The History of Woman Suffrage Volume III Part 140

"In a judicial sense, their authority is absolute and unlimited, except by the express restrictions of the fundamental law" (Court of Appeals, 1863, Bank of Chenango vs. Brown, 26 N. Y., 467; S. P., Cathcart vs. Fire Department of New York, Id., 529; Supreme Court, 1864, Clark vs. Miller, 42 Barb., 255; Luke vs. City of Brooklyn, 43 Id., 54).

"Only on the ground of express const.i.tutional provisions limiting legislative power, can courts declare void any legislative enactment" (Court of Error. 1838, Cochran vs. Van Surlay, 29 Wend., 365; Newell vs. People, 7 N. Y. [3 Seld.], 9, 109).

"Before proceeding to amend, by judicial sentence, what has been enacted by the law-making power, it should clearly appear that the act cannot be supported by any reasonable intendment or allowable presumption" (Court of Appeals, 1858, People vs. Supervisors of Orange, 17 N. Y., 235; affi'g, 27 Barb., 575).

II. POWERS UNDEFINED.--The const.i.tution forbids the legislature to do certain things. Otherwise it does not define or limit the legislature's powers (Art. 3, ---- 3, 18, 19, 24).

III. NO PROHIBITION.--No const.i.tution of New York has ever forbidden the legislature to extend the suffrage beyond the cla.s.ses specified by such const.i.tution; nor has any ever forbidden unspecified persons to vote. The const.i.tution simply secures the suffrage to certain cla.s.ses, and there leaves the matter.

IV. RULE OF CONSTRUCTION.--The const.i.tution declares that the object of its establishment is to secure the blessings of freedom to the people (Preamble, Revised Statutes, vol. 1., p. 82). Hence it, and all enactments under it, must be understood and construed, where a contrary intent is not clearly expressed, to be aimed at securing freedom to all.

V. DISFRANCHIs.e.m.e.nT.--The const.i.tution follows this declaration by laying down at its outset, as its fundamental principle, that "No member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizens thereof, except by the law of the land" (Art. 1, -- 1, do., do.). Disfranchis.e.m.e.nt, then, must be express by the law. It cannot const.i.tutionally be inflicted through mere implication or silence.

Rules for the securing of freedom have often been found to cover unforeseen cases. Such was the fact in the famous decision of Lord Mansfield in 1774, that slavery was against the common law, under which slavery was afterward abolished throughout the British empire; and the decision of the highest court of Ma.s.sachusetts, that the terms of the const.i.tution of 1780 conferred freedom on the slaves of that State.

Women, it is now fully recognized, are citizens, and hence "members of the State," ent.i.tled to the security guaranteed. The _practice_ under the const.i.tution has been to treat as _disfranchised_ all persons _not specified_ as ent.i.tled to vote. Though this practice is plainly against the declared object and principle of the const.i.tution, it has been general and mostly continuous, and has thus acquired the force of law. This, however, does not impair the legislature's power to correct the practice by express enactment.

VI. PRECEDENTS.--The legislature _has_ repeatedly corrected this practice by express enactments securing freedom to various portions of the people.

(_a_). CONSt.i.tUTIONAL CONVENTION, 1801.--The act calling this convention extended the suffrage for members of that body--_the highest officers of the State_--to "all free male citizens over twenty-one years of age," while the const.i.tution secured suffrage only to male holders of and actual taxpayers on a fixed amount of real estate (Session Law 1801, ch. 69, p. 151; const.i.tution of 1777, do., 1, 39).

(_b_). CONSt.i.tUTIONAL CONVENTION, 1821.--The act providing for the convention that framed the const.i.tution of 1822, while the existing const.i.tution (as above) only specified as ent.i.tled to vote, holders of and taxpayers on a fixed amount of real estate--this act allowed _all_ freeholders, however small the value of their holdings, all actual taxpayers, all officers and privates, ex-officers and ex-privates, in militia or in volunteer or uniform corps, all persons exempt by law from taxation or militia duty, all workers on public roads and highways, or payers of commutation for such work; to vote on the question whether the convention should be held, to vote in the choice of delegates thereto--_again for the highest officers of the State_--and to vote on the question of adoption of the new const.i.tution--_to exercise a voice in framing the State's fundamental law_. The council of revision, including the governor, which opposed and defeated part of this act, made no objection to this feature (Session Laws 1821, ch. 90, p. 83).

The vote for governor, 1820, was 93,437--the largest ever cast in the State. That on the question of calling the convention in 1821 was 144,247. One act of the legislature thus enfranchised _fifty thousand persons_. The vote on the new const.i.tution stood: For, 74,732; against, 41,402; majority for, 33,330. Thus the votes of fifty thousand persons--enfranchised, not by the const.i.tution but by the legislature--carried the adoption of a new const.i.tution, which further secured to them the freedom which the legislature had opened to them. The vote for governor in 1824--the next hotly-contested election--was 190,545; so that the immediate effect of the legislature's act was to add 97,108 persons to the const.i.tuency--to make a ma.s.s of new voters who outnumbered those specified by the const.i.tution.

