Volume II Part 100 (1/2)

The Amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens ent.i.tled to suffrage under the Const.i.tution and laws of the States, but it operates for this purpose, if at all, through the States and the State laws, and not directly upon the citizen.

It is clear, therefore, we think, that the Const.i.tution has not added the right of suffrage to the privileges and immunities of citizens.h.i.+p as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was co-extensive with the citizens.h.i.+p of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizens.h.i.+p, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be a.s.sumed.

When the Const.i.tution of the United States was adopted, all the several States, with the exception of Rhode Island, had const.i.tutions of their own. Rhode Island continued to act under its charter from the Crown. Upon an examination of those const.i.tutions, we find that in no State were all citizens permitted to vote. Each State determined for itself who should have that power.

Thus, in New Hamps.h.i.+re, ”every male inhabitant of each town and parish, with town privileges and places unincorporated in the State, of twenty-one years of age and upwards, excepting paupers and persons excused from paying taxes at their own request,” were its voters; in Ma.s.sachusetts, ”every male inhabitant of twenty-one years of age and upwards, having a freehold estate within the Commonwealth of the annual income of three pounds, or any estate of the value of sixty pounds”; in Rhode Island, ”such as are admitted free of the company and society” of the colony; in Connecticut, such persons as had ”maturity in years, quiet and peaceful behavior, a civil conversation, and forty s.h.i.+llings freehold or forty pounds personal estate,” if so certified by the selectmen; in New York, ”every male inhabitant of full age, who shall have personally resided within one of the counties of the State for six months immediately preceding the day of election, ... if during the time aforesaid he shall have been a freeholder, possessing a freehold of the value of twenty pounds within the country, or have rented a tenement therein of the yearly value of forty s.h.i.+llings, and been rated and actually paid taxes to the State”; in New Jersey, all inhabitants ... of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided in the county in which they claim a vote for twelve months immediately preceding the election”; in Pennsylvania, ”every freeman at the age of twenty-one years, having resided in the State two years next before the election, and within that time paid a State or county tax which shall have been a.s.sessed at least six months before the election”; in Delaware and Virginia, ”as exercised by law at present”; in Maryland, ”all freeman above twenty-one years of age, having a freehold of fifty acres of land in the county in which they offer to vote and residing therein, and all freemen having property in the State above the value of thirty pounds current money, and having resided in the county in which they offer to vote one whole year next preceding the election”; in North Carolina, for Senators, ”all freemen of the age of twenty-one years, who have been inhabitants of any one county within the State twelve months immediately preceding the day of election, and possessed of a freehold within the same county of fifty acres of land for six months next before and at the day of election,” and for members of the House of Commons, ”all freemen of the age of twenty-one years, who have been inhabitants in any one county within the State twelve months immediately preceding the day of any election, and shall have paid public taxes”; in South Carolina, ”every free white man of the age of twenty-one years, being a citizen of the State, and having resided therein two years previous to the day of election, and who hath a freehold of fifty acres of land, or a town lot of which he hath been legally seized and possessed at least six months before such election, or (not having such freehold or town lot), hath been a resident within the election district in which he offers to give his vote six months before said election, and hath paid a tax the preceding year of three s.h.i.+llings sterling toward the support of the Government”; and, in Georgia, such ”citizens and inhabitants of the State as shall have attained to the age of twenty-one years, and shall have paid tax for the year next preceding the election, and shall have resided six months within the county.”

In this condition of the law in respect to suffrage in the several States, it can not for a moment be doubted that, if it had been intended to make all citizens of the United States voters, the framers of the Const.i.tution would not have left it to implication. So important a change in the condition of citizens.h.i.+p as it actually existed, if intended, would have been expressly declared.

But if further proof is necessary to show that no such change was intended, it can easily be found both in and out of the Const.i.tution. By article 4, section 2, it is provided that ”the citizens of each State shall be ent.i.tled to all the privileges and immunities of citizens in the several States.” If suffrage is necessarily a part of citizens.h.i.+p, then the citizens of each State must be ent.i.tled to vote in the several States precisely as their citizens are. This is more than a.s.serting that they may change their residence and become citizens of the State and thus be voters. It goes to the extent of insisting that, while retaining their original citizens.h.i.+p, they may vote in any State.

