History of Woman Suffrage Volume II Part 100

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.

We ask the court to consider what it is to be disfranchised; not this plaintiff only, but an entire cla.s.s of people, utterly deprived of all voice in the government under which they live! We say it is to her, and to them, a Despotism, and not a Republic.

What matters it that the tyranny be of many instead of one?

Society shudders at the thought of putting a fraudulent ballot into the ballot-box! What is the difference between putting a fraudulent ballot in, and keeping a lawful ballot out? Her disfranchised condition is a badge of servitude. [Mr. Justice Bradley in the Grant parish case.] Take one ill.u.s.tration, evidenced by a recent decision of the Supreme Court of Missouri, in Clark _vs._ The National Bank of the State of Missouri, 47 Mo.

Rep., 1. We use our own words, but we state it correctly; that a married woman can not, by the law of Missouri, own a dollar's worth of personal property, except by the consent of another! it makes no difference that that other is her husband. This, it is true, is a State law, a matter exclusively of State legislation; but we mention it to show how utterly helpless and powerless her condition is without the ballot.

Either we must give up the principles announced in the Declaration of Independence, that governments derive their just powers from the consent of the governed; and are formed by the people to protect their rights, not to withhold them; or we must acknowledge the truth contended for by the plaintiff, that citizens.h.i.+p carries with it every incident to every citizen alike. It can not be disputed, that upon this principle of absolute political equality, our Government is founded. So thought the Hon. Luther Martin, of Maryland, one of the most distinguished lawyers of his day, and a member of the convention that framed our Const.i.tution. We quote his own words. (Elliott's Debates, Vol. 4.)

This, sir, is the substance of the arguments, if arguments they may be called, which were used in favor of inequality of suffrage. Those who advocated the equality of suffrage, took the matter up on the original principles of government; they urged that all men considered in a state of nature, before any government is formed, are equally free and independent, no one having any right or authority to exercise power over another, and this, without any regard to difference in personal strength, understanding, or wealth.

That when such individuals enter into government, they have each a right to an equal voice in its first formation, and afterward have each a right to an equal vote in every matter which relates to their government; that if it could be done conveniently, they have a right to exercise it in person; when it can not be done in person but for convenience, representatives are appointed to act for them; every person has a right to an equal vote in choosing that representative who is entrusted to do for the whole, that which the whole, if they could a.s.semble, might do in person, and in the transacting of which each would have an equal voice. That if we were to admit, because a man was more wise, more strong, or more wealthy, he should be ent.i.tled to more votes than another, it would be inconsistent with the freedom and liberty of that other, and would reduce him to slavery.

Suppose, for instance, ten individuals in a state of nature about to enter into government, nine of whom are equally wise, equally strong, and equally wealthy, the tenth is ten times as wise, ten times as strong, or ten times as rich; if for this reason he is to have ten votes for each vote of either of the others, the nine might as well have no vote at all; since, though the whole nine might a.s.sent to a measure, yet the vote of the tenth would countervail and set aside all their votes.

If this tenth approved of what they wished to adopt, it would be well, but if he disapproved, he could prevent it, and in the same manner he could carry into execution any measure he wished, contrary to the opinion of all the others, he having ten votes, and the others all together but nine. It is evident that on these principles the nine would have no will or discretion of their own, but must be totally dependent on the will and discretion of the tenth; to him they would be as absolutely slaves as any negro is to his master; if he did not attempt to carry into execution any measure injurious to the other nine, it could only be said that they had a good master; they would not be the less slaves, because they would be totally dependent on the will of another, and not on their own will. They might not feel their chains, but they would notwithstanding wear them, and whenever their master pleased he might draw them so tight as to gall them to the bone. Hence it was urged the inequality of representation, or giving to one man more votes than another on account of his wealth, etc., was altogether inconsistent with the principles of liberty, and in the same proportion as it should be adopted in favor of one or more, in that proportion are the others enslaved.

These are the words, not lightly uttered, nor to be by us lightly considered, of one of the framers of the Const.i.tution; and in complete accord with this principle of entire equality of individual right, see how those men who had fought through the War of Independence did their work. Upon what broad and comprehensive foundations it is laid. Examine the Const.i.tution, the work of their hands. Do we find any recognition of inequality of rights? Not a syllable. On the contrary, every safeguard is thrown around them; "no State shall pa.s.s any bill of attainder,"

or "grant any t.i.tle of n.o.bility." So, too, when it comes to the practical recognition of these rights at the ballot-box, all are included. "The House of Representatives shall be composed of members chosen every second year by the people of the several States," not by a part--not by the "males"--but simply by "the people of the several States." The same "people" who ordain and establish that Const.i.tution as the supreme law of the land, they are to do the voting, they are to elect. There is not one word as to s.e.x. The elector, male or female, must be one of the people or citizens, that is all. But when these electors come to exercise this right or privilege, then the matter of qualification arises, the age of the elector, the time, place, and manner of the exercise of the right, are to be considered, and the convention, instead of laying down a uniform rule or standard for all the States, which would have produced change and confusion, thought it best to leave this feature of it as it already stood in the several States. But the right itself is secured to the people of the United States, and in its very nature can not be derived from any other authority.