(_c_). ALIENS VOTING.--The const.i.tution specifies none but "citizens" as ent.i.tled to vote; yet the legislature, by a school law of many years' standing, allowed _aliens_ to vote for school functionaries, on filing with the secretary of state notice of intention to become naturalized (1 R. S., art. 2, -- 1, p. 65; 2 R.

S., 63, -- 12; 2 R. S., 1,096, -- 31).

(_d_). NORTHFIELD.--The proprietors of swamp-lands in the town of Northfield, Richmond county, were authorized to elect directors of drainage, without any restriction or qualification but ownership (Session Laws 1862, ch. 80, -- 2, p. 233).

(_e_). The taxpayers of Newport, Herkimer county, were authorized to vote on the question of issuing bonds to raise money for a town-house. Under this law women who were taxpayers voted (Act April 9, 1873, Session Laws, ch. 187, -- 3, p. 304).

(_f_). The taxpayers of Dansville, Livingston county, were authorized to vote on the issue of water-bonds. Under this act women voted (Act April 24, 1873, Session Laws, ch. 285, -- 4, p.

409).

(_g_). The taxpayers of Saratoga Springs were authorized to vote on the question of issuing bonds for the construction of an additional water-main. Under this ninety-nine women voted (Act May 13, 1876, Session Laws, ch. 254, -- 4, p. 250).

VII. SCHOOL SUFFRAGE.--If the legislature can admit aliens to vote at school-meetings, it can admit female citizens to do so.

VIII. PRESIDENTIAL SUFFRAGE.--1. The federal const.i.tution provides that electors of president and vice-president shall be appointed "in such manner as the legislature thereof may direct" (Art. 2, -- 2).

2. It also provides that "this const.i.tution shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the const.i.tution or laws of any State to the contrary notwithstanding" (Art. 6, -- 2).

3. The legislature has the power under the federal const.i.tution to provide whatever method it may choose for the appointment of the electors. The courts have no power to interfere, and even an executive veto would have no force. The legislature has sole and full power to say who may vote for electors and how the election shall be held.

CHAPTER x.x.xVIII.

PENNSYLVANIA.

BY CARRIE S. BURNHAM.

The common law of England as modified by English statutes prior to the Revolution has been formally adopted either by const.i.tutions and statutes or a.s.sumed by courts of justice as the law of the land in every State save Louisiana, and in the absence of positive statutes is the common law of the United States. To understand the legal status of woman in Pennsylvania it is therefore necessary, _First_--To ascertain her condition under the common law; _Second_--How this law has been modified in this State by statutes.

COMMON LAW.

By the common law, which Lord c.o.ke calls "the perfection of reason," women arrive at the age of discretion at twelve, men at fourteen; both s.e.xes are of full age at twenty-one, ent.i.tled to civil rights, and if unmarried and possessed of freehold, they are equally ent.i.tled to the exercise of political rights (Blackstone, I., 463; IV., 212; Bouvier's Inst.i.tutes, 156, 157; Decisions of English courts in 1612, quoted in 7 Mod. Rep., 264).

"By marriage, the husband and wife are one person in law"; that is, the legal existence of the woman is "merged in that of her husband." He is her "baron," or "lord," bound to supply her with shelter, food, clothing and medicine, and is ent.i.tled to her earnings--the use and custody of her person, which he may seize wherever he may find it (Blackstone, I., 442, 443; c.o.ke Litt., 112 a, 187 b; 8 Dowl., P. C., 632.)

The husband being bound to provide for his wife the necessaries of life, and being responsible for "her morals" and the good order of the household, may choose and govern the domicil, choose her a.s.sociates, separate her from her relatives, restrain her religious and personal freedom, compel her to cohabit with him, correct her faults by mild means and, if necessary, chastise her with moderation, as though she was his apprentice or child. This is in "respect to the terms of the marriage contract and the infirmity of the s.e.x" (Bl., I., 444; 1 Bishop on Mar. and Div., 758; 8 Dowl. P.

C., 632; Bouv. Insts., 277, 278, 2,283; 1 Wend. Bl., 442, note; 4 Petersdorf's A. B., 21, note).

Woman's character, exposed to the vilest slanders of "malignity and falsehood," and her chast.i.ty are protected on account of the injury sustained by the father, husband or master from loss of her services, or wrongful entry of his house, rather than the injury done to her as an individual (Bl. I., 445, note; III., 141, 143, note; 3 Serg. and Rawle, Penn., 36; 3 Penn., 49; 2 Watts' Penn., 474).

The husband is ent.i.tled to recover damages for "criminal conversation with his wife," or for injury to her person whereby he is deprived of his "marital rights," or of her "company and a.s.sistance"; also an action of _trespa.s.s vi et armis_ against the individual enticing her away or encouraging her to live separately from him; the offense implies force and constraint, "the wife having no power to consent," and is punishable with fine and imprisonment (Bl., III., 139; 2 Inst., 434; Bouvier's Inst.i.tutes, 3,495).

The wife has no action for injuries to her husband as she is not ent.i.tled to his services, neither has she any separate interest in anything during her coverture. The law takes notice only of the injuries done to the "superior of the parties related"; because "the inferior has no kind of property in the company, care or a.s.sistance of the superior, as the superior is held to have in those of the inferior" (Blackstone, III., 143; Bouv. Insts., 3,495).

The husband, by marriage, becomes ent.i.tled absolutely to the personal property of his wife, which at his death goes to his representatives; also to the rents and profits of her lands, to the interest in her chattels real and _choses_ in action, of which he can dispose at pleasure, except by will. He acquires the same right in any property whether real or personal of which she may become possessed after marriage, and is liable during coverture for her debts contracted before marriage (Bl., II., 434, 435; Bouv. Insts., 4,005; c.o.ke Litt., 46, 351).

At his death she becomes possessed of her wardrobe and jewels, such of her chattels as remain undisposed of, and her own real estate; also quarantine (_i. e._, forty days' residence in "his mansion"), one-third of his personality absolutely and the use of one-third of any real estate of which he is possessed during coverture for the term of her natural life. _His_ mansion, realty and personalty includes what they have jointly earned as well as that of which he was possessed at marriage. The widow's right to one-third of the personal estate was abolished by English statutes prior to the Revolution, but has since been revived by Pennsylvania statutes (Blackstone, II., 129, 134, 139, 436, 492, 493; c.o.ke Litt., 31, 34; Bouvier's Inst.i.tutes, 1,750; Brightley's Purdon, 806, 2 and 3).

At the death of the wife their joint earnings, also her chattels real, vest absolutely in the husband, and if they have had a living child the husband, as "tenant by the curtesy," becomes possessed of her entire real estate for life. The wife loses her dower by adultery, but the husband does not lose his curtesy on that account. Her dower is also barred by his treason and by a divorce grounded on his adultery (Blackstone, II., 127, 434; Roper, Husband and Wife, 1,210; 2 Kent, 131; 7 Watts, 563; Bouvier's Inst.i.tutes, 1,732).

A husband cannot convey real estate directly to his wife, but may through a trustee; neither can he give "anything to her nor covenant with her, for the grant would be to suppose her separate existence, and to covenant with her would be to covenant with himself." Their covenants or indebtedness to each other before marriage are by the marriage extinguished (Blackstone, I., 442; c.o.ke Litt., 3, 30; 112 a; 187 b; Connyn. Dig. Baron and Feme, D).

The husband may devise any property to his wife, but the wife cannot make a will, the law supposing her to be under his coercion; neither can she bind her person or property, nor make nor enforce a contract, nor can she be a witness in any matter in which her husband is interested (Blackstone, II., 293, 498, 444; 2 Kent, 179; Bouv. Insts., 1,441; Connyn. Dig. Pleader, 2 A, 1; Baron and Feme, W; 2 Roper, Husband and Wife, 171).

A wife, with the consent of her husband, may act as his or other's attorney, may be a guardian, trustee, administratrix or executrix, but cannot sue in _auter droit_ unless her husband join in the suit. This incapacitates her to act independently in either capacity (Blackstone, II., 503; 1 Anders., 117; 2 Story, Eq.

Juris., 1,367, note; 57 Penn. St. Rep., 356).

A wife cannot enforce her rights nor defend any action brought against her, but must plead coverture in person, being incapable of appointing an attorney (Bouv. Insts., 2,787, 2,907; 41 N. H., 106; 2 Saund., 209; c. n. 1).

When a woman marries after having commenced a suit, the suit abates; but the husband may _in equity_ sue her for his marital rights in her property; marriage of a female partner dissolves the partnership (Bouv. Insts., 4,037, 1,494; 4 Russ. Ch., 247; 3 Atk.

Ch., 478; 2 P. Will Ch., 243).

The father of legitimate children is bound for their maintenance and education, is ent.i.tled to their labor and custody and has power to dispose of them until twenty-one years of age, by deed or legacy, even though they are unborn at his death. The testamentary guardian's right to their custody supersedes that of their mother (Bl., I., 447, 451, 453; 2 Kent, 191 and 193; Bouv. Insts., 344; 5 Rawle, 323; 2 Watts, 406; 5 East, 221; Purd. Dig., New Ed., 411, 29; 5 Pitts, L. J., 406; 1 Pitts, 412).

"A mother is ent.i.tled to no power, but to reverence and respect, from her children"; she has no legal authority over them nor right to their services, but her property is liable for their maintenance if the father has not an estate. The mother's appointment of a testamentary guardian is absolutely void (Bl., I., 453 and 461, note by Chitty; Vaughan, 180; 1 Leg. Gaz. R., 56).

The mother of a "natural or illegitimate" child is its natural guardian, ent.i.tled to its control and custody and her settlement is its domicil (Bl., I., 459; 2 Kent, 216; 5 Term Rep., 278; Newton vs. Braintree, 14 Ma.s.s., 382).

"Intestate personal property is divided equally between males and females, but a son, though younger than all his sisters, is the heir to the whole of real property" (Bl., I., 444, note by Christian).