ARGUMENT OF MR. RIDDLE.

May it please the Court: Although my learned friend, Mr. Cook, who appears for the defense, is the demurrant, it has been arranged that in the argument we shall be regarded as having the affirmative. And, at my own request, I am to open it, and shall bring fully to the notice of the court the matter which I wish to submit for its consideration.

In doing this, my purpose is, without comment upon the gravity of the case, and avoiding everything like speech-making, to deal with the cases in their purely legal aspects. Nor do I mean to step from the line of dry argument—the narrow stoney way of the law.

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 20, 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,” &c., 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, citizenship, &c., 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 her's 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 adjusted.

The defendants, by their demurrer, admit all the allegations 0054of the plaintiffs, severally, but say, that as they are women they are not entitled to vote in the District of Columbia. That the seventh section of the organic act, the Constitution of the District, provides, “That all male citizens, “ &c., “shall be entitled to vote,” &c., 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 Fourteenth Amendment, which confers the elective franchise upon “all persons,” this word “male” is as if unwritten, and that the statute, constitutionally, reads, “That all citizens shall be entitled to vote.”

For we contend, your honors, that although the Congress “has exclusive legislation in all cases over 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 Constitution; and that that instrument certainly confers no power to limit the right of suffrage. And so we are at issue.

The language of the Fourteenth Amendment is:

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.

Our labor is to determine the meaning of these words as they stand. You observe that the controlling word is “citizens.” What does it mean? It is a mere matter of the definition of a word, and thus the field is seemingly narrowed to the smallest limits. All we have to do, apparently, is to consult the dictionaries and bring into court common usage.

I wish it might be so decided; and so it could, if these plaintiffs were not women, or were not seeking some clementary rights of human beings. We know that whenever they or their claims of rights are involved, words mean nothing. No matter how broad a principle is, no matter how comprehensively it may be stated, the moment a woman claims its benefit she is told that she is a woman, that she is not meant, 0065and that ends the argument. And so I must go below words to things. These twin dragons of prejudice and proscription must be thrust by, and the foundations under the ground on which they stand must be examined. We will go back to the genesis of things, and see, if we may, how, when, and where women were walled out from the scope and spirit of the great original laws—laws that protect the rights of “all persons.”

We are told, that to construe “citizens” so as to embrace the right of suffrage, and thus thrust it upon woman, and thrust her into government and politics, is a war against nature; it is upsetting the primal foundations of society, and supplanting the preordained order of things. I may not here discuss the moral and social, not even the political aspect of these questions; but when I must contend for the ordinary use of a word, and so claim as right, and when that right is to enure to a woman, I may show, if I can, that it would confer no new right upon her, that the right was always her's, and thus prove that the word was used in its ordinary sense.

For if it should really appear that my use of the word did violate natural law and contravene natural right, that would be a strong argument show that it was not used in that sense.

ARGUMENT OF FRANCIS MILLER.

May it please your honors: I rise under embarrassment in view of what fell from the Court, at the commencement of the argument, in regard to the near approach of the close of the term and the great amount of business demanding your attention. But if I were discussing a question involving a very moderate amount of property, or the most unimportant right of the humblest citizen in this District, and felt convinced that the law and justice were as clearly with me, as I feel that they are in the case that I am now to present, I should feel bound to give my client the benefit of whatever effort I could make in his or her behalf; and standing here, as I do on this occasion, as the humble representative of a great cause, representing not alone the two ladies whose names appear here as plaintiffs, but all their sisters throughout this land—twenty millions of human beings—whose rights are dependent upon the ultimate decision of this question, whether it be decided by this court or by the legislative tribunals of the land; and deeply feelings the responsibility that is on me, I am compelled to do what I may to urge upon the mind of the court the view that we hold in regard to this case, which we sincerely believe to be the true view of the law applicable to it. It is a great cause, for it concerns the rights of twenty millions of human beings. It is a cause that cannot be sneered away or frowned down. It is a cause that will come up again and again, and demand to be decided, and that will be finally decided in accordance with right and justice, so surely as time goes on; and although it may, with some, be the subject of sneers, of satire, or unmeaning laughter, it stands in such a position as to demand the respect of the world, and has this day advocates such as would do honor to any cause. Florence Nightingale, Mrs. Somerville, Frances Power Cobb, and others of their sisters, in England, demand their rights, while such men as Bright, Stuart Mill, Newman, 04039and Disraeli advocate the granting of their demand, and Gladstone acquiesces; and, in our country, when Harriet Beecher Stowe, Elizabeth Cady Stanton, Lucretia Mott, and others, among the foremost women of this land, demand this right; and when it is declared by such men as Summer, as Trumbull, and as Loughridge, that they are entitled to the enjoyment of it; it is a demand that cannot be answered by a sneer. And it is as the advocates of this great cause—to fight this, its first battle—that we stand here to-day. It may be, your honors, that we will fail here, although I do think that if it were any other cause brought before a legal tribunal with the same strength, it would carry conviction to every mind and command the unanimous judgment of the bench in its favor;but if we fail it will be in consequence of the darkness that has surrounded this subject for so many ages through which we are just beginning to peer into the light; and just so surely as we are defeated in this court, we will carry it to the higher tribunal of the people, and that higher tribunal must and will decide it in accordance with the laws of God and justice.

This is a question of such magnitude that, although it may be decided, it cannot be considered, entirely upon technical grounds. We must recur to first principles, because the first principles of government are involved in it. We are contending here for the right of self-government, the right preservative of all rights, the right without which the right to property, the right to liberty, may be utterly useless; without which, they cannot, in any way, be effectuated. We are bound to consider, then, the very first principles of government, those principles upon which our Government and all free governments must and will forever rest.

Government arises, as has already been shown here, out of the people—derives all its powers from the consent of the people. And why? We are all creatures of the same great Creator—children of the same great Father—and standing here upon His footstool, we stand in absolute equality before Him. That being the case, we cannot in any way, any one of us, 04140assume to have a right that our fellow-human beings have not, unless we can show a charter for that right. If any man says to another man, or to a woman, I have the right to rule, and you are bound to submit, that man or that woman who is thus claimed to be a subject of his or her fellow-man, has a right to say, “where is your charter from the Almighty, by which you undertake to control and govern me, a creature of his power and goodness equally with yourself.” It follows necessarily then, that, being thus created all equal, there is no earthly tribunal which can decide a question involving the fundamental rights of human nature. There is, also, another great principle which it is necessary we should consider in this case. Acquiescence in a wrong can never sanctify it; and whenever the parties deprived of any essential inherent right, come before a tribunal and demand that right, it cannot be said that, because by the stress of circumstances, by the very force of necessity, they have submitted to the wrong, that, therefore, they have lost the right of which they may have been deprived. Acquiescence in wrong—necessary acquiescence—is no foundation upon which can be built a right to continue and to perpetuate that wrong. The only way in which any human being can properly be denied the rights growing out of these great original, fundamental principles, that go beyond constitutions—that are above them—that pre-existed all constitutions, is by a voluntary surrender. That surrender must not be a submission to some necessity imposed by brute force, but it must be free, intelligent acquiescence.

