Is it a Crime
For a U.S. Citizen to Vote?
Winter and spring, 1872-1873 — Monroe and Ontario Counties, New York
Friends and Fellow-citizens: I stand before you to-night, under indictment for the alleged crime of having voted at the last Presidential election, without having a lawful right to vote. It shall be my work this evening to prove to you that in thus voting, I not only committed no crime, but, instead, simply exercised my citizen’s right, guaranteed to me and all United States citizens by the National Constitution, beyond the power of any State to deny.
Our democratic-republican government is based on the idea of the natural right of each individual member thereof to a voice and a vote in making and executing the laws. We assert the province of government to be to secure the people in the enjoyment of their unalienable rights. We throw to the winds the old dogma that governments can give rights. Before governments were organized no one denies that each individual possessed the right to protect his own life, liberty, and property. And when one hundred or one million people enter into a free government, they do not barter away their natural rights, they simply pledge themselves to protect each other in the enjoyment of them through prescribed judicial and legislative tribunals. They agree to abandon the methods of brute force in the adjustment of their differences and adopt those of civilization.
Nor can you find a word in any of the grand documents left us by the fathers that assumes for government the power to create or confer rights. The Declaration of Independence, the United States Constitution, the constitutions of the several states, and the organic laws of the territories, all alike, propose to protect the people in the exercise of their God-given rights; not one of them pretends to bestow rights.
All men are created equal and endowed by their creator with certain unalienable rights; among these are life, liberty, and the pursuit of happiness. That, to secure these, governments are instituted among men, deriving their just powers from the consent of the governed.
Here is no shadow of government authority over rights, no exclusion of any class of men from their full and equal enjoyment. Here is pronounced the right of all men, and, “consequently,” as the Quaker preacher said, “of all women,” to a voice in the government. And here, in this very first paragraph of the Declaration, is the assertion of the natural right of all to the ballot; for how can the “consent of the governed” be given if the right to vote be denied? Again:
That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.
Surely the right of the whole people to vote is here clearly implied. However destructive to their happiness this government might become, a disfranchised class could neither alter nor abolish it, nor institute a new one, except by the old brute-force method of insurrection and rebellion. One-half of the people of this nation, to-day, are utterly powerless to blot from the statute-books an unjust law, or write there a new and just one. The women, dissatisfied as they are with this form of government that enforces “taxation without representation”-that compels them to obey laws to which they have never given their consent-that imprisons and hangs them without a trial by a jury of their peers-that robs them, in marriage, of the custody of their own persons, wages, and children, are — this half of the people — left wholly at the mercy of the other half, in direct violation of the spirit and letter of the declarations of the framers of this government, every one of which was based on the immutable principles of “equal rights to all.” By them kings, priests, popes, aristocrats were, all alike, dethroned and placed on a common level, politically, with the lowliest-born subject or serf. By them, too, men were deprived of their authority and placed on a political level with women. By their practice all class and caste distinction must be abolished, and slave, serf, plebeian, wife, woman, all alike, bound from their subject position to the proud platform of equality.
The preamble of the Federal Constitution says:
We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
It was we, the people, not we, white male citizens, nor yet we, male citizens; but we the whole people, who formed this Union. And we formed it, not to give the blessings of liberty, but to secure them — not to the half of ourselves and the half of our posterity, but to the whole people, women as well as men. And it is downright mockery to talk to women of their enjoyment of the blessings of liberty while they are denied the use of the only means of securing them provided by this democratic-republican government — the balloon.
The early journals of Congress show that when the committee reported to that body the original articles of confederation, the very first article which became the subject of discussion was that respecting equality of suffrage. Article 4th said: “The better to secure and perpetuate mutual friendship and intercourse among the people of the different states of this Union, and free inhabitants of each of the states (paupers, vagabonds, and fugitives from justice excepted) shall be entitled to all the privileges and immunities of the free citizens of the several states.”
Thus, as the very beginning, did the fathers see the necessity of the universal application of the great principle of equal rights to all — in order to produce the desired result — a harmonious Union and a homogeneous people.
Luther Martin, attorney-general of Maryland, in his report to the legislature of that state, of the convention that framed the United States Constitution, said:
Those who advocated the equality of suffrage, took the matter up on the original principles of government; that the reason why each individual man in forming a state government, should have an equal vote, is because each individual, before he enters into the government, is equally free, and equally independent.
James Madison said: “Under every view of the subject, it seems indispensable that the mass of the citizens should not be without a voice in making the laws which they are to obey, and in choosing the magistrates who are to administer them.” And, “let it be remembered, finally, that it has ever been the pride and the boast of America that the rights for which she contended, were the rights of human nature.”
And these assertions of the framers of the United States Constitution of the equal and natural right of all the people to a voice in the government, have been affirmed and reaffirmed by the leading statesmen of the nation, throughout the entire history of our government.
Thaddeus Stevens, of Pennsylvania, said in 1866: “I have made up my mind that the elective franchise is one of the inalienable rights meant to be secured by the Declaration of Independence.”
