Volume II Part 77 (1/2)
_Resolved_, That we congratulate the women of England for the large vote secured on the Woman's Disabilities Bill in the House of Commons.
With a Queen on her throne, 400,000 women already voting, and her Premier in favor of the measure, England bids fair to take the lead in the complete enfranchis.e.m.e.nt of women.
[162] Rev. O. B. Frothingham, Matilda Joslyn Gage, Rev. Olympia Brown, Lillie Devereux Blake, Carrie S. Burnham, Mrs. Stanton, and Miss Anthony.
[163] Matilda Joslyn Gage, President; Lucretia Mott and Elizabeth Cady Stanton, Vice-Presidents; Henrietta P. Westbrook, Recording Secretary; Isabella Beecher Hooker, Corresponding Secretary; Ellen Clark Sargent, Treasurer; Susan B. Anthony and fifteen others, Executive Committee.
CHAPTER XXV.
TRIALS AND DECISIONS.
Women voting under the XIV. Amendment--Appeals to the Courts--Marilla M. Ricker, of New Hamps.h.i.+re, 1870--Nannette B.
Gardner, Michigan--Sarah Andrews Spencer, District of Columbia--Ellen Rand Van Valkenburgh, California--Catharine V.
Waite, Illinois--Carrie S. Burnham, Pennsylvania--Sarah M. T.
Huntingdon, Connecticut--Susan B. Anthony, New York--Virginia L.
Minor, Missouri--Judges McKee, Jameson, Sharswood, Cartter--a.s.sociate Justice Hunt--Chief Justice Waite--Myra Bradwell--Hon. Matt. H. Carpenter--Supreme Court Decisions--Mrs.
Gage's Review.
We have already shown in previous chapters that by a fair interpretation of the XIV. Amendment women were logically secured in their right to vote. Encouraged by the opinions of able lawyers and judges, they promptly made a practical test of this question by registering and voting during the State and Presidential elections of 1871 and '72. This transferred the discussion, for a time, from the platform and halls of legislation to the courts for final adjudication.
The first woman to offer her vote was Marilla M. Ricker, of Dover, New Hamps.h.i.+re, a young widow of large property. In March,[164] 1870, the day previous to the election, she made application to the selectmen for registry. No objection being made, and one of the Board, promising to put her name on the check-list, she departed, leaving with them several copies of a speech she had prepared in case of a refusal. On election day she appeared at the polls and offered a straight Republican ticket. It was received by the moderator and her name called, but on examination of the list it was found that the selectman had been false to his promise, and her vote was refused. Extended comments were made by the press of the State, Democrats generally sustaining her, while Republicans were bitter in opposition. Mrs.
Ricker in the meantime prepared to sue the selectmen, but being strongly opposed by her republican friends, she silently submitted to the injustice, and thus lost the opportunity of being the first woman to prosecute the authorities for refusing the vote of a citizen on the ground of s.e.x. However, she still enjoys the distinction of being the first woman to cast a vote under the XIV. Amendment, as the following spring she saw that her name was on the registry list, and her vote was received without opposition.
The next case was that of Nannette B. Gardner, in Detroit, Michigan.
She registered her name in that city March 25, 1871, and voted,[165]
unquestioned, April 3d. April 20th, of the same year, Sara Andrews Spencer and Sarah E. Webster, with seventy other women of the District of Columbia, marched in a body to the polls, but their votes were refused at the election as they had been previously refused registration. They immediately took steps to prosecute the Board of Inspectors, and suit was brought in the Supreme Court of the District at the general term, October, 1871. Albert G. Riddle and Francis Miller, able lawyers of the District, and well known advocates of woman suffrage, were retained by the plaintiffs, and in their defense made the following arguments:
Mr. RIDDLE said: May it please the Court; ... These plaintiffs, describing themselves as women, claim to be citizens of the United States and of this District, with the right of the elective franchise, which they attempted to exercise at the election of April 20th last past, and were prevented. They say that as registration was a prerequisite of the right to vote, they tendered themselves in due form, and demanded it, under the second section of the Act of May 31, 1870 (16th U.S. Stats., 140). That is the ”Act to enforce the right of citizens of the United States to vote,” etc., and authorizes a suit for refusing registration. They say, that being refused registration, they tendered their votes to the proper inspectors of said election, with proof of their attempt to register, citizens.h.i.+p, etc., as authorized by the third section of said Act, and their votes were refused; and, thereupon, Spencer brings her suit under said second section, against the registering officers, and Webster hers under the third section, which authorizes it, for rejecting her vote. The questions in both cases are identical and presented together.
To the declarations the defendants demur, and thereby raise the only questions we desire to have adjudicated. The defendants, by their demurrer, admit all the allegations of the plaintiffs, severally, but say, that as they are women, they are not ent.i.tled to vote in the District of Columbia. That the seventh section of the organic Act, the Const.i.tution of the District, provides, ”That all male citizens,” etc., ”shall be ent.i.tled to vote,”
etc., and that this word male excludes women, of course.