It was in accordance with these ideas that our fathers acted in the convulsion of the Revolution, when everything was resolved, as it were, into its original elements, and they gave utterance to the principles which were to justify them in their action, in the Declaration of Independence. In that Declaration were laid down the fundamental rules by which all American governments have been controlled to a greater or less extent—rules which, however imperfectly they may have been carried out, have been recognized by all American 04241governments as just and true. One of these fundamentals principles is, that all men (and “men” here is, of course, generic, including women)—all men are created equal and endowed by their Creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness. They further declare, that to secure these rights governments are instituted among men, deriving all their just powers from the consent of the governed.

In addition to these, not so far reaching, not giving back, perhaps, so deeply into original principles, but still founded upon all correct political reasoning, was the other principle for which they contended, that taxation and representation were inseparable. In the words of the decision that was quoted yesterday, rendered in 1612, more than two hundred and fifty years ago, “they who pay ought to choose whom they will pay.” To maintain these principles, our fathers engaged in the war of the Revolution, and, carrying it through, successfully established them, at least, so far a the white people of this country were concerned.

Within the past ten years, through the great struggle of the rebellion, these ideas have been more thoroughly and fully carried out. They were just as true in 1776 as they are now, but their full effect had not been given them; but within this period they have been enacted into law, and now the same law that applies to white men applies to black men; and, further, we believe—and it is the object of this suit to show—that, under the laws as they now exist, since the adoption of the Fourteenth and Fifteenth Amendments, the fullest and most perfect operation of these great principles has been made possible, and that the Fourteenth Amendments places in the hands of woman the ballot, by which she may protect and defend her life and liberty, give the sanction of her consent to the government to which she submits, and justify the taxes which she is called upon to pay, by exercising her choice in selecting the representatives by whom they are imposed, and the officers by whom they are collected and expended.

04342

Now, we admit in this argument, or may admit, that this right, existing in woman as a natural right, just as much as in man, has not been exercised in this country to any considerable extent. It is true, as was shown to the court yesterday, that in the State of New Jersey women had a right to vote. But, still the general truth has been otherwise; and it is now an object to consider whether the new amendments to the Constitution have changed what was the legal condition of things prior to their adoption. I am not here to contend that prior to the adoption of the Fourteenth Amendment of the Constitution women were legally entitled to vote; but I do contend, and I shall endeavor to show, that by its operation women have been enfranchised.

Prior to the adoption of the Fourteenth Amendment, the United States admitted in their Constitution that they had no right to control the question of suffrage in the States. This must be admitted by any one who will examine section 2d of article I of the Constitution, which defines the qualifications of voters, for its says:

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 power of the United States to define the qualifications of voters, then, was entirely relinquished by that section of the Constitution. The subject was remanded to the States. They were entirely uncontrolled in regard to it. There was no provision of the Constitution that I have been able to discover, that in any way hampered the States in dealing with this question of suffrage, except that article IV, section 2d, forbade any discrimination by one State against the citizens of another State.

Justice Wylie. Here is a point, Mr. Miller, to which I would like to invite your attention. The District of Columbia is not a State, at all; but it is under the exclusive legislation of Congress, and the Constitution of the United States, 04443except so far as it affects fundamental rights, is not the Constitution of the District of Columbia. Congress legislates for this District, under its exclusive power; and this Amendment, does not, it strikes me, apply to the District of Columbia, because the District of Columbia is erected into a corporation. Why, Congress might erect a corporation without any votes at all—male or female. Suppose it should put a commission in charge here, to rule us. They have the power to do it. Suppose they should say, that the commission shall be appointed by the President, and he appoints the commission, and puts us under the charge of this commission. Well, then, nobody would vote. If they have the power to prohibit everybody from voting, why cannot they prevent a certain class?

Mr. Miller. I would say in regard to this matter that I am discussing it on general principles rather than as applying to this particular district.

Justice Wylie. It is a case that arises here in the District of Columbia, and we must decide it according to the law of the District.

Mr. Miller. I agree entirely with that, and, I contend, that, while the States formerly had this power of regulating suffrage under the Constitution, and might do as they pleased about it, there is nowhere in that instrument any clause or section that authorizes Congress to deprive one of our citizens of any fundamental right. It is not necessary for me to show in the Constitution a clause positively prohibiting Congress from denying to the women of the District of Columbia the right to vote; but when it undertakes to do so I have the right to demand whence it gets the authority for so denying it. The burden of proof is on the other side to show an express grant of power; but such grant is not to be found in the Constitution, and there must be some better reason for it than an arbitrary discretion. There is in Congress no arbitrary discretion by which a citizen can be deprived of the right of self-government. That right is 04544far above the reach of discretion, and I will yield nothing to its prejudice by implication. It must be some direct and positive provision of the Constitution that will authorize the Congress of the United States to disfranchise citizens.

Prior to the adoption of the Fourteenth Amendment, there was no attempt made to define the words “citizen of the United States,” and that is the great office and effect of that amendment. It defines who are, and who shall be hereafter, citizens of the United States, by this language, “All persons born, or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and of the State wherein they reside.” And it further says: “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.” “All persons”—we will not discuss the question whether women are persons. If they are persons, they are citizens. If citizens, no State can make or enforce any law by which their privileges and immunities as citizens shall be abridged. That brings us, then, to two questions; the only questions to be considered in this case.

First. What is the legal effect of making women citizens?

Second. Is the right of suffrage one of those privileges and immunities which the amendment forbids the States to abridge? I think those two questions are the hinges upon which this whole discussion turns.

In the first place, in considering the effect of the word “citizen,” we recur to the well-established rule, that in the use use of all technical terms, they must be construed as if used in their technical signification, unless there is something in the act to show that they are not so used. Now, this word “citizen,” is a technical word. It is a word that has been used since the very foundation of free government. Its definitions were given to you yesterday. I have no disposition to go over those definitions, but I wish to add one or two to them. The first use of that word, so far as I know, was in the free Republics of Greece, and the great Republic of Rome, in which citizenship was the great controlling idea of all their 04645policy. I read the Greek and Latin definitions of citizenship from Smith's Dictionary of Greek and Roman Antiquities, page 289.

In the third work of the Politics, Aristotle commences his inquiry into the nature of States, with the question; “What constitutes a citizen? (polites.) He defines citizens to be one who is a partner in the legislative and judicial power. No definition will apply equally to all the different States of Greece at different times; the above seems to comprehend, more or less, properly, all those whom the common use of language entitled to the name.