B. Gratz Brown, of Missouri, in the three days’ discussion in the United States Senate, in 1866, on Senator Cowan’s motion to strike “male” from the District of Columbia suffrage bill, said:
Mr. President, I say here on the floor of the American Senate, I stand for universal suffrage; and as a matter of fundamental principle, do not recognize the right of society to limit it on any ground of race or sex. I will go farther and say, that I recognize the right of franchise as being intrinsically a natural right. I do not believe that society is authorized to impose any limitations upon it that do not spring out of the necessities of the social state itself. Sir, I have been shocked, in the course of this debate, to hear Senators declare this right only a conventional and political arrangement; a privilege yielded to you and me and others; not a right in any sense, only a concession! Mr. President, I do not hold my liberties by any such tenure. On the contrary, I believe that whenever you establish that doctrine, whenever you crystalize the idea in the public mind of this country, you ring the death-knell of American liberties.
Charles Sumner, in his brave protests against the 14th and 15th amendments, insisted, that so soon as by the 13th amendment the slaves became freemen, the original powers of the United States Constitution guaranteed to them equal rights-the right to vote and to be voted for. In closing one of his great speeches he said:
I do not hesitate to say that when the slaves of our country became ‘citizens,’ they took their place in the ‘body politic’ as a component part of the ‘people,’ entitled to equal rights, and under the protection of these two guardian principles-first, that all just governments stand on the consent of the governed; and secondly, that taxation without representation is tyranny; and these rights it is the duty of Congress to guarantee as essential to the idea of a republic.
The preamble of the constitution of the State of New York declares the same purpose. It says, “We, the People of the State of New York, grateful to Almighty God for our freedom, in order to secure its blessings, do establish this Constitution.”
Here is not the slightest intimation, either of receiving freedom from the United States Constitution, or of [the State] conferring the blessings of liberty upon the people; and the same is true of everyone of the thirty-six state constitutions. Each and all, alike, declare rights God-given, and that to secure the people in the enjoyment of their inalienable rights, is their one and only object in ordaining and establishing government. And all of the state constitutions are equally emphatic in their recognition of the ballot as the means of securing the people in the enjoyment of these rights.
Article 1 of the New York State Constitution says: “No member of this state shall be disfranchised or deprived of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.”
And so carefully guarded is the citizen’s right to vote, that the constitution makes special mention of all who may be excluded. It says: “Laws may be passed excluding from the right of suffrage all persons who have been or may be convicted of bribery, larceny, or any infamous crime.”
In naming the various employments that shall not affect the residence of voters, — the 3d section of Article 2d says “that being kept at any almshouse, or other asylum, at public expense; nor being confined in any public prison,” shall deprive a person of his residence. Thus is the right of voting most sacredly hedged about. The only seeming permission in the New York State constitution for the disfranchisement of women is in section 1st of Article 2d, which says: “Every male citizen of the age of twenty-one years, &c., shall be entitled to vote.”
But I submit, that in view of the explicit assertions of the right for the whole people, both in the preamble and previous article of the constitution, this omission of the adjective “female” in the 2d, should not be construed into a denial; but instead, counted as of no effect, in view of the direct prohibition, “No member of this state shall be disfranchised, unless by the law of the land, or the judgment of his peers.” “This supreme law of the land,” is the United States Constitution, and there is no provision in that document that can be fairly construed into a permission to the states to deprive any class of their citizens of their right to vote. Hence New York can get no power from that source to disfranchise one entire half of its members. Nor has “the judgment of their peers” been pronounced against women’s exercising their right to vote; nor the legislature passed laws excluding them on account of idiocy, or lunacy; nor the courts convicted them of bribery, larceny, or any infamous crime. Clearly, then, there is no constitutional ground for the exclusion of women from the ballot-box in the State of New York. No barriers, whatever, stand to-day between women and the exercise of their right to vote, save those of precedent and prejudice.
The clauses of the United States Constitution cited by our opponents, as giving power to the states to disfranchise any classes of citizens they shall please, are contained in sections 2d and 4th of the article 1st. The 2d 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.”
This cannot be construed into a concession to the states of the power to destroy the right to become an elector, but simply the power to prescribe what shall be the qualifications-competency of intellect, maturity of age, length of residence-that shall be deemed necessary to enable a person to make an intelligent choice of candidates. If, as our opponents assert, the last clause of this section makes it the duty of the United States to protect citizens in the several States against higher or different qualifications for electors for representatives in Congress, than for members of Assembly, then must the first clause make it equally imperative for the national government to interfere with the States, and forbid them from arbitrarily cutting off the right of one-half of the people to become electors altogether.
Section 4th says, “The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof; but Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators.”
Here is conceded the power only to prescribe the times, places, and manner of holding the elections, and even with these Congress may interfere with all excepting the mere place of choosing Senators. There is not the slightest permission for the states to discriminate against the right of any class of citizens to vote. Surely to regulate cannot be to annihilate! Nor to qualify, to wholly deprive. And this principle every republican said amen, when applied to black men by Senator Sumner in his great speeches for “Equal rights to all,” from 1865 to 1869; and when, in 1871, I asked the Senator to declare the power of the United States Constitution to protect women in their right to vote, as he had done for black men, he handed me a copy of all his speeches during that reconstruction period, and said,
Miss Anthony, put sex where I have “race or color,” and you have here the best and strongest argument I can make for woman. There is not a doubt but women have the constitutional right to vote, and I will never vote for a 16th amendment to guarantee it to them. I voted for both the 14th and 15th under protest. Would never have done it but for the pressing emergency; would have insisted that the power of the original Constitution to protect all citizens in the equal enjoyment of their rights should have been vindicated through the courts. But the newly-freed men had neither the intelligence, wealth, nor the time to wait that slow process. Women possess all these, and I insist that they shall appeal to the courts, and through them establish the powers of our American magna charta to protect every citizen of the Republic.
