The History of Woman Suffrage Volume II Part 76

[162] Rev. O. B. Frothingham, Matilda Joslyn Gage, Rev. Olympia Brown, Lillie Devereux Blake, Carrie S. Burnham, Mrs. Stanton, and Miss Anthony.

[163] Matilda Joslyn Gage, President; Lucretia Mott and Elizabeth Cady Stanton, Vice-Presidents; Henrietta P. Westbrook, Recording Secretary; Isabella Beecher Hooker, Corresponding Secretary; Ellen Clark Sargent, Treasurer; Susan B. Anthony and fifteen others, Executive Committee.

CHAPTER XXV.

TRIALS AND DECISIONS.

Women voting under the XIV. Amendment--Appeals to the Courts--Marilla M. Ricker, of New Hamps.h.i.+re, 1870--Nannette B.

Gardner, Michigan--Sarah Andrews Spencer, District of Columbia--Ellen Rand Van Valkenburgh, California--Catharine V.

Waite, Illinois--Carrie S. Burnham, Pennsylvania--Sarah M. T.

Huntingdon, Connecticut--Susan B. Anthony, New York--Virginia L.

Minor, Missouri--Judges McKee, Jameson, Sharswood, Cartter--a.s.sociate Justice Hunt--Chief Justice Waite--Myra Bradwell--Hon. Matt. H. Carpenter--Supreme Court Decisions--Mrs.

Gage's Review.

We have already shown in previous chapters that by a fair interpretation of the XIV. Amendment women were logically secured in their right to vote. Encouraged by the opinions of able lawyers and judges, they promptly made a practical test of this question by registering and voting during the State and Presidential elections of 1871 and '72. This transferred the discussion, for a time, from the platform and halls of legislation to the courts for final adjudication.

The first woman to offer her vote was Marilla M. Ricker, of Dover, New Hamps.h.i.+re, a young widow of large property. In March,[164] 1870, the day previous to the election, she made application to the selectmen for registry. No objection being made, and one of the Board, promising to put her name on the check-list, she departed, leaving with them several copies of a speech she had prepared in case of a refusal. On election day she appeared at the polls and offered a straight Republican ticket. It was received by the moderator and her name called, but on examination of the list it was found that the selectman had been false to his promise, and her vote was refused. Extended comments were made by the press of the State, Democrats generally sustaining her, while Republicans were bitter in opposition. Mrs.

Ricker in the meantime prepared to sue the selectmen, but being strongly opposed by her republican friends, she silently submitted to the injustice, and thus lost the opportunity of being the first woman to prosecute the authorities for refusing the vote of a citizen on the ground of s.e.x. However, she still enjoys the distinction of being the first woman to cast a vote under the XIV. Amendment, as the following spring she saw that her name was on the registry list, and her vote was received without opposition.

The next case was that of Nannette B. Gardner, in Detroit, Michigan.

She registered her name in that city March 25, 1871, and voted,[165]

unquestioned, April 3d. April 20th, of the same year, Sara Andrews Spencer and Sarah E. Webster, with seventy other women of the District of Columbia, marched in a body to the polls, but their votes were refused at the election as they had been previously refused registration. They immediately took steps to prosecute the Board of Inspectors, and suit was brought in the Supreme Court of the District at the general term, October, 1871. Albert G. Riddle and Francis Miller, able lawyers of the District, and well known advocates of woman suffrage, were retained by the plaintiffs, and in their defense made the following arguments:

Mr. RIDDLE said: May it please the Court; ... These plaintiffs, describing themselves as women, claim to be citizens of the United States and of this District, with the right of the elective franchise, which they attempted to exercise at the election of April 20th last past, and were prevented. They say that as registration was a prerequisite of the right to vote, they tendered themselves in due form, and demanded it, under the second section of the Act of May 31, 1870 (16th U.S. Stats., 140). That is the "Act to enforce the right of citizens of the United States to vote," etc., and authorizes a suit for refusing registration. They say, that being refused registration, they tendered their votes to the proper inspectors of said election, with proof of their attempt to register, citizens.h.i.+p, etc., as authorized by the third section of said Act, and their votes were refused; and, thereupon, Spencer brings her suit under said second section, against the registering officers, and Webster hers under the third section, which authorizes it, for rejecting her vote. The questions in both cases are identical and presented together.