And the author says, on page 290:

Recurring, then, to Aristotle's definition, we find the essential properties of Athenian citizenship to have consisted in the share possessed by every citizen in the legislature, the election of magistrates in the dokimasia, and in the courts of justice.

In Greece, therefore, suffrage was the essential principle of citizenship. In the author's treatise in regard to Roman citizenship, he gives, what is, to my mind, a very good test to distinguish the attributes of citizenship, (page 291.)

If we attempt to distinguish the members of any given civitas from all other people in the world we can only do it by enumerating all the rights and duties of a member of this civitas, which are not rights and duties of a person who is not a member of this civitas. If any rights and duties which belong to a member of this civitas, and do not belong to any person who is not a member of this civitas are omitted in the enumeration, it is an incomplete enumeration, for the rights and duties not expressly included must be assumed to be common to the members of this civitas and to all the world; or, to use a Roman expression, they exist jure gentium.

Apply this test to suffrage, and see how imperfect any enumeration of the rights of a citizen would be with it omitted! It is almost the only right that cannot be left out without destroying all proper conception of the meaning of the word. On the same page, (291,) is quoted the following paragraph, from Savigny's History of the Roman Law in the Middle Ages:

In the free Republic there were two classes of Roman citizens; one that had, and another that had not, a share in the sovereign power, (optimo jure, non optimo jure, cives.) That which particularly distinguished the higher class was the right to vote in a tribe, and the capacity of enjoying magistracies, (suffragium et honores.)

* * * Those who had the jus suffragiorum and the jus honorum 04746had the complete citizenship, or, in other words, were optimo jure cives.

In the Roman Republic, therefore, the distinction between citizens optimo jure (of the highest right) and citizens non optimo jure (those who had not the highest right) was that the former were entitled to vote and the latter were not. If we read this Fourteenth Amendment, we find that all of our citizens are optimo jure, for it says all persons shall be citizens, and the rights of citizens shall not be abridged.

Adding, then this definition, drawn from the free Republican governments of antiquity, to those from Webster, Worcester, and Bouvier, and from the highest judicial tribunals, cited by Mr. Riddle in his argument yesterday, (see pp. 21 to 24,) we come, inevitably, as it seems to me, to the conclusion that among the attributes of citizenship is the right of suffrage, and the citizen can only be denied the exercise of that right, in any government, by express law. But, in this country, such denial or abridgement of the right of the citizen has recently been prohibited by the adoption of the Fourteenth Amendment.

There is some discrepancy in the recent definitions of citizenship in this country, arising from the fact that persons who have undertaken to define it have been compelled by some emergency, existing at the time, to suit their definitions to its demands.

For instance; Mr. Wirt was called upon, as Attorney General, to decide whether a colored man in Virginia was a citizen of the United States, and as it would not do, under the circumstances then existing, to declare that the colored man was a citizen, he gravely concludes, that as a colored man cannot vote, therefore, he is not a citizen.

Again; Mr. Bates, after the war of the rebellion commenced, was called upon to give his opinion on a similar question. The emergency then required that the colored man should be a citizen, and Mr. Bates very elaborately shows, that citizenship and suffrage have no necessary connection at all. Therefore, these two opinions just offset and balance each 04847other, each of them having been given under an exigency that controlled the judgment of its author. But in the “Dred-Scott” case, where the whole court comes to give the opinion, we have the decision of the majority, which says, that citizenship and suffrage have never been separated; and we have, on the other side, the opinion of the minority, given by Justice Curtis, in which he says, that suffrage is the chiefest attribute of citizenship. The whole Court, freed from the emergency under which the two Attorneys General acted, united in saying that suffrage and citizenship are intimately connected. I know that Justice Curtis says, in that opinion, that they did not necessarily go together. I assent to that proposition under the Constitution as it stood before the adoption of the Fourteenth Amendment, because that question was left entirely to the States, and they could strip the citizen of his right. They were at liberty to make any restriction that they pleased, and the United States could not interfere. But if suffrage is the chief attribute of citizenship, and if the United States has, in the Fourteenth Amendment, declared that the privileges and immunities of citizens shall not be denied or abridged, how can you say that any State or the United States has a right to deny the citizen that which is the chiefest attribute of citizenship?

Justice Humphreys. Was it in the opinion of the Chief Justice, given as the opinion of the court, that that idea was thrown out?

Mr. Miller. Yes, sir; the idea was that citizenship and suffrage were inseparable.

Justice Humphreys. Was that in his opinion, delivered as the opinion of the court?

Mr. Miller. Yes, sir.

Justice Humphreys. That, then, is an adjudicated point, if it was.

Mr. Miller. Provided that point was before the Court; but I do not think it was before the Court for judicial decision. The opinion was obiter certainly; but, although obiter, it was 04948the opinion of the highest tribunal of this land, and there was no dissent from it.

Mr. Cook. There was only a man in that case; not a woman at all.

The Chief Justice. And the decision was adverse to the man.

Mr. Miller. But this arises in the argument of the opinion.

Justice Olin. I do not think that Judge Taney said that suffrage was indispensably connected with citizenship, at all, as I remember that case.

Mr. Miller. He did not say it in express terms. That was the expression of Justice Daniels, but he said what was entirely equivalent to it.

Justice Olin. One of the incidents, but not a necessary incident to citizenship.

Mr. Miller. Justice Daniels says expressly, there is no definition of citizenship that does not include the right of suffrage, in so many words.

Justice Olin. That is very extraordinary, if he said so.

Mr. Miller. Here is what the Chief Justice said: (19 How., p. 404.)

The words “people of the United States” and “citizens” are synonymous terms, and mean the same thing. They both describe the political body, who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the “sovereign people,” and every citizen is one of this people and a constituent member of this sovereignty.

Justice Daniel says: (p. 476.)

Upon a principle of etymology alone, the term citizen, as derived from civitas, conveys the idea of connection or identification with the State or Government, and a participation 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.

Also, Judge Curtis says: (p. 581.)

Though I do not think the enjoyment of the elective franchise 05049essential to citizenship, (under the Constitution as it then existed,) there can be no doubt it is one of the chiefest attributes of citizenship under the American Constitution. The just and constitutional possession of this right is decisive evidence of citizenship.

The whole stress of the decisions on both sides in that case is, that citizenship carries with it the right of suffrage.

Justice Olin. Then they deny the right of a pauper to vote, and then they deprive him of citizenship, make him an alien.

Mr. Miller. I do not know that the suspension of the right by the operation of the law, provided it is such a suspension as applies to all the individuals in the State, is a denial of that right. We do not undertake to say, that because minors cannot control their own property, therefore, they have no right to property. The right of property exists, but the power of society to regulate itself, implies that it shall fix the time and the circumstances under which these rights shall be enjoyed. What society has no right to do is this: It has no right to say to any of its members, you have not this right, and you never shall have it. It is the “actual possession and enjoyment, or the perfect right of acquisition and enjoyment,” that constitutes the test in regard to these rights.