We deem it proper, in this connection, to refer to the well-known fact that women voted in one of the States (New Jersey) down to the year 1807, when they were unjustly deprived of the right, by an act of the Legislature of that State. We say unjustly, because no Legislature can deprive a citizen of a const.i.tutional right, and the matter has slumbered ever since. The Const.i.tution of New Jersey, adopted in 1776, used the term "inhabitants" in describing electors, and under this Const.i.tution women were recognized as voters, as well as men. In conformity with this const.i.tutional provision the statute law was so worded as to read "he or she," in speaking of electors thus affording a contemporaneous and legislative attestation of the truth of our statement. This law of 1776 could not, of course, be the source of authority to any one for voting under a sovereignty not then in existence, not created until 1789, thirteen years afterward.

Therefore, when the elector, male or female, in New Jersey, voted for Federal officers in 1789, it was done by virtue of his or her status of citizens.h.i.+p, under the new and paramount sovereignty, and not under the law of 1776; and so it has continued ever since, the elector voting for United States officers by virtue of his citizens.h.i.+p of the United States, and for State officers as a citizen of the State. We believe, then, we are justified in the statement that white women in New Jersey voted, under State authority, for the members of the Const.i.tutional Convention of 1787. That they next voted, under like authority, for the ratification of the newly framed Const.i.tution of the United States; and then, that Const.i.tution having been adopted, as newly-created citizens of the newly-created sovereignty, the white women of New Jersey voted at the five succeeding Presidential elections--for Was.h.i.+ngton, for Adams, and for Jefferson. The contest in 1800 was bitter beyond all precedent, and we are told that all the women of the State ent.i.tled to vote did so. We refer to the Const.i.tution and laws of New Jersey; to a work ent.i.tled _The Historical Magazine_, published in Boston in 1857, Vol. I., p. 361; to the _National Intelligencer_, Was.h.i.+ngton, October 3, 1857; to _Notes and Queries_, Vol. VIII., p. 171, August, 1853.

But apart from these considerations, which we deem amply sufficient to sustain our position, an examination into the nature and character of the right itself will further show that it is one of which the citizen can not justly be deprived, save for cause.

The first amendment to the Const.i.tution declares that Congress shall make no law abridging freedom of speech or of the press, thus incorporating into the organic law of this country absolute freedom of thought or opinion. We presume it will not be doubted that the States are equally bound with Congress by this prohibition, not only because, as Chief-Justice Taney says, "the Const.i.tution of the United States, and every article and clause in it, is a part of the law of every State in the Union, and is the paramount law" (Prigg _vs._ The Comm., 16 Peters R., 628), but because, in the very nature of things, freedom of speech or of thought can not be divided. It is a personal attribute, and once secured is forever secured. To vote is but one form or method of expressing this freedom of speech. Speech is a declaration of thought. A vote is the expression of the will, preference, or choice. Suffrage is one definition of the word, while the verb is defined, to choose by suffrage, to elect, to express or signify the mind, will, or preference, either _viva voce_, or by ballot. We claim then that the right to vote, or express one's wish at the polls, is embraced in the spirit, if not the letter, of the First Amendment, and every citizen is ent.i.tled to the protection it affords. It is the merest mockery to say to this plaintiff, you may write, print, publish, or speak your thoughts upon every occasion, except at the polls.

There your lips shall be sealed. It is impossible that this can be American law!

Again, it is the opinion of some that suffrage is somehow lodged in the government, whence it is dispensed, or conferred upon the citizen, thus completely reversing the actual fact. Suffrage is never conferred by government upon the citizen. He holds it by a higher t.i.tle. In this country government is the source of power, not of rights. These are vested in the individual--are personal and inalienable. Society can only acquire the authority to regulate these rights, or declare them forfeited, for cause. The time, place, and manner of their exercise are under governmental control, but their origin and source are in the individual himself.

I shall, therefore, says a writer on government, a.s.sume it as an incontrovertible position, as a first principle, that the right of private opinion, which is, in fact, no other than the right of private judgment upon any subject presented to the mind, is a sacred right, with which society can, on no pretense, authoritatively interfere, without a violation of the first principles of the law of nature.

(Chipman on Government, chap. 5.)

Other liberties, says Erskine, are held under governments, but the liberty of opinion keeps governments themselves in due subjection to their duties. (Speech in defense of Thomas Paine.)

But this clause of the Missouri law further violates the XIII.

