Story on the Constitution.

589

SEC. 580. If, then, every well-organized society has the right to consult for the common good of the whole; and if, upon the principle of natural law, this right is conceded by the very union of society, it seems difficult to assign any limit to this right which is compatible with the due attainment of the end proposed. If, therefore, any society shall deem the common good and interests of the whole society best promoted under the particular circumstances in which it is placed by a restriction of the right of suffrage, it is not easy to state any solid ground of objection to its exercise of such an authority. At least, if any society has a clear right to deprive females, constituting one-half of the whole population, of the right of suffrage (which, with scarcely an exception, has been uniformly maintained), it will require some astuteness to find upon what ground this exclusion can be vindicated, which does justify, or at least excuse, many other exclusions.

SEC. 581. Without laying any stress upon this theoretical reasoning which is brought before the reader, not so much because it solves all doubts and objections, as because it presents a view of the serious difficulties attendant upon the assumption of an original and inalienable right of suffrage, as originating in natural law, and independent of civil law, it may be proper to state that every civilized society has uniformly fixed, modified, and regulated the right of suffrage for itself according to its own free will and pleasure. Every constitution of government in these United States has assumed, as a fundamental principle, the right of the people of the State to alter, abolish, and modify the form of its own government according to the sovereign pleasure of the people. In fact, the people of each State have gone much further, and settled a far more critical question, by deciding who shall be the voters entitled to approve and reject the constitution framed by a delegated body under their direction. In the adoption of no State constitution has the assent been asked of any but the qualified voters; and women, and minors, and other persons not recognized as voters by existing laws, have been studiously excluded. And yet the constitution has been deemed entirely obligatory upon them as well as upon the minority, who voted against it. From this it will be seen how little, even in the most free of republican governments, any abstract right of suffrage, or any original and indefeasible privilege, has beer recognized in practice.

This, remember, was written thirty years ago. Where would Story be now, if living? I beg also to read a single paragraph from the "Spirit of Laws," London edition, vol. I., p. 220:

"All the inhabitants of the several districts ought to have the right to vote at the election of the representatives," etc.

All of the inhabitants, says Montesquieu, ought to have the right to vote. Under such a rule I suppose my learned opponent would contend that a woman could not be an inhabitant, of course. I feel that I ought to apologize for presenting this point to this extent; it is so obvious, and rests on such broad and ample ground, that argument for it is without excuse, and I rest it here. So that if you consider this XIV. Amendment as a grant from the sovereign, then, like all such grants, you must take it most strongly against the grantor, and most favorable to the subject. And if, as I have shown, it is in favor of natural right, then must you construe it most strongly to extend that right. No court needs authority for these propositions.

The SECOND proposition of my brief is, that by the old common law of our English ancestors, the old storehouse of our rights and liberties, as well as the arsenal where we find weapons for their defense, woman always possessed this right of suffrage.

I will show by several English cases, by long usage, and general understanding, by principle and precedent, that the English woman both voted and held office; and I will show that not a single case, that not a single resolution of the House of Commons exists to the contrary; and that in all the now innumerable tomes of the common law, of judicial decision, com

mentary, or essay, but a single dictum exists to the contrary. And if I thus establish that the construction of the XIV. Amendment, for which I this day contend, is in favor of a common law right, is in accordance with its scope and spirit, every lawyer understands by how much I strengthen my position. And for the satisfaction of the court I am glad to state that this part of my argument will consist entirely of extracts from recent English text-writers, and a reference to two or three old cases. I read first from Mr. Anstey's Notes upon the Reform Act of Great Britain of 1867. The writer in his comment upon the words of the act, “every man of full age," etc., commences by showing that the term man in the act, as in Magna Charta and other statutes, is epicene-means both men and women. And he then goes on to show that to construe this phrase, “every man," to include every woman also, is in strict accordance with the common law from old times to the present. I read from p. 87:

