An Account of the Proceedings on the Trial of Susan B. Anthony Part 6

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 thirteenth, if not until the fourteenth, 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 fourteenth 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 fourteenth amendment, been questioned, and cannot 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 abridgement, 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 fourteenth 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 fifteenth.)

"_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 only 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." At that time the States had entire control of the subject, and could abridge this privilege of the citizen at its pleasure; but the judge recognizes the "elective franchise" as among the "privileges and immunities" secured, to a qualified extent, to the citizens of every State by the provisions of the const.i.tution last referred to. When, therefore, the States were, by the fourteenth amendment, absolutely prohibited from abridging the privileges of the citizen, either by enforcing existing laws, or by the making of new laws, the right of every "citizen" to the full exercise of this privilege, as against State action, was absolutely secured.

Chancellor Kent and Judge Story both refer to the opinion of Mr. Justice Was.h.i.+ngton, above quoted, with approbation.

The Supreme Court of Kentucky, in the case of _Amy, a woman of color, vs. Smith (1 Littell's Rep. 326)_, discussed with great ability the questions as to what const.i.tuted citizens.h.i.+p, and what were the "privileges and immunities of citizens" which were secured by Sec. 2, Art. 4, of the const.i.tution, and they showed, by an unanswerable argument, that the term "citizens," as there used, was confined to those who were ent.i.tled to the enjoyment of the elective franchise, and that that was among the highest of the "privileges and immunities" secured to the citizen by that section. The court say that, "to be a citizen it is necessary that he should be ent.i.tled to the enjoyment of these privileges and immunities, upon the same terms upon which they are conferred upon other citizens; and unless he is so ent.i.tled, _he cannot, in the proper sense of the term, be a citizen_."

In the case of _Scott vs. Sanford (19 How. 404)_, Chief Justice Taney says: "The words 'people of the United States,' and 'citizens,' are synonymous terms, and mean the same thing; they describe the _political body, who, according to our republican inst.i.tutions, form the sovereignty and 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."

Mr. Justice Daniel, in the same case, (p. 476), says: "Upon the principles of etymology alone, the term citizen, as derived from _civitas_, conveys the idea of connection or identification with the state or government, and a partic.i.p.ation in its functions. But beyond this, 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 understood as conferring the actual possession and enjoyment, or the perfect right of acquisition and enjoyment of _an entire equality of privileges, civil and political_."

Similar references might be made to an indefinite extent, but enough has been said to show that the term citizen, in the language of Mr. Justice Daniel, conveys the idea "of identification with the state or government, and a partic.i.p.ation in its functions."

Beyond question, therefore, the first section of the fourteenth amendment, by placing the citizens.h.i.+p of women upon a par with that of men, and declaring that the "privileges and immunities" of the citizen shall not be abridged, has secured to women, equally with men, the right of suffrage, unless that conclusion is overthrown by some other provision of the const.i.tution.

It is not necessary for the purposes of this argument to claim that this amendment prohibits a state from making or enforcing any law whatever, regulating the elective franchise, or prescribing the conditions upon which it may be exercised. But we do claim that in every republic the right of suffrage, in some form and to some extent, is not only one of the privileges of its citizens, but is the first, most obvious and most important of all the privileges they enjoy; that in this respect _all citizens are equal_, and that the effect of this amendment is, to prohibit the States from enforcing any law which denies this right to any of its citizens, or which imposes any restrictions upon it, which are inconsistent with a republican form of government. Within this limit, it is unnecessary for us to deny that the States may still regulate and control the exercise of the right.

The only provisions of the const.i.tution, which it can be contended conflict with the construction which has here been put upon the first section of the fourteenth amendment, are the fifteenth amendment, and the second section of the fourteenth.

In regard to the fifteenth amendment, I shall only say, that if my interpretation of the fourteenth amendment is correct, there was still an object to be accomplished and which was accomplished by the fifteenth. The prohibition of any action abridging the privileges and immunities of citizens, contained in the fourteenth amendment, applies only to the States, and leaves the United States government free to abridge the political privileges and immunities of citizens of the United States, as such, at its pleasure. By the fifteenth amendment both the United States and the State governments, are prohibited from exercising this power, "on account of race, color, or previous condition of servitude" of the citizen.

The first remark to be made upon the second section of the fourteenth amendment is, that it does not give and was not designed to give to the States any power to deny or abridge the right of any citizen to exercise the elective franchise. So far as it touches that subject, it was designed to be restrictive upon the States. It gives to them no power whatever. It takes away no power, but it gives none, and if the States possess the power to deny or abridge the right of citizens to vote, it must be derived from some other provision of the const.i.tution. I believe none such can be found, which was not necessarily abrogated by the first section of this amendment.

It may be conceded that the persons who prepared this section supposed, that, by other parts of the const.i.tution, or in some other way, the States would still be authorized, notwithstanding the provisions of the first section, to deny to the citizens the privilege of voting, as mentioned in the second section; but their mistake cannot be held to add to, or to take from the other provisions of the const.i.tution. It is very clear that they did not intend, by this section, _to give_ to the States any such power, but, believing that the States possessed it, they designed to hold the prospect of a reduction of their representation in Congress _in terrorem_ over them to prevent them from exercising it.

