XXV. TRIALS AND DECISIONS (part 2 of 2)
After the adoption of the XIV. Amendment, it was deemed necessary to have a XV: ... The XIV. Amendment had already provided that no State should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race, etc.? Nothing is more evident than that the greater must include the less, and if all were already protected, why go through with the form of amending the Constitution to protect a part?
It is sometimes perilous in argument to ask questions--we will answer the Court in its own words. In the Slaughter-house cases, the Court then said:
A few years' experience satisfied the thoughtful men who had been the authors of the other two amendments, that, notwithstanding the restraints of those articles on the States, and the laws passed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered by the white man alone. It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage. Hence the XV. Amendment, which declares that the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude. The negro having, by the XIV. Amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union. (16 Wallace, 71.)
For the present argument, it is immaterial whether this result is effected by the XIV., or XV. Amendment, or both. The point is, that the Supreme Court here declares the negro to be a voter in every State of the Union, by virtue of one or both amendments. He is made a voter (a Federal voter) by the law of the United States, and not by the State law. Being made a citizen of the United States, he is thus made a voter in every State of the Union. This is the very gist of the matter. The whole principle is summed up in these few words. The franchise is an incident of the status, or condition of citizenship. Freedom alone was not enough. The XIII. Amendment made the negro free, but citizenship was additionally necessary before he became a voter. As soon as that was achieved, in that moment the franchise followed; to be enjoyed, in the same manner as by other citizens. If ever a suitor was entitled to rely with confidence upon judicial utterances of great principles of law, Mrs. Minor was thus entitled, in her case. She was a citizen of the United States by birth; admitted to be possessed of every qualification but that of sex. Her counsel appeared before this court and quoted its very language above given, and asked the court to be consistent with its own teachings. But no. There was no great and powerful party to back her demand, as in the case of the negro. She was merely a private individual, and the court contented itself with saying that the right of suffrage when granted would be protected! To which it may be replied, if women ever vote, they will protect themselves; but, if their right should subsequently be denied by the State, the Supreme Court, according to its own rulings in this case, could give no protection, since it declares the right to be wholly within the control of each State. But why should the court require the women citizens of the United States to produce a special grant of the right, when it required nothing of the kind from the negro? Are there two laws in this country, one for the negro, and another for woman? Does the Constitution of the United States recognize or permit class distinctions to be made between its citizens? Yet by this decision, the negro is placed above the woman. He is her superior. His position is above her. For our own part, we decline to accept any such construction of that instrument, knowing that the time will ultimately come when some claim similar to that of Mrs. Minor will meet with proper recognition. To make its inconsistency still greater, the court in this case declares that "allegiance and protection are reciprocal obligations. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection," yet in this case that protection is denied. While the negro, then, is thus declared to be a voter, by reason of his citizenship, in every State of the Union, there is no law either of the State or of the Nation, which in terms or by words confers the ballot upon him. The XV. Amendment does not confer it, but treats it as a right already existing, and forbids its deprivation. Likewise the State law assumes its existence, and makes no change, except to conform to the new condition of the negro's citizenship. There is no change in the State laws, except the omission of a word--the word "white"--from the clause "white male citizens," in the State Constitution. But who ever heard of a right being conferred by omission? And yet this change of a single word by the State was an acknowledgment by it of the supremacy of Federal law touching this subject; and was designed to make the State law conform to the Federal law, which declares (XIV. Amendment) that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This conformity extends, however, only so far as to embrace the negro citizen of the United States, leaving the far larger class of women citizens of the United States still under ban of disfranchisement, in plain violation of the amendment. Under these circumstances, in the case under consideration, the Supreme Court of the United States was asked to interpose its authority, and effect by its decree that which the State should have done, and declare that the word "male" must be dropped, as well as the word "white."
