CHAPTER I.. Woman's Constitutional Right to Vote.

WOMAN'S CONSTITUTIONAL RIGHT TO VOTE.

In the early days of the movement to enfranchise women, no other method was considered than that of altering the constitution of each individual State, as it was generally accepted that the right to prescribe the qualifications for the suffrage rested entirely with the States and that the National Constitution could not be invoked for this purpose. While the word "male" was not used in this document, yet with the one exception of New Jersey, where women exercised the full suffrage from the adoption of its first constitution in 1776 until 1807, there is no record of any woman's being permitted to vote. At the inception of the republic women were almost wholly uneducated; they were unknown in the industrial world; there were very few property owners among them; the manifold exactions of domestic duties absorbed all their time, strength and interest; and for these and many other causes they were not public factors in even the smallest sense of the word. One could readily believe that the founders of the Government never imagined a time when women would ask for a voice were it not for the significant fact that every State constitution, except the one mentioned above, was careful to put up an absolute barrier against such a contingency by confining the elective franchise strictly to "male" citizens--and there it has stood impassable down to the present day.

It was almost the exact middle of the nineteenth century before the first demand was made by women for the right to represent themselves--the right for which their forefathers had fought a seven-years' war, and the one which had been made the corner-stone of the new Government. The complete story of the startling results which followed this demand never has been told but once, and that was when Vol. I of this History of Woman Suffrage was written. It was related then by the two who were the principal personages in a period which tried women's souls as they were never tried before--Elizabeth Cady Stanton and Susan B. Anthony.

This movement for the freedom of women was scarcely launched when the long-threatened Civil War broke forth and precipitated the struggle for the liberty of another class whose slavery seemed far more terrible than the servitude of white women. The five years' ordeal which followed developed women as all the previous centuries had not been able to do, and when peace reigned once more, when an entire race had been born into freedom and the republic had been consecrated anew, the whole status of the American woman had been changed and the lines which circumscribed her old sphere had been forever obliterated. Women were studying laws, constitutions and public questions as never before in all history, and, as they saw millions of colored men endowed with the full prerogatives of citizenship, they began to ask, "Am I not also a citizen of this great republic and entitled to all its rights and privileges?"

Up to this time the word "male" never had appeared in the Federal Constitution. In 1865, when the leaders among women were beginning to gather up their scattered forces, and the Fourteenth Amendment was under discussion, they saw to their amazement and indignation that it was proposed to incorporate in that instrument this discriminating word. Miss Anthony was the first to sound the alarm, and Mrs. Stanton quickly came to her aid in the attempt to prevent this desecration of the people's Bill of Rights. The thrilling account of their efforts to thwart this highhanded act, their abandonment in consequence by nearly all of their co-workers before and during the war, their anger and humiliation at seeing the former slaves, whom they had helped to free, made their political superiors and endowed with a personal representation in Government which women had been pilloried for asking--all this is graphically told in Vol. II of the History of Woman Suffrage, Chaps. XVII and XXI. The story with many personal touches is also related in the Life and Work of Susan B. Anthony, Chaps. XV and XVI.

The Fourteenth Amendment was declared adopted July 28, 1868, and the women felt that the ground had been swept from beneath their feet, as now the barriers opposed to their enfranchisement by all the State constitutions had been doubly and trebly strengthened by sanction of the National Constitution. The first ray of encouragement came in October, 1869, when, at a State woman suffrage convention held in St. Louis, Mo., Francis Minor, a leading attorney of that city, declared that this very Fourteenth Amendment in enfranchising colored men had performed a like service for all women. His argument was embodied concisely in the following resolutions, which were adopted by that convention with great enthusiasm, and by the National Association at its annual convention in Washington, D. C., the next January:

WHEREAS, 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; therefore be it

Resolved, 1. That the immunities and privileges of American citizenship, however defined, are national in character and paramount to all State authority.

2. That while the Constitution of the United States leaves the qualification of electors to the several States, it nowhere gives them the right to deprive any citizen of the elective franchise which is possessed by any other citizen--to regulate not including the right to prohibit.

3. That, as the Constitution of the United States expressly declares that no State shall make or enforce any laws that shall abridge the privileges or immunities of citizens of the United States, those provisions of the several State constitutions which exclude women from the franchise on account of sex are violative alike of the spirit and letter of the Federal Constitution.

4. That, as the subject of naturalization is expressly withheld from the States, and as the States clearly have no right to deprive of the franchise naturalized citizens, among whom women are expressly included, still more clearly have they no right to deprive native-born women citizens of the franchise.

In support of these resolutions various portions of the National Constitution were quoted, including Article IV, Section 2: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States;" and Section 4: "The United States shall guarantee to every State in this Union a republican form of government." Many other authorities were cited, including numerous court decisions, as to the right of women to the suffrage now that their citizenship had been clearly established and the protection of its privileges and immunities guaranteed.

This position was sustained by many of the best lawyers in the United States, including members of Congress. The previous May the National Woman Suffrage Association had been formed in New York City, and henceforth this right to vote under the Fourteenth Amendment was made the keynote of all its speeches, resolutions, etc., as will be seen in the History of Woman Suffrage, Vol. II, Chap. XXIII.