They seem not to have been able to emanc.i.p.ate themselves from the influence of the original const.i.tution which conceded this power to the States, or to have realized the fact that the first section of the amendment, when adopted, would wholly deprive the States of that power.

But those who prepare const.i.tutions are never those who adopt them, and consequently the views of those who frame them have little or no bearing upon their interpretation. The question for consideration here is, what the people, who, through their representatives in the legislatures, adopted the amendments, understood, or must be presumed to have understood, from their language. They must be presumed to have known that the "privileges and immunities" of citizens which were secured to them by the first section beyond the power of abridgment by the States, gave them the right to exercise the elective franchise, and they certainly cannot be presumed to have understood that the second section, which was also _designed to be restrictive_ upon the States, would be held to confer by implication a power upon them, which the first section in the most express terms prohibited.

It has been, and may be again a.s.serted, that the position which I have taken in regard to the second section is inadmissible, because it renders the section nugatory. That is, as I hold, an entire mistake. The leading object of the second section was the readjustment of the representation of the States in Congress, rendered necessary by the abolition of chattel slavery [_not of political slavery_], effected by the thirteenth amendment. This object the section accomplishes, and in this respect it remains wholly untouched, by my construction of it.

Neither do I think the position tenable which has been taken by one tribunal, to which the consideration of this subject was presented, that the const.i.tutional provision does not execute itself.

The provisions on which we rely were negative merely, and were designed to nullify existing as well as any future State legislation interfering with our rights. This result was accomplished by the const.i.tution itself. Undoubtedly before we could exercise our right, it was necessary that there should be a time and place appointed for holding the election and proper officers to hold it, with suitable arrangements for receiving and counting the votes. All this was properly done by existing laws, and our right _being made complete by the Const.i.tution, no further legislation was required in our behalf_. When the State officers attempted to interpose between us and the ballot-box the State Const.i.tution or State law, whether ancient or recent, abridging or denying our equal right to vote with other citizens, we had but to refer to the United States Const.i.tution, prohibiting the States from enforcing any such const.i.tutional provision or law, and our rights were complete; we needed neither Congressional nor State legislation in aid of them.

The opinion of Mr. Justice Bradley, in a case in the United States Circuit Court in New Orleans (_1 Abb. U.S. Rep. 402_) would seem to be decisive of this question, although the right involved in that case was not that of the elective franchise. The learned justice says: "It was very ably contended on the part of the defendants that the fourteenth amendment was intended only to secure to all citizens _equal capacities before the law_. That was at first our view of it. But it does not so read. The language is: 'No State shall abridge the privileges or immunities of citizens of the United States.' What are the privileges and immunities of citizens? Are they capacities merely? Are they not also rights?"

Senator Carpenter, who took part in the discussion of the fourteenth amendment in the Senate, and aided in its pa.s.sage, says: "The fourteenth amendment executes itself in _every_ State of the Union.... It is thus the will of the United States in every State, and silences every State Const.i.tution, usage or law which conflicts with it.... And if this provision does protect the colored citizen, then it protects every citizen, black or white, male or female.... And all the privileges and immunities which I vindicate to a colored citizen, I vindicate to our mothers, our sisters and our daughters."--_Chicago Legal News_, vol.

iv., No. 15.

It has been said, with how much or how little truth I do not know, that the subject of securing to women the elective franchise was not considered in the preparation, or in the adoption of these amendments.

It is wholly immaterial whether that was so or not. It is never possible to arrive at the intention of the people in adopting const.i.tutions, except by referring to the language used. As is said by Mr. Cooley, "the intent is to be found in the instrument itself" (p. 55), and to that I have confined my remarks. It is not a new thing for const.i.tutional and legislative acts to have an effect beyond the antic.i.p.ation of those who framed them. It is undoubtedly true, that in exacting _Magna Charta_ from King John, the Barons of England provided better securities for the rights of the common people than they were aware of at the time, although the rights of the common people were neither forgotten nor neglected by them. It has also been said, perhaps with some truth, that the framers of the original Const.i.tution of the United States "builded better than they knew;" and it is quite possible that in framing the amendments under consideration, those engaged in doing it have accomplished a much greater work than they were at the time aware of. I am quite sure that it will be fortunate for the country, if this great question of female suffrage, than which few greater were ever presented for the consideration of any people, shall be found, almost unexpectedly, to have been put at rest.

The opinion of Mr. Justice Bradley, in regard to this amendment, in the case before referred to, if I understand it, corresponds very nearly with what I have here said. The learned judge, in one part of his opinion, says: "It is possible that those who framed the article were not themselves aware of the far-reaching character of its terms. They may have had in mind but one particular phase of social and political wrong, which they desired to redress--yet, if the amendment, as framed and expressed, does, in fact, have a broader meaning, and does extend its protecting s.h.i.+eld over those who were never thought of when it was conceived and put in form, and does reach such social evils which were never before prohibited by const.i.tutional amendment, it is to be presumed that the American people, in giving it their imprimatur, understood what they were doing, and meant to decree what has, in fact, been done....