To the declarations the defendants demur, and thereby raise the only questions we desire to have adjudicated. The defendants, by their demurrer, admit all the allegations of the plaintiffs, severally, but say, that as they are women, they are not ent.i.tled to vote in the District of Columbia. That the seventh section of the organic Act, the Const.i.tution of the District, provides, "That all male citizens," etc., "shall be ent.i.tled to vote,"

etc., and that this word male excludes women, of course.

To this the plaintiffs reply that the language of the statute does exclude women, but they say that in the presence of the first section of the XIV. Amendment, which confers the elective franchise upon "all persons," this word "male" is as if unwritten, and that the statute, const.i.tutionally, reads, "That all citizens shall be ent.i.tled to vote." For we contend, your honors, that although the Congress "has exclusive legislation in all cases over this District," it can legislate only, as could the States, from which it was taken. It must legislate in accordance with American ideas, and can exercise no power not granted by the Const.i.tution; and that instrument certainly confers no power to limit the right of suffrage. And so we are at issue....

As the FIRST proposition of my brief, I contend, _that under our system the right to vote is a natural right_.

Obviously, government is of right or it is an usurpation. If of right, it sprang from some right older than itself; and this older right must have existed in persons (people), in each and all alike, male and female. And having this right, they used it to form for themselves a government. Of course, this supposes that all joined in and consented to the government having the power to dissent; for, to just the extent that a government got itself agoing without the free consent of its people, it is without right. The right of self-government, and from that springs our right to govern others, is a natural right. This is the primary idea of American politics, and the foundation of our Government. This was formulated in the second clause of our great Declaration, and no man has dared to deny it....

It follows, then, if the right of government is a natural right, and to be exercised alone by the ballot, that the right to vote is a natural right. This never has been and never can be successfully controverted....

I will read from the highest American authority upon our politico-const.i.tutional questions, partly in support of my proposition that the right to vote is a natural right, and also to show that the a.s.sumed claim of one part of the people to exclude another from all share in the Government has the most doubtful and shadowy foundation in right, and to an American it needs no evidence to show that a portion of the people thus excluded are in a state of va.s.salage. I read from Story on the Const.i.tution, volume 1st, commencing at

Sec. 578. The most strenuous advocate for universal suffrage has never yet contended that the right should be absolutely universal. No one has ever been sufficiently visionary to hold that all persons of every age, degree, and character, should be ent.i.tled to vote in all elections of all public officers. Idiots, infants, minors, and persons insane or utterly imbecile, have been, without scruple, denied the right as not having the sound judgment and discretion fit for its exercise. In many countries, persons guilty of crimes have also been denied the right as a personal punishment, or as a security to society. In most countries, females, whether married or single, have been purposely excluded from voting, as interfering with sound policy and the harmony of social life ... And yet it would be extremely difficult, upon any mere theoretical reasoning, to establish any satisfactory principle upon which the one-half of every society has thus been systematically excluded by the other half from all right of partic.i.p.ating in government, which would not at the same time apply to and justify many other exclusions. If it be said that all men have a natural, equal, and inalienable right to vote, because they are all born free and equal; that they all have common rights and interests ent.i.tled to protection; and, therefore, have an equal right to decide, either personally or by their chosen representatives, upon the laws and regulations which shall control, measure, and sustain those rights and interests; that they can not be compelled to surrender, except by their free consent, what by the bounty and order of Providence belongs to them in common with all their race. What is there in these considerations which is not equally applicable to females as free, intelligent, moral, responsible beings, ent.i.tled to equal rights and interests and protection, and having a vital stake in all the regulations and laws of society? And, if an exception, from the nature of the case, could be felt in regard to persons who are idiots, infants, and insane, how can this apply to persons who are of more mature growth, and are yet deemed minors by the munic.i.p.al law?

SEC. 580. If, then, every well-organized society has the right to consult for the common good of the whole; and if, upon the principle of natural law, this right is conceded by the very union of society, it seems difficult to a.s.sign any limit to this right which is compatible with the due attainment of the end proposed. If, therefore, any society shall deem the common good and interests of the whole society best promoted under the particular circ.u.mstances in which it is placed by a restriction of the right of suffrage, it is not easy to state any solid ground of objection to its exercise of such an authority. At least, if any society has a clear right to deprive females, const.i.tuting one-half of the whole population, of the right of suffrage (which, with scarcely an exception, has been uniformly maintained), it will require some astuteness to find upon what ground this exclusion can be vindicated, which does justify, or at least excuse, many other exclusions.

Sec. 581. Without laying any stress upon this theoretical reasoning which is brought before the reader, not so much because it solves all doubts and objections, as because it presents a view of the serious difficulties attendant upon the a.s.sumption of an original and inalienable right of suffrage, as originating in natural law, and independent of civil law, it may be proper to state that every civilized society has uniformly fixed, modified, and regulated the right of suffrage for itself according to its own free will and pleasure. Every const.i.tution of government in these United States has a.s.sumed, as a fundamental principle, the right of the people of the State to alter, abolish, and modify the form of its own government according to the sovereign pleasure of the people. In fact, the people of each State have gone much further, and settled a far more critical question, by deciding who shall be the voters ent.i.tled to approve and reject the const.i.tution framed by a delegated body under their direction. In the adoption of no State const.i.tution has the a.s.sent been asked of any but the qualified voters; and women, and minors, and other persons not recognized as voters by existing laws, have been studiously excluded. And yet the const.i.tution has been deemed entirely obligatory upon them as well as upon the minority, who voted against it. From this it will be seen how little, even in the most free of republican governments, any abstract right of suffrage, or any original and indefeasible privilege, has been recognized in practice.

This, remember, was written thirty years ago. Where would Story be now, if living? I beg also to read a single paragraph from the "Spirit of Laws," London edition, vol. I., p. 220:

"All the inhabitants of the several districts ought to have the right to vote at the election of the representatives,"

etc.

All of the inhabitants, says Montesquieu, ought to have the right to vote. Under such a rule I suppose my learned opponent would contend that a woman could not be an inhabitant, of course. I feel that I ought to apologize for presenting this point to this extent; it is so obvious, and rests on such broad and ample ground, that argument for it is without excuse, and I rest it here. So that if you consider this XIV. Amendment as a grant from the sovereign, then, like all such grants, you must take it most strongly against the grantor, and most favorable to the subject.

And if, as I have shown, it is in favor of natural right, then must you construe it most strongly to extend that right. No court needs authority for these propositions.

The SECOND proposition of my brief is, _that by the old common law of our English ancestors, the old storehouse of our rights and liberties, as well as the a.r.s.enal where we find weapons for their defense, woman always possessed this right of suffrage_.

I will show by several English cases, by long usage, and general understanding, by principle and precedent, that the English woman both voted and held office; and I will show that not a single case, that not a single resolution of the House of Commons exists to the contrary; and that in all the now innumerable tomes of the common law, of judicial decision, commentary, or essay, but a single dictum exists to the contrary. And if I thus establish that the construction of the XIV. Amendment, for which I this day contend, is in favor of a common law right, is in accordance with its scope and spirit, every lawyer understands by how much I strengthen my position. And for the satisfaction of the court I am glad to state that this part of my argument will consist entirely of extracts from recent English text-writers, and a reference to two or three old cases. I read first from Mr.

Anstey's Notes upon the Reform Act of Great Britain of 1867. The writer in his comment upon the words of the act, "every man of full age," etc., commences by showing that the term man in the act, as in Magna Charta and other statutes, is epicene--means both men and women. And he then goes on to show that to construe this phrase, "every man," to include every woman also, is in strict accordance with the common law from old times to the present. I read from p. 87:

That the rights in question (the right of suffrage) are not incompatible with the legal status of the woman, the following authorities seem to show. On the other hand, there can not be adduced any one authority against the position that the franchise of the s.h.i.+re and the borough were enjoyed by the female "resiants" equally with those of the male s.e.x in times when "resiants," as such, and not as "tenants," had the franchise. The statutes by which the parliamentary franchise in counties was taken away from the "resiants" and vested in the "tenants," and at length restricted to those of freehold tenure (8 Hen., 6, c. 7; 18 Geo., 2, c. 18; 31 Geo., 2 c. 14), did not in any manner create or recognize any such distinction as that of the male and the female freeholders. Those acts had relation to tenure, not to s.e.x.