Amendment, which declares that neither slavery nor involuntary servitude shall exist in the United States, except for crime, etc. This Amendment is a copy of the 6th clause of the famous Ordinance of 1787, which secured freedom for the Northwest Territory, and has now become the organic law for the entire Union. This Ordinance was drawn by the Hon. Nathan Dane, of Ma.s.sachusetts.[178]

We say that this Missouri law violates this amendment, inasmuch as it places the plaintiff in a disfranchised condition, which is none other than a condition of servitude--of "involuntary servitude," because, although a citizen in the fullest acceptation of the term--a member of this body politic--one of the "people"--she has never consented to this law; has never been permitted to express either consent or dissent, nor given any opportunity to express her opinion thereon, in the manner pointed out by law, while at the same time she is taxed, and her property taken to pay the very men who sat in judgment upon and condemned her!

Finally--Such is the nature of this privilege--so individual--so purely personal is its character, that its indefinite extension detracts not in the slightest degree from those who already enjoy it, and by an affirmation of the plaintiff's claim all womanhood would be elevated into that condition of self-respect that perfect freedom alone can give.

RESUME--(Minor _vs._ Happersett, 21 Wallace Rep., p. 164.)

1st. As a citizen of the United States, the plaintiff is ent.i.tled to any and all the "privileges and immunities" that belong to such position however defined; and as are held, exercised, and enjoyed by other citizens of the United States.

2d. The elective franchise is a "privilege" of citizens.h.i.+p, in the highest sense of the word. It is the privilege preservative of all rights and privileges; and especially of the right of the citizen to partic.i.p.ate in his or her government.

3d. The denial or abridgment of this privilege, if it exist at all, must be sought only in the fundamental charter of government--the Const.i.tution of the United States. If not found there, no inferior power or jurisdiction can legally claim the right to exercise it.

4th. But the Const.i.tution of the United States, so far from recognizing or permitting any denial or abridgment of the privileges of its citizens, expressly declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

5th. It follows that the provisions of the Missouri Const.i.tution and registry law before recited, are in conflict with and must yield to the paramount authority of the Const.i.tution of the United States.

A few words more and we have done. The plaintiff has sought, by this action, for the establishment of a great principle of fundamental right, applicable not only to herself, but to the cla.s.s to which she belongs; for the principles here laid down (as in the Dred Scott case) extend far beyond the limits of the particular suit, and embrace the rights of millions of others, who are thus represented through her. She has a right, therefore, to be heard for her cause; and in making this plea, she seeks only to give expression to those principles upon which, as upon a rock, our Government is founded.

It is impossible that that can be a Republican government in which one half the citizens thereof are forever disfranchised. A citizen disfranchised is a citizen attainted; and this, too, in face of the fact, that you look in vain in the great charter of government, the Const.i.tution of the United States, for any warrant or authority for such discrimination. To that instrument she appeals for protection.

SUPREME COURT OF THE UNITED STATES. No. 182.--October Term, 1874.

Virginia L. Minor and Francis Minor, her husband, Plaintiffs in Error, _vs._ Reese Happersett. In error to the Supreme Court of the State of Missouri.

Mr. Chief Justice Waite delivered the opinion of the court.

(March 29. 1875.)

The question is presented in this case, whether, since the adoption of the XIV. Amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the Const.i.tution and laws of the State, which confine the right of suffrage to men alone.

We might perhaps decide the case upon other grounds, but this question is fairly made. From the opinion, we find that it was the only one decided in the court below, and it is the only one which has been argued here. The case was undoubtedly brought to this court for the sole purpose of having that question decided by us, and, in view of the evident propriety there is of having it settled, so far as it can be by such a decision, we have concluded to waive all other considerations and proceed at once to its determination.

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

There is no doubt that women may be citizens. They are persons, and, by the XIV. Amendment, "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are expressly declared to be "citizens of the United States and of the State wherein they reside" But, in our opinion, it did not need this Amendment to give them that position. Before its adoption, the Const.i.tution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There can not be a nation without a people. The very idea of a political community, such as a nation is, implies an a.s.sociation of persons for the promotion of their general welfare. Each one of the persons a.s.sociated becomes a member of the nation formed by the a.s.sociation. He owes it allegiance, and is ent.i.tled to its protection. Allegiance and protection are in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.

For convenience, it has been found necessary to give a name to this members.h.i.+p. The object is to designate by a t.i.tle the person and the relation he bears to the nation. For this purpose the words "subject," "inhabitant," and "citizen" have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterward adopted in the articles of confederation and in the Const.i.tution of the United States. When used in this sense, it is understood as conveying the idea of members.h.i.+p of a nation, and nothing more.