To this the plaintiffs reply that the language of the statute does exclude women, but they say that in the presence of the first section of the XIV. Amendment, which confers the elective franchise upon ”all persons,” this word ”male” is as if unwritten, and that the statute, const.i.tutionally, reads, ”That all citizens shall be ent.i.tled to vote.” For we contend, your honors, that although the Congress ”has exclusive legislation in all cases over this District,” it can legislate only, as could the States, from which it was taken. It must legislate in accordance with American ideas, and can exercise no power not granted by the Const.i.tution; and that instrument certainly confers no power to limit the right of suffrage. And so we are at issue....
As the FIRST proposition of my brief, I contend, _that under our system the right to vote is a natural right_.
Obviously, government is of right or it is an usurpation. If of right, it sprang from some right older than itself; and this older right must have existed in persons (people), in each and all alike, male and female. And having this right, they used it to form for themselves a government. Of course, this supposes that all joined in and consented to the government having the power to dissent; for, to just the extent that a government got itself agoing without the free consent of its people, it is without right. The right of self-government, and from that springs our right to govern others, is a natural right. This is the primary idea of American politics, and the foundation of our Government. This was formulated in the second clause of our great Declaration, and no man has dared to deny it....
It follows, then, if the right of government is a natural right, and to be exercised alone by the ballot, that the right to vote is a natural right. This never has been and never can be successfully controverted....
I will read from the highest American authority upon our politico-const.i.tutional questions, partly in support of my proposition that the right to vote is a natural right, and also to show that the a.s.sumed claim of one part of the people to exclude another from all share in the Government has the most doubtful and shadowy foundation in right, and to an American it needs no evidence to show that a portion of the people thus excluded are in a state of va.s.salage. I read from Story on the Const.i.tution, volume 1st, commencing at
Sec. 578. The most strenuous advocate for universal suffrage has never yet contended that the right should be absolutely universal. No one has ever been sufficiently visionary to hold that all persons of every age, degree, and character, should be ent.i.tled to vote in all elections of all public officers. Idiots, infants, minors, and persons insane or utterly imbecile, have been, without scruple, denied the right as not having the sound judgment and discretion fit for its exercise. In many countries, persons guilty of crimes have also been denied the right as a personal punishment, or as a security to society. In most countries, females, whether married or single, have been purposely excluded from voting, as interfering with sound policy and the harmony of social life ... And yet it would be extremely difficult, upon any mere theoretical reasoning, to establish any satisfactory principle upon which the one-half of every society has thus been systematically excluded by the other half from all right of partic.i.p.ating in government, which would not at the same time apply to and justify many other exclusions. If it be said that all men have a natural, equal, and inalienable right to vote, because they are all born free and equal; that they all have common rights and interests ent.i.tled to protection; and, therefore, have an equal right to decide, either personally or by their chosen representatives, upon the laws and regulations which shall control, measure, and sustain those rights and interests; that they can not be compelled to surrender, except by their free consent, what by the bounty and order of Providence belongs to them in common with all their race. What is there in these considerations which is not equally applicable to females as free, intelligent, moral, responsible beings, ent.i.tled to equal rights and interests and protection, and having a vital stake in all the regulations and laws of society? And, if an exception, from the nature of the case, could be felt in regard to persons who are idiots, infants, and insane, how can this apply to persons who are of more mature growth, and are yet deemed minors by the munic.i.p.al law?
SEC. 580. If, then, every well-organized society has the right to consult for the common good of the whole; and if, upon the principle of natural law, this right is conceded by the very union of society, it seems difficult to a.s.sign any limit to this right which is compatible with the due attainment of the end proposed. If, therefore, any society shall deem the common good and interests of the whole society best promoted under the particular circ.u.mstances in which it is placed by a restriction of the right of suffrage, it is not easy to state any solid ground of objection to its exercise of such an authority. At least, if any society has a clear right to deprive females, const.i.tuting one-half of the whole population, of the right of suffrage (which, with scarcely an exception, has been uniformly maintained), it will require some astuteness to find upon what ground this exclusion can be vindicated, which does justify, or at least excuse, many other exclusions.
Sec. 581. Without laying any stress upon this theoretical reasoning which is brought before the reader, not so much because it solves all doubts and objections, as because it presents a view of the serious difficulties attendant upon the a.s.sumption of an original and inalienable right of suffrage, as originating in natural law, and independent of civil law, it may be proper to state that every civilized society has uniformly fixed, modified, and regulated the right of suffrage for itself according to its own free will and pleasure. Every const.i.tution of government in these United States has a.s.sumed, as a fundamental principle, the right of the people of the State to alter, abolish, and modify the form of its own government according to the sovereign pleasure of the people. In fact, the people of each State have gone much further, and settled a far more critical question, by deciding who shall be the voters ent.i.tled to approve and reject the const.i.tution framed by a delegated body under their direction. In the adoption of no State const.i.tution has the a.s.sent been asked of any but the qualified voters; and women, and minors, and other persons not recognized as voters by existing laws, have been studiously excluded. And yet the const.i.tution has been deemed entirely obligatory upon them as well as upon the minority, who voted against it. From this it will be seen how little, even in the most free of republican governments, any abstract right of suffrage, or any original and indefeasible privilege, has been recognized in practice.
This, remember, was written thirty years ago. Where would Story be now, if living? I beg also to read a single paragraph from the ”Spirit of Laws,” London edition, vol. I., p. 220:
”All the inhabitants of the several districts ought to have the right to vote at the election of the representatives,”