For the same reason, in all those boroughs where the "common right" prevailed, the suffrage would naturally be exercisable by the female no less than by the male "inhabitants" or "residants." It is believed that in not one of the boroughs where the suffrage was said to be regulated by "charter," or by "custom," or by "prescription" or even where it was regulated by a local act of Parliament, there can be found one instance of any provision or usage whatsoever whereby any voter was excluded from the enjoyment of the suffrage by reason of s.e.x. That a woman may be a householder, or freeholder, or burgage tenant, paris.h.i.+oner, is plain enough. That she may answer the description of "a person paying scot and lot" within the "city of London," has been solemnly decided by the Court of King's Bench (Olive _vs._ Ingram, 7 Mod. 264, 267, 270, 271,) and that determination was expressly grounded by their Lords.h.i.+ps "singly upon the foot of the common law, without regard to the usages of the parishes in London," which usage, nevertheless, had been also shown to be in favor of the same construction. In all cases, whether of statutory, of customary, or of common law qualification for the suffrage, the general rule is that which was laid down by the Court of King's Bench with respect to the choice of parochial officers under the first "Act for the Relief of the Poor,"

which directed them to be made from among the "substantial householders" of the place. The court held (Rex. _vs._ Stubbs, 2 T. R., 395)--overruling a dictum in Viner's Abridgment to the contrary--that a woman, being a "substantial householder," was properly chosen under that act to the office of overseer of the poor, notwithstanding the objections raised at the bar that it was a burthensome office and one of which, being once appointed to it, she would be called upon to perform duties some of which were above the bodily and mental powers, and others were inconsistent with the morality, or, at least, the decency of that s.e.x.--(Id. 400.)

And so again on pages 90 and 91:

That there are some offices as to which it is the practice, by the "custom of England," to exclude them, is undoubtedly the fact. But it has been well said, as to these, that "there is a difference between being exempted and being incapacitated," and that "an excuse from acting, etc., is different from an incapacity of doing so. For it must not be forgotten, that it is upon the footing, not of disability, but of exemption, that those exclusions are vested, by the authorities which declare them." Thus, Whitelocke: "By the custom of England, women are not returned of juries, nor put into offices or commissions, nor eligible to serve in Parliament, or admitted to be members of the House of Peers; but, by reason of their s.e.x, they are exempted from such employment. The omission of the electoral franchise from that enumeration [of exemption] is remarkable. If women were, at that time, considered to be excluded by any "custom of England" from the Parliamentary franchise, as well as from Parliament, it is scarcely conceivable that Whitelocke would have omitted to mention so important a fact. Singular to say, there is no trace of any such custom or usage in the reports or amongst the records, not even, so far as the author's researches have been successful, in the Journals of the House of Commons itself; and yet the right of the returning officer to reject the vote of a female elector when tendered at the polling-booth is always a.s.sumed to be an adjudged point. Mr. Oldfield appears to have been under the impression that the resolution of the House of Commons upon the occasion of the Westminster election, a.s.serting the incapacity of an alien to vote in elections of members to serve in Parliament, extended to "women" also. If it were so, the incident would have no weight, for the enactment, which, according to a second resolution of the same date, was to be prepared for carrying into effect that intention, never received the sanction even of that House. But, in truth, no mention of "women" appears in either resolution.

Nor was there, in that year, or at any other period, any resolution or determination of the House, so far as the author's information goes, directly impeaching the capacity of any female, in respect of her s.e.x, to vote at an election to Parliament. He is aware that the House of Commons did, upon one remarkable occasion, deny the capacity of a female to be heard even as a witness at their bar; and that this extraordinary vote was obtained through the influence of Sir Edward c.o.ke, the only text-writer who can be vouched for the position, that a woman's vote ought not to be received at a parliamentary election.