That the rights in question (the right of suffrage) are not incompatible with the legal status of the woman, the following authorities seem to show. On the other hand, there can not be adduced any one authority against the position that the franchise of the shire and the borough were enjoyed by the female "resiants" equally with those of the male sex in times when "resiants," as such, and not as "tenants," had the franchise. The statutes by which the parliamentary franchise in counties was taken away from the "resiants" and vested in the "tenants," and at length restricted to those of freehold tenure (8 Hen., 6, c. 7; 18 Geo., 2, c. 18; 31 Geo., 2 c. 14), did not in any manuer create or recognize any such distinction as that of the male and the female freeholders. Those acts had relation to tenure, not to sex. For the same reason, in all those boroughs where the common right" prevailed, the suffrage would naturally be exercisable by the female no less than by the male "inhabitants" or "residants." It is believed that in not one of the boroughs where the suffrage was said to be regulated by "charter," or by "custom," or by "prescription" or even where it was regulated by a local act of Parliament, there can be found one instance of any provision or usage whatsoever whereby any voter was excluded from the enjoyment of the suffrage by reason of sex. That a woman may be a householder, or freeholder, or burgage tenant, parishioner, is plain enough. That she may answer the description of "a person paying scot and lot" within the "city of London," has been solemnly decided by the Court of King's Bench (Olive vs. Ingram, 7 Mod. 264, 267, 270, 271,) and that determination was expressly grounded by their Lordships "singly upon the foot of the common law, without regard to the usages of the parishes in London," which usage, nevertheless, had been also shown to be in favor of the same construction. In all cases, whether of statutory, of customary, or of common law qualification for the suffrage, the general rule is that which was laid down by the Court of King's Bench with respect to the choice of parochial officers under the first "Act for the Relief of the Poor," which directed them to be made from among the "substantial householders" of the place. The court held (Rex. vs. Stubbs, 2 T. R., 395)-overruling a dictum in Viner's Abridgment to the contrary—that a woman, being a “substantial householder," was properly chosen under that act to the office of overseer of the poor, notwithstanding the objections raised at the bar that it was a burthensome office and one of which, being once appointed to it, she would be called upon to perform duties some of which were above the bodily and mental powers, and others were inconsisteut with the morality, or, at least, the decency of that sex.—(Id. 400.)

And so again on pages 90 and 91:

That there are some offices as to which it is the practice, by the custom of England," to exclude them, is undoubtedly the fact. But it has been well said, as to these, that "there is a difference between being exempted and being incapacitated," and that “an excuse from acting, etc., is different from an incapacity of doing so. For it must not be forgotten, that it is upon the footing, not of disability, but of exemption, that those exclusions are vested, by the authorities which declare them." Thus, Whitelocke: "By the custom

English Authorities.

591

of England, women are not returned of juries, nor put into offices or commissions, nor eligible to serve in Parliament, or admitted to be members of the House of Peers; but, by reason of their sex, they are exempted from such employment. The omission of the electoral franchise from that enumeration [of exemption] is remarkable. If women were, at that time, considered to be excluded by any "custom of England" from the Parliamentary franchise, as well as from Parliament, it is scarcely conceivable that Whitelocke would have omitted to mention so important a fact. Singular to say, there is no trace of any such custom or usage in the reports or amongst the records; not even, so far as the author's researches have been successful, in the Journals of the House of Commons itself; and yet the right of the returning officer to reject the vote of a female elector when tendered at the polling-booth is always assumed to be an adjudged point. Mr. Oldfield appears to have been under the impression that the resolution of the House of Commons upon the occasion of the Westminster election, asserting the incapacity of an alien to vote in elections of members to serve in Parliament, extended to "women " also. If it were so, the incident would have no weight, for the enactment, which, according to a second resolution of the same date, was to be prepared for carrying into effect that intention, never received the sanction even of that House. But, in truth, no mention of women appears in either resolution. Nor was there, in that year, or at any other period, any resolution or determination of the House, so far as the author's information goes, directly impeaching the capacity of any female, in respect of her sex, to vote at an election to Parliament. He is aware that the House of Commons did, upon one remarkable occasion, deny the capacity of a female to be heard even as a witness at their bar; and that this extraordinary vote was obtained through the influence of Sir Edward Coke, the only text-writer who can be vouched for the position, that a woman's vote ought not to be received at a parliamentary election.