This view of the Fourteenth Amendment is entirely confirmed by the Fifteenth Amendment, as I understand the language of that Amendment. It says, the right of citizens of the United States to vote shall not be denied or abridged on account of certain circumstances. Now, what does that mean? I ask your honors to consider this question just as if it were something connected with the traditional John Doe or Richard Roe, and ask yourselves, what do these words mean? “The right of citizens of the United States to vote shall not be denied.” Is not that absolutely an expression of the opinion of the Congress of the United States, supported by the Legislatures of thirty-six States, that the citizen of the United States has a right to vote? It says, “shall not be denied or abridged.” Abridge what? Abridge the thing that does not exist. The very word abridged necessarily denotes 05150that the right of suffrage pre-existed, because you cannot abridge a non-existing thing. I shall come to the effect of the conditions of this amendment subsequently.

But I do not propose to repeat the argument that was made yesterday in regard to the effect of that amendment. Clearly it does not confer any right of suffrage. Clearly, prior to the Fourteenth Amendment, colored men had no right to vote. The Thirteenth Amendment, which emancipated them, did not give them the right of suffrage, because the States had the constitutional power to say that they should not vote. But between the Thirteenth and Fifteenth Amendments, in some way or other, the colored man came into the possession of this right of suffrage; and the question is, where did he get it? If he did not get it under the Fourteenth Amendment, by what possible authority are they voting by hundreds of thousands throughout this country. The legislative and constitutional provisions that prohibit their voting still remain unrepealed upon the statute books of many of the States, but yet they do vote. There is no possible, no conceivable, means by which they legally can vote, except by the operation of the Fourteenth Amendment. It may be said that if that is the case the Fifteenth Amendment was not necessary. Well, admit it was not. It was very well said by Justice Swayne, in the case of the United States vs. Rhodes, in answer to the argument that if the Thirteenth Amendment conferred certain rights upon the colored man it was unnecessary to pass the Civil Rights bill; “that it was not necessary, but it was well to do it to prevent doubts and differences of opinion.” It is not well to leave any man's rights and liberties subject even to a doubt, and the Congress of the United States had better adopt amendment after amendment than to allow the slightest cloud to rest upon the tenure of the rights of the American citizen.

Let us now consider the second question: “ Is the right if suffrage one of the privileges of the citizen that shall not be abridged? Here, I may say, we are very apt to be misled by the improper use of the word “qualification”—the “qualifications of voters.” Remember that on all the principles of 05251American liberty the qualification of voting is manhood or womanhood. The mere fact of being a human being, the creature of the Almighty, is the qualification. And you do not take that human being and superadd certain things in order to make a voter, but you take human beings and strike from them certain rights, or subject them to certain restrictions and thus make out a privileged class of voters, and it is these restrictions that prevent those that do not enjoy the elective franchise from voting. We do not undertake to say, here is a citizen and we will add to him so much property and let him vote; but we say, “her is a human being, and because he has not a certain amount of property we will deprive him of his right to govern himself.” It is not qualification, it is restriction, and I desire that this distinction be clearly borne in mind, because upon it rests a great deal of the force of this argument.

There was nothing whatever, so far as appears upon the statute books of this country, prior to the 14th Amendment, to prevent the States from restricting suffrage. Nothing at all. They had the right, I mean the legal right—I am not speaking of the moral right—they had the legal right to say that suffrage should be restricted in this, that, or the other manner, because the Constitution of the United States had recognized that right as existing in them. But that has been changed. The whole status of that matter has been altered by the adoption of the Fourteenth Amendment, which forbids these States from denying or abridging the rights of citizens of the United States.

Mr. Cook. I have the Dred Scott decision in my hand. The opinion of the court is on page 422:

Undoubtedly a person may be a citizen, that is a member of the community who form a sovereignty, although he exercises no share of the political power, and is incapacitated from holding particular offices. Women and minors, who form a part of the political family, cannot vote; and when a property qualification is required to vote or hold a particular office those who have not the necessary qualifications cannot vote or hold office, yet they are citizens.

Mr. Miller. I know that the Supreme Court, when it 05352comes to speak about women there, makes a very wide distinction between women and negroes.

Mr. Riddle. That was the restriction of State constitutions, which prohibited it, which ar abolished in the Fourteenth Amendment,

Mr. Miller. They say in their decision that the citizen is a part of the sovereignty, and Justice Daniels says that citizenship and suffrage never have been separate, but when they come to this question of women, as most men do, they lose all their discrimination. [Laughter.] They go in opposition to logic and reason, contradict themselves over and over again. It must be remembered too that this was before the passage of the Fourteenth Amendment had prohibited the abridgement of the rights of citizens.

Justice Wylie. I do not know as there is anything in it, but what do you make out of that declaration by the Almighty to Eve, as a punishment, that her desires should be to her husband, who should rule over her?

Mr. Miller. Your Honor, I am discussing now merely a political, and not a theological question.

Mr. Riddle. I am not aware that that extended to all her children.

Mr. Cook. I have it here. Unto the woman he said: “I will greatly multiply thy sorrow, and through thy conception in sorrow thou shalt bring forth children, and thy desires shall be to thy husband, and he shall rule over thee.”

The Chief Justice. Was not that dispensation legislated away with the new?

Mr. Cook. No, sir; intensified by the new.

Mr Riddle. Your Honor will bear in mind it was restricted to one generation. I know no rule of construction that imposes it upon her daughters.

Justice MacArthur. It was confined to that particular instance?

Mr. Riddle. Yes, your Honor, they disposed of the case before them. [Laughter.]

Mr. Miller. I am inclined to think, from the expressions 05453that have fallen from members of the court, that they regard the question of what is meant by the words “privileges and immunities” in the fourth section of the second article of the Constitution, and in the Fourteenth Amendment, as an important one. Since that amendment declares that the privileges and immunities of citizens of the United States shall not be abridged by any States. If among these privileges and immunities the right of suffrage is included, I think our case is established.

Justice Wylie. I think so too.

Mr. Miller. It has been my idea that the court were inclined to that view of the case. I have, therefore, been in search of the crucial test by which to try whether or not these privileges and immunities do include the right of suffrage, and I think I have found it. Some twelve or thirteen years ago it suited my convenience to move from the State of Virginia to the State of Maryland. Suppose, in moving there, I had found existing on the statute-book of the State a law declaring that citizens of Virginia should not be allowed to vote in the State of Maryland?

Mr. Riddle. Or acquire the right of voting.

Mr. Miller. Or acquire the right of voting. Suppose I had found such a law on the statute-book of the State of Maryland, what would I have done? I would have offered my vote at the polls, and, if it had been refused, I would have brought the question before the courts of that State. I would have said that by Art. IV, Sec. 2, of the Constitution:

The citizens of each State are entitled to all the privileges and immunities of citizens in the several States.