But, friends, when in accordance with Senator Sumner’s counsel, I went to the ballot-box, last November, and exercised my citizen’s right to vote, the courts did not wait for me to appeal to them — they appealed to me, and indicted me on the charge of having voted illegal.
Senator Sumner said,
Qualifications cannot be in their nature permanent of insurmountable. Sex cannot be a qualification any more than size, race, color, or previous condition of servitude. A permanent or insurmountable qualification is equivalent to a deprivation of the suffrage. In other words it is the tyranny of taxation without representation, against which our Revolutionary mothers as well as fathers rebelled.
For any state to make sex a qualification that must ever result in the disfranchisement of an entire half of the people, is to pass a bill of attainder, or ex post facto law, and is, therefore, a violation of the supreme law of the land. By it, the blessings of liberty are forever withheld from women and their posterity. To them, this government has no just powers derived from the consent of the governed. To women this government is not a democracy; it is not a republic; it is an odious aristocracy — a hateful oligarchy of sex! The most hateful aristocracy ever established on the face of the globe. An oligarchy of wealthy, where the rich govern the poor; an oligarchy of learning, where the educated govern the ignorant; or even an oligarchy of race, where the Saxon rules the Arican, might be endured; but this oligarchy of sex, which makes father, brothers, husband, sons, the oligarchs over the mother and sisters, the wife and daughters of ever household; which ordains all men sovereigns, all women subjects, carries dissension, discord and rebellion into ever home of the nation. And this most odious aristocracy exists, too, in the face of Section 4 of Article 4, which says, “The United States shall guarantee to every state in this Union a republican form of government.”
What, I ask you, is the distinctive difference between an inhabitant of a monarchical and those of a republican form of government, save that in the monarchical the people are subjects-helpless, powerless-bound to obey laws made by superiors — while in the republican the people are citizens, all clothed with equal power to make and unmake both their laws and law-makers, and the moment you deprive a person of his right to a voice in the government, you degrade him from the status of a citizen of the republic, to that of a subject, and it matters very little to him whether his monarch be an individual tyrant or a 15,000,000 headed monster — he is a powerless subject, serf or slave; not a free and independent citizen in any sense.
But, it is urged, the use of the masculine pronouns, he, his, and him, in all the constitutions is proof that only men were meant to be included in their provisions. If you insist on this version of the letter of the law, we shall insist that you be consistent and accept the other horn of the dilemma, and exempt women from taxation for the support of the government and from the penalties for the violation of laws.
A year ago I was at Walla Walla, Washington Territory. I saw there a theatrical company called the “Pixley Sisters,” playing before crowded houses every night of the whole week of the territorial fair. The eldest of those three fatherless girls was scarcely eighteen; yet every night a United States officer stretched out his long fingers and clutched $6 of the proceeds of the exhibitions of those orphan girls, who but a few years before were half starvlings in the streets of the capital of that far-off northwest territory. So the poor widow, who keeps a boardinghouse, manufactures shirts, or sells apples and peanuts on the street corners, is compelled to pay taxes from her scanty pittance. I would that the women of this Republic at once resolve never again to submit to taxation until their right to vote is recognized.
Miss Sarah E. Wall, of Worchester, Mass., twenty years ago, took this position. For several years the officers of the law distrained her property and sold it to meet the necessary amount; still she persisted, and would not yield an iota, through every foot of her lands should be struck off under the hammer. And now, for several years the assessor has left her name off the tax-list, and the collector passed her by without a call.
Mrs. J. S. Weedon, of Viroqua, Wis., for the past six years has refused to pay her taxes, through the annual assessment is $75.
Mrs. Ellen Van Valkenburg of Santa Cruz, Cal., who sued the county clerk for refusing to register her name, declares she will never pay another dollar of tax until allowed to vote. And all over the country women property-holders are waking up to the injustice of taxation without representation, and ere long will refuse en masse to submit to the imposition.
There is no she, or her, or hers, in the tax laws.
The statute of New York reads: “Every person shall be assessed in the town or ward where he resides when the assessment is made, for all lands owned by him &c.” “Every collector shall call at least once on the person taxed, or at his usual place of residence, and shall demand payment of the taxes charged on him.” If any one shall refuse to pay the tax imposed on him, the collector shall levy the same by distress and sale of his property.
The same is true of all criminal laws: “No person shall be compelled to be a witness against himself, &c.”
The same with the law of May 31st, 1870, the 19th section of which I am charged with having violated; not only are all the pronouns in it masculine, but everybody knows that that particular section was intended expressly to hinder the rebels from voting. It reads:
If any person shall knowingly vote without his having a lawful right,” &c. Precisely so with all the papers served on me — the U.S. Marshal’s warrant, the bail-bond, the petition for habeas corpus, the bill of indictment — not one f them had a feminine pronoun printed in it; but, to make them applicable to me, the Clerk of Court made a little carat [sic] at the left of “he” and placed an “s” over it, thus making she out of he. Then the letters “is” were scratched out the little carat under an “er” over, to make her out of his, and I insist if governments officials may thus manipulate the pronouns to tax, fine, imprison and hang women, women may take the same liberty with them to secure to themselves they right to a voice in the government.