Further on, pages 94 and 95;

On the other hand, there are extant many parliamentary returns for counties and boroughs from the earliest times, which were made by female electors, and yet were received. Some of them are enumerated in Prynne's Collections of Parliamentary Writs. Some of later dates are mentioned in the Commons' Journals themselves. Others are to be found in the repositories of the learned or the curious.

Three of the returns in question which related to one and the same borough, were, at a period long subsequent, produced before a “Committee of Privilege and Election," presided over by the great parliamentary lawyer, Mr. Hakewell, as evidence for and against the respective parties to an election trial then pending. The question was whether the borough was close or open; that is to say, whether amongst the former returns so produced, those by "Mrs. Copley, as sole inhabitant," showed the suffrage to be limited to the Lord or Lady of Gatton for the time being, or whether those by "Mrs. Copley, et omnes inhabitantes," showed the suffrage to be of a more popular character. No question of sex was raised on either side, and neither the report of the committee which found for the popular right, nor the resolution of the house for giving effect thereto, and for taking the Lord of the Manor's return off the file, contain any allusion to the question of sex.

At that time the House of Commons was not prepared to enter into conflict with the courts of law, and "privilege" had not attained to the height which, amid the excitement of the era of 1688, it was doomed to reach. It was impossible for the Committee of Privileges, in the Gatton case, to deny the female suffrage without coming into collision with the law, which had been declared but a few years previously by the judges. (Holt vs. Lyle and Coates vs. Lyle, 14 Jac., 1 and Catherine vs. Surrey, (Hakewell MSS.,) Append., 7 Mod., 264-5.) "The opinion of the judges," it was said by Sir William Lee, a chief justice of the King's Bench in 1739, "was that a feme-sole, if she has a freehold," in a county (as it seems) "may vote for members of Parliament," and that women when sole had a power to vote. In Lady Packington's case (she) returns to Parlia

ment; that the sheriff made a precept to her, as lady of the manor, to return two members to Parliament. . . . . In the case of Holt vs. Lyle it is determined that a feme-sole freeholder, in counties, may claim a vote for Parliament men, but, if married, her husband must vote for her. . . . I only mention what I found in a manuscript by the famous Hakewell,

CHIEF-JUSTICE-Coverture then incapacitated a woman from voting? Mr. RIDDLE.-No, your honor; the right to vote attached to the freehold, and by the old law that by marriage vested in the husband.

In the case of Olive vs. Ingram, 7th Mod. Reps., already recited by the author, it was urged that the right of woman suffrage was lost by non-user, which is thus disposed of. I quote from page 97:

The same can not be said of the learned Solicitor General's objection of non-user. “As their claim," he argued, "is at common law, and usage is the only evidence of right at common law, they ought to show it, or else non-user shall be evidence of a waiver of the right, if they ever had any." The reply was conclusive enough. "There was a differ ence between being exempted and being incapacitated." But there was another and a not less conclusive reply. The franchise was a public, not a private right-omnis libertas regia est, et ad coronam pertinet-[every liberty is royal and pertinent to the crown]—and of such there can be no waiver, for the right implies a duty, and the duty is co-equal and co-extensive with the right.

I now ask your attention to the case of Jane Allen, which came before Mr. Anstey in the Revising Court, a tribunal created by the parliamentary elector's trial bill of 1868, and which sits to revise the registration of voters, under the Act of 1867, and from whom appeals lie to the Court of Common Pleas. The case came up in 1868, and was fully and ably argued, and the Revising Barrister went luminously over the whole ground in an exhaustive opinion when he rendered judgment. I find the case in the Eng. Law Mag. and Law Rev. for 1868, at p. 121:

In re Jane Allen (Purish of St. Giles-in-the-Fields). September 23, 1868.

This was a claim to be entered on the St. Giles' list of occupiers for the borough, under the "Representation of the People Act, 1867," s. 3; the claimant's name, in common with those of all female occupiers, having been omitted by the overseers.