And the court would have referred to the case of Corfield vs. Coryell, and found it there laid down by one of the best judges we have ever had, that, among the privileges and immunities spoken of in the section above cited, is the right to vote.

I ask your honors whether there ever was a court in existence in this country that, if any such case as I have supposed 05554had been presented to it, would have thought of denying that among the privileges and immunities of citizens of the United States thus protected was that of voting?

Now, I ask your honors to consider this question, as I said before, as if it were a question about John Doe and Richard Roe. Examine the language as if it were any ordinary statute. If this right of suffrage is not one of the privileges and immunities intended to be protected and preserved by the second section of the fourth article of the Constitution, then the State of Maryland would have had a perfect right to say that citizens of Virginia coming there shall not vote, or acquire the right to vote; and yet your honors would not for a moment undertake to sustain that position. If this be so, then the privileges and immunities include this right of suffrage; and, when the Fourteenth Amendment of the Constitution adopts and uses that same language, we are compelled, ex necessitate rei, to conclude that it means that no State shall deny this right of suffrage.

Why your honors, suppose, before this question of woman suffrage had arisen, this case of Corfield vs. Coryell had been before any court of the United States, would it not have met with the assent of every court? Has it not met with the approval of every court that has ever passed upon it?

See Conner vs. Elliott, 18 Howard, 593. Abbott vs. Bailey, 6 Pickering, 92. Also, 2 Kent's Com., 71.

But these are not the only authorities bearing upon this point. Story, in the second volume of his work on the Constitution, (sec. 187,) says: “The intention of this clause” (Art. IV,Sec 2,) was to confer on them, as one may say, general citizenship, and to communicate all the privileges and immunities which citizens of the same State would be entitled to under the same circumstances.”

And Chancellor Kent says: “If citizens remove from one State to another they are entitled to the privileges that persons 05655of the same description are entitled in the State to which the removal is made, and none other.”—(2 Kent's Com. 36.)

Would it not be absurd to say that the right to vote was not included in these general terms? I admit, again, that, till the Fourteenth Amendment, citizens might have had their rights denied or abridged, and so have been deprived of suffrage; but still that right could not have been given to the citizens of one State and denied to those of another possessing the same prerequisites, which proves that it was one of the privileges, intended to be protected by the section referred to. And, now, none of these privileges can be denied or abridged.

In connection with this branch of the argument, I will read a part of the opinion of Justice Bradley of the Supreme Court of the United States in the case of Live Stock, &c., Company vs. Crescent City, &c., 1 Abbott's United States Reports, page 397:

The new prohibition that “no State shall make or enforce any law which shall abridge the privileges of immunities of citizens of the United States,” is not identical with the clause in the Constitution which declared that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States;” it embraces much more.

It is possible that those who framed the art'cle 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, bear a broader meaning, and does extend its protecting shield over those who were never thought of when it was conceived and put in form, and does reach social evils which were never before prohibited by constitutional enactment, it is to be presumed that the American people, in giving it their imprimatur, understood what they were doing, and meant to decide what has, in fact, been decided.

The “privileges and immunities” secured by the original Constitution, were only such as each State gave to its own citizens. Each was prohibited from discriminating in favor of its own citizens and against the citizens of other States.

I think that the great difficulty in this case arises from the fact that the minds of all men have been accustomed to consider citizenship as it existed prior to the Fourteenth Amendment, and they cannot relieve themselves from the bondage of the habit of mind that has become confirmed by their 05756long continuance in that state of things. They have been accustomed to see each State regulate suffrage at its will; deny the right to some, and allow others to enjoy it; change it; take it away from some, and give it to others.

But we must remember that all these things that could be denied in regard to suffrage prior to the Fourteenth Amendment cannot now be denied. You cannot say to the colored man in South Carolina you shall not vote. Why; because the Constitution of the United States, by its Fourteenth Amendment, says, that no State shall abridge the privileges and immunities of citizens. Take away from all these States this power, as it is taken away by that act, and we have left what? We have left the full, unabridged rights of citizenship to be enjoyed by every citizen.

I do not mean to say that, legally, citizens were not disqualified from voting prior to the Fourteenth Amendment, but I say that no citizen can be deprived of his right to vote except by some restriction. That is all. Express restriction alone can take away from the citizen the right to vote.

The Chief Justice. Now, here it is restricted to the male portion of the population.

Mr. Miller. Where?

The Chief Justice. Why, in the District of Columbia—in the organic act—and the question is, whether the lawmaker, under the Fourteenth Amendment of the Constitution, that declares all persons citizens have a right to discriminate between one person and another. That is the only question here. That they have a right to determine the terms of franchise there can be no doubt, and they may put it upon the qualification of property, or upon intelligence; but the question is, whether they can distinguish between one person and another having the same qualification.

Mr. Miller. Exactly. I think that the whole theory of this right of suffrage in relation to citizenship is expressly and admirably stated by Justice Daniels. It is either “the actual possession and enjoyment, or the perfect right of acquisition and enjoyment of suffrage.”

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The Chief Justice. Do you claim this right of suffrage is such a natural right that it can be abridged in nobody?

Mr. Miller. No, sir, not at all. I admit the right of society to regulate this right as al other rights for the good of society. What I do deny is this, that any portion of society can deny it to any other portion. That the white man, for example, can deny it to the black man; that men can say to women, “you shall not vote.”

The Chief Justice. You claim that the law-maker has o constitutional power to say to one man, you may vote, and to another man, having the same qualification, you shall not vote. You contend that the Constitution has established a common plane upon which all citizens stand?

Mr. Miller. That is my view of it. The Constitution has formulated into law the Declaration of Independence. We were one hundred years coming to it; but we have reached it at last—certainly by recognizing the political rights of the black man—and, as I believe, those of woman; and that is all this Court is called upon here to declare, to wit: that the Declaration of Independence has been enacted into law, and that you will see that that law is enforced.

I wish now to show that the spirit of the Constitution is utterly adverse to any power on the part of the Congress to discriminate between men and women, and I state here—and I state it certainly solely on my own authority, because I never investigated the question until this morning—but I state here there is not in the Constitution one word that forbids Susan Anthony from being elected President of the United States at the next election if the people so will it. If you read over every section of the Constitution you will find there is nothing to prevent a woman from being elected to the Congress of the United States, either to the Senate or House of Representatives. There is nothing to prevent a woman from sitting in the chair of the Chief Justice of the United States, this day, by any fair construction of the Constitution.

Examine the various provisions of that instrument in 05958regard to these officers. The second section of Article I says:

No person shall be a representative who shall not have attained the age of twenty-five years and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.

I will call attention to the effect of that world “he” hereafter. So, in the third section, the provision in regard to Senators is in precisely similar terms.

Article II, section 1, provides as follows:

The executive power shall be vested in a President of the United States of America. He shall hold his office, &c.

No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President, &c.