This, we think, has never been claimed. And again, by the very terms of the Amendment we have been considering (the XIV).

”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 partic.i.p.ation in the Rebellion or other crimes, 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.”

Why this, if it was not in the power of the Legislature to deny the right of suffrage to some male inhabitants? And if suffrage was necessarily one of the absolute rights of citizens.h.i.+p, why confine the operation of the limitation to male inhabitants?

Women and children are, as we have seen, ”persons.” They are counted in the enumeration upon which the apportionment is to be made; but if they were necessarily voters because of their citizens.h.i.+p unless clearly excluded, why inflict the penalty for the exclusion of males alone? Clearly, no such form of words would have been selected to express the idea here indicated if suffrage was the absolute right of all citizens.

And still again, after the adoption of the XIV. Amendment, it was deemed necessary to adopt a XV., as follows: ”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.” The XIV.

Amendment had already provided that no State should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Const.i.tution to prevent its being denied on account of race, etc.? Nothing is more evident than that the greater must include the less; and if all were already protected, why go through with the form of amending the Const.i.tution to protect a part?

It is true that the United States guarantees to every State a republican form of government (art. 4, sec. 4). It is also true that no State can pa.s.s a bill of attainder (art. 1, section 10), and that no person can be deprived of life, liberty, or property, without due process of law (Amendment V). All these several provisions of the Const.i.tution must be construed in connection with the other parts of the instrument, and in the light of the surrounding circ.u.mstances.

The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended. The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Const.i.tution was adopted. In all, the people partic.i.p.ated to some extent through their representatives elected in the manner specially provided. These governments the Const.i.tution did not change. They were accepted precisely as they were, and it is therefore to be presumed that they were such as it was the duty of the States to provide. Thus, we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Const.i.tution. As has been seen, all the citizens of the States were not invested with the right of suffrage. In all, save perhaps New Jersey, this right was only bestowed upon men, and not upon all of them. Under these circ.u.mstances, it is certainly now too late to contend that a Government is not republican within the meaning of this guaranty in the Const.i.tution because women are not made voters.

The same maybe said of the other provisions just quoted. Women were excluded from suffrage in nearly all the States by the express provision of their const.i.tutions and laws. If that had been equivalent to a bill of attainder, certainly its abrogation would not have been left to implication. Nothing less than express language would have been employed to effect so radical a change. So also of the Amendment which declares that no person shall be deprived of life, liberty, or property, without due process of law; adopted as it was as early as 1791. If suffrage was intended to be included within its obligations, language better adapted to express that intent would most certainly have been employed. The right of suffrage, when granted, will be protected. He who has it can only be deprived of it by due process of law; but, in order to claim protection, he must first show that he has the right. But we have already sufficiently considered the proof found upon the inside of the Const.i.tution.

That upon the outside is equally effective.

The Const.i.tution was submitted to the States for adoption in 1787, and was ratified by nine States in 1788, and, finally, by the thirteen original States in 1790. ”Vermont was the first new State admitted to the Union, and it came in under a Const.i.tution which conferred the right of suffrage only upon men of the full age of twenty-one years, having resided in the State for the s.p.a.ce of one whole year next before the election, and who were of quiet and peaceable behavior. This was in 1791. The next year (1792) Kentucky followed, with a Const.i.tution confining the right of suffrage to free male citizens of the age of twenty-one years, who had resided in the State two years, or, in the county in which they offered to vote, one year next before the election.

Then followed Tennessee in 1796, with voters of freemen of the age of twenty-one years and upward, possessing a freehold in the county wherein they may vote, and being inhabitants of the State or freemen being inhabitants of any one county in the State six months immediately preceding the day of election. But we need not particularize further. No new State has ever been admitted to the Union which has conferred the right of suffrage upon women, and this has never been considered a valid objection to her admission. On the contrary, as is claimed in the argument, the right of suffrage was withdrawn from women as early as 1807 in the State of New Jersey, without any attempt to obtain the interference of the United States to prevent it. Since then the governments of the insurgent States have been reorganized under a requirement that, before their Representatives could be admitted to seats in Congress, they must have adopted new Const.i.tutions, republican in form. In no one of these Const.i.tutions was suffrage conferred upon women, and yet the States have all been restored to their original position as States in the Union.