The Revising Barrister said, p. 132: In the meantime, and dealing with the case according to my own opinion of what the law is, I hold, in the first place, that this incapacity of mere sex, as it is called, did not exist at common law in any constituency; and (on the authority of the cases cited already of Catherine vs. Surrey, Holt vs. Lyle, and Coates vs. Lyle, which show that there is in counties no such incapacity even as to the freehold franchise, even under the acts passed before 1832, greatly narrowing the basis of that suffrage there), that, à fortiori, there was no such incapacity in boroughs of the common right at least, and also of many, perhaps all, of those by custom also, as appears by the valuable records preserved from the time of the Conquest down to our own time, including the Damesday and the Doom Books of the various boroughs. For I find that (although in some boroughs, a later charter or special act of Parliament was to the contrary), where the common right obtained, the woman burgess took her place, and her name was inscribed on the burgess roll with the male burgesses, enjoying the same rights and liable to the same heavy duties-such as watch and ward, scot and lot, and the like, as the burgesses of the male sex. Curiously enough, I see that it has been objected to the right of female suffrage within the last few days, that there is this analogy between the right of franchise and the liability to watch and ward. It is because that analogy exists, that I think that the claim of franchise must surely prevail, it being clear that, under the common law, a woman was liable to the former burthen, as she is still liable to serve as a constable, as an overseer of the poor, and the like offices, and, therefore, was rightfully put upon the burgess roll, and voted in the borough court equally with the male burgess.

But the matter does not rest there. The Rolls of Parliament, which end with the reign of Queen Mary, certainly contain no notice of the right of women to vote at common law, because they contain no entries relating to the right of suffrage at all, and I, therefore, pass them by. But I make this observation upon them, that they do contain not

Suffrage a Right under the Common Law.

593

unfrequent notices of the presence of women in Parliament itself. But the returns to the parliamentary writs of the period are more to the purpose. Take, for instance, those relating to the county of York, collected by Prynne for quite another purpose than the present. He had to show that the lords and esquires of that great county, and not the freeholders at large, had for the long period of time which began with the reign of Henry IV. and ended with that of Edward IV., alone returned the knights of that shire to Parliament, aud among those lords and esquires not, a few clearly appear to have been of the female sex. But now I pass to the period of the journal.

It was said by Mr. Bennett [who argued against woman suffrage], that if a single instance could be shown in which a woman had voted, and not simply claimed the right to vote, then cadit questio. But two such cases, Lady Packington's case and Mrs. Copley's case, were admitted by Mr. Bennett himself. I do not think that he explained away the effect of that admission. It was certainly not as a mere returning officer that either of those ladies signed and returned the indenture. It was. as a person having or claiming to have, the sole property in the soil of the whole of the populous borough of Aylesbury, that Lady Packington made her return; and during two or three generations the Packington family had, or had claimed to have, precisely that right.

It is thus made broad and clear that the right of woman to the elective franchise was one of the best acknowledged and clearest of common law rights; and that in the whole circle of English authority the ghost of a dictum can alone be raised to question it. So that if the force of its language ' compels you to construe the XIV. Amendment as authorizing woman to vote, you will have the satisfaction of knowing that it but restores her to her old common law right in the persons of her American daughters.

THIRD. I am now to deal directly with the Amendments. The first clause of Section 1 of the XIV Amendment I now read:

SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Until this was promulgated there was no absolute standard or rule of citizenship in the United States. Each State made a rule for itself, and its rule was not always clearly expressed, as you will see by these constitutions. Some of them say that the male citizens of the State, being inhabitants, etc., shall vote, yet do not declare in what citizenship shall consist. Others, that citizens of the United States, etc., shall vote, while no person was a citizen of the United States except as he had become a citizen of a State. Many States permitted aliens, on a short residence, to vote, without naturalization, and they, in that indirect way, became citizens of such State, and hence of the United States. This Amendment puts an end to doubt and cavil, and broadly declares 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, etc. . . . .

By an unwritten article of the American Constitution-for whoever looks to the written text will not find the whole of the Constitution-persons, no matter where born, or however unnatural they may be, are permitted to become domiciled, gain settlements, hold lands, bring suits, and acquire and enjoy every possible right, privilege, and immunity of native born persons. Nor has Congress, nor has any State ever attempted, by law or ordinance, to discriminate against them, nor will either ever dare to do so, nor could or would such a law be enforced. The unwritten Constitution, by the name of