Chapter 3

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

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

But passing this view, let us look at the matter historically and on a broader field.

If Chinese women were allowed an equal share with men in shaping the laws of that great empire, would they subject their female children to torture with bandaged feet, through the whole period of childhood and growth, in order that they might be cripples for the residue of their lives?

If Hindoo women could have shaped the laws of India, would widows for ages have been burned on the funeral pyres of their deceased husbands?

If Jewish women had had a voice in framing Jewish laws, would the husband, at his own pleasure, have been allowed to "write his wife a bill of divorcement and give it in her hand, and send her out of his house?"

Would women in Turkey or Persia have made it a heinous, if not capital, offence for a wife to be seen abroad with her face not covered by an impenetrable veil?

Would women in England, however learned, have been for ages subjected to execution for offences for which men, who could read, were only subjected to burning in the hand and a few months imprisonment?

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

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

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

So far as women, without change of character as women, are qualified to discharge the duties of citizenship, they will discharge them if called upon to do so, and beyond that they will not go. Nature has put barriers in the way of any excessive devotion of women to public affairs, and it is not necessary that nature's work in that respect should be supplemented by additional barriers invented by men. Such offices as women are qualified to fill will be sought by those who do not find other employment, and others they will not seek, or if they do, will seek in vain. To aid in removing as far as possible the disheartening difficulties which women dependent upon their own exertions encounter, it is, I think, desirable that such official positions as they can fill should be thrown open to them, and that they should be given the same power that men have to aid each other by their votes. I would say, remove all legal barriers that stand in the way of their finding employment, official or unofficial, and leave them as men are left, to depend for success upon their character and their abilities. As long as men are allowed to act as milliners, with what propriety can they exclude women from the post of school commissioners when chosen to such positions by their neighbors? To deny them such rights, is to leave them in a condition of political servitude as absolute as that of the African slaves before their emancipation. This conclusion is readily to be deduced from the opinion of Chief Justice Jay in the case of _Chisholm's Ex'rs vs. The State of Georgia (2 Dallas, 419-471)_, although the learned Chief Justice had of course no idea of any such application as I make of his opinion.

The action was assumpsit by a citizen of the State of South Carolina, and the question was, whether the United States Court had jurisdiction, the State of Georgia declining to appear.

The Chief Justice, in the course of his opinion, after alluding to the feudal idea of the character of the sovereign in England, and giving some of the reasons why he was not subject to suit before the courts of the kingdom, says:

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

Now I beg leave to ask, in case this charge against Miss Anthony can be sustained, what equality and what sovereignty is enjoyed by the half of the citizens of these United States to which she belongs? Do they not, in that event, occupy, _politically_, exactly the position which the learned Chief Justice assigns to the African slaves? Are they not shown to be _subjects_ of the other half, who are the sovereigns? And is not their _political subjection_ as absolute as was that of the African slaves? If that charge has any basis to rest upon, the learned Chief Justice was wrong. The sovereigns of this country, according to the theory of this prosecution, are not sovereigns without subjects. Though two or three millions of their subjects have lately ceased to be such, and have become freemen, they still hold twenty millions of subjects in absolute _political_ bondage.

If it be said that my language is stronger than the facts warrant, I appeal _to the record in this case_ for its justification.

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

Having occupied much more time than I intended in showing the justice and propriety of the claim made by my client to the privileges of a voter, I proceed to the consideration of the present state of the law on that subject:

It would not become me, however clear my own convictions may be on the subject, to assert the right of women, under our constitution and laws as they now are, to vote at presidential and congressional elections, is free from doubt, because very able men have expressed contrary opinions on that question, and, so far as I am informed, there has been no authoritative adjudication upon it; or, at all events, none upon which the public mind has been content to rest as conclusive. I proceed, therefore, to offer such suggestions as occur to me, and to refer to such authorities bearing upon the question, as have fallen under my observation, hoping to satisfy your honor, not only that my client has committed no criminal offense, but that she has done nothing which she had not a legal and constitutional right to do.

It is not claimed that, under our State constitution and the laws made in pursuance of it, women are authorized to vote at elections, other than those of private corporations, and, consequently, the right of Miss Anthony to vote at the election in question, can only be established by reference to an authority superior to and sufficient to overcome the provisions of our State constitution. Such authority can only be found, and I claim that it is found in the constitution of the United States. For convenience I beg leave to bring together the various provisions of that constitution which bear more or less directly upon the question:

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

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

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

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

Same Article, Section 4. "The United States shall guarantee to every State in the union a republican form of government."

THIRTEENTH AMENDMENT.

DECEMBER 18, 1865.

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

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

FOURTEENTH AMENDMENT.

JULY 28, 1868.

Section 1. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

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

* * * * *

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

FIFTEENTH AMENDMENT.

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

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

By reference to the provisions of the original Constitution, 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 Constitution 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 entitled 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 circumstances.

It will be seen, therefore, that the whole subject, as to what should constitute 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 constitution of the United States.

But now, by the fourteenth amendment, the United States have not only declared what constitutes citizenship, 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 classed 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 constitutes 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 "citizenship," 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 constitutional 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 principal, 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 citizenship is the enjoyment of the right of suffrage.

The definition of the term "citizen" by _Bouvier_ is: "One who under the constitution 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 constitution (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 assumes 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 Washington, 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 constitution, 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 constitution 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 constitution 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 Washington, above quoted, with approbation.