To determine, then, who were citizens of the United States before the adoption of the Amendment, it is necessary to ascertain what persons originally a.s.sociated themselves together to form the nation, and what were afterward admitted to members.h.i.+p. Looking at the Const.i.tution itself, we find that it was ordained and established by "the people of the United States" (Preamble, 1 Stat., 10), and then, going further back, we find that these were the people of the several States that had before dissolved the political bands which connected them with Great Britain and a.s.sumed a separate and equal station among the powers of the earth (Dec. of Ind., 1 Stat., 1), and that had by articles of confederation and perpetual union, in which they took the name of "the United States of America," entered into a firm league of friends.h.i.+p with each other for their common defense, the security of their liberties and their mutual and general welfare, binding themselves to a.s.sist each other against all force offered to or attack made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever (Art. Confed., sec. 3, 1 Stat. 4).

Whoever then was one of the people of either of these States when the Const.i.tution of the United States was adopted, became _ipso facto_ a citizen--a member of the nation created by its adoption.

He was one of the persons a.s.sociating together to form the nation, and was, consequently, one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain cla.s.ses of persons were part of the people at the time, but never as to their citizens.h.i.+p if they were.

Additions might always be made to the citizens.h.i.+p of the United States in two ways--first by birth and second by naturalization.

This is apparent from the Const.i.tution itself, for it provides (Art. 2, Sec. 1) that "no person except a natural born citizen, or a citizen of the United States at the time of the adoption of the Const.i.tution, shall be eligible to the office of President,"

and (Art. 1, Sec. 8) that Congress shall have power "to establish a uniform rule of naturalization." Thus, new citizens may be born or they may be created by naturalization.

The Const.i.tution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Const.i.tution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves upon their birth citizens also. These were natives, or natural-born citizens as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction, without reference to the citizens.h.i.+p of their parents. As to this cla.s.s there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider, that all children born of citizen parents within the jurisdiction are themselves citizens.

The words "all children" are certainly as comprehensive when used in this connection as "all persons," and if females are included in the last, they must be in the first. That they are included in the last is not denied. In fact, the whole argument of the plaintiffs proceeds upon that idea.

Under the power to adopt a uniform system of naturalization, Congress as early as 1790 provided "that any alien, being a free white person," might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States, and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens (1 Stat. 103). These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since. In 1855, however, the last provision was somewhat extended, and all persons theretofore born or thereafter to be born out of the limits of the jurisdiction of the United States, whose fathers were, or should be at the time of their birth, citizens of the United States, were declared to be citizens also (10 Stat. 604).

As early as 1804 it was enacted by Congress that when any alien, who had declared his intention to become a citizen in the manner provided by law, died before he was actually naturalized, his widow and children should be considered as citizens of the United States, and ent.i.tled to all rights and privileges as such upon taking the necessary oath (2 Stat., 293); and in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws, married, or who should be married to a citizen of the United States, should be deemed and taken to be a citizen (10 Stat., 604). From this it is apparent, that, from the commencement of the legislation upon this subject, alien women and alien minors could be made citizens by naturalization; and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizens by birth.

But if more is necessary to show that women have always been considered as citizens the same as men, abundant proof is to be found in the legislative and judicial history of the country.

Thus, by the Const.i.tution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held, that the citizens.h.i.+p necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist, the case must be dismissed. Notwithstanding this, the records of the courts are full of cases in which the jurisdiction depends upon the citizens.h.i.+p of women, and not one can be found, we think, in which objection was made on that account. Certainly none can be found in which it has been held that women could not sue or be sued in the courts of the United States. Again, at the time of the adoption of the Const.i.tution, in many of the States (and in some probably now) aliens could not inherit or transmit inheritance. There are a mult.i.tude of cases to be found in which the question has been presented whether a woman was or was not an alien, and as such capable or incapable of inheritance, but in no one has it been insisted that she was not a citizen because she was a woman. On the contrary, her right to citizens.h.i.+p has been in all cases a.s.sumed. The only question has been whether, in the particular ease under consideration, she had availed herself of the right.

In the legislative department of the Government similar proof will be found. Thus, in the pre-emption laws (5 Stat., 455, sec.

10), a widow, "being a citizen of the United States," is allowed to make settlement on the public lands and purchase upon the terms specified, and women, "being citizens of the United States," are permitted to avail themselves of the benefit of the homestead law (12 Stat., 392).

Other proof of like character might be found, but certainly more can not be necessary to establish the fact that s.e.x has never been made one of the elements of citizens.h.i.+p in the United States. In this respect men have never had an advantage over women. The same laws precisely apply to both. The XIV. Amendment did not affect the citizens.h.i.+p of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the Amendment. She has always been a citizen from her birth, and ent.i.tled to all the privileges and immunities of citizens.h.i.+p. The Amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States, but it did not confer citizens.h.i.+p on her; that she had before its adoption.

If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the Const.i.tution and laws of Missouri confining it to men are in violation of the Const.i.tution of the United States as amended, and consequently void. The direct question is, therefore, presented whether all citizens are necessarily voters (p. 170, Wallace).