"It embraces much more. The 'privileges and immunities' secured by the original Const.i.tution were only such as each State gave its own citizens. Each was prohibited from discriminating in favor of its own citizens, and against the citizens of other States.

"But the fourteenth amendment prohibits any State from abridging the privileges or immunities of the citizens of the United States, whether its own citizens or any others. It not merely requires equality of privileges, but it demands that _the privileges and immunities of all citizens shall be absolutely unabridged, unimpaired_. (_1 Abbott's U.S.

Rep. 397._)

It will doubtless be urged as an objection to my position (that citizens.h.i.+p carries with it the right to vote) that it would, in that case, follow that infants and lunatics, who, as well as adults and persons of sound mind, are citizens, would also have that right. This objection, which appears to have great weight with certain cla.s.ses of persons, is entirely without force. It takes no note of the familiar fact, that every legislative provision, whether const.i.tutional or statutory, which confers any _discretionary_ power, is always confined in its operation to persons who are _compos mentis_. It is wholly unnecessary to except idiots and lunatics out of any such statute. They are excluded from the very nature of the case. The contrary supposition would be simply absurd. And, in respect to every such law, infants, during their minority, are in the same cla.s.s. But are women, _who are not infants_, ever included in this category? Does any such principle of exclusion apply to them? Not at all. On the contrary, they stand, in this respect, upon the same footing as men, with the sole exception of the right to vote and the right to hold office. In every other respect, whatever rights and powers are conferred upon persons by law may be exercised by women as well as by men. They may transact any kind of business for themselves, or as agents or trustees for others; may be executors or administrators, with the same powers and responsibilities as men; and it ought not to be a matter of surprise or regret that they are now placed, by the fourteenth amendment, in other respects upon a footing of perfect equality.

Although not directly connected with the argument as to the right secured to women by the Const.i.tution, I deem it not improper to allude briefly to some of the popular objections against the propriety of allowing females the privilege of voting. I do this because I know from past experience that these popular objections, having no logical bearing upon the subject, are yet, practically, among the most potent arguments against the interpretation of the fourteenth amendment, which I consider the only one that its language fairly admits of.

It is said that women do not desire to vote. Certainly many women do not, but that furnishes no reason for denying the right to those who do desire to vote. Many men decline to vote. Is that a reason for denying the right to those who would vote?

I believe, however, that the public mind is greatly in error in regard to the proportion of female citizens who would vote if their right to do so were recognized. In England there has been to some extent a test of that question, with the following result, as given in the newspapers, the correctness of which, in this respect, I think there is no reason to doubt:

"Woman suffrage is, to a certain extent, established in England, with the result as detailed in the London _Examiner_, that in 66 munic.i.p.al elections, out of every 1,000 women who enjoy equal rights with men on the register, 516 went to the poll, which is but 48 less than the proportionate number of men. And out of 27,949 women registered, where a contest occurred, 14,416 voted. Of men there were 166,781 on the register, and 90,080 at the poll. The _Examiner_ thereupon draws this conclusion: 'Making allowance for the reluctance of old spinsters to change their habits, and the more frequent illness of the s.e.x, it is manifest that women, if they had opportunity, would exercise the franchise as freely as men. There is an end, therefore, of the argument that women would not vote if they had the power.'"

Our law books furnish, perhaps, more satisfactory evidence of the earnestness with which women in England are claiming the right to vote, under the reform act of 1867, aided by Lord Brougham's act of 1850.

The case of _Chorlton_, appellant, _vs. Lings_, respondent, came before the Court of Common Pleas in England in 1869. It was an appeal from the decision of the revising barrister, for the borough of Manchester, to the effect "that Mary Abbott, being a woman, was not ent.i.tled to be placed on the register." Her right was perfect in all respects excepting that of s.e.x. The court, after a very full and able discussion of the subject, sustained the decision of the revising barrister, denying to women the right to be placed on the register, and consequently denying their right to vote. The decision rested upon the peculiar phraseology of several Acts of Parliament, and the point decided has no applicability here. My object in referring to the case has been to call attention to the fact stated by the reporter, _that appeals of 5,436 other women were consolidated and decided with this_. No better evidence could be furnished of the extent and earnestness of the claim of women in England to exercise the elective franchise.--_Law Rep. Com. Pleas, 4-374._

I infer, without being able to say how the fact is, that the votes given by women, as mentioned in the newspapers, were given at munic.i.p.al elections merely, and that the cases decided by the Court of Common Pleas relate to elections for members of Parliament.

Another objection is, that the right to hold office must attend the right to vote, and that women are not qualified to discharge the duties of responsible offices.

I beg leave to answer this objection by asking one or more questions.