Article III, section 1, says:

The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

In this last clause there is not even a “he” to exclude a woman from holding any judicial position under the Government of the United States.

Now, if the words “he” and “his,” as used in these passages, preclude a woman from being President, or a member of Congress, or a judge of the Supreme Court, let us see what the effect of that interpretation would be upon other articles of the Constitution.

Article V, of the amendments, reads as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land and naval forces, or in the militia when in actual service in time of war, or public danger; nor shall any person be subjected for the same offence to be put twice in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself, nor deprived of life, liberty, or property, without due process of law.

06059

Now, I wish to know if that masculine word “himself,” with the usual male selfishness, excludes women from the benefit of all the guarantees of personal liberty and personal rights contained in this section. Can she be “held to answer for a capital crime,” without “presentment or indictment by a grand jury?” Can she be “put twice in jeopardy of life or limb for the same offence?” Can she be compelled “to be a witness against herself?”

The Chief Justice. She cannot be tried for treason either according to the phraseology.

Mr. Miller. And so Article VI, of the amendments, provides:

In all criminal prosecutions the accused shall enjoy the right to a speedy trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have assistance of counsel for his defence.

Now, I am speaking of this thing on the interpretation of the Constitution as it stands, and I ask if you can distinguish between the use of the words “him” and “his” in the sections referring to officers of the United States, and in those that enumerate the guaranties of the personal liberties and personal rights of the citizen? Certainly not.

I assert, therefore, that the Constitution, this day, does not forbid the election of Miss Anthony to the Presidency of the United States if the people choose to do it. I hold that the latter part of this discussion is pertinent to the issue in regard to suffrage in this District, because it shows that the whole spirit of the Constitution is against the discrimination which in undertaken to be made by this organic act of February 21, 1871; that it has no foundation either in law or justice; that Congress has no power to make it; and moreover it is condemned by all the great principles on which our free government rests. The Fourteenth Amendment has been before the court only once, as I believe. I have read what Justice Bradley said in regard to these terms, privileges and immunities. 06160I wish to cite further from that opinion. Because Justice Bradley, in himself, is high authority, and his official position gives dignity and power to what he says:

But the Fourteenth Amendment prohibits any State from abridging the privileges and immunities of citizens of the United States, whether in its own citizens or any others. It not merely requires equality of privileges.

That is the old dispensation that existed prior to the adoption of the Fourteenth Amendments.

It not only 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., 597.

Now, can you say that citizens who have not the right to vote have their privileges, “ absolutely unimpaired?” Why, with citizens such as these we would have a whole mass of citizens non optimo jure here, which the Constitution of the United States in this Fourteenth Amendment says, they shall all be citizens optimo jure.

It is said, and it was said in the argument yesterday, that the word “right” was used in regard to suffrage in the Fourteenth and Fifteenth Amendments, while the Fourteenth Amendment only declares that privileges and immunities shall not be abridged. I cannot see the force of the argument deduced from this fact. I can see that the “privileges and immunities” of a person might be impaired—that there might be some fairness in that. A peculiar right, a special privilege given to an individual, or class of individuals, by the mass of the community, I can see, might be resumed by the power that originally granted it without doing anybody any great injustice. But how a right can be rightfully impaired is more than I can understand. If the privileges and immunities of citizens are not to be impaired, what shall we do with the rights of citizens? A right is far above a privilege or an immunity, if these words are to be used with any reference to their real signification. I believe, however, the difficulty in the settlement of this question is, that as soon as the word 06261“woman” comes in, all other words must take a different acceptation and interpretation.

Justice Bradley says, on page 402 of the same report:

The more we have reflected on the subject the more we are satisfied that the Fourteenth Amendment of the Constitution was intended to protect citizens of the United States in some fundamental privileges and immunities of an absolute and not merely of a relative character. * * * It was very ably contended on the part of the defendants that the Fourteenth Amendments 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 of the United States? Are they capacities merely? Are they not also rights ?

Judge Bradley's examination of the question of what are the essential privileges intended to be protected by the Fourteenth Amendment is able and instructive, and at the risk of wearying the court I will cite it at length. (See page 398.)

What, then, are the essential privileges which belong to a citizen of the United States as such, and which a State cannot by its laws invade? It may be difficult to enumerate or define them. The Supreme Court, on one occasion, thought it unwise to do so. [18 How., 591.] But so far as relates to the question in hand, we may safely say it is one of the privileges of every American citizen, to adopt and follow such lawful industrial pursuit—not injurious to the community—as he may see fit, without unreasonable regulation or molestation, and without being restricted by any of those unjust, oppressive and odious monopolies or exclusive privileges which have been condemned by all free governments; it is also his privilege to be protected in the possession and enjoyment of his property, so long as such possession and enjoyment are not injurious to the community; and not to be deprived thereof without due process of law. It is also his privilege to have, with all other citizens, the equal protection of the laws. Indeed, the latter privileges are specified by the words of the amendment.

These privileges cannot be invaded without sapping the very foundations of republican government. A republican government is not merely a government of the people, but it is a free government. Without being free, it is republican only in name, and not republican in truth, and any government which deprives its citizens of the right to engage in any lawful pursuit, subject only to reasonable restrictions, or at least subject only to such restrictions as are reasonably within the power of government to impose, is tyrannical and unrepublican. And, if to enforce arbitrary restrictions made for the benefit of a favored few, it takes away and destroys the citizen's property without trial or condemnation, it is guilty of violating all the fundamental privileges to which I have referred, and one of the fundamental principles of free government. There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more or less than the sacred right of labor.

06362

Is there not a more sacred right than that of labor? I know there is a great deal of talk about this thing of property, and we are apt to consider property as the only thing to be regarded in our laws. Thus, when the friends of a property qualification come to advocate it, they say people must have some stake in society in order to vote. What stake? They must own some property, forsooth! As if property was the only thing on God's earth that required to be protected. As if the right of liberty, all the personal rights, were not far above the right of property. And this is the same tale that runs through the whole argument in favor of restrictive suffrage. There is, Justice Bradley says, no more sacred right of the citizen than the right “to pursue unmolested a lawful employment, in a lawful manner.” I am prepared to deny that statement. I assert that the right of personal liberty is far above any right of property, and that the right of self-government is the highest of all rights, because it is preservative of all rights.

Justice Wylie. The judge was reversed in that case, was he not?

Mr. Miller. Not that I know of. I do not think the case has come to the Supreme Court of the United States upon its merits.

Mr. Riddle. The case has come up to the Supreme Court of the United States. The preliminary question has been settled, but the merits of the question have not been passed upon.