Had this been done, the State law in its entirety would have conformed to the paramount law of the United States, while as it is, it conforms only in part. We are told that slavery was abolished in Massachusetts, not by an enactment expressly adopted for the purpose, but by a decision of the Supreme Court in 1781, that its existence was inconsistent with the declaration in the Bill of Rights that "all men are born free and equal." (Bradford's History of Mass., 11, 227; Draper's Civil War, 1, 318; Story on Const., 11, p. 634, note.) So far, however, from interfering, as it was its plain duty to have done, to protect this class of United States citizens, the court has gone further than perhaps it intended, and possibly destroyed the rights of another class, for the decision, by declaring that the United States has no voters, virtually renders the XV. Amendment of no effect. There is nothing upon which it can operate. There being no voters, there is of course no "right to vote," to be "protected." So that every citizen of the United States is left completely at the mercy of the State.
We will now consider that clause of the Constitution of the United States in which, as Hamilton said, the right of suffrage is defined and established for the citizens of the United States; which, nevertheless, has most strangely been regarded as conferring upon the States authority to disfranchise them. Article 1, sec. 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 requisite for electors of the most numerous branch of the State Legislature." The section, it will be seen, consists of two clauses, but there is not a word as to the sex of the elector. He or she must be one of the people, or citizens--that is all. The "People" elect. They vote in their respective States, of course; or, to use the words of Chief Justice Marshall, "when they act, they act in their States." (4 Wheaton, 403.) This first clause, then, fixes the class of persons to whom belong this right of suffrage--Federal suffrage--not State suffrage. It would be absurd in the Federal Constitution to undertake to deal with State suffrage, and it attempts nothing of the kind. The right of Federal suffrage, then, attaches or belongs to this class. The subsequent clause is subordinate to this, and relates not to the right, but to the exercise of it by the voter. In other words, it prescribes the qualifications of the elector, as to how he shall exercise the right; the time, place, and manner of voting, and the age at which the right shall be enjoyed. As to all these matters, which are included in the subject of "qualifications," instead of laying down a uniform rule, to be applicable all over the Union, the convention thought it best to adopt the regulations on this subject already in force in the several States. When the Federal elector, therefore, comes to vote for United States officers, he finds that he must simply conform to the regulations laid down by the State for State voters. But this confers upon the State no authority over the Federal elector's right of suffrage; far less does it give the State authority to deprive the Federal elector of this right, under pretense of laying down for its own citizens an arbitrary and impossible condition. In the nature of things, a republican government could not part with this right of suffrage. As Hamilton says, such right is justly regarded as a fundamental article in such government. To part with it, would be to part with its chiefest attribute of sovereignty, and nothing of the kind was done, or intended.
Except so far, then, as this decision makes it so, there is not a particle of authority vested in the States to deny this right of Federal suffrage to the citizen of the United States. The regulation of the exercise of the franchise is within their control, as above stated, but the right itself is not theirs to give or to withhold. The right to vote for Federal officers is wholly distinct from the right to vote for State officers; but the fact of these two rights being blended in one and the same person, and being usually exercised at the same time, has given rise to the whole difficulty. In consequence of the fact of the election being conducted by State officers, the State providing all the machinery for voting, etc., we have become accustomed, from long habit, to associate in our minds the one franchise with the other, and thus confound rights that are wholly separate and distinct.
We notice, in conclusion, the remark of the court touching the non-assertion heretofore of this right by any one of the class now claiming to be entitled to it, and the intimation, or insinuation, that if the right really existed, it would have been claimed before, etc. It is true that Mrs. Minor's case is of "first impression," in the Supreme Court of the United States; but we fail to see that this fact has anything to do with the principle involved, or that there can be any such thing as a "limitation" of rights that are fundamental. If the right exists, and has a constitutional recognition, the time of its assertion has nothing to do with it. Only weak minds will be influenced by a fallacy like this. Because the women of a former day did not see and feel the necessity of making this claim, is no reason why those who do now see and feel that necessity should have that claim denied. "Time has no more connection with, nor influence upon principle, than principle has upon time. The wrong which began a thousand years ago, is as much a wrong as if it began to-day; and the right which originates to-day, is as much a right as if it had the sanction of a thousand years. Time, with respect to principles, is an eternal now. It has no operation upon them, it changes nothing of their nature and qualities." (Paine's Political Works, vol. 2, p. 328--Dissertation on Government.)
