The History of Woman Suffrage Volume III Part 142

Section 1, article 2 of the const.i.tution provides that electors shall be appointed in such manner as the legislature of each State may direct. When the legislature of a State, in obedience to that provision, has, by law, directed the manner of appointment of the electors, that law has its authorities solely from the Const.i.tution of the United States. It is a law pa.s.sed in pursuance of the const.i.tution.

Hon. James A. Garfield, who was a member of the Electoral Commission, in discussing before that body the source of the power to appoint electors, said:

The const.i.tution prescribes that States only shall choose electors. * * * To speak more accurately, I should say that the power is placed in the legislatures of the States; for if the const.i.tution of any State were silent upon the subject, its legislature is none the less armed with plenary authority conferred upon it directly by the national const.i.tution.--[Electoral Commission, p. 242.

That this section of the national const.i.tution has always been understood to lodge an absolute discretion in the legislature, is proved by the practice in the different States. Chief Justice Story, in his "Commentaries on the Const.i.tution of the United States," in speaking of this section of the const.i.tution and the practice under it, says:

Under this authority, the appointment of electors has been variously provided for by the State legislatures. In some States the legislatures have directly chosen the electors by themselves; in others they have been chosen by the people by a general ticket throughout the whole State, and in others by the people in electoral districts fixed by the legislature, a certain number of electors being apportioned to each district. No question has ever arisen as to the const.i.tutionality of either mode, except that of a direct choice by the legislature. But this, though often doubted by able and ingenious minds, has been firmly established in practice ever since the adoption of the const.i.tution, and does not now seem to admit of controversy, even if a suitable tribunal existed to adjudicate upon it.--[2 Story on Const.i.tution, section 1,472.

Judge Strong, one of the justices of the Supreme Court of the United States, and a member of the electoral commission, in discussing the subject of this section, says:

I doubt whether they [the framers of the national const.i.tution]

had in mind at all [in adopting this section] the idea of a popular election as a mode of appointing State electors. They used the word _appoint_, doubtless thinking that the legislatures of the States would themselves select the electors, or empower the governor or some other State officer to select them. The word appoint is not the most appropriate word for describing the result of a popular election. Such a mode of appointment, I submit is allowable, but there is little reason to think it was contemplated. * * * It was not until years afterward that the electors were chosen by vote.--[Electoral Commission, p. 252.

Senator Frelinghuysen, also a member of the Electoral Commission, thus speaks of the practice in the several States:

Under this power [the power given by the section of the national const.i.tution, which we are now considering] the legislature might direct that the electors should be appointed by the legislature, by the executive, by the judiciary, or by the people. In the earliest days of the republic, electors were appointed by the legislatures. In Pennsylvania they were appointed by the judiciary. Now, in all the States except Colorado, they are appointed by the people.--[Electoral Commission, p. 204.

If then it be true that the power to determine how the presidential electors shall be appointed is derived from the national const.i.tution, and that power is a discretionary one, to be exercised in such manner as the legislature may direct, how can it be said that a State const.i.tution can limit or control the legislative discretion? If the State can limit that discretion in one respect it can limit it in another, and in another, and in another, until it may shut up the legislature to but a single mode of appointment, which is to take away, and absolutely destroy all its discretion, and this is nullification, pure and simple. One of the questions before the electoral commission in the case of South Carolina, was whether the electoral vote of that State should not be rejected because the legislature, in providing for the appointment of the electors, had failed to obey a requirement of the State const.i.tution in regard to a registry law. This raised, in principle, the very question we are now considering, and on that question Senator O. P. Morton, who was a member of the commission, and who was an able lawyer as well as a great statesman, thus expressed himself:

They [the presidential electors] are to be appointed in the manner prescribed by the legislature of the State, and not by the const.i.tution of the State. The manner of the appointment of electors has been placed by the Const.i.tution of the United States in the legislature of each State, and cannot be taken from that body by the provisions of a State const.i.tution. * * * The power to appoint electors by a State, is conferred by the Const.i.tution of the United States, and does not spring from a State const.i.tution, and cannot be impaired or controlled by a State const.i.tution.--[Electoral Commission, p. 200.

The distinguished lawyer and statesman [Hon. William Lawrence] who made the principle argument before the commission in favor of admitting the vote of the State, took the same ground (Electoral Commission, p. 186).

The opinion of Justice Story, expressed in the Ma.s.sachusetts const.i.tutional convention of 1820, on a very similar question, and one involving the same principle, quoted by Mr. Lawrence in his argument, is very high authority, and I reproduce it here. He (Justice Story) said:

The question then was whether we have a right to insert in our const.i.tution a provision which controls or destroys a discretion which may be, nay _must_ be, exercised by the legislature in _virtue_ of _powers confided_ to it by the Const.i.tution of the United States. The fourth section of the first article of the Const.i.tution of the United States declares that the times, places and manner of holding elections for senators and representatives shall be prescribed by the legislature thereof. Here an express provision was made for the manner of choosing representatives by the State legislatures. They have an _unlimited_ discretion on the subject. They may provide for an election in districts sending more than one, or by general ticket for the whole State.

Here is a general discretion, a power of choice. What is the proposition on the table? It is to limit the discretion, to leave no choice to the legislature, to compel representatives to be chosen in districts; in other words to compel them to be chosen in a specific manner, excluding all others. Were not this plainly a violation of the const.i.tution? Does it not affect to control the legislature in the exercise of its powers? * * * It a.s.sumes a control over the legislature, which the Const.i.tution of the United States does not justify. It is bound to exercise its authority according to its _own view_ of _public policy_ and _principle_; and yet this proposition compels it to surrender all discretion. In my humble judgment * * * it is a direct and palpable infringement of the const.i.tutional provisions to which I have referred.--[Electoral Commission, p. 186.

The conclusion seems irresistible that a State const.i.tution cannot determine for the legislature who shall, or shall not, partic.i.p.ate in the choice of presidential electors, and that in so far as our State const.i.tution may attempt to do so, it is an infringement of the national const.i.tution. The discretion of the legislature, by virtue of the supreme law of the land, being (except in so far as it is controlled by the national const.i.tution itself) thus absolutely unlimited, it may, without doubt, as I think, authorize all citizens without regard to s.e.x, to partic.i.p.ate in the choice of presidential electors. But it has been suggested to me that possibly by the State legislature, as used in the section of the national const.i.tution which we have been considering, was meant the whole people of the State in whom the legislative power originally resides and not the organized legislative body which they may create. We answer first that the language of the section will not admit of this construction. It clearly recognizes a distinction between the State or the people of the State, and its legislature.

The language is not "each State shall appoint in such manner as _it_ may direct," etc., but it is, "each State shall appoint in such manner as the _legislature_ thereof may direct," etc.

Again, it is a familiar canon of construction that in determining the meaning of a statute, recourse may be had to the history of the times in which it was enacted. When the Const.i.tution of the United States was framed, all of the States had organized legislatures, or representative bodies who wielded the legislative power, and without doing violence to language, we must suppose that it was to _them_ the const.i.tution referred. Again, the State legislatures are referred to not less than ten times in the national const.i.tution, and in each instance the reference is such as to make it clear that the organized representative bodies are intended, and in article 5 they are, in express terms, distinguished from conventions of the States. Indeed, the fundamental idea of the American government is that of a representative republic as opposed to a pure democracy, and it may well be doubted whether a State government, without a representative legislative body of some kind, would, in the American sense, be republican in form.

Finally, it is apparent from the debates in the const.i.tutional convention which framed the const.i.tution, and from the whole plan devised for the election of president and vice-president, that it was not intended by the framers of the const.i.tution to commit directly to the whole people of a State the authority to determine how the presidential electors should be chosen. Nothing seems to have given the convention more trouble than the mode of selecting a president. Many plans were proposed. Chief among these were: election by congress; election by the executives of the States; election by the people; election by the State legislatures; and election by electors. These were presented in many forms. The convention decided not less than three times, and once by a unanimous vote, in favor of election by the national congress, and as often reconsidered it (2 Madison Papers, pp. 770, 1,124, 1,190).