Besides this, citizens.h.i.+p has not in all cases been made a condition precedent to the enjoyment of the right of suffrage.

Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circ.u.mstances vote. The same provision is to be found in the Const.i.tutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas.

Certainly if the courts can consider any question settled, this is one. For near ninety years the people have acted upon the idea that the Const.i.tution, when it conferred citizens.h.i.+p, did not necessarily confer the right of suffrage. If uniform practice long continued can settle the construction of so important an instrument as the Const.i.tution of the United States confessedly is, most certainly it has been done here. Our province is to decide what the law is, not to declare what it should be.

We have given this case the careful consideration its importance demands. If the law is wrong it ought to be changed, but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. No argument as to woman's need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hards.h.i.+p of withholding. Our duty is at an end, if we find it is within the power of a State to withhold.

Being unanimously of the opinion that the Const.i.tution of the United States does not confer the right of suffrage upon any one, and that the Const.i.tutions and laws of the several States which commit that important trust to men alone are not necessarily void, we affirm the judgment of the court below.

Soon after the decision on Mrs. Minor's case, Mrs. Gage, in a convention at Was.h.i.+ngton, ably reviewed Judge Waite's opinion, showing that the United States has eight cla.s.ses of voters. She said:

Chief justice Waite, in rendering the opinion of the Supreme Court of the United States, in the Minor _vs._ Happersett case, which was an appeal from the Supreme Court of Missouri, on the question of woman's right to vote under the provisions of the XIV. Amendment, decided against this right. The court maintained that the United States Const.i.tution does not confer the right of suffrage on any person, and that the matter is regulated by State Const.i.tutions, and that when provision is made in them extending the right of suffrage to men only, such provisions are binding. It also declared that the United States had no voters in the States of its own creation. But this a.s.sertion was false upon the very face of it.

1st. Every enfranchised male slave had the ballot secured him under United States law--a law which annulled all State provisions against color. At the time of ratification of the last amendments, the State of New York possessed a property qualification of $250. The moment these amendments were ratified, that law became dead on the statute book. The New York Legislature did not repeal it. The United States repealed this property prohibition, by creating a cla.s.s of United States voters out of colored men. So here is one cla.s.s of United States voters, and a clear mistake on the part of Chief-Justice Waite and the Supreme Court. But the United States has often exercised its power over the ballot more directly than through const.i.tutional amendments; for,

2d. Every Southern man disfranchised because of having taken part in the war, and who has since been granted amnesty, has again been made a voter through United States law; all such men then became United States voters. Here is a second cla.s.s of United States voters, and a second mistake of Chief Justice Waite and the Supreme Court. It may be answered that the revolted States were in the condition of Territories at the time of this disfranchis.e.m.e.nt, and therefore under direct control of the National Government. Admitting this, we still know that general amnesty was granted after reconstruction; after State forms of government had again been organized, the nation exercised its power over the ballot by restoring thousands of men to their political rights--to citizens.h.i.+p. And from the general law of amnesty for the rank and file, the leaders in the rebellion were again and again, by special Acts of Congress, re-endowed with the ballot. No amendment was submitted or expected. The authority of Congress thus to restore to these men the use of the ballot was unquestioned.

3d. The naturalized foreigner secures his right to vote under United States law, and can not vote unless he first becomes an United States citizen, or announces his intention of so becoming.

In Missouri, Nebraska, and some other States, the declaration of such intention permits him to vote. This is a State regulation, but the fact of his United States citizens.h.i.+p must in some form first exist. In the naturalized man is a third cla.s.s of United States voters. With one and the same hand he at the same moment picks up his naturalization papers and his ballot. It matters not what the State law may be, the foreigner secures his vote under United States law. And here is a third cla.s.s of United States voters and a third mistake of Chief-Justice Waite and the Supreme Court.