Judge Bingham's Adverse Report.

461 lected her duty in part-I confess it freely-it is not your fault alone, gentlemen, that we are not with you to-day. If we had been as conscious of our duty and privilege years ago as we are to-day, if we had known our birthright, we should have stood by your side, welcome coadjutors, long since. So we will take the blame of the past alike—we have all been walking very slowly this path of Christian civilization. But in the greatest conflict of modern times, you announced great principles and fought for them on the field, and we stood by them in the home, and we stand by them still there. And when we come to deliberate with you in solemn council as to how these principles shall be carried into legislation, your task will be easier, our opportunities will be larger, and still our hearts will be where they have ever been-in our homes.

Forty-first Congress, 3d Session, House of Representatives, Report, No. 22, Jan. 30, 1871, recommitted to the Committee on Judiciary and ordered to be printed. Mr. BINGHAM, from the Committee on the Judiciary, made the following report.

The Committee on the Judiciary, to whom was referred the Memorial of Victoria C. Woodhull, having considered the same, make the following report: The Memorialist asks the enactment of a law by Congress which shall secure to citizens of the United States in the several States the right to vote "without regard to sex." Since the adoption of the XIV. Amendment of the Constitution, there is no longer any reason to doubt that 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, for that is the express declaration of the amendment.

The clause of the XIV. Amendment, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," does not, in the opinion of the Committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article IV., section 2. The XIV. Amendment, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for their enforcement, as an express limitation upon the powers of the States. It has been judicially determined that the first eight articles of amendment of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of section 2, article iv.

To remedy this defect of the Constitution, the express limitations upon the States contained in the first section of the XIV. Amendment, together with the grant of power in Congress to enforce them by legislation, were incorporated in the Constitution. The words "citizens of the United States," and citizens of the States," as employed in the XIV. Amendment, did not change or modify the relations of citizens of the State and Nation as they existed under the original Constitution.

Attorney-General Bates gave the opinion that the Constitution uses the the word "citizen," only to express the political quality 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 obligation 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. (Opinion of Attorney-General Bates on citizenship.)

The Supreme Court of the United States has ruled that, according to the express words and clear meaning of the section 2, article iv. of the Constitution, no privileges are secured by it except those which belong to citizenship. (Connor et al. vs. Elliott et al., 18 Howard, 593). In Corfield vs. Coryell, 4 Washington Circuit Court Reports, 380, the Court say:

The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free governments; and which have at all times been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are would, perhaps, be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by 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, nevertheless, to such restraints as the Government may justly prescribe for the general good 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 pursuits, 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, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental; 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. . . . . But we can not accede to the proposition which was insisted on by the counsel, that under this provision of the Constitution, sec. 2, art. 4, the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any other particular State.

....

The learned Justice Story declared that the intention of the clause—“the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States "-was to confer on the citizens of each State a general citizenship, and communicated all the privileges and immunities which a citizen of the same State would be entitled to under the circumstances. (Story on the Constitution, vol. 2, p. 605).

In the case of the Bank of the United States vs. Primrose, in the Supreme Court of the United States, Mr. Webster said:

That this article in the Constitution (art. 4, sec. 2) does not confer on the citizens of each State political rights in every other State, is admitted. A citizen of Pennsylvania can not go into Virginia and vote at any election in that State, though when he has acquired a residence in Virginia, and is otherwise qualified, required by the Constitution (of Virginia), he becomes, without formal adoption as a citizen of Virginia, a citizen of that State politically. (Webster's Works, vol. 6, p. 112).

It must be obvious that Mr. Webster was of opinion that the privileges and immunities of citizens, guaranteed to them in the several States, did not include the privilege of the elective franchise otherwise than as secured by the State Constitution. For, after making the statement above quoted, that a citizen of Pennsylvania can not go into Virginia and vote, Mr. Webster adds, "but for the purposes of trade, commerce, buying and selling, it is evidently not in the power of any State to impose any hindrance or embarrassment, etc.,

Bingham Remands Us to the States.

463 upon citizens of other States, or to place them, going there, upon a different footing from her own citizens." (Ib.) The proposition is clear that no citizen of the United States can rightfully vote in any State of this Union who has not the qualifications required by the Constitution of the State in which the right is claimed to be exercised, except as to such conditions in the constitutions of such States as deny the right to vote to citizens resident therein "on account of race, color, or previous condition of servitude."

The adoption of the XV. Amendment to the Constitution imposing these three limitations upon the power of the several States, was by necessary implication, a declaration that the States had the power to regulate by a uniform rule the conditions upon which the elective franchise should be exercised by citizens of the United States resident therein. The limitations specified in the XV. Amendment exclude the conclusion that a State of this Union, having a government republican in form, may not prescribe conditions upon which alone citizens may vote other than those prohibited. It can hardly be said that a State law which excludes from voting women citizens, minor citizens, and non-resident citizens of the United States, on account of sex, minority, or domicil, is a denial of the right to vote on account of race, color, or previous condition of servitude.

It may be further added that the 2d section of the XIV. Amendment, by the provision that "when the right to vote at any election for the choice of electors of President and Vice-President of the United States, Representatives in Congress, or executive and judicial officers of the 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, a citizen 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," implies that the several States may restrict the elective franchise as to other than male citizens. In disposing of this question effect must be given, if possible, to every provision of the Constitution. Article 1, section 2, of the Constitution provides:

That 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 provision has always been construed to vest in the several States the exclusive right to prescribe the qualifications of electors for the most numerous branch of the State Legislature, and therefore for Members of Congress. And this interpretation is supported by section 4, article 1, of the Constitution, which provides:

That the time, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations except as to the place of choosing Senators.