Mr. Miller. It has been said from the Bench, that the Supreme Court had declared that women were citizens, and that there is a law by which foreign women are allowed to be naturalized. I admit all that. And the fact of their citizenship, before the Fourteenth Amendment, did not prevent their being deprived of the right of suffrage by the States. There was, then, no prohibition against depriving citizens of their right to vote. I do not mean to say there was any moral right to do it, or that it was in accordance with political truth, but the legal right did then exist. So there was 06463no moral right to deprive the slave of his liberty. There was no political principle that would in any way countenance or support it. But the fact existed till 1865; and then the Thirteenth Amendment destroyed that state of things, and slavery passed away. So the Fourteenth Amendment destroyed the power of the States to abridge or deny the right of suffrage, and the state of things that existed antecedent to its adoption should pass away.

Some attempt is made, in discussing this question, by Attorney General Bates, in his opinion in regard to citizenship, to draw a distinction between political rights and political powers. I confess I do not see how such distinction can possibly be drawn in the matter of suffrage. There is no legitimate power but what is based upon a right; and there is no just power in free governments that is not derived from the consent of the governed, which consent can only be expressed by the ballot.

Again, it is urged that Congress never contemplated the possibility of women voting under the action of the Fourteenth Amendment. I presume that we would all be willing to admit that Congress did not expect, by virtue of this Fourteenth Amendment, to give to women the right of suffrage. But, if that be the case, it is far from being the first time that men have “builded better than they knew.” So far as the intent of Congress comes before this court, it is laid down in the words of the Fourteenth Amendment. There they are. You are to consider and construe them, and you cannot depart from them.

Justice Humphreys. It is the intent of the people in accepting of the amendment—for that constitutional amendment goes far beyond Congress;—it is what the people meant in accepting it, that we have to consider.

Mr. Miller. Yes, sir. The Congress of the United States has sanctioned it by its proposal, and the people of the United States have sanctified it by its adoption. And whether or not the Congress of the United States or the people of the United States may have included therein certain words that 06564have greater effect than they intended, is not a question that can be tested in this court nor can the intent of Congress be ascertained in any other way than by reference to the words of the Amendment itself; and upon that point I wish briefly to refer to some authorities, if your honors think it is all necessary.

Justice Humphreys. The rule is, that you must presume that the legislative body means what the words import.

Mr. Miller. Certainly. I will briefly run over some few authorities on this subject.

Sedgwick, in his work on Statutory and Constitutional Law, (p. 243,) says:

The tendency of all our modern decisions is to the effect, that the intention of the legislature is to be found in the statute itself, and that there only are the judges to look for the mischief intended to be obviated and the remedy meant to be provided.

In a case on the embargo laws, the Supreme Court of the United States said:

In construing these laws, it has been truly stated to be the duty of the Court, to effect the intention of the legislature, but this intention is to be searched for in the words which the legislature has employed to convey it. (Schooner Paulina's Cargo vs. The United States, 7 Cranch, 52, 60.)

In a case on the English Bankrupt Act, Lord Tenterden said:

The words (of the act) may, probably, go beyond the intention; but if they do, it rests with the legislature to make an alteration; the duty of the court is only to construe and give effect to the provision. (Notley vs. Buck, 8 Barn. & Cros., 160-4.)

And in the case of Everett vs. Wells, 2 Scott's N. C., 531, Tindal, C. J., said:

It is the duty of all courts to confine themselves to the words of the legislature— nothing adding thereto, nothing diminishing.

And so the authorities all are. Your honors are, therefore, not at liberty to go beyond the meaning of the words of this Amendment, but are to take them as they are, examine them by their ordinary definitions and uses, and, without regard to the consequences, to declare, on the solemn responsibility resting upon you: Thus is the written law!

06665

Now, a word in regard to the second section of the Fourteenth Amendment. If I have established, as I believe I have, that under the first section of the Fourteenth Amendment women have the right to vote, and there is any particular limitation in the second section that contradicts it, that part of the amendment falls void and useless, so far as its effect upon woman is concerned. There is the declaration of the general principles expressly stated; and, if there is anything contradictory, “the particular and inferior cannot defeat the general and superior.” Lieber's Hermeneutics, p. 120.

The great object of that Fourteenth Amendment, so far as it can be deduced from the words in which it is expressed, is this: that the rights of the citizens of the United States shall not be abridged. If there is anything contradictory of that in the subsequent sections, those sections must fall. But if the second section affects this argument at all, it is because it seems, by implication, to admit that the rights of certain male citizens of the United States can be denied. That is the whole force and effect of it—I mean so far as this argument is concerned. All that can be claimed for it is, that by implication, perhaps, it would permit that to be done. The Fifteenth Amendment comes in and says, in express terms, that that which the second section by implication permits, shall not be done; and by this declaration it strikes out that section, and it is no more in the Constitution now than is that clause of the second section of the first article of the Constitution which permitted States to deny suffrage to any of their citizens—black or white. That section is gone. It is no more a part of the Constitution, because it has been absolutely repealed by the adoption of the Fourteenth Amendment. Just so this second section of the Fourteenth Amendment disappeared by the operation of the Fifteenth Amendment.

The Chief Justice. Will you please read the Fifteenth Amendment again.

Mr. Miller then read, as follows:

06766

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.

Sec. 2. The Congress shall have power to enforce this article by appropriate legislation. (15 Stat., p. 346)

The Chief Justice. There is a very strong implication, is there not, in that amendment, that you may deny the right of suffrage for other causes.

Mr. Miller. I do not think there can be any implication by which a citizen may be robbed of a fundamental right. It must be something expressed. I do not believe in any power of taking away the rights of citizens by construction. No human being can be robbed of his God-given rights by implication. You cannot take away his property by implication. You cannot take away his liberty. I think it is equally true that you cannot take away his right of self-government by implication.

Finally, in regard to the construction of this Fourteenth Amendment, it must be observed that it is remedial in its character, and it must be “construed liberally to carry out the beneficent principles it was intended to embody,” (Dwarris on Statutory Law, p. 632.,) and that “its construction must be extended to other cases within the reason and rule of it.” (Lord Mansfield in Atcheson vs. Everett, Cowper, 382, 391.)

Lieber's fourteenth rule of construction is, “Let the weak have the benefit of a doubt without defeating the general object of a law. Let mercy prevail, if there be real doubt.” (Lieber's Hermeneutics, p. 144.) Now, if mercy must prevail when there is real doubt, still more should justice prevail if these is any doubt. If your honors have any doubt in regard to this decision, I call upon you, not in the name of mercy, but in the name of justice, to give us the benefit of that doubt, and to recognise the right of all human beings to govern themselves.