The proposition that the president should be elected directly by the people, instead of by the national congress, received but one vote, while the proposition that he should be appointed by the State legislatures received two votes (2 Madison Papers, p. 1,124).

The most cursory examination of the debates will, I think, convince any mind that it was to the _organized_ legislature of the State, and not to the people of a State, that the framers of the const.i.tution intended to commit the power of determining how the presidential electors should be chosen. It seems, both from the debates and the plan adopted, to have been their studied effort to prevent the people from acting in the choice of their chief magistrate otherwise than through their representatives, and in no single step of the process are the people directly required or authorized by the national const.i.tution to act, but in every instance the duty and the authority are devolved upon their representatives. For these reasons I think it clear that it was intended to invest the organized State legislatures with the power of determining how the presidential electors should be chosen, and that the discretion thus lodged in the legislature cannot be limited or controlled by a State const.i.tution.

W. DE WITT WALLACE.

[C.]

In 1868, the Indiana (Friends) Yearly Meeting appointed Mrs. Sarah J. Smith of Indianapolis, and Mrs. Rhoda M. Coffin of Richmond, to visit the prisons of the State, with a view to ascertain the spirit of the management of these inst.i.tutions, and the moral condition of their inmates. In obedience to this appointment the two ladies visited both of the State prisons of Indiana, and made a particularly thorough examination of the condition of the Southern prison (at Jeffersonville) where all our women convicts were kept.

Here they found the vilest immoralities being practiced; they discovered that the rumors which had induced their appointment were far surpa.s.sed by the revolting facts.

They visited Gov. Conrad Baker and urged him to recommend the General a.s.sembly to make an appropriation for a separate prison for women. With the full sympathy of Governor Baker, who was not only a most honorable gentleman, but a sincere believer in the equal political rights of women, Mrs. Smith and Mrs. Coffin appeared before the legislature of 1869, and by an unvarnished account of what they had witnessed and learned in the Southern prison, they aroused the legislators to immediate action, and an act to establish a "Reformatory Inst.i.tution for Women and Girls" was pa.s.sed at that session (viz., that of 1869). By statute the new inst.i.tution was located at Indianapolis. It was opened in 1873, the first separate prison for women in this country. Mrs. Sarah J.

Smith was made its first superintendent, and she retained that office, discharging all its duties with great ability, until 1883, when upon her resignation she was succeeded by Mrs. Elmina S.

Johnson, who had up to that time been a.s.sociated with Mrs. Smith as a.s.sistant superintendent.

The first managing board of women consisted of Mrs. Eliza C.

Hendricks (wife of Hon. Thomas A. Hendricks who was governor of Indiana on the opening of the prison), Mrs. Rhoda M. Coffin and Mrs. Emily A. Roach. The changes upon the board have been so infrequent that in addition to those on the first board and to those on the board at present, only three ladies can be mentioned in this connection, viz.: Mrs. Eliza S. Dodd of Indianapolis, Mrs.

Mary E. Burson (a banker of Muncie) and Mrs. Sarah J. Smith, who, after resigning the superintendency, served on the board for a brief time.

The board at present consists of Mrs. Eliza C. Hendricks, president, Mrs. Claire A. Walker and Mrs. M. M. James. From the opening of this inst.i.tution Mrs. Hendricks has been connected with it; first as a member of the advisory board, for eight years a member of the managing board and during a large part of the time its president, she has served its interest with singular fidelity.