So long as any classes of men were denied their right to vote, the government made a show of consistency, by exempting them from taxation. When a property qualification of $250 was required of black men in New York, they were not compelled to pay taxes, so long as they were content to report themselves worth less than that sum; but the moment the black man died, and his property fell to his widow or daughter, the black woman’s name would be put on the assessor’s list, and she be compelled to pay taxes on the same property exempted to her husband. The same is true of ministers in New York. So long as the minister lives, he is exempted from taxation on $1,500 of property, but the moment the breath goes out of his body, his widow’s name will go down on the assessor’s list, and she will have to pay taxes on the $1,500. So much for the special legislation in favor of women.
In all the penalties and burdens of the government (except the military) women are reckoned as citizens equally with men. Also in all the privileges and immunities, save those of the jury box and ballot box, the two fundamental privileges on which rest all others. The United States government not only taxes, fines, imprisons, and hangs women, but it allows them to pre-empt lands, register ships, and take out passports and naturalization papers. Not only does the law permit single women and widows to the right of naturalization, but sections 2d says, “a married woman may be naturalized without the concurrence of her husband.” (I wonder if the fathers were not afraid of creating discord in the families of foreigners.) And again:
“When an alien, having complied with the law and declared his intention to become a citizen, dies before he is actually naturalized, his widow and children shall be considered citizens, entitled to all rights and privileges as such, on taking the required oath.” If a foreign-born woman may become a naturalized citizen, entitled to all the rights and privileges of citizenship, is not a native woman, a born citizen possessed of equal rights and privileges?
This question of the masculine pronouns-yes, and nouns, too-has been settled by the United States Supreme Court in the case of Silver vs. Ladd, December, 1868, in a decision as to whether a woman was entitled to lands under the Oregon donation law of 1850. Elizabeth Caruthers settled upon a claim and received patents. She died, and her son was heir; he died. Then Messrs. Ladd and Knott took possession under the general pre-emption law, December, 1861. The administrator, C. S. Silver, applied for writ of ejectment at land office, Oregon City; both the register and receiver decided that an unmarried woman could not hold land under that law. The Commissioner of the General Land Office at Washington, and the Secretary of the Interior also, gave adverse opinions. Here patents were issued to Ladd and Knott and duly recorded. Then, a suit was brought to set aside Ladd’s patent, and it was carried through all the state counts and the Supreme Court of Oregon, each, in turn, giving adverse decisions. At last, in the United States Supreme Court, Associate Justice Miller reversed the decisions of all the lower tribunals, and ordered the land back to the heirs of Mrs. Caruthers. The court said:
In construing a benevolent statute of the government, made for the benefit of its own citizens, and inviting and encouraging them to settle on its distant public lands, the words ‘single man’ and ‘married man’ may, especially if aided by the context and other parts of the statute, be taken in a generic sense. Held, accordingly, that the fourth section of the act of Congress of 27th September, 1850, granting, by way of donation, lands in Oregon Territory to every white settler or occupant, American half-breed Indians included, embraced within the term single man, an unmarried woman.
And the attorney who carried this question to its final success is now the United States Senator elect from Oregon, Hon. J. H. Mitchell, in whom the cause of equal rights to all has an added power on the floor of the United States Senate.
Though the words persons, people, inhabitants, electors, citizens, are used indiscriminately in the national and state constitutions, there was always a conflict of opinion, prior to the war, as to whether they were synonymous terms. As for instance: “No person shall be a representative who shall not have been seven years a citizen, and who shall not, when elected, be an inhabitant of that state in which he is chosen.” “No person shall be a senator who shall not have been a citizen of the United States, and an inhabitant of the state of which he is chosen.”
But, whatever room there was for a doubt under the old regime, the adoption of the fourteenth amendment settled the question forever in its first sentence. “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.”
And the second settles the equal status of all persons-all citizens. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens; 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.”
The only question left to be settled here is, are women persons? And I hardly believe any of our opponents will have the hardihood to say they are not! Being persons, then women are citizens; and no state has a right to make any new law, or enforce any old law, that shall abridge their privileges or immunities. Hence every discrimination against women in constitutions and laws of the several states is to-day null and void-precisely as is every one against negros.
Is the right to vote one of the privileges and immunities of citizens? I think the disfranchised ex-rebels and ex-state prisoners will all agree with me that it is not only one of them, but the one without which all the others are nothing. Seek first the kingdom of the ballot and all things else shall be given thee, is the political injunction.
Webster, Worchester, and Bouvier all define citizen to be a person in the United States entitled to vote and hold office.
Prior to the adoption of the 13th amendment, by which slavery was forever abolished, and black men transformed from property to personality, the judicial decisions of the country were in harmony with these definitions. To be a person was to be a citizen; and to be a citizen was to be a voter.
Associate Justice Washington, one of the most distinguished judges of the Supreme Court, in defining the privileges and immunities of the citizen, more than fifty years ago, said: “they include all such privileges as are fundamental in their nature.” And “among them is the right to exercise the elective franchise and to hold office, as provided for by the laws of the various states.”
Even the “Dred Scott” decision, pronounced by abolitionists and republicans infamous, because it virtually declared “black men had no rights white men were bound to respect,” gave this true and logical conclusion, that to be one of the people was to be a citizen and a voter.
Chief Judge Daniel said: “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 considered as conferring the actual possession and enjoyment, or the perfect right of acquisition and enjoyment, of an entire equality of privileges, civil and political.”