This concludes the arguments so far as I have been able to present it to your Honors. It just about one hundred years ago that the case of Somersett was brought before Lord Mansfield, and he was called to pass upon the question whether 06867slavery could exist in England or not; whether the slaves that were brought from foreign countries, or from the colonies, to England, should be free or not. That question came up before him and was elaborately discussed. It was a question without precedent, and he decided it upon great general principles, and decided it in interests of right and justice. By that decision he gained for himself more true glory than by any other act of his life. He freed England. He justified the old boast that the air of England was too pure for a slave to breathe, and gave it practical effect. Your Honors stand in exactly that position to-day. You have a great question brought up before your judgement. It is for you to give the key note to the decisions in this country. It is for you to say whether this contest shall be brought to a triumphant conclusion by our decision, or whether we shall be compelled to struggle on for one, two, three, of four years longer in order to secure to our sisters in this country, and perhaps in all countries, the enjoyment of the inestimable right of self government. See to it that your judgment be guided by the plain rules of law, and governed by the clear dictates of justice, without regard to the prejudices of the past. See to it that it be such that when the cause which is now before you shall be triumphant it will be your pride and pleasure to recall it to memory.

OPINION OF THE COURT.

Chief Justice Cartter then delivered the opinion of the court, sustaining the demurrer, which is as follows:

These cases, involving the same questions, are presented together.

As shown by the plaintiffs' brief, the plaintiffs claim the elective franchise under the first section of the fourteenth amendment of the Constitution.

The fourth paragraph of the regulations of the Governor and Judges of the District, made registration a condition precedent to the right of voting at the election of April 20th, 1871.

The plaintiffs, being otherwise qualified, offered to register, and were refused. They then tendered their ballots at the polls, with evidence of qualification and offer to register, &c., when their ballots were rejected under the seventh section of the act providing a government for the District of Columbia.

Mrs. Spencer brings her suit for this refusal of registration, and Mrs. Webster for the rejection of her vote, under the second and third sections of the act of May 31, 1870.

The seventh section of the organic act above referred to, limits the right to vote to “all male citizens,” but it is contended that in the presence of the Fourteenth Amendment, the word male is without effect, and the act authorizes “all citizens” to exercise the elective franchise.

The question involved in the two actions which have been argued, and which, for the purposes of judgment, may be regarded as one, is, whether the plaintiffs have a right to exercise within this jurisdiction, the elective franchise. The letter of the law controlling the subject, is to be found in the seventh section of the act of February 21, 1971, entitled, “An act to provide a government for the District of Columbia,” as follows:

And be it further enacted, That all male citizens of the United States, above the age of twenty-one years, who shall have been actual residents of said District for three months prior to the 07069passage of this act, except such as are non compos mentis, and persons convicted of infamous crimes, shall be entitled to vote at said election, in the election district or precinct in which he shall then reside, and shall have so resided for thirty days immediately preceding said election, and shall be eligible to any office within the said district, and for all subsequent elections, twelve months prior residence shall be required to constitute a voter; but the Legislative Assembly shall have no right to abridge or limit the right of suffrage.

It will be seen by the terms of this act that females are not included within its privileges. On the contrary, by implication, they are excluded. We do not understand that it is even insisted in argument that authority for the exercise of the franchise is to be derived from law. The position taken is, that the plaintiffs have a right to vote, independent of the law; even in defiance of the terms of the law. The claim, as we understand it, is, that they have an inherent right, resting in nature, and guaranteed by the Constitution in such wise that it may not be defeated by legislation. In virtue of this natural and constitutional right, the plaintiffs ask the court to overrule the law, and give effect to rights lying behind it, and rising superior to its authority.

The Court has listened patiently and with interest to ingenious argument in support of the claim, but have failed to be convinced of the correctness of the position, whether on authority or in reason. In all periods, and in all countries, it may be safely assumed that no privilege has been held to be more exclusively within the control of conventional power than the privilege of voting, each State in turn regulating the subject by the sovereign political will. The nearest approach to the natural right to vote, or govern—two words in this connection signifying the same thing—is to be found in those countries and governments that assert the hereditary right to rule. The assumption of Divine right would be a full vindication of the natural right contended for here, provided it did not involve the hereditary obligation to obey.

Again, in other States, embracing the Republics, and especially 07170our own, including the States which make up the United States, this right has been made to rest upon the authority of political power, defining who may be an elector, and what shall constitute his qualification; most States in the past period declaring property as the familiar basis of a right to vote; others, intelligence; others, more numerous, extending the right to all male persons who have attained the age of majority.

While the conditions of the right have varied in several States, and from time to time been modified in the same State, the right has uniformly rested upon the express authority of the political power, and been made to revolve within the limitations of express law.

Passing from this brief allusion to the political history of the question to the consideration of its inherent merits, we do not hesitate to believe that the legal vindication of the natural right of all citizens to vote, would, at this stage of popular intelligence, involve the destruction of civil government. There is nothing in the history of the past that teaches us otherwise. There is little in current history that promises a better result. The right of all men to vote is as fully recognized in the population of our large centres and cities as can well be done, short of an absolute declaration that all men shall vote, irrespective of qualifications. The result in these centres is political profligacy and violence verging upon anarchy. The influences working out this result are apparent in the utter neglect of all agencies to conserve the virtue, integrity and wisdom of government, and the appropriation of all agencies calculated to demoralize and debase the integrity of the elector. Institutions of learning, calculated to bring them up to their state of political citizenship, and indispensable to the qualifications of the mind and morals of the responsible voter, are postponed to the agency of the dramshop and gambling hell; and men of conscience and capacity are discarded, to the promotion of vagabonds to power.

This condition demonstrates that the right to vote ought not to be, and is not, an absolute right. The fact that the practical 07271working of the assumed right would destructive of civilization is decisive that the right does not exist.

Has it become a constitutional right, under the provisions of the Fourteenth and Fifteenth Amendments of the Constitution, which provide as follows:

Fourteenth Amendment, 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 State.”

Fifteenth amendment, 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.”

It will be seen by the first clause of the Fourteenth Amendment, that the plaintiffs, in common with all other persons born in the United States, are citizens thereof, and, if to make them citizens is to make them voters, the plaintiffs may, of right, vote. It will be inferred from what has already been said, that to make a person a citizen is not to make him or her a voter. All that has been accomplished by this Amendment to the Constitution, or by its previous provisions, is to distinguish them from aliens, and make them capable of becoming voters.

In giving expression to my own judgment, this clause does advance them to full citizenship, and clothes them with the capacity to become voters. The provision ends with the declaration of their citizenship. It is a constitutional provision that does not execute itself. It is the creation of a constitutional condition that requires the supervision of legislative power in the exercise of legislative discretion to give it effect. The constitutional capability of becoming a voter created this Amendment lies dormant, as in the case of an infant, until made effective by legislature action. Congress, the legislative power of this jurisdiction, as yet, has not seen fit to carry the inchoate right 07372into effect, as is apparent in the law regulating the franchise of this District. When that shall have been done it will be the pleasure of this court to administer the law as they find it. Until this shall be done, the consideration of fitness and unfitness, merit and demerit, are considerations for the law-making power. The demurrer in these cases is sustained.

After the reading of the opinion of the court by Chief Justice Cartter, Mr. Riddle, counsel for the plaintiffs, in open court, prayed an appeal to the Supreme Court of the United States.