment of law, a solemn agreement, on the part of the States, that all existing legislation inconsistent therewith should be repealed, or considered as repealed, and that none of like character should take place in the future. The State of Missouri has acted upon this idea in part, and its subsequent legislation, on the subject of the ballot, has been as follows: The ratification of the XV. Amendment (which we do not consider as having any direct bearing on the point now being considered, inasmuch as this Amendment is merely prohibitory--not conferring any right, but treating the ballot in the hands of the negro as an existing fact, and forbidding his deprivation thereof). Next, amending the State Const.i.tution and registration law, by simply omitting the word "white" from the clause "white male citizens."

This const.i.tutes the entire legislation of the State of Missouri on this subject since the adoption of the XIV. Amendment, and this omission of the word "white" was designed to make the State Const.i.tution conform to the Amendment, so far as the negro was concerned, leaving the women citizens of the United States still under the ban of "involuntary servitude," in plain violation of the Amendment.

So that, while the negro votes to-day in Missouri, there is not a syllable of affirmative legislation by the State conferring the right upon him. Whence, then, does he derive it? There is but one reply. The XIV. Amendment conferred upon the negro race in this country citizenship of the United States, and the ballot followed as an incident to that condition. Or, to use the more forcible language of this Court, in the Slaughter-house cases (16 Wall., 71), "the negro having, by the XIV. Amendment, been declared a citizen of the United States, is thus made a voter in every State of the Union." If this be true of the negro citizen of the United States, it is equally true of the woman citizen. And we invoke the interposition of of this Court to effect, by its decree, that which the Supreme Court of Missouri should have done, and declare that this objectionable word must be omitted, or considered as omitted from the Const.i.tution and registration law of said State.

It can not be pretended that the Const.i.tution of the United States makes, or permits to be made, any distinction between its citizens in their rights and privileges; that the negro has a right which is denied to the woman. The discrimination, therefore, made and continued by the State of Missouri, of which we complain, is an unjustifiable act of arbitrary power, not of right, and can be designated by no other term.

We proceed with our quotation from the opinion:

In this changed state of affairs, it was thought by those who originated and adopted this Amendment, that it was absolutely necessary that these emanc.i.p.ated people should have the elective franchise, in order to enable them to protect themselves against unfriendly legislation, in which they could take no part; that unless these people had the right to vote, and thus protect themselves against oppression, their freedom from slavery would be a mockery, and their condition but little improved. It was to remedy this that the XIV. Amendment to the Const.i.tution was adopted. It was to compel the former slave States to give these freedmen the right of suffrage, and to give them all of the rights of other citizens of the respective States, and thus make them equal with other citizens before the law.

It would be impossible for us to give any better reason for woman's need of the ballot than the court has here given for that of the negro, except that woman's condition is even more helpless than his--"unless these people had the right to vote, and thus protect themselves against oppression, their freedom from slavery would be a mockery." How an American judge, with the claim of an American citizen before him, for the protection, which, as he truly says, this ballot alone can give, could see its lawfulness and justice in the one case, and not in the other, pa.s.ses our comprehension.

We again quote from the opinion:

It was only intended to give the freedmen the same rights that were secured to all other cla.s.ses of citizens in the State, and that if the other male inhabitants of the State over the age of twenty-one years enjoyed the right of suffrage, so should the males among the freedmen over the age of twenty-one years enjoy the same right; it was not intended that females, or persons under the age of twenty-one years, should have the right of suffrage conferred on them.

In reply to this, we might content ourselves with saying that it is mere a.s.sertion, and can hardly be dignified as argument; but we answer, that if the XIV. Amendment does not secure the ballot to woman, neither does it to the negro; for it does not in terms confer the ballot upon any one. As we have already shown, it is the altered condition of citizenship that secures to the negro this right; but this plaintiff might well reply, I was born to that condition, and yet am denied its privileges.

We quote again, and finally, from the opinion:

This is not only shown by the history of the times when the Amendment was adopted, and the circ.u.mstances which produced it, but by reference to the second section of said Amendment, it will be seen that the right to restrict the right of suffrage to the male inhabitants by a State is clearly recognized. If "the right to vote, etc., is denied to any of the male inhabitants of such State, being twenty-one years of age," etc., is the language used. This clearly recognizes the right, and seems to antic.i.p.ate the exercise of the right on the part of the States, to restrict the right of suffrage to the male inhabitants.

We doubt if an instance can be found of a more complete misconception of the meaning and intention of the law. So far from its being a recognition of the right of the States to restrict the right to suffrage of males, it has an exactly opposite meaning. It was intended as a punishment on the States if they did this thing. It is no more a justification or authorization of the act than is the law punishing larceny an authority for stealing! Its object was to punish the States as such, which, but for this provision, could not have been done by diminishing their representation accordingly; and it was designed as a still further security for the rights of the colored population. But, even if it could be held to recognize a right on the part of the State to disfranchise any one, it would only extend to "males," not to females. They, as "citizens of the United States," are embraced in, and protected by, the broad language of the Amendment; a right that is fundamental, can not be taken away by implication. But more than this, the XIV.

Amendment was an addition to the organic law of a great nation, intended to enlarge the area of human freedom, and secure more firmly individual rights. It is absurd to impute to the law-makers a design at the same time to restrict those rights.

Although the point is not alluded to by the Supreme Court of Missouri, yet, as we desire to meet every possible objection, we think this a proper place to notice an argument sometimes put forward, based upon the XV. Amendment. It is of the nature of what is termed in law a negative pregnant, or, the familiar maxim of "the expression of one thing is the exclusion of another." As this Amendment says, that 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, it is claimed by some that it may be abridged on other grounds. But, aside from the well-known history of this Amendment, as shown by the debates in Congress, of which this court will take notice when necessary, and which show that the sole object and purpose of this Amendment was to still further protect the negro race, the IX. Amendment to the Const.i.tution effectually puts an end to the application of this principle by declaring that the enumeration in the Const.i.tution of certain rights shall not be construed to deny or disparage others retained by the people. And Mr. Justice Story, in his Commentary says, -- 1905:

This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmative in particular cases implies a negative in all others; and, _e converso_, that a negative in particular cases implies an affirmative in all others.

The maxim, rightly understood, is perfectly sound and safe; but it has often been forced from its natural meaning into the support of the most dangerous political heresies. The Amendment was undoubtedly suggested by the reasoning of the Federalist on the subject of a general bill of rights and trial by jury. Federalist No. 83-84.