For the first time the Federal Constitution had defined the term "citizen," leaving no doubt that a woman was a citizen in the fullest meaning of the word. Until now there had been but one Supreme Court decision on this point--that of Chief Justice Taney in 1857, in the Dred Scott Case, which declared that citizens were "the political body who, according to our republican institutions, form the sovereignty and hold the power, and conduct the Government through their representatives." This plainly had barred negroes and white women from citizenship.

At the next general election, in 1872, women attempted to vote in many parts of the country, in some cases their votes being received, in others rejected. The vote of Miss Anthony was accepted in Rochester, N. Y., and she was then arrested for a criminal offense, tried and fined in the U. S. Circuit Court at Canandaigua, by Associate Justice Ward Hunt of the U. S. Supreme Court. There is no more flagrant judicial outrage on record. The full account of this case, in which she was refused the right of trial by jury as guaranteed by the Constitution, will be found in Vol. II, History of Woman Suffrage, p. 627 and following; also much more in detail in the Life and Work of Susan B. Anthony, p. 423, with her great Constitutional Argument delivered in fifty of the postoffice districts of the two counties before the trial, p. 977 and following.

The vote of Mrs. Virginia L. Minor was refused in St. Louis and she brought suit against the inspectors of election. The case was decided against her in the Circuit Court of the county and the Supreme Court of Missouri. She then carried it to the Supreme Court of the United States--Minor vs. Happersett et al. No. 182, October term, 1874. The case was argued by her husband, Francis Minor, and after the lapse of a quarter of a century it is still believed that his argument could not have been excelled. The decision was delivered by Chief Justice Waite, March 29, 1875, and was in brief: "The National Constitution does not define the privileges and immunities of citizens. The United States has no voters of its own creation. The Constitution does not confer the right of suffrage upon any one, but the franchise must be regulated by the States. The Fourteenth Amendment does not add to the privileges and immunities of a citizen; it simply furnishes an additional guarantee to protect those he already has. Before the passage of the Fourteenth and Fifteenth Amendments the States had the power to disfranchise on account of race or color. These Amendments, ratified by the States, simply forbade that discrimination but did not forbid that against sex."

The full text of argument and decision will be found in the History of Woman Suffrage, Vol. II, p. 715 and following. In making this decision the Court was compelled to reverse absolutely its own finding of three years previous in what was known as the Slaughter House Cases (16 Wallace) which said: "The negro having by the Fourteenth Amendment been declared to be a citizen of the United States, is thus made a voter in every State in the Union."

The Fifteenth Amendment says: "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." No right is conferred by this amendment. It simply guarantees protection for a right already existing in the citizen, and the negro having been declared a citizen by the Fourteenth Amendment is thus protected in his right to vote. But whence did he obtain this right unless from the National Constitution, which the Supreme Court in the Minor decision declares "does not confer the right of suffrage upon any one"? Volume II of this History of Woman Suffrage, containing nearly 1,000 pages, is devoted mainly to a recital of the efforts on the part of women to obtain and exercise the franchise through the Fourteenth and Fifteenth Amendments. This decision of the Supreme Court destroyed the last hope, although it did not shake the belief of the leaders of this movement in the justice and legality of their claim.

A number of the women contended that, if the National Constitution did not confer Full Suffrage, it did at least guarantee Federal Suffrage--the right to vote for Congressional Representatives--and in this opinion they were sustained by eminent lawyers. The National Association, however, never made an issue of this question, considering that it would be useless, but it has a Standing Committee on Federal Suffrage empowered to make such efforts in this direction as it deems advisable.

The assertion is made that if Congress had no authority over the election of its own members, it would be wholly unable to perpetuate itself should the States at any time decide that they no longer care to be under the authority of a central governing body, and refuse to elect Representatives. Many able reports have been made by this Standing Committee, and the question was clearly stated in an article in The Arena, December, 1891, by Francis Minor, who gave the question of woman suffrage a more thorough legal examination, perhaps, than any other man. He prepared the following bill which was presented in the House of Representatives, April 25, 1892, by the Hon. Clarence D. Clark, member from Wyoming:

AN ACT TO PROTECT THE RIGHT OF CITIZENS OF THE UNITED STATES TO REGISTER AND TO VOTE FOR MEMBERS OF THE HOUSE OF REPRESENTATIVES.

WHEREAS, The right to choose Members of the House of Representatives is vested by the Constitution in the people of the several States, without distinction of sex, but for want of proper legislation has hitherto been restricted to one-half of the people; for the purpose, therefore, of correcting this error and of giving effect to the Constitution:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled: That at all elections hereafter held in the several States of this Union for members of the House of Representatives, the right of citizens of the United States, of either sex, above the age of twenty-one years, to register and to vote for such Representatives shall not be denied or abridged by the United States, or by any State, on account of sex.

The argument for the authority of Congress to pass this law is based partly on Article I of the Federal Constitution: