public policy, or without any name, would prevent it. The only possible things which a resident alien may not do, are, he can not vote or hold office. There need be no mistake about this, and it can be reduced to an absolute certainty. What, pray, does the resident alien acquire by the transmuting process of naturalization? What is the sum total of his citizenship? He acquires the right of suffrage, and the right to hold office, and no other thing under the heavens and the Star-Spangled Banner. Does he acquire these rights by virtue of any word or special provision of our naturalization laws, which annexes suffrage to naturalization as its special perquisite ? Not a word of it. Nor is there a word in any act of Congress or law of a State that confers suffrage upon the naturalized American as a thing incident to or consequent upon his act of naturalization. He thereby becomes a citizen, and takes up and enjoys its peculiar and distinguishing right. He gets naturalized for that and for no other purpose. Naturalization confers suffrage, then, because suffrage is a property of citizenship.

Colored male citizens now vote constitutionally and rightfully, although the word "white" stands as before in most of the State constitutions; and yet they vote in spite of it. Some potent alembic has destroyed the force of this word, although the text remains as of old. We are at once referred to the XV. Amendment for a solution. That has conferred the power of voting upon them, and it is superior to the State constitutions and statutes, and executes itself, as is claimed. I concede, your honors, that if the XV. Amendment does confer suffrage, or remove the exclusion so that colored citizens can vote; if they have derived the franchise from that, then the argument is against me. But, if it does confer it, then judgment must go

ARTICLE XV., Section 1. 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.

Sec. 2. The Congress shall have power to enforce this article by appropriate legislation. (15 Stat., p. 316.)

You see in a moment this does not confer anything. It uses no words of grant or grace, apt or otherwise, nor does it profess to. It expressly recognizes, as an already existing fact, that the citizens of the United States have the right to vote. The right which shall thus be respected is a right peculiar to the citizen-it is not a personal right, but a political right; and a right to vote, the same one mentioned in the second section of the XIV. Amendment—a right not created or conferred by the XV. Amendment. It could not be, for it existed, and, as I have just said, was spoken of in the XIV. Amendment; so that it must be as old as that at the least. This amendment is a solemn mandate to all concerned not to deny this right, because it existed, and because it was of the highest value.

Justice WYLIE: It is not to be denied for either of the three reasons mentioned.

Mr. RIDDLE: Yes, your honor, I have not reached that; I am now only showing that it is a right-a citizen right-and older than the XV. Amendment; but, if your honor intends to infer that, because the right can not be denied in any one of those cases, that, therefore, it may be in all others,

Francis Miller's Argument.

595 then you have another instance of a constitutional right to deny a constitutional right; and, without vanity, I have already pulverized that assumption. It is thus absolutely certain that colored male citizens do not claim their admitted right to vote from this XV. Amendment. They had it before, and this came in to protect and secure them in its enjoyment. Whence did they derive it? From the XIV. Amendment? If so, then did women acquire it by the same amendment? Was it an inherent right in them as a part of "the people?" So women are a much larger and more important part of "the people."

The right to vote shall not be denied on account of race, color, or previous condition of servitude, was not used to make the right sacred in male negroes alone, while the rights of all others were left to political caprice, or to be controlled hereafter by these same colored males mayhap; but this amendment was aimed fully at the mischief of the second section of the XIV. Amendment, and there its force is expended. It fossilizes the second section of that amendment. While the broad language of its first section secures, beyond the abridging hand of the States, the great rights it secures -rights which Congress can not abridge on any pretext, for it can exercise no power not granted, and the Constitution confers on it no power to abridge the "privileges or immunities of the citizen" in any instance.

And here I rest this solemn argument. I have brought this cause of woman, and of man as well-of the race-into the presence of the court, surrounded by the severe atmosphere of the law, beyond the reach of chronic ribaldry, and into the region of argument, where it must be estimated by its legal merits. I have applied to it the rules of law. I have pushed away the dead exfoliations that cumber the path; and have gone to the foundations, to the ever fresh and preserving spirit of the rules of the common law, and have sought to apply them with candor. . . . .

FRANCIS MILLER following Mr. Riddle, said: May it please the Court; . . Clearly the XV. Amendment does not confer any right of suffrage. Clearly, prior to the XIV. Amendment, colored men had no right to vote. The XIII. Amendment, which emancipated them, did not give them the right of suffrage, because the States had the constitutional power to say they should not vote. But between the XIII. and XV. Amendments, in some way or other, the colored man came into possession of this right of suffrage; and the question is, where did he get it? If he did not get it under the XIV. Amendment, by what possible authority are they voting by hundreds of thousands throughout this country? The legislative and constitutional provisions that prohibit their voting still remain unrepealed upon the statute books of many of the States, but yet they do vote. There is no possible, no conceivable, means by which they legally can vote, except by the operation of the XIV. Amendment. It may be said that if that is the case the XV. Amendment was not necessary. Well, admit it was not. It was very well said by Justice Swayne, in the case of the United States vs. Rhodes, in answer to the argument that if the XIII. Amendment conferred certain rights upon the colored man it was unnecessary to pass the Civil Rights Bill; "that it was not necessary, but it was well to do it to prevent doubts and differences of opinion." It is not well to leave any man's rights and liberties subject even to a doubt, and the Congress of the United States

ence.

had better adopt amendment after amendment than to allow the slightest cloud to rest upon the tenure of the rights of the American citizen. . . . . The Constitution has formulated into law the Declaration of IndependWe were one hundred years coming to it; but we have reached it at last certainly by recognizing the political rights of the black manand, as I believe, those of woman; and that is all this Court is called upon here to declare, to wit: that the Declaration of Independence has been enacted into law, and that you will see that that law is enforced.

If I have established, as I believe I have, that under the first section of the XIV. Amendment women have the right to vote, and there is any particular limitation in the second section that contradicts it, that part of the amendment falls void and useless, so far as its effect upon woman is concerned. There is the declaration of the general principles expressly stated; and, if there is anything contradictory, “the particular and inferior can not defeat the general and superior." (Lieber's Hermeneutics, p. 120.) The great object of that XIV. Amendment, so far as it can be deduced from the words in which it is expressed, is this: that the rights of the citizens of the United States shall not be abridged. If there is anything contradictory of that in the subsequent sections, those sections must fall. But if the second section affects this argument at all, it is because it seems, by implication, to admit that the rights of certain male citizens of the United States can be denied. That is the whole force and effect of it-I mean so far as this argument is concerned. All that can be claimed for it is, that by implication, perhaps, it would permit that to be done. The XV. Amendment comes in and says, in express terms, that that which the second section by implication permits, shall not be done; and by this declaration it strikes out that section, and it is no more in the Constitution now than is that clause of the second section of the first article of the Constitution which permitted States to deny suffrage to any of their citizens-black or white. That section is gone. It is no more a part of the Constitution, because it has been absolutely repealed by the adoption of the XIV. Amendment. Just so this second section of the XIV. Amendment disappeared by the operation of the XV. Amendment.

SECTION 1. 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.

SEC. 2. The Congress shall have power to enforce this article by appropriate legislation. (15 Stat., p. 346.)

The CHIEF JUSTICE.-There is a very strong implication, is there not, in that Amendment, that you may deny the right of suffrage for other causes. Mr. MILLER.—-I do not think there can be any implication by which a citizen may be robbed of a fundamental right. It must be something expressed. I do not believe in any power of taking away the rights of citizens by construction. No human being can be robbed of his God-given rights by implication. You can not take away his property by implication. You can not take away his liberty. I think it is equally true that you can not take away his right of self-government by implication.

Finally, in regard to the construction of this XIV. Amendment, it must

Chief Justice Cartter's Opinion.

597

be observed that it is remedial in its character, and it must be "construed liberally to carry out the beneficent principles it was intended to embody," (Dwarris on Statutory Law, p. 632,) and that "its construction must be extended to other cases within the reason and rule of it." (Lord Mansfield in Atcheson vs. Everett, Cowper, 382, 391.) Lieber's fourteenth rule of

construction is:

Let the weak have the benefit of a doubt without defeating the general object of a law. Let mercy prevail, if there be real doubt. (Lieber's Hermeneutics, p. 144.)

Now, if mercy must prevail when there is real doubt, still more should justice prevail if there is any doubt. If your honors have any doubt in regard to this decision, I call upon you, not in the name of mercy, but in the name of justice, to give us the benefit of that doubt, and to recognize the right of all human beings to govern themselves.

Chief Justice Cartter then delivered the opinion of the court, sustaining the demurrer, which is as follows:

These cases, involving the same questions, are presented together. As shown by the plaintiffs' brief, the plaintiffs claim the elective franchise under the first section of the XIV. Amendment of the Constitution. The fourth paragraph of the regulations of the Governor and Judges of the District, made registration a condition precedent to the right of voting at the election of April 20th, 1871. The plaintiffs, being otherwise qualified, offered to register, and were refused. They then tendered their ballots at the polls, with evidence of qualification and offer. to register, etc., when their ballots were rejected under the seventh section of the act providing a government for the District of Columbia. Mrs. Spencer brings her suit for this refusal of registration, and Mrs. Webster for the rejection of her vote, under the second and third sections of the act of May 31, 1870. The seventh section of the organic act above referred to, limits the right to vote to "all male citizens," but it is contended that in the presence of the XIV. Amendment, the word male is without effect, and the act authorizes "all citizens" to exercise the elective franchise. The question involved in the two actions which have been argued, and which, for the purposes of judgment, may be regarded as one, is, whether the plaintiffs have a right to exercise within this jurisdiction, the