We are fully conscious that the subject upon which we have written is by no means exhausted; the point, especially in reference to bills of attainder, being wholly untouched. But the limits of a single article will not admit of a full discussion of the subject. Indeed, a treatise upon suffrage is one of the wants of the profession. We leave it, however, to the candid judgment of our readers, if we have not fully demonstrated the right of Federal suffrage to be a necessary privilege of a citizen of the United States, and, according to the court's own admission, such being the case, the plaintiff was entitled to the relief sought.
Thus closed woman's struggle for National protection of her civil and political rights under the XIV. Amendment. In the case of Myra Bradwell, which was commenced in September, 1869, two years before the others, Chief-Justice Chase, one of the best and wisest Judges that ever honored the American bench, dissented from the opinion of the Supreme Court: that the fact of United States citizenship did not secure to woman the right to practice law, and that a married woman rested under a special disability in regard to her civil rights, thus sustaining the action of Illinois in refusing to admit Mrs. Bradwell to the bar of that State.
The decision in the case of Mrs. Minor, that the political rights of women were wholly under the control of their respective States was still more emphatic and discouraging. Had Judge Chase lived, we have every reason to believe that in this case too, he would have dissented, and that his opinion would have had great weight in the general discussion. Although defeated at every point, woman's claim as a citizen of the United States to the Federal franchise is placed upon record in the highest court of the Nation, and there it will remain forever. As Milton so grandly says in Paradise Lost:
What though the field be lost? All is not lost: th' unconquerable will And courage never to submit or yield!
FOOTNOTES:
[164] The elections in New Hampshire were held in the spring in former years.
[165] An account of Mrs. Gardner's voting will be found in the Michigan chapter.
[166] WOMAN SUFFRAGE IN THE COURTS.--SHAKESPEARE REVIVED.
In the case of Hamlet vs. Rex, Shakespeare's reports, occurs the following:
SCENE--CHURCHYARD.--Enter two clowns with spades.
First Clown. Is she to be buried in Christian burial that wilfully seeks her own salvation?
Second Clown. I tell thee, she is; therefore make her grave straight. The crowner hath set on her and finds it Christian burial.
First Clown. How can that be, unless she drowned herself in her own defense?
Second Clown. Why,'tis found so.
First Clown. It must be so, se offendendo; it can not be else. For here lies the point. If I drown myself wittingly, it argues an act; and an act has three branches--it is to act, to do, and to perform. Argal, she drowned herself wittingly.
Second Clown. Nay, but hear you good man, deliver.
First Clown. Give me leave. Here lies the water. Good. Here stands the man. Good. If the man goes to this water and drowns himself, it is nil he, will he, he goes. Mark you that. But if the water come to him and drown him, he drowns not himself. Argal, he that is not guilty of his own death shortens not his own life.
Second Clown. But is this law?
First Clown. Ay, marry is't, crowner quest law.
It hardly needed any better authority than the above to convince simple-minded people of the truth of the observation made by Blackstone that "law is the perfection of human reason." But if law is great, those who expound it are greater.
The woman suffrage trial came on. The judges endeavored to follow the arguments as far as possible, and to religiously earn their salaries by the attention given, if no more. The arguments were finally finished, and the women of the country waited expectantly to hear their legal status defined.
It took just one week for the united judicial wisdom of this District to consider this case in all its bearings, and then the decision came. It was about as follows:
SCENE--DISTRICT COURT-ROOM.--Enter Judges with law books.