Associate Justice Taney said: “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 great people and a constituent member of this sovereignty.”
Thus does Judge Taney’s decision, which was such a terrible ban to the black man while he was a slave, now, that he is a person, no longer property, pronounce him a citizen, possessed “of an entire equality of privileges, civil and political.” And not only the black man, but the black woman, and all women as well.
And it was not until after the 13th amendment, by which the slaves became free men, hence citizens, that United States Attorney-General Bates rendered a contrary opinion. He said:
The Constitution uses the word ‘citizen’ only to express the political quality (not equality mark) of the individual in his relation to the nation-to declare that he is a member of the body politic, and bound to it by the reciprocal obligations of allegiance on the one side and protection on the other. The phrase, “a citizen of the United States,” without addition or qualification, means neither more nor less than a member of the nation.
Then, to be a citizen of this republic is no more than to be a subject of an empire! You and I, and all true and patriotic citizens, must repudiate this base conclusion. We all know that American citizenship, without addition or qualification, means the possession of equal rights, civil and political. We all know that the crowning glory of every citizen of the United States is that he can either give or withhold his vote from every law and every legislator under the government.
Did “I am a Roman citizen!” mean nothing more than that I am a “member” of the body politic of the republic of Rome, bound to it by the reciprocal obligations of allegiance on the one side and protection on the other? Ridiculously absurd question, you say. Well, when you and I travel abroad among the monarchies of the old world, and there proudly boast ourselves “American citizens,” do we thereby declare ourselves neither more nor less than “members” of the American nation?
And this opinion of Attorney-General Bates, that a black citizen was not a voter, made merely to suit the political exigency of the republican party in that transition hour between emancipation and enfranchisement, was no less infamous in spirit or purpose than was the decision of Judge Taney that a black man was not one of the people, rendered in the interest and at the behest of the old democratic party in its darkest hour of subjection to the slave power. Nevertheless, all of the adverse arguments, Congressional reports, and judicial opinions, thus far, have been based on this purely partisan, time-serving opinion of Gen. Bates-that the normal condition of the citizen of the Unites States is that of disfranchisement. That only such classes of citizens as have had special legislative guarantee have a legal right to vote.
And if this decision of Attorney-General Bates was infamous as against black men, but yesterday plantation slaves, what shall we pronounce upon Judge Bingham, in the House of Representatives, and Carpenter, in the Senate of the United States, for citing it against the women of the entire nation, vast numbers of whom are the peers of those honorable gentlemen themselves, in morals, intellect, culture, wealth, family; paying taxes on large estates, and contributing, equally with themselves and their sex, in every direction, to the growth, prosperity, and well-being of the republic? And what shall be said of the judicial opinions of Judges Cartter, Jameson, McKee, Sharswood, all based on this aristocratic, monarchical idea of the right of one class to govern another.
I am proud to mention the names of two United States judges who have given opinions honorable to our republican idea and honorable to themselves-Judge Howe, of Wyoming Territory, and Judge Underwood, of Virginia.
The former gave it as his opinion a year ago, when the legislature seemed likely to revoke the law enfranchising the women of that territory, that in case they succeeded the women would still possess the right to vote under the 14th amendment.
Judge Underwood, of Virginia, in noticing the recent decision of Judge Cartter of the Supreme Court of the District of Columbia, denying to women the right to vote under the fourteenth and fifteenth amendments, writes: “If the people of the United States, by amendment of their Constitution, could expunge, without any explanatory or assisting legislation, an adjective of five letters from all state and local constitutions, and thereby raise millions of our most ignorant fellow-citizens to all the rights and privileges of electors, why could not the same people, by the same amendment, expunge an adjective of four letters from the state and local constitutions, and thereby raise other millions of more educated and better informed citizens to equal rights and privileges, without explanatory or assisting legislation?”
If the fourteenth amendment does not secure to all citizens the right to vote, for what purpose was the grand old charter of the fathers lumbered with its unwieldy proportions? The republican party and Judges Howard and Bingham, who drafted the document, pretended it was to do something for black men; and if that something was not to secure them in their right to vote and hold office, what could it have been? By the 13th amendment black men became people, and hence were entitled to all the privileges and immunities of the government precisely as were the women of the country, and foreign men, not naturalized. According to Associate Justice Washington they already had the protection of the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject to such restraints as the government may justly prescribe for the general welfare of the whole; the right of a citizen of one state to pass through, or to reside in any other state, for the purpose of trade, agriculture, professional pursuit, or otherwise; to claim the benefit of the writ of habeas corpus, to institute and maintain actions of any kind in the courts of the state; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the state.
Thus, you see, those newly-freed men must have been in possession of every possible right, privilege, and immunity of the government, except that of suffrage; and hence no more needed a constitutional amendment for any other purpose than did the women and foreigners not naturalized. What right, I ask you, has the Irishman the day after he receives his naturalization papers, that he did not possess the day before, save the right to vote and hold office? And the Chinamen, now crowding our Pacific coast, are in precisely the same position. What privilege or immunity has California or Oregon the constitutional right to deny them, save that of the ballot? Clearly, then, if the 14th amendment was not to secure to black men their right to vote, it did nothing for them, since they possessed everything else before. But if it was meant to be a prohibition of the states to deny or abridge their right to vote, which I fully believe, then it did the same for “all persons”-white women included-“born or naturalized in the United States”; the amendment does not say all “male” persons of “African” decent, but all persons are citizens.