Further on, pages 94 and 95;

On the other hand, there are extant many parliamentary returns for counties and boroughs from the earliest times, which were made by female electors, and yet were received.

Some of them are enumerated in Prynne's Collections of Parliamentary Writs. Some of later dates are mentioned in the Commons' Journals themselves. Others are to be found in the repositories of the learned or the curious.

Three of the returns in question which related to one and the same borough, were, at a period long subsequent, produced before a "Committee of Privilege and Election,"

presided over by the great parliamentary lawyer, Mr.

Hakewell, as evidence for and against the respective parties in an election trial then pending. The question was whether the borough was close or open; that is to say, whether amongst the former returns so produced, those by "Mrs.

Copley, as sole inhabitant," showed the suffrage to be limited to the Lord or Lady of Gatton for the time being, or whether those by "Mrs. Copley, _et omnes inhabitantes_,"

showed the suffrage to be of a more popular character. No question of s.e.x was raised on either side, and neither the report of the committee which found for the popular right, nor the resolution of the house for giving effect thereto, and for taking the Lord of the Manor's return off the file, contain any allusion to the question of s.e.x.

At that time the House of Commons was not prepared to enter into conflict with the courts of law, and "privilege" had not attained to the height which, amid the excitement of the era of 1688, it was doomed to reach. It was impossible for the Committee of Privileges, in the Gatton case, to deny the female suffrage without coming into collision with the law, which had been declared but a few years previously by the judges. (Holt _vs._ Lyle and Coates _vs_. Lyle, 14 Jac., 1 and Catherine _vs_. Surrey, (Hakewell MSS.,) Append., 7 Mod., 264-5.) "The opinion of the judges," it was said by Sir William Lee, a chief justice of the King's Bench in 1739, "was that a _feme-sole_, if she has a freehold," in a county (as it seems) "may vote for members of Parliament,"

and that women when sole had a power to vote.... In Lady Packington's case (she) returns to Parliament; that the sheriff made a precept to her, as lady of the manor, to return two members to Parliament.... In the case of Holt _vs_. Lyle it is determined that a _feme-sole_ freeholder, in counties, may claim a vote for Parliament men, but, if married, her husband must vote for her.... I only mention what I found in a ma.n.u.script by the famous Hakewell.

CHIEF-JUSTICE--Coverture then incapacitated a woman from voting?

Mr. RIDDLE.--No, your honor; the right to vote attached to the freehold, and by the old law that by marriage vested in the husband.

In the case of Olive _vs._ Ingram, 7th Mod. Reps., already recited by the author, it was urged that the right of woman suffrage was lost by _non-user_, which is thus disposed of. I quote from page 97:

The same can not be said of the learned Solicitor General's objection of _non-user_. "As their claim," he argued, "is at common law, and usage is the only evidence of right at common law, they ought to show it, or else _non-user_ shall be evidence of a waiver of the right, if they ever had any."

The reply was conclusive enough. "There was a difference between being exempted and being incapacitated." But there was another and a not less conclusive reply. The franchise was a public, not a private right--_omnis libertas regia est, et ad coronam pertinet_--[every liberty is royal and pertinent to the crown]--and of such there can be no waiver, for the right implies a duty, and the duty is co-equal and co-extensive with the right.

I now ask your attention to the case of Jane Allen, which came before Mr. Anstey in the Revising Court, a tribunal created by the parliamentary elector's trial bill of 1868, and which sits to revise the registration of voters, under the Act of 1867, and from whom appeals lie to the Court of Common Pleas. The case came up in 1868, and was fully and ably argued, and the Revising Barrister went luminously over the whole ground in an exhaustive opinion when he rendered judgment. I find the case in the Eng.

Law Mag. and Law Rev. for 1868, at p. 121:

_In re Jane Allen_ (_Parish of St. Giles-in-the-Fields_).

_September 23, 1868_.