First Judge. Women are voters but they can't vote. Voting is a privilege and not a natural right, and must be conferred; it has clearly been conferred by the supreme law of the land, therefore women can not vote. A little voting is a good thing, but too much voting is injurious to public interests, as is instanced in our large cities. If women vote, there would be more voting than at present, consequently women are not entitled to vote. The Constitution gives women the right to vote. The organic law of the district does not. The latter, of course, is void where it conflicts with the former, therefore can not women vote. Congress has clearly recognized woman's right to the ballot, wily or nily. But the ballot must come to the woman, not she to the ballot, or else the law is violated. Congress must go further, and point out to women how the ballot must come to her, or else will she not be given Christian reception at the polls who willfully seek to vote thereat. Therefore can not women vote.
Second Judge. Women are men, but men are not women. The former include the latter, but the latter won't be included. That is to say, the law regards men as women but not males as females. It is not every right which can be exercised, as society will not admit of it. The law, which is above society, says women shall vote, but society has not acceded, and hence this court can not interfere. Therefore, I concur that women can not vote.
Third Judge. I do not know but that the better way would have been for Congress to have done otherwise than it did. Why it did as it did is a question. But it did. It might have done more, or less, or both. It might have done otherwise. In either case it would have done so. And then it would have been. But as it is, it is perhaps as well as if it should have been. Therefore can not women vote.
Plaintiffs' Attorneys. But is this law?
The Three Judges. Verily is't the law of the Supreme Court of the District of Columbia.
This parody was written by J. W. Knowlton, son-in-law of Mr. Riddle.
[167] A report of this trial will be found in the California chapter.
[168] WHEREAS, Complaint has this day been made by ---- on oath before me, William C. Storrs, commissioner, charging that Susan B. Anthony, on or about the fifth day of November, 1872, at the city of Rochester, N. Y., at an election held in the eighth ward of the city of Rochester aforesaid, for a representative in the Congress of the United States, did then and there vote for representative in Congress in the United States, without having a lawful right to vote and in violation of Section 19 of an act of Congress approved May 31, 1870, entitled "An act to enforce the right of citizens of the United States to vote in the several States of this Union and for other purposes."
[169] The following ladies voted: Mrs. Hannah Anthony Mosher, Mrs. Mary S. Hebard, Mrs. Nancy M. Chapman, Mrs. Jane M. Cogswell, Mrs Martha N. French, Mrs. Margaret Leyden, Mrs. Lottie Bolles Anthony, Mrs. Hannah Chatfield, Mrs. Susan M. Hough, Mrs. Sarah Truesdale, Mrs. Mary Pulver, Mrs. Rhoda De Garmo, Mrs. Guelma Anthony McLean, Miss Mary S. Anthony, Miss Ellen T. Baker. The following ladies registered but were not allowed to vote: Mrs. Amy Post, Mrs. Mary Fish Curtis, Mrs. Dr. Dutton, Mrs. Charlotte Wilbur Griffing, Mrs. Dr. Wheeler, Mrs. Allen, Mrs. Lathrop.
[170] Ex-President Fillmore, Hon. Charles Sedgwick, Hon. E. G. Lapham, David Wright, Esq., of Auburn.
[171] INDICTMENT AGAINST SUSAN B. ANTHONY--DISTRICT COURT OF THE UNITED STATES OF AMERICA, IN AND FOR THE NORTHERN DISTRICT OF NEW YORK.--At a stated session of the District Court of the United States of America, held in and for the Northern District of New York, at the City Hall, in the city of Albany, in the said Northern District of New York, on the third Tuesday of January, in the year of our Lord one thousand eight hundred and seventy-three, before the Honorable Nathan K. Hall, Judge of the said Court, assigned to keep the peace of the said United States of America, in and for the said District, and also to hear and determine divers Felonies, Misdemeanors and other offenses against the said United States of America, in the said District committed. Brace Millerd, James D. Wasson, Peter H. Bradt, James McGinty, Henry A. Davis, Loring W. Osborn, Thomas Whitbeck, John Mullen, Samuel G. Harris, Ralph Davis, Matthew Fanning, Abram Kimmey, Derrick B. Van Schoonhoven, Wilhelmus Van Natten, James Kenney, Adam Winne, James Goold, Samuel S. Fowler, Peter D. R. Johnson, Patrick Carroll, good and lawful men of the said District, then and there sworn and charged to inquire for the said United States of America, and the body of said District, do, upon their oaths, present, that Susan B. Anthony now or late of Rochester, in the county of Monroe, with force and arms, etc., to wit: at and in the first election district of the eighth ward of the city of Rochester, in the county of Monroe, in said Northern District of New York, and within the jurisdiction of this Court, heretofore, to wit: on the fifth day of November, in the year of our Lord one thousand eight hundred and seventy-two, at an election duly held at and in the first election district of the said eighth ward of the city of Rochester, in said county and in said Northern District of New York, which said election was for Representatives in the Congress of the United States, to wit: a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the twenty-ninth Congressional District of the State of New York, said first election district of said eighth ward of said city of Rochester, being then and there a part of said twenty-ninth Congressional District of the State of New York, did knowingly, wrongfully, and unlawfully vote for a Representative in the Congress of the United States for the State of New York at large, and for a Representative in the Congress of the United States for said twenty-ninth Congressional District, without a lawful right to vote in said election district (the said Susan B. Anthony being then and there a person of the female sex), as she, the said Susan B. Anthony then and there well knew, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity.
Second Count--And the jurors aforesaid upon their oaths aforesaid do further present that said Susan B. Anthony, now or late of Rochester, in the county of Monroe, with force and arms, etc., to wit: at and in the first election district of the eighth ward of the city of Rochester, in the county of Monroe, in said Northern District of New York, and within the jurisdiction of this Court, heretofore, to wit: on the fifth day of November, in the year of our Lord one thousand eight hundred and seventy-two, at an election duly held at and in the first election district of the said eighth ward, of said city of Rochester, in said county, and in said Northern District of New York, which said election was for Representatives in the Congress of the United States, to wit: a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the twenty-ninth Congressional District of the State of New York, said first election district of said eighth ward, of said city of Rochester, being then and there a part of said twenty-ninth Congressional District of the State of New York, did knowingly, wrongfully and unlawfully vote for a candidate for Representative in the Congress of the United States for the State of New York at large, and for Representative in the Congress of the United States for said twenty-ninth Congressional District, without having a lawful right to vote in said election district (the said Susan B. Anthony being then and there a person of the female sex), as she, the said Susan B. Anthony then and there well knew, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity.
RICHARD CROWLEY, Attorney of the United States for the Northern District of New York.
(Endorsed). Jan. 24, 1873. RICHARD CROWLEY, Pleads not guilty. U. S. Attorney.
[172] See Appendix.
[173] See Appendix.
[174] Thousands of copies were published in pamphlet form, with the Court report of the trial, and circulated throughout the country.
[175] See Appendix.
[176] To the same effect see former decisions in Massachusetts: Coffin vs. Coffin, 4 Mass., 25; Com. vs. Knapp, 10 Pic., 496; and see also State vs. Snow, 18 Maine, 346; Doss vs. Com., 1 Grattan, 557; Peo. vs. McFall, 1 Wheeler Crim. Rec., 108, note; Holder vs. The State, 5 Georgia, 443; State vs. Allen, 1 McCord, 525; State vs. Jones, 5 Alabama, 666; Armstrong vs. The State, 4 Blackford, 247; Patterson vs. The State, 2 English, 59.
[177] Gibbons vs. Ogden, 9th Wheaton, 221, Ch. J. Marshall. Ogden vs. Saunder, 12 Wheaton, 332, Ch. J. Marshall.
[178] More recent investigation shows that this clause was originated by Mr. Jefferson in 1784. See The Nation for May 4, 1882, and authorities there referred to. See Bancroft's "History of the United States." Vol. II, p. 115.