The position is no sinecure. The purchasing of all the supplies is only a part of the board's work; the business meetings are held monthly and often occupy half a day, sometimes an entire day. These Mrs. Hendricks always attends whether she is in Indianapolis or in Washington; from the latter point she has many times journeyed in weather most inclement by heat and by cold, simply to look after the prison and to transact the business for it imposed by her position on its board. During the last eight years, since women have had control of its affairs, Miss Anna Dunlop of Indianapolis has served the inst.i.tution as its secretary and treasurer. Perhaps the highest tribute that can be paid to the ability with which Miss Dunlop has discharged the responsible and complicated duties of her double office, lies in the fact that with the General a.s.sembly of the State it has pa.s.sed into a proverb that "The Woman's Reformatory is the best and most economically managed of the State inst.i.tutions." The committees appointed to visit the penal inst.i.tutions always report that "The accounts of the reformatory are kept so accurately that its financial status can always be understood at a glance."

This inst.i.tution has two distinct departments, the penal and the reformatory, occupying two sides of one main building and joined under one management. Convicts above sixteen years of age are ranked as women and confined in the penal department; those under sixteen years are accounted girls (children) and lodged in the reformatory department.

The average number of girls in the inst.i.tution from its opening has been 150; the number of women 45. There are now (July, 1885,) over 200 inmates.

All of the work of the inst.i.tution is done by its inmates. A school is maintained in the building for the children; a few trades are taught the girls; all are taught housework, laundry work, plain sewing and mending; the greatest pains is taken to form in the inmates habits of industry and personal tidiness, and to prepare them to be good servants; and when their period of incarceration has expired, the ladies interest themselves in finding homes and employment for the discharged convicts whom they seek to restore to normal relations to society. The secretary estimates that of those who have been discharged from the inst.i.tution during the last twelve years, fully seventy-five per cent. have been really restored and are leading honest and industrious lives.

[D.]

GOV. PORTER'S BIENNIAL MESSAGE, 1883: "I recommend that in the department for women in this hospital it shall be required by law that at least one of the physicians shall be a woman. There are now in this State not a few women who bear diplomas from respectable medical colleges, and who are qualified by professional attainments and experience to fill places as physicians in public inst.i.tutions with credit and usefulness. It would be peculiarly fit that their services should be sought in cases of insanity among members of their own s.e.x."

[E.]

About the year 1867, Miss Lucinda B. Jenkins, formerly of Wayne county, Indiana, left her work among the "Freedmen" in the South, to accept the position of matron in "The Soldiers' Orphans' Home"

at Knightstown, Indiana. She afterwards became the wife of Dr.

Wishard, the superintendent; and when the office was vacated by his death, she was authorized to a.s.sume his responsibilities, and perform his duties, with the exception of receipting bills and drawing appropriations, which latter duties, not being then considered as within the province of a woman, were delegated to the steward until the doctor's successor could be legally appointed.

She was a lady of intelligence and true moral worth, possessing a dignified, pleasing manner, and other good qualities, which, with her long experience as co-manager of the inst.i.tution, admirably fitted her for the position of superintendent; but she was a woman, without a vote or political influence, and it was necessary that "party debts" should be paid. She therefore continued her influence for the good of the inst.i.tution without public recognition until 1882, when she left to take charge of a private orphan asylum under the management of ladies of Indianapolis.

[F.]

Miss Susan Fussell is the daughter of the late Dr. B. Fussell of Philadelphia, to whom, with his estimable wife, women are indebted as the founder of the first medical college for women in the United States. At that period of our civil war, when women were admitted to the hospitals as nurses, Miss Fussell was at her brother's home at Pendleton, Indiana. She immediately volunteered her services, and was a.s.signed to duty by the Indiana sanitary commission in the military hospitals in Louisville, Kentucky, where she served faithfully until the close of the war, giving the bloom of her youth to her country without hope of reward other than that which comes to all as the result of self-sacrificing devotion to the cause of humanity.

At the close of the war she returned to Philadelphia, but learning soon that an effort was being made to induce the State of Indiana to provide a home for the soldiers' orphans, she again offered her services in any useful capacity in that work. A benevolent gentleman of Indianapolis who had been most urgent in calling the attention of the officers of the State to their duty in that matter, finding that there was no hope, offered to furnish Miss Fussell with the money necessary to clothe, rear, educate and care for a family of ten orphans of soldiers, and bring them up to maturity, if she would furnish the motherly love, the years of hard labor and self-sacrifice, the sleepless nights and endless patience needed for the work. After a few days of prayerful consideration she accepted, and in the fall of 1865 ten orphans were gathered together in Indianapolis from various parts of the State from among those who had no friends able or willing to care for them. In the spring of 1866 they were removed to the Soldiers' Home near Knightstown, where a small cottage and garden were a.s.signed to their use. In 1875, she placed the older boys in houses where their growing strength could be better utilized, and moved with the girls and younger boys to Spiceland to secure the benefit of better schools. In 1877, all of the ten but one were self-supporting, and have since taken useful and respectable positions in society. The one exception was a little feeble-minded boy, who, with his brother, had been found in the county poor-house; his condition and wants very soon impressed her with the necessity for a State home for feeble-minded children in Indiana, it having been found necessary to send this boy to another State to be educated.

He is now in a neighboring State inst.i.tution, and is almost self-supporting. With her usual energy and directness, she went to work to gather statistics on the subject of "Feeble-minded Children" in this and other States, and to interest others in their welfare. She at last found an active co-worker in Charles Hubbard, the representative from Henry county in the legislature, and their united efforts, aided by other friends of the cause, secured in 1876 the enactment of the law establishing the Home for Feeble-minded Children, now in operation near Knightstown, Indiana.

Having seen all her children well provided for, she began to look for further work, and soon conceived the idea of taking the children from the county poor-houses of the State and forming them into families. She offered to take the children in the Henry county poor-house and provide for them home, food, clothing and education, for the small sum of twenty-five cents per day for each child, which her experience had proven to be the smallest sum that would accomplish the good she desired; but the county commissioners would only allow her twenty cents per day. She accepted their terms, furnishing the deficit from her own means, and so earnest was she and so completely did she demonstrate the superiority of her plan for the care of these children, that she interested many others in the work, and the result was the pa.s.sage of a law by the legislature of 1880-1881, giving to county commissioners the right to place their dest.i.tute children under the care of a matron, giving her sole charge of them and full credit for her work, and providing for her salary and their support. Under that law Miss Fussell now has all the dest.i.tute children of Henry county under her care, and has created a model orphans' home. Thus has this one woman been a power for good, and by following in the direct line of her duty, has been obliged to "meddle in the affairs of State" and to influence legislation.

If in giving this sketch we have exceeded the limits allotted us, let us remember that our subject represents thousands of n.o.ble women who care rather that their light shall carry with it comfort and warmth, than be noted for its brilliancy, and who, having no voice in the government, are obliged to work out their beneficent ideas with much unnecessary labor.

[G.]

The friends of woman's equality addressed the following pet.i.tion to each member of the State legislature:

Being personally acquainted with Mrs. SARAH A. OREN, and knowing her to be a woman of refinement and culture, we can consistently urge upon you a favorable consideration of her claims as a candidate for election to the office of State librarian. She has had the benefit of a collegiate education, and has been for several years a successful teacher in Antioch College and in the public high-school of Indianapolis. She is mainly dependent on her own labor for the means to support and educate her children, who were _made fatherless by a rebel bullet_ at the siege of Petersburg. Her education and experience have admirably fitted her for the discharge of all the duties of the office of State librarian; and by electing her to that office, the Republican party will secure a faithful and efficient officer, and have the pleasure of making another payment on the debt we owe to the widows and orphans of those who died that our country might live.[586]

Mrs. Oren was elected to the office of State librarian and performed the duties belonging to it with great efficiency and fidelity. She has been succeeded by Mrs. Margaret Peele, Mrs. Emma A. Winsor and Miss Lizzie H. Callis.