Now it is submitted, if it had been intended that Congress should prescribe the qualifications of electors, that the grant would have read: The Congress may at any time by law make or alter such regulations, and also prescribe the qualifications of electors, etc. The power, on the contrary, is limited exclusively to the time, place, and manner, and does not extend to

the qualification of the electors. This power to prescribe the qualification of electors in the several States has always been exercised, and is, to-day, by the several States of the Union; and we apprehend, until the Constitution shall be changed, will continue to be so exercised, subject only to express limitations imposed by the Constitution upon the several States, before noticed. We are of opinion, therefore, that it is not competent for the Congress of the United States to establish by law the right to vote without regard to sex in the several States of this Union, without the consent of the people of such States, and against their constitutions and laws; and that such. legislation would be, in our judgment, a violation of the Constitution of the United States, and of the rights reserved to the States respectively by the Constitution. It is undoubtedly the right of the people of the several States so to reform their constitutions and laws as to secure the equal exercise of the right of suffrage at all elections held therein under the Constitution of the United States, to all citizens, without regard to sex; and as public opinion creates constitutions and governments in the several States, it is not to be doubted that whenever, in any State, the people are of opinion that such a reform is advisable, it will be made.

If however, as is claimed in the memorial referred to, the right to vote "is vested by the Constitution in the citizens of the United States without regard to sex," that right can be established in the courts without further legislation.

The suggestion is made that Congress, by a mere declaratory act, shall say that the construction claimed in the memorial is the true construction of the Constitution, or in other words, that by the Constitution of the United States the right to vote is vested in citizens of the United States "without regard to sex," anything in the constitution and laws of any State to the contrary notwithstanding. In the opinion of the Committee, such declaratory act is not authorized by the Constitution nor within the legislative power of Congress. We therefore recommend the adoption of the following resolution:

Resolved, That the prayer of the petitioner be not granted, that the memorial be laid on the table, and that the Committee on the Judiciary be discharged from the further consideration of the subject.

Forty-first Congress, 3d Session, House of Representatives, Report No. V., Part 2, Feb. 1, 1871, ordered to be printed.

Mr. LOUGHRIDGE, from the Committee on the Judiciary, submitted the following as the view of the minority:

In the matter of the Memorial of Victoria C. Woodhull, referred by the House to the Committee on the Judiciary, the undersigned, members of the Committee, being unable to agree to the report of the Committee, present the following as their views upon the subject of the Memorial:

The memorialist sets forth that she is a native born citizen of the United States, and a resident thereof; that she is of adult age, and has resided in the State of New York for three years past; that by the Constitution of the United States she is guaranteed the right of suffrage; but that she is, by the laws of the State of New York, denied the exercise of that right; and that by the laws of different States and Territories the privilege of voting is denied to all the female citizens of the United States; and petitions for relief by the

Loughridge and Butler's Report.

465 enactment of some law to enforce the provisions of the Constitution, by which such right is guaranteed.

The question presented is one of exceeding interest and importance, involving as it does the constitutional rights not only of the memorialist but of more than one-half of the citizens of the United States-a question of constitutional law in which the civil and natural rights of the citizen are involved. Questions of property or of expediency have nothing to do with it. The question is not "Would it be expedient to extend the right of suffrage to women," but, "Have women citizens that right by the Constitution as it is." A question of this kind should be met fairly and investigated in that generous and liberal spirit characteristic of the age, and decided upon principles of justice, of right, and of law.

It is claimed by many that to concede to woman the right of suffrage would be an innovation upon the laws of nature, and upon the theory and practice of the world for ages in the past, and especially an innovation upon the common law of England, which was originally the law of this country, and which is the foundation of our legal fabric. If we were to admit the truth of this, it is yet no argument against the proposition, if the right claimed exists, and is established by the Constitution of the United States. The question is to be decided by the Constitution and the fundamental principles of our Government, and not by the usage and dogmas of the past. It is a gratifying fact that the world is advancing in political science, and gradually adopting more liberal and rational theories of government. The establishment of this Government upon the principles of the Declaration of Independence was in itself a great innovation upon the theories and practice of the world, and opened a new chapter in the history of the human race, and its progress toward perfect civil and political liberty.

But it is not admitted that the universal usage of the past has been in opposition to the exercise of political power by women. The highest positions of civil power have from time to time been filled by women in all ages of the world, and the question of the right of woman to a voice in government is not a new one by any means, but has been agitated, and the right acknowledged and exercised, in governments far less free and liberal than ours. In the Roman Republic, during its long and glorious career, women occupied a higher position, as to political rights and privileges, than in any other contemporaneous government. In England unmarried women have, by the laws of that country, always been competent to vote and to hold civil offices, if qualified in other respects; at least such is the weight of authority. In "Callis upon Sewers," an old English work, will be found a discussion of the question as to the right of women to hold office in England. The learned and distinguished author uses the following language:

And for temporal governments I have observed women to have from time to time been admitted to the highest places; for in ancient Roman histories I find Eudocia and Theo dora admitted at several times into the sole government of the empire; and here in England our late famous Queen Elizabeth, whose government was most renowned; and Semiramis governed Syria; and the Queen of the South, who came to visit Solomon, for anything that appears to the contrary, was a sole queen; and to fall a degree lower, we have precedents that King Richard the First and King Henry the Fifth appointed by commissions their mothers to be regents of this realm in their absence in France.

But yet I will descend a step lower; and doth not our law, temporal and spiritual,