The History of Woman Suffrage Volume II Part 88

Poverty, as well as perhaps an excusable if not laudable pride, compelled her to live in obscurity, and consequently the a.s.sault upon their characters fell upon her and her daughters with crus.h.i.+ng force. Her employment mainly ceased, her daughters were of necessity withdrawn from school, and all were deprived of the means, from their own exertions, of sustaining life. Had they been in fact the harlots which the miserly scoundrel represented them to be, they would not have been so utterly powerless to resist his a.s.sault. The mother in her despair naturally sought legal redress. But how was it to be obtained? By the law the wife's rights were merged in those of the husband. She had in law no individual existence, and consequently no action could be brought by her to redress the grievous wrong; indeed, _according to the law she had suffered no wrong_, but the husband had suffered all, and was ent.i.tled to all the redress. Where he was the lady did not know; she had not heard from him for many years. Her counsel, however, ventured to bring an action in her behalf, joining the husband's name with hers, as the law required. When the cause came to trial the defendant made no attempt to sustain the charges which he had made, well knowing that they were as groundless as they were cruel; but he introduced and proved a release of the cause of action, signed by the husband, reciting a consideration of fifty dollars paid to him. The defendant's counsel had some difficulty in proving the execution of the release, and was compelled to introduce as a witness the constable who had been employed to find the vagabond husband and obtain his signature. His testimony disclosed the facts that he found the husband in the forest in one of our north-eastern counties, engaged in making s.h.i.+ngles (presumably stealing timber from the public lands and converting it into the means of indulging his habits of drunkenness), and only five dollars of the fifty mentioned in the release had in fact been paid. The Court held, was compelled to hold, that the party injured _in view of the law_, had received full compensation for the wrong--and the mother and daughters with no means of redress were left to starve. This was the act of the _representative_ of the wife and daughters to whom we are referred, as a better protector of their rights than they themselves could be. It may properly be added, that if the action had proceeded to judgment without interference from the husband, and such amount of damages had been recovered as a jury might have thought it proper to award, the money would have belonged to the husband, and the wife could not lawfully have touched a cent of it. Her attorney might, and doubtless would have paid it to her, but he could only have done so at the peril of being compelled to pay it again to the drunken husband if he had demanded it.

In another case, two ladies, mother and daughter, some time prior to 1860 came from an eastern county of New York to Rochester, where a habeas corpus was obtained for a child of the daughter less than two years of age. It appeared on the return of the writ, that the mother of the child had been previously abandoned by her husband, who had gone to a Western State to reside, and his wife had returned with the child to her mother's house, and had resided there after her desertion. The husband had recently returned from the West, had succeeded in getting the child into his custody, and was stopping overnight with it in Rochester on the way to his Western home. No misconduct on the part of the wife was pretended, and none on the part of the husband, excepting that he had gone to the West, leaving his wife and child behind, no cause appearing, and had returned, and somewhat clandestinely obtained possession of the child. The Judge, following Blackstone's views of husbands' rights, remanded the infant to the custody of the father. He thought the law required it, and perhaps it did; but if mothers had had a voice, either in making or administering the law, I think the result would have been different. The distress of the mother on being thus separated from her child can be better imagined than described. The separation proved a final one, as in less than a year neither father nor mother had any child on earth to love or care for. Whether the loss to the little one of a mother's love and watchfulness had any effect upon the result, can not, of course, be known.

The state of the law a short time since, in other respects, in regard to the rights of married women, shows what kind of security had been provided for them by their a.s.sumed representatives. Prior to 1848, all the personal property of every woman on marriage became the absolute property of the husband--the use of all her real estate became his during coverture, and on the birth of a living child, it became his during his life. He could squander it in dissipation or bestow it upon harlots, and the wife could not touch or interfere with it.

Prior to 1860, the husband could by will take the custody of his infant children away from the surviving mother, and give it to whom he pleased--and he could in like manner dispose of the control of the children's property, after his death, during their minority, without the mother's consent. In most of these respects the state of the law has undergone great changes within the last twenty-five years. The property, real and personal, which a woman possesses before marriage, and such as may be given to her during coverture, remains her own, and is free from the control of her husband. If a married woman is slandered she can prosecute the slanderer in her own name, and recover to her own use damages for the injury. The mother now has an equal claim with the father to the custody of their minor children, and in case of controversy on the subject, courts may award the custody to either in their discretion. The husband can not now by will effectually appoint a guardian for his infant children without the consent of the mother, if living. These are certainly great ameliorations of the law; but how have they been produced? Mainly as the result of the exertions of a few heroic women, one of the foremost of whom is she who stands arraigned as a criminal before this Court to-day.

For a thousand years the absurdities and cruelties to which I have alluded have been imbedded in the common law, and in the statute books, and men have not touched them, and would not until the end of time, had they not been goaded to it by the persistent efforts of the n.o.ble women to whom I have alluded.

Much has been done, but much more remains to be done by women. If they had possessed the elective franchise, the reforms which have cost them a quarter of a century of labor would have been accomplished in a year. They are still subject to taxation upon their property, without any voice as to the levying or destination of the tax; and are still subject to laws made by men, which subject them to fine and imprisonment for the same acts which men do with honor and reward--and when brought to trial no woman is allowed a place on the bench or in the jury box, or a voice in her behalf at the bar. They are bound to suffer the penalty of such laws, made and administered solely by men, and to be silent under the infliction. Give them the ballot, and, although I do not suppose that any great revolution will be produced, or that all political evils will be removed (I am not a believer in political panaceas), but if I mistake not, valuable reforms will be introduced which are not now thought of. Schools, alms-houses, hospitals, drinking saloons, and those worse dens which are destroying the morals and the const.i.tutions of so many of the young of both s.e.xes, will feel their influence to an extent now little dreamed of. At all events women will not be taxed without an opportunity to be heard, and will not be subject to fine and imprisonment by laws made exclusively by men for doing what it is lawful and honorable for men to do.

It may be said in answer to the argument in favor of female suffrage derived from the cases to which I have referred, that men, not individually, but collectively, are the natural and appropriate representatives of women, and that, notwithstanding cases of individual wrong, the rights of women are, on the whole, best protected by being left to their care. It must be observed, however, that the cases which I have stated, and which are only types of thousands like them, in their cruelty and injustice, are the result of ages of legislation by these a.s.sumed protectors of women. The wrongs were less in the men than in the laws which sustained them, and which contained nothing for the protection of the women. But pa.s.sing this view, let us look at the matter historically and on a broader field.

If Chinese women were allowed an equal share with men in shaping the laws of that great empire, would they subject their female children to torture with bandaged feet, through the whole period of childhood and growth, in order that they might be cripples for the residue of their lives? If Hindoo women could have shaped the laws of India, would widows for ages have been burned on the funeral pyres of their deceased husbands? If Jewish women had had a voice in framing Jewish laws, would the husband, at his own pleasure, have been allowed to "write his wife a bill of divorcement and give it in her hand, and send her out of his house"? Would women in Turkey or Persia have made it a heinous, if not capital, offense for a wife to be seen abroad with her face not covered by an impenetrable veil? Would women in England, however learned, have been for ages subjected to execution for offenses for which men, who could read, were only subjected to burning in the hand and a few months imprisonment?

The principle which governs in these cases, or which has done so hitherto, has been at all times and everywhere the same. Those who succeed in obtaining power, no matter by what means, will, with rare exceptions, use it for their exclusive benefit. Often, perhaps generally, this is done in the honest belief that such use is for the best good of all who are affected by it. A wrong, however, to those upon whom it is inflicted, is none the less a wrong by reason of the good motives of the party by whom it is inflicted.

The condition of subjection in which women have been held is the result of this principle; the result of superior strength, not of superior rights, on the part of men. Superior strength, combined with ignorance and selfishness, but not with malice. It is a relic of the barbarism in the shadow of which nations have grown up. Precisely as nations have receded from barbarism the severity of that subjection has been relaxed. So long as merely physical power governed in the affairs of the world, the wrongs done to women were without the possibility of redress or relief; but since nations have come to be governed by laws, there is room to hope, though the process may still be a slow one, that injustice in all its forms, or at least political injustice, may be extinguished. No injustice can be greater than to deny to any cla.s.s of citizens not guilty of crime, all share in the political power of a State, that is, all share in the choice of rulers, and in the making and administration of the laws. Persons to which such share is denied, are essentially slaves, because they hold their rights, if they can be said to have any, subject to the will of those who hold the political power. For this reason it has been found necessary to give the ballot to the emanc.i.p.ated slaves. Until this was done their emanc.i.p.ation was far from complete. Without a share in the political powers of the State, no cla.s.s of citizens has any security for its rights, and the history of nations to which I briefly alluded, shows that women const.i.tute no exception to the universality of this rule.

Great errors, I think, exist in the minds of both the advocates and the opponents of this measure in their antic.i.p.ation of the immediate effects to be produced by its adoption. On the one hand it is supposed by some that the character of women would be radically changed--that they would be uns.e.xed, as it were, by clothing them with political rights, and that instead of modest, amiable, and graceful beings, we should have bold, noisy, and disgusting political demagogues, or something worse, if anything worse can be imagined. I think those who entertain such opinions are in error. The innate character of women is the result of G.o.d's laws, not of man's, nor can the laws of man affect that character beyond a very slight degree. Whatever rights may be given to them, and whatever duties may be charged upon them by human laws, their general character will remain unchanged. Their modesty, their delicacy, and intuitive sense of propriety, will never desert them, into whatever new positions their added rights or duties may carry them.

So far as women, without change of character as women, are qualified to discharge the duties of citizens.h.i.+p, they will discharge them if called upon to do so, and beyond that they will not go. Nature has put barriers in the way of any excessive devotion of women to public affairs, and it is not necessary that nature's work in that respect should be supplemented by additional barriers invented by men. Such offices as women are qualified to fill will be sought by those who do not find other employment, and others they will not seek, or if they do, will seek in vain. To aid in removing as far as possible the disheartening difficulties which women dependent upon their own exertions encounter, it is, I think, desirable that such official positions as they can fill should be thrown open to them, and that they should be given the same power that men have to aid each other by their votes. I would say, remove all legal barriers that stand in the way of their finding employment, official or unofficial, and leave them, as men are left, to depend for success upon their character and their abilities. As long as men are allowed to act as milliners, with what propriety can they exclude women from the post of school commissioners when chosen to such positions by their neighbors?

To deny them such rights, is to leave them in a condition of political servitude as absolute as that of the African slaves before their emanc.i.p.ation. This conclusion is readily to be deduced from the opinion of Chief-Justice Jay in the case of Chisholm's Ex'rs _vs._ The State of Georgia (2 Dallas, 419-471), although the learned Chief-Justice had of course no idea of any such application as I make of his opinion. The action was a.s.sumpsit by a citizen of the State of South Carolina, and the question was, whether the United States Court had jurisdiction, the State of Georgia declining to appear. The Chief-Justice, in the course of his opinion, after alluding to the feudal idea of the character of the sovereign in England, and giving some of the reasons why he was not subject to suit before the courts of the kingdom, says:

The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the prince and the subject. No such ideas obtain here. At the Revolution the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called), and have none to govern but themselves; the citizens of America are equal as fellow-citizens, and as joint tenants in the sovereignty.

Now I beg leave to ask, in case this charge against Miss Anthony can be sustained, what equality and what sovereignty is enjoyed by the half of the citizens of these United States to which she belongs? Do they not, in that event, occupy politically exactly the position which the learned Chief-Justice a.s.signs to the African slaves? Are they not shown to be subjects of the other half, who are the sovereigns? And is not their political subjection as absolute as was that of the African slaves? If that charge has any basis to rest upon, the learned Chief-Justice was wrong. The sovereigns of this country, according to the theory of this prosecution, are not sovereigns without subjects. Though two or three millions of their subjects have lately ceased to be such, and have become freemen, they still hold twenty millions of subjects in absolute political bondage. If it be said that my language is stronger than the facts warrant, I appeal to the record in this case for its justification.

As deductions from what has been said, I respectfully insist, 1st, That upon the principles upon which our government is based, the privileges of the elective franchise can not justly be denied to women. 2d. That women need it for their protection. 3d. That the welfare of both s.e.xes will be promoted by granting it to them.

It would not become me, however clear my own convictions may be on the subject, to a.s.sert the right of women, under our Const.i.tution and laws as they now are, to vote at Presidential and Congressional elections, is free from doubt, because very able men have expressed contrary opinions on that question, and, so far as I am informed, there has been no authoritative adjudication upon it; or, at all events, none upon which the public mind has been content to rest as conclusive. I proceed, therefore, to offer such suggestions as occur to me, and to refer to such authorities bearing upon the question, as have fallen under my observation, hoping to satisfy your honor, not only that my client has committed no criminal offense, but that she has done nothing which she had not a legal and Const.i.tutional right to do. It is not claimed that, under our State Const.i.tution and the laws made in pursuance of it, women are authorized to vote at elections, other than those of private corporations, and consequently the right of Miss Anthony to vote at the election in question, can only be established by reference to an authority superior to and sufficient to overcome the provisions of our State Const.i.tution. Such authority can only be found, and I claim that it is found in the Const.i.tution of the United States. For convenience I beg leave to bring together the various provisions of that Const.i.tution which bear more or less directly upon the question:

ARTICLE I, Section 2. The House of Representatives shall be composed of members chosen every second year, by the people of the several States; and the electors in each State shall have the qualifications for electors of the most numerous branch of the State Legislature.

ARTICLE I, Section 3. The Senate of the United States shall be composed of two senators from each State, chosen by the Legislature thereof for six years; and each senator shall have one vote.

ARTICLE II, Section 1. Each State shall appoint in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the State may be ent.i.tled in the Congress.

ARTICLE IV, Section 2. The citizens of each State shall be ent.i.tled to all the privileges and immunities of citizens in the several States.

ARTICLE IV, Section 4. The United States shall guarantee to every State in the Union a republican form of government.

THIRTEENTH AMENDMENT. (DECEMBER 18, 1865.)

1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

2. Congress shall have power to enforce this article by appropriate legislation.

FOURTEENTH AMENDMENT. (JULY 28, 1868.)

Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for partic.i.p.ation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

FIFTEENTH AMENDMENT. (MARCH 30, 1870.)

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

By reference to the provisions of the original Const.i.tution, here recited, it appears that prior to the XIII., if not until the XIV. Amendment, the whole power over the elective franchise, even in the choice of Federal officers, rested with the States. The Const.i.tution contains no definition of the term "citizen," either of the United States, or of the several States, but contents itself with the provision that "the citizens of each State shall be ent.i.tled to all the privileges and immunities of citizens of the several States." The States were thus left free to place such restrictions and limitations upon the "privileges and immunities"

of citizens as they saw fit, so far as is consistent with a republican form of government, subject only to the condition that no State could place restrictions upon the "privileges or immunities" of the citizens of any other State, which would not be applicable to its own citizens under like circ.u.mstances. It will be seen, therefore, that the whole subject, as to what should const.i.tute the "privileges and immunities" of the citizen being left to the States, no question, such as we now present, could have arisen under the original Const.i.tution of the United States.

But now, by the XIV. Amendment, the United States have not only declared what const.i.tutes citizens.h.i.+p, both in the United States and in the several States, securing the rights of citizens to "all persons born or naturalized in the United States"; but have absolutely prohibited the States from making or enforcing "any law which shall abridge the privileges or immunities of citizens of the United States." By virtue of this provision, I insist that the act of Miss Anthony in voting was lawful. It has never, since the adoption of the XIV. Amendment, been questioned, and can not be questioned, that women as well as men are included in the terms of its first section, nor that the same "privileges and immunities of citizens" are equally secured to both.

What, then, are the "privileges and immunities of citizens of the United States" which are secured against such abridgment, by this section? I claim that these terms not only include the right of voting for public officers, but that they include that right as pre-eminently the most important of all the privileges and immunities to which the section refers. Among these privileges and immunities may doubtless be cla.s.sed the right to life and liberty, to the acquisition and enjoyment of property, and to the free pursuit of one's own welfare, so far as such pursuit does not interfere with the rights and welfare of others; but what security has any one for the enjoyment of these rights when denied any voice in the making of the laws, or in the choice of those who make, and those who administer them? The possession of this voice, in the making and administration of the laws--this political right--is what gives security and value to the other rights, which are merely personal, not political. A person deprived of political rights is essentially a slave, because he holds his personal rights subject to the will of those who possess the political power. This principle const.i.tutes the very corner-stone of our Government--indeed, of all republican government. Upon that basis our separation from Great Britain was justified. "Taxation without representation is tyranny." This famous aphorism of James Otis, although sufficient for the occasion when it was put forth, expresses but a fragment of the principle, because government can be oppressive through means of many appliances besides that of taxation. The true principle is, that all government over persons deprived of any voice in such government, is tyranny. That is the principle of the Declaration of Independence. We were slow in allowing its application to the African race, and have been still slower in allowing its application to women; but it has been done by the XIV. Amendment, rightly construed, by a definition of "citizens.h.i.+p," which includes women as well as men, and in the declaration that "the privileges and immunities of citizens shall not be abridged."

If there is any privilege of the citizen which is paramount to all others, it is the right of suffrage; and in a const.i.tutional provision, designed to secure the most valuable rights of the citizen, the declaration that the privileges and immunities of the citizen shall not be abridged must, as I conceive, be held to secure that right before all others. It is obvious, when the entire language of the section is examined, not only that this declaration was designed to secure to the citizen this political right, but that such was its princ.i.p.al, if not its sole object, those provisions of the section which follow it being devoted to securing the personal rights of "life, liberty, property, and the equal protection of the laws." The clause on which we rely, to wit: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,"

might be stricken out of the section, and the residue would secure to the citizen every right which is now secured, excepting the political rights of voting and holding office. If the clause in question does not secure those political rights, it is entirely nugatory, and might as well have been omitted.

If we go to the lexicographers and to the writers upon law, to learn what are the privileges and immunities of the "citizen" in a republican government, we shall find that the leading feature of citizens.h.i.+p is the enjoyment of the right of suffrage. The definition of the term "citizen" by Bouvier is:

One who under the Const.i.tution and laws of the United States, has a right to vote for Representatives in Congress, and other public officers, and who is qualified to fill offices in the gift of the people.

By Worcester:

An inhabitant of a republic who enjoys the rights of a freeman, and has a right to vote for public officers.

By Webster:

In the United States, a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate.

The meaning of the word "citizen" is directly and plainly recognized by the latest Amendment of the Const.i.tution, the XV.:

The right of the citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.

This clause a.s.sumes that the right of citizens, as such, to vote, is an existing right. Mr. Richard Grant White, in his late work on "Words and their Uses," says of the word citizen:

A citizen is a person who has certain political rights, and the word is properly used to imply or suggest the possession of these rights.

Mr. Justice Was.h.i.+ngton, in the case of Corfield _vs._ Coryell (4 Wash. C. C. Rep. 380), speaking of the "privileges and immunities" of the citizen, as mentioned in Sec. 2, Art. 4, of the Const.i.tution, after enumerating the personal rights mentioned above, and some others, as embraced by those terms, says,

To which may be added the elective franchise, as regulated and established by the laws or const.i.tution of the State in which it is to be exercised.