The second section is simply a threat to punish the states by reducing their representation by reducing their representation of the floor of Congress, should they disfranchise any of their “male” citizens on account of color: and does not allow of the inference that the states may disfranchise their citizens from any or all other causes; nor in anywise weaken or invalidate the universal guarantee of the 1st section. What rule of law or logic would allow the conclusion that the prohibition of one crime on severe pains and penalties was a sanction of any and all other crimes, save that one?
But, however much the doctors of the law may disagree as to whether people and citizens, in the original Constitution, were one and the same, or whether “the privileges and immunities” in the 14th amendment includes the right of suffrage, the question of “the citizens’ right to vote” is settled forever by the 15th amendment. Neither “the United States nor any state thereof shall deny or abridge the citizens’ right to vote on account of race, color, or previous condition of servitude.” How can the state deny or abridge the right of the citizen, if the citizen does not possess it? There is no escape from the conclusion, that to vote is the citizens’ right; and the specifications of “race, color, or previous condition of servitude” can in no way impair the force of the assertion, “The citizens’ right to vote shall not be denied or abridged.”
The political strategy of the second section of the 14th amendment failing to coerce the rebel states into enfranchising their negroes, and the necessities of the republican party demanding their votes throughout the South, that party was compelled to place this positive prohibition upon the United States and all the states thereof.
If we once establish the false principle that United States citizenship does not carry with it the right to vote in every state in this Union, there is no end to the petty freaks and cunning devices that will be resorted to to exclude one and another class of citizens from suffrage.
It will not always be men combining to disfranchise all women; native born men combining to abridge the rights of all naturalised citizens, as in Rhode Island. It will not always be the rich and educated who may combine to cast off the poor and ignorant. But we may live to see the poor, hard working uncultivated day laborers, foreign and native born, learning the power of the ballot and their vast majority of numbers, combine and amend state constitutions to disfranchise the Vanderbilts and A.T. Stewarts, the Conklings and Fentons. It is a poor rule indeed that won’t work both ways. Indeed, establish this precedent, admit this right to deny suffrage to the states, and there is no power to forsee the confusion, discord, and disruption that awaits us. There is, and can be, but one safe principle of government-equal rights to all. Any and every discrimination against any class, whether on account of color, race, nativity, sex, property, or culture, imbitters and disappoints that class, and thereby endangers the safety of the whole people.
Clearly, then, the national government must not only define the rights of citizens, but it must stretch its power and protect them in every state in this union.
But if you will insist that this emphatic interdiction against robbing United States citizens of their right to vote, on account of race, color, or previous condition of servitude, is a recognition of the right, either of the United States, or any state, to rob citizens of that right for any or all other reasons, I will prove to you that the class of citizens for which I now plead, and to which I belong, may be and are, by all the principles of our government, and many of the laws of the states, included under the term of “previous condition of servitude.”
First. — The married women and their legal status. What is servitude? “The condition of a slave.” What is a slave? “A person who is robbed of the proceeds of his labor.” “A person who is subject to the will of another.”
By the law of Georgia, South Carolina, and all the states of the South, the negro had no right to the custody and control of his person; he belonged to his master. If he was disobedient, the master had the right to use correction. If the negro didn’t like correction and attempted to run away, the master had a right to use coercion to bring him back.
By the law of every state in this Union to-day, North as well as South, the married woman has no right to the custody and control of her person. The wife belongs to her husband; and if she refuses obedience to his will, he may use moderate correction; and if she doesn’t like his moderate correction and attempts to leave his “bed and board,” the husband may use moderate coercion to bring her back. The little word “moderate,” you see, is the saving clause for the wife, and would doubtless be overstepped should her offended husband administer his correction with the “cat-o’-nine-tails”; or accomplish his coercion with bloodhounds.
Again, the slave had no right to the earnings of his hands; they belonged to his master. No right to the custody of his children; no right to sue or be sued in the courts. If he committed a crime, it was the master who must sue or be sued.
In many of the states there has been special legislation giving to married woman the right to property inherited, or received by bequest or earned by the pursuit of any avocation outside of the home; also giving her the right to sue and be sued in matters pertaining to such separate property; but not a single state of this Union has ever secured the wife in the enjoyment of her right to the joint ownership of the joint earnings of the marriage copartnership. And since, in the nature of things, the vast majority of married women never earn a dollar by work outside of their families, nor inherit a dollar from their fathers, it follows, that form the day of their marriage to the day of the death of their husbands, not one of these every has a dollar, except it shall please her husband to let her have it.
In some of the states, also, there have been laws passed giving to the mother a joint right with the father in the guardianship for the children. But twenty years ago, when our woman’s rights movement commenced, by the laws of the State of New York and all the states, the father had the sole custody and control of the children. No matter if he were a brutal, drunken libertine, he had the legal right, without the mother’s consent, to apprentice her sons to rum-sellers, or her daughters to brothel-keepers. He could even will always an unborn child to some other person than the mother. And in many of the states the law still prevails, and the mothers are utterly powerless under the old common law.
I doubt if there is today a state in the Union, where a married woman can sue or be sued for slander of character, and until quite recently there was not one in which she could sue or be sued for damage of person. However damaging to the wife’s reputation any slander may be, she is wholly powerless to institute legal proceedings against her accuser, unless her husband shall join with her; and how often we have heard of the husband conspiring with some outside barbarian to blast the good name of his wife. If in our frequent and shocking railroad accidents a married woman is injured in her person, in nearly all of the states, it is her husband who must sue the company, and it is to her husband that the damages, if there are any, will be awarded. In Ashfield, Massachusetts, supposed to be the most advanced of any state in the Union in all things humanitarian as well as intellectual, a married woman was severely injured by a defective sidewalk. Her husband sued the corporation and recovered $13,000 damages. And those $13,000 belong to him bona fide; and whenever that unfortunate woman wishes a dollar of it to supply her needs, she must ask him for it; and if the man be of a narrow, selfish, niggardly nature, she will have to hear him say every time, “What have you done with the twenty-five cents I gave you yesterday?” Isn’t such a position, I ask you, humiliating enough to be called “servitude?” That husband, as would any other husband in nearly every state of this Union, sued and obtained damages for the loss of the services of his wife, precisely as the master, under the old slave-regime, would have done, had his slave been injured; and precisely as he himself would have done, had it been his ox, cow, or horse, instead of his wife.
There is an old saying that “A rose by any other name would smell as sweet.” And I submit if the deprivation by law of the right of ownership of one’s own person, wages, property, children; the denial of the right of an individual to sue and be sued in the courts is not a condition of servitude most bitter and absolute, though under the sacred name of marriage.
Does any lawyer doubt my statement of the legal status of married women? I will remind him of the fact that the old common law of England prevails in every state in this Union except where the legislature has enacted special laws annulling it. And I am ashamed that not one state has yet blotted from its statute books the old common law of marriage, by which Blackstone, summed up in the fewest words possible, declared that “The husband and wife are one, and that one is the husband!!”
Thus may all married women, wives and widows, by the laws of the several states, be technically included in the fifteenth amendment’s specification of “condition of servitude,” present or previous. And not only married women, but I will also prove to you that, by all the great fundamental principles of our free government, the entire womanhood of the nation is in the “condition of servitude” as surely as were our revolutionary fathers when they rebelled against Old King George. Women are taxed without representation, governed without their consent, tried, convicted, and punished without a jury of their peers!! And is all this tyranny any less humiliating and degrading to women, under our democratic republic government to-day, than it was to men, under their aristocratic, monarchical government a hundred years ago? There is not an utterance of Old John Adams, John Hancock, or Patrick Henry but finds a living response in the soul of every intelligent, patriotic woman of the nation. Bring me a common-sense woman property-holder, and I will show you a woman whose soul is fired with all the indignation of a man of 1776 every time the tax-gatherer presents himself at her door. You will not find one such woman but feels her condition of servitude as galling as did James Otis, when he said:
The very act of taxing exercised over those who are not represented appears to me to be depriving them of one of their most essential rights; and, if continued, seems to be in effect an entire disfranchisement of every civil right. For what one civil right is worth a rush, after a man’s property is subject to be taken from him at pleasure, without his consent? If a man is not his own assessor, in person or by deputy, his liberty is gone, or he is wholly at the mercy of others.
What was the three-penny tax on tea, or the paltry tax on paper and sugar, to which our revolutionary fathers were subjected when compared with the taxation of women of this republic? Those orphaned Pixley sisters, $6 a day; and even the women who are proclaiming the tyranny of our taxation without representation from city to city throughout the country, are compelled to pay a tax for the poor privilege of defending our rights. And, again, to show you that disfranchisement was precisely the slavery of which the fathers complained, allow me to cite to you Old Ben Franklin, who in those olden times was admitted to be good authority, not merely in domestic economy, but political as well. He said:
Every man of the commonalty [sic], except infants, insane persons, and criminals, is, of common right and by the laws of God, a freeman, and entitled to the free enjoyment of liberty. That liberty or freedom consists in having an actual share in the appointment of those who frame the laws, and who are to be the guardians of every man’s life, property, and peace. For the all of one man is as dear to him as the all of another; and the poor man has an equal right, but more need, to have representatives in the legislature than the rich one. That they who have no voice nor vote in the electing of representatives do not enjoy liberty, but are absolutely enslaved to those who have votes and to their representatives; for to be enslaved is to have governors whom other men have set over us, and to be subject to laws made by the representatives of others, without having had representatives of our own to give consent in our behalf.
Suppose I read it with the feminine gender:
That “women who have no voice nor vote in the electing of representatives do not enjoy liberty, but are absolutely enslaved to men who have votes and their representatives; for the be enslaved is to have governors whom men have set over us, and to be subject to laws made by the representatives of men, without having had representatives of our own to give consent in our behalf.
And yet one more authority; that of Thomas Paine, than whom not one of the revolutionary patriots more ably vindicated the principles upon which our government is founded:
The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce man to a state of slavery; for slavery consists in being subject to the will of another. And he that has not a vote in the election of representatives is in this case. The proposal, therefore, to disfranchise any class of men is as criminal as the proposal to take away property.
Is anything further needed to prove woman’s “condition of servitude” sufficiently orthodox to entitle her to the guarantees of the fifteenth amendment?
Is there a man who will not agree with me, that to talk of “freedom without the ballot” is mockery, is slavery, to the women of this republic, precisely as New England’s orator, Wendell Phillips, at the close of the late war declared it to be to the newly emancipated black men?
I admit that prior to the rebellion, by common consent, the right to enslave as well as to disfranchise both native and foreign born citizens, was conceded to the states. But the one grand principle, settled by the war and the reconstruction legislation, is, the supremacy of national power to protect the citizens of the United States in their right to freedom and the elective franchise, against any and every interference on the part of the several states. And again and again, have the American people asserted the triumph of this principle, by their own overwhelming majorities for Lincoln and Grant.
The one issue of the last two presidential elections was, whether the 14th and 15th amendments should be considered the irrevocable will of the people; and the decision was, they shall be — and that it is not only the right, but the duty of the national government to protect all United States citizens in the full enjoyment and free exercise of all their privileges and immunities against any attempt of any state to deny or abridge.
And in this conclusion, Republicans and Democrats alike agree. Senator Frelinghuysen said, “The heresy of state rights has been completely buried in these amendments; that as amended the Constitution confers not only national, but state citizenship upon all persons born or naturalized within our limits.”
The Call for the National Republican Convention said, “Equal suffrage has been engrafted on the national Constitution; the privileges and immunities of American citizenship have become a part of the organic law.”
The National Republican Platform said: “Complete liberty and exact equality in the enjoyment of all civil, political, and public rights, should be established and maintained throughout the Union by efficient and appropriate state and federal legislation.”
If that means anything, it is that Congress should pass a law to require the states to protect women in their equal political rights; and that the states should enact laws making it the duty for the inspectors of elections to receive women’s votes, on precisely the same conditions they do those of men.
Judge Stanley Matthews, a substantial Ohio Democrat, in his preliminary speech at the Cincinnati Convention, said, most emphatically: “The constitutional amendments have established the political equality of all citizens before the law.”
Democratic Judge Geo. W. Woodward of Pennsylvania, though opposed to woman suffrage, believing it will prove disastrous both to women and the government, said, “There is not a doubt that women have the constitutional right to vote under the guarantees of the fourteenth and fifteenth amendments.” The California State Republican Convention said, “Among the many practical and substantial triumphs of the principles achieved by the National Republican Party, during the past twelve years, it enumerated with pride and pleasure the prohibiting any state from abridging the privileges of any citizen of the Republic; the declaring the civil and political equality of every citizen; and the establishing all these principles in the Federal Constitution by amendments thereto, as the permanent law.”
Benjamin F. Butler, in a recent letter to me said, “I do not believe anybody in Congress doubts that the Constitution authorizes the right of women to vote, precisely as it authorizes trial by jury and many other like rights guaranteed to citizens.” And again General Butler said,
It is not laws we want; there are plenty of laws, good enough too. Administrative ability to enforce law is the great want of the age; in this country especially. Everybody talks of law, law. If everybody would insist on the enforcement of law, the government would stand on a firmer basis; and questions would settle themselves.
And lastly, President Grant, in his late message to Congress, speaks approvingly of the disbursements through the Department of Justice having been “increased by the recent acts of Congress to enforce the rights of citizens of the United States to vote in several states of the Union.” Again he speaks of lawless men combining “to deprive other citizens of the rights guaranteed to them by the Constitution of the United States, and then says, I do not doubt that a great majority of the people in all parts of the country favor full enjoyment by all classes of persons of those rights to which they are entitled under the Constitution and laws. And I invoke the aid and influence of all good citizens to prevent, by all lawful means, any interference with those rights.”
[President Grant, in his message to Congress March 30th, 1870, on the adoption of the fifteenth amendment, said: “A measure which makes at once four millions of people voters, is indeed a measure of greater importance than any act of the kind from the foundation of the Government to the present time. How could four millions [sic] negroes be made voters if two millions were not included?]
And it is upon this conclusion of “the citizens’ constitutional right to vote” that our National Woman Suffrage association has based its argument and action for the last four years. We no longer petition legislature nor congress to give us the right to vote. We appeal to the women everywhere to assume their too long neglected “citizen’s right to vote.” We appeal to the inspectors of elections everywhere to receive the votes of all United States citizens as it is their duty to do. We appeal to United States commissioners and marshals to arrest the inspectors who reject the names and votes of United States citizens, as it is their duty to do, and leave alone those who, like our eighth ward inspectors, perform their duties faithfully and well.
We ask the courts to render true and unprejudiced opinions of the law, and wherever there is room for a doubt to give its benefit on the side of liberty and equal rights to all citizens, remembering that “the true rule of interpretation under our national constitution, especially since its amendments, is that anything for human rights is constitutional, everything against human rights unconstitutional.”
We ask the juries to fail to return a verdict of “guilty” against honest, law-abiding, tax paying United States citizens for offering their votes, at our elections. Or against intelligent, worthy young men, inspectors of elections, for receiving and counting such citizens’ votes.
And it is on this line that we propose to fight our battle for the ballot-all peaceably, but nevertheless persistently through to complete triumph, when all United States citizens shall be recognized as equals before the law.
Source: The Selected Papers of Elizabeth Cady Stanton and Susan B. Anthony, Volume II: An Aristocracy of Sex, 1866-1873. ed. And D. Gordon (New Brunswick, NJ: Rutgers), 2000.
Also: Man Cannot Speak for Her, Volume II: Key Texts of the Early Feminists, ed. Karlyn Kohrs Campbell (New York: Greenwood Press), 1989, pp. 280-316.