The History of Woman Suffrage Volume II Part 84

The question of the masculine p.r.o.nouns, yes and nouns too, has been settled by the United States Supreme Court, in the case of Silver _vs._ Ladd, December, 1868, in a decision as to whether a woman was ent.i.tled to lands under the Oregon donation law of 1850. Elizabeth Cruthers, a widow, settled upon a claim and received patents. She died, and her son was heir. He died. Then Messrs. Ladd & Nott took possession, under the general pre-emption law, December, 1861. The administrator, E. P. Silver, applied for a writ of ejectment at the land office in Oregon City. Both the Register and Receiver decided that an unmarried woman could not hold land under that law. The Commissioner of the General Land Office, at Was.h.i.+ngton, and the Secretary of the Interior, also gave adverse opinions. Here patents were issued to Ladd & Nott, and duly recorded. Then a suit was brought to set aside Ladd's patent, and it was carried through all the State Courts and the Supreme Court of Oregon; each, in turn, giving adverse decisions. At last, in the United States Supreme Court, a.s.sociate Justice Miller reversed the decisions of all the lower tribunals, and ordered the land back to the heirs of Mrs.

Cruthers. The Court said:

In construing a benevolent statute of the government, made for the benefit of its own citizens, inviting and encouraging them to settle on its distant public lands, the words "single man," and "unmarried man" may, especially if aided by the context and other parts of the statute, be taken in a generic sense. Held, accordingly, that the fourth section of the Act of Congress, of September 27th, 1850, granting by way of donation, lands in Oregon Territory, to every white settler or occupant, American half-breed Indians included, embraced within the term single man an unmarried woman.

And the attorney, who carried this question to its final success, is now the Senator elect from Oregon, Hon. J. H. Mitch.e.l.l, in whom the cause of equal rights to women has an added power on the floor of the United States Senate.

Though the words persons, people, inhabitants, electors, citizens, are all used indiscriminately in the National and State const.i.tutions, there was always a conflict of opinion, prior to the war, as to whether they were synonymous terms, as for instance:

No _person_ shall be a representative who shall not have been seven years a _citizen_, and who shall not, when elected, be an _inhabitant_ of that State in which he is chosen. No _person_ shall be a senator who shall not have been a _citizen_ of the United States, and an _inhabitant_ of that State in which he is chosen.

But, whatever room there was for a doubt, under the old regime, the adoption of the XIV. Amendment settled that question forever, in its first sentence:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

And the second settles the equal status of all persons--all citizens:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

The only question left to be settled now, is: Are women persons?

And I hardly believe any of our opponents will have the hardihood to say they are not. Being persons, then, women are citizens, and no State has a right to make any new law, or to enforce any old law, that shall abridge their privileges or immunities. Hence, every discrimination against women in the const.i.tutions and laws of the several States, is to-day null and void, precisely as is every one against negroes. Is the right to vote one of the privileges or immunities of citizens? I think the disfranchised ex-rebels, and the ex-state prisoners will all agree with me, that it is not only one of them, but _the one without which all the others are nothing_. Seek first the kingdom of the ballot, and all things else shall be given thee, is the political injunction.

Webster, Worcester and Bouvier all define citizen to be a person, in the United States, ent.i.tled to vote and hold office. And prior to the adoption of the XIII. Amendment, by which slavery was forever abolished, and black men transformed from property to persons, the judicial opinions of the country had always been in harmony with these definitions. To be a person was to be a citizen, and to be a citizen was to be a voter. a.s.sociate Justice Was.h.i.+ngton, in defining the privileges and immunities of the citizen, more than fifty years ago, said:

They included all such privileges as were fundamental in their nature. And among them is the right to exercise the elective franchise and to hold office.

Even the "Dred Scott" decision, p.r.o.nounced by the Abolitionists and Republicans infamous, because it virtually declared "black men had no rights white men were bound to respect," gave this true and logical conclusion, that to be one of the people was to be a citizen and a voter. Chief Judge Daniels said:

There is not, it is believed, to be found in the theories of writers on government, or in any actual experiment heretofore tried, an exposition of the term citizen, which has not been considered as conferring the actual possession and enjoyment of the perfect right of acquisition and enjoyment of an entire equality of privileges, civil and political.

a.s.sociate Justice Taney said:

The words "people of the United States" and "citizens," are synonymous terms, and mean the same thing. They both describe the political body, who, according to our republican inst.i.tutions, form the sovereignty, and who hold the power and conduct the government, through their representatives. They are what we familiarly call the sovereign people, and every citizen is one of this people, and a const.i.tuent member of this sovereignty.

Thus does Judge Taney's decision, which was such a terrible ban to the black man while he was a slave, now that he is a person, no longer property, p.r.o.nounce him a citizen, possessed of an entire equality of privileges, civil and political. And not only the black man, but the black woman, and all women as well. And it was not until after the abolition of slavery, by which the negroes became free men, hence citizens, that the United States Attorney-General Bates rendered a contrary opinion:

The Const.i.tution uses the word "citizen" only to express the political quality (not equality, mark) of the individual in his relation to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligations of allegiance on the one side, and protection on the other. The phrase "a citizen of the United States,"

without addition or qualification, means neither more nor less than a member of the nation.

Then, to be a citizen of this Republic, is no more than to be a subject of an Empire. You and I, and all true and patriotic citizens must repudiate this base conclusion. We all know that American citizens.h.i.+p, without addition or qualification, means the possession of equal rights, civil and political. We all know that the crowning glory of every citizen of the United States is, that he can either give or withhold his vote from every law and every legislator under the government. Did "I am a Roman citizen," mean nothing more than that I am a "member" of the body politic of the Republic of Rome, bound to it by the reciprocal obligations of allegiance on the one side, and protection on the other? When you, young man, shall travel abroad among the monarchies of the old world, and there proudly boast yourself an "American citizen," will you thereby declare yourself neither more nor less than a "member" of the American nation?

And this opinion of Attorney-General Bates, that a black citizen was not a voter, made merely to suit the political exigency of the Republican party in that transition hour between emanc.i.p.ation and enfranchis.e.m.e.nt, was no less infamous, in spirit or purpose, than was the decision of Judge Taney, that a black man was not one of the people, rendered in the interest and at the behest of the old Democratic party, in its darkest hour of subjection to the Slave power. Nevertheless, all of the adverse arguments, adverse congressional reports and judicial opinions, thus far, have been based on this purely partisan, time-serving opinion of General Bates, that the normal condition of the citizen of the United States is that of disfranchis.e.m.e.nt. That only such cla.s.ses of citizens as have had special legislative guarantee have a legal right to vote. And if this decision of Attorney-General Bates was infamous, as against black men, but yesterday plantation slaves, what shall we p.r.o.nounce upon Judge Bingham, in the House of Representatives, and Carpenter, in the Senate of the United States, for citing it against the women of the entire nation, vast numbers of whom are the peers of those honorable gentlemen themselves, in morals, intellect, culture, wealth, family--paying taxes on large estates, and contributing equally with them and their s.e.x, in every direction, to the growth, prosperity, and well-being of the Republic? And what shall be said of the judicial opinions of Judges Cartter, Jameson, McKay, and Sharswood, all based upon this aristocratic monarchical idea, of the right of one cla.s.s to govern another?

I am proud to mention the names of the two United States judges who have given opinions honorable to our Republican idea, and honorable to themselves--Judge Howe, of Wyoming Territory, and Judge Underwood, of Virginia. The former gave it as his opinion a year ago, when the Legislature seemed likely to revoke the law enfranchising the women of that Territory, that, in case they succeeded, the women would still possess the right to vote under the XIV. Amendment. Judge Underwood, of Virginia, in noticing the recent decision of the Supreme Court of the District of Columbia, denying to women the right to vote, under the XIV. Amendment, says:

If the people of the United States, by amendment of their Const.i.tution, could expunge, without any explanatory or a.s.sisting legislation, an adjective of five letters from all State const.i.tutions, and thereby raise millions of our most ignorant fellow-citizens to all the rights and privileges of electors, why should not the same people, by the same Amendment, expunge an adjective of four letters from the same State const.i.tutions, and thereby raise other millions of more educated and better informed citizens to equal rights and privileges, without explanatory or a.s.sisting legislation?

If the XIV. Amendment does not secure to all citizens the right to vote, for what purpose was that grand old charter of the fathers lumbered with its unwieldy proportions? The Republican party, and Judges Howard and Bingham, who drafted the doc.u.ment, pretended it was to do something for black men; and if that something was not to secure them in their right to vote and hold office, what could it have been? For, by the XIII. Amendment, black men had become people, and hence were ent.i.tled to all the privileges and immunities of the Government, precisely as were the women of the country and foreign men not naturalized.

According to a.s.sociate Justice Was.h.i.+ngton, they already had the

Protection of the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject to such restraints as the Government may justly prescribe for the general welfare of the whole; the right of a citizen of one State to pa.s.s through or to reside in any other State for the purpose of trade, agriculture, professional pursuit, or otherwise; to claim the benefit of the writ of habeas corpus, to inst.i.tute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the State.

Thus, you see, those newly-made freed men were in possession of every possible right, privilege, and immunity of the Government, except that of suffrage, and hence, needed no const.i.tutional amendment for any other purpose. What right, I ask you, has the Irishman the day after he receives his naturalization papers that he did not possess the day before, save the right to vote and hold office? And the Chinamen, now crowding our Pacific coast, are in precisely the same position. What privilege or immunity has California or Oregon the const.i.tutional right to deny them, save that of the ballot? Clearly, then, if the XIV. Amendment was not to secure to black men their right to vote, it did nothing for them, since they possessed everything else before. But if it was meant to be a prohibition of the States to deny or abridge their right to vote--which I fully believe--then it did the same for all persons, white women included, born or naturalized in the United States, for the amendment does not say all male persons of African descent, but all persons are citizens.

The second section is simply a threat to punish the States, by reducing their representation on the floor of Congress, should they disfranchise any cla.s.s of male citizens, and does not allow of the inference that the States may disfranchise from any, or all other causes; nor in anywise weaken or invalidate the universal guarantee of the first section. What rule of law or logic would allow the conclusion, that the prohibition of a crime to one person, on severe pains and penalties, was a sanction of that crime to any and all other persons save that one? But, however much the doctors of the law may disagree, as to whether people and citizens, in the original const.i.tution, were one and the same, or whether the privileges and immunities in the XIV.

Amendment include the right of suffrage, the question of the right of the citizen to vote is settled forever by the XV.

Amendment:

The citizen's right to vote shall not be denied by the United States, nor any State thereof; on account of race, color, or previous condition of servitude.

How can the State deny or abridge the right of the citizen, if the citizen does not possess it? There is no escape from the conclusion, that to vote is the citizen's right, and the specifications of race, color, or previous condition of servitude can, in no way, impair the force of the emphatic a.s.sertion, that the citizen's right to vote shall not be denied or abridged. The political strategy of the second section of the XIV. Amendment, failing to coerce the rebel States into enfranchising their negroes, and the necessities of the Republican party demanding their votes throughout the South, to insure the re-election of Grant in 1872, that party was compelled to place this positive prohibition of the XV. Amendment upon the United States and all the States thereof.

If we once establish the false principle, that United States citizens.h.i.+p does not carry with it the right to vote in every State in this Union, there is no end to the petty freaks and cunning devices that will be resorted to, to exclude one and another cla.s.s of citizens from the right of suffrage. It will not always be men combining to disfranchise women; native-born men combining to abridge the rights of naturalized citizens, as in Rhode Island; it will not always be the rich and educated who may combine to cut off the poor and ignorant; but we may live to see the poor, hard-working, uncultivated day laborers, foreign and native born, learning the power of the ballot and their vast majority of numbers, combine and amend State const.i.tutions so as to disfranchise the Vanderbilts and A. T. Stewarts, the Conklings and Fentons. It is a poor rule that won't work more ways than one. Establish this precedent, admit the right of the States to deny suffrage, and there is no power to foresee the confusion, discord, and disruption that may await us. There is, and can be, but one safe principle of government--equal rights to all. And any and every discrimination against any cla.s.s, whether on account of color, race, nativity, s.e.x, property, culture, can but embitter and disaffect that cla.s.s, and thereby endanger the safety of the whole people. Clearly, then, the National government must not only define the rights of citizens, but it must stretch out its powerful hand and protect them in every State in this Union.

But if you will insist that the XV. Amendment's emphatic interdiction against robbing United States citizens of their right to vote, "on account of race, color, or previous condition of servitude," is a recognition of the right, either of the United States or any State, to rob citizens of that right for any or all other reasons, I will prove to you that the cla.s.s of citizens for which I now plead, and to which I belong, may be, and are, by all the principles of our Government, and many of the laws of the States, included under the term "previous condition of servitude."

First.--The married women and their legal status. What is servitude? "The condition of a slave." What is a slave? "A person who is robbed of the proceeds of his labor; a person who is subject to the will of another."

By the law of Georgia, South Carolina, and all the States of the South, the negro had no right to the custody and control of his person. He belonged to his master. If he was disobedient, the master had the right to use correction. If the negro didn't like the correction, and attempted to run away, the master had a right to use coercion to bring him back. By the law of every State in this Union to-day, North as well as South, the married woman has no right to the custody and control of her person. The wife belongs to her husband; and if she refuses obedience to his will, he may use moderate correction, and if she doesn't like his moderate correction, and attempts to leave his "bed and board,"

the husband may use moderate coercion to bring her back. The little word "moderate," you see, is the saving clause for the wife, and would doubtless be overstepped should her offended husband administer his correction with the "cat-o'-nine-tails,"

or accomplish his coercion with blood-hounds.

Again, the slave had no right to the earnings of his hands, they belonged to his master; no right to the custody of his children, they belonged to his master; no right to sue or be sued, or testify in the courts. If he committed a crime, it was the master who must sue or be sued. In many of the States there has been special legislation, giving to married women the right to property inherited, or received by bequest, or earned by the pursuit of any avocation outside of the home; also, giving her the right to sue and be sued in matters pertaining to such separate property; but _not a single State of this Union has ever secured the wife in the enjoyment of her right to the joint owners.h.i.+p of the joint earnings of the marriage copartners.h.i.+p_.

And since, in the nature of things, the vast majority of married women never earn a dollar by work outside of their families, nor inherit a dollar from their fathers, it follows that from the day of their marriage to the day of the death of their husbands, not one of them ever has a dollar, except it shall please her husband to let her have it. In some of the States, also, there have been laws pa.s.sed giving to the mother a joint right with the father in the guardians.h.i.+p of the children. But twenty years ago, when our woman's rights movement commenced, by the laws of the State of New York, and all the States, the father had the sole custody and control of the children. No matter if he were a brutal, drunken libertine, he had the legal right, without the mother's consent, to apprentice her sons to rumsellers, or her daughters to brothel keepers. He could even will away an unborn child, to some other person than the mother. And in many of the States the law still prevails, and legal mothers are still utterly powerless under the common law.

I doubt if there is, to-day, a State in this Union where a married woman can sue or be sued for slander of character, and until quite recently there was not one in which she could sue or be sued for injury of person. However damaging to the wife's reputation any slander may be, she is wholly powerless to inst.i.tute legal proceedings against her accuser, unless her husband shall join with her; and how often have we heard of the husband conspiring with some outside barbarian to blast the good name of his wife. A married woman can not testify in the courts in cases of joint interest with her husband. A good farmer's wife near Earlville, Ill., who had all the rights she wanted, went to the dentist of the village, who made her a full set of false teeth, both upper and under. The dentist p.r.o.nounced them an admirable fit, and the wife declared they gave her fits to wear them; that she could neither chew nor talk with them in her mouth. The dentist sued the husband; his counsel brought the wife as witness; the judge ruled her off the stand, saying:

A married woman can not be a witness in matters of joint interest between herself and her husband.

Think of it, ye good wives, the false teeth in your mouths a joint interest with your husbands, about which you are legally incompetent to speak! If in our frequent and shocking railroad accidents a married woman is injured in her person, in nearly all of the States, it is her husband who must sue the company, and it is to her husband that the damages, if there are any, will be awarded. In Ashfield, Ma.s.s., supposed to be the most advanced of any State in the Union in all things, humanitarian as well as intellectual, a married woman was severely injured by a defective sidewalk. Her husband sued the corporation and recovered $13,000 damages. And those $13,000 belong to him _bona fide_; and whenever that unfortunate wife wishes a dollar of it to supply her needs she must ask her husband for it; and if the man be of a narrow, selfish, n.i.g.g.ardly nature, she will have to hear him say, every time:

"What have you done, my dear, with the twenty-five cents I gave you yesterday?"

Isn't such a position, I ask you, humiliating enough to be called "servitude"? That husband, as would any other husband, in nearly every State of this Union, sued and obtained damages for the loss of the services of his wife, precisely as the master, under the old slave regime, would have done, had his slave been thus injured, and precisely as he himself would have done had it been his ox, cow, or horse instead of his wife. There is an old saying that "a rose by any other name would smell as sweet," and I submit if the deprivation by law of the owners.h.i.+p of one's own person, wages, property, children, the denial of the right as an individual, to sue and be sued, and to testify in the courts, is not a condition of servitude most bitter and absolute, though under the sacred name of marriage?

Does any lawyer doubt my statement of the legal status of married women? I will remind him of the fact that the old common law of England prevails in every State in this Union, except where the Legislature has enacted special laws annulling it. And I am ashamed that not one State has yet blotted from its statute books the old common law of marriage, by which Blackstone, summed up in the fewest words possible, is made to say: "Husband and wife are one, and that one is the husband."

Thus may all married women, wives, and widows, by the laws of the several States, be technically included in the XV. Amendment's specification of "condition of servitude," present or previous.

And not only married women, but I will also prove to you that by all the great fundamental principles of our free government, the entire womanhood of the nation is in a "condition of servitude"

as surely as were our revolutionary fathers, when they rebelled against old King George. Women are taxed without representation, governed without their consent, tried, convicted, and punished without a jury of their peers. And is all this tyranny any less humiliating and degrading to women under our democratic-republican government to-day than it was to men under their aristocratic, monarchical government one hundred years ago?

There is not an utterance of old John Adams, John Hanc.o.c.k, or Patrick Henry, but finds a living response in the soul of every intelligent, patriotic woman of the nation. Bring to me a common-sense woman property holder, and I will show you one whose soul is fired with all the indignation of 1776, every time the tax-gatherer presents himself at her door. You will not find one such but feels her condition of servitude as galling as did James Otis when he said:

The very act of taxing exercised over those who are not represented appears to me to be depriving them of one of their most essential rights, and if continued, seems to be in effect an entire disfranchis.e.m.e.nt of every civil right.

For, what one civil right is worth a rush after a man's property is subject to be taken from him at pleasure without his consent? If a man is not his own a.s.sessor in person, or by deputy, his liberty is gone, or he is wholly at the mercy of others.

What was the three-penny tax on tea, or the paltry tax on paper and sugar to which our revolutionary fathers were subjected, when compared with the taxation of the women of this Republic? The orphaned Pixley sisters, six dollars a day; and even the women who are proclaiming the tyranny of taxation without representation, from city to city throughout the country, are often compelled to pay a tax for the poor privilege of protesting against the outrage. And again, to show that disfranchis.e.m.e.nt was precisely the slavery of which the fathers complained, allow me to cite to you old Ben. Franklin, who in those olden times was admitted to be good authority, not merely in domestic economy, but in political as well:

Every man of the commonalty, except infants, insane persons and criminals, is, of common right and the law of G.o.d, a freeman and ent.i.tled to the free enjoyment of liberty. That liberty or freedom consists in having an actual share in the appointment of those who are to frame the laws, and who are to be the guardians of every man's life, property, and peace. For the all of one man is as dear to him as the all of another; and the poor man has an equal right, but more need to have representatives in the Legislature than the rich one. That they who have no voice or vote in the electing of representatives do not enjoy liberty, but are absolutely enslaved to those who have votes and their representatives; for to be enslaved is to have governors whom other men have set over us, and to be subject to laws made by the representatives of others, without having had representatives of our own to give consent in our behalf.

Suppose I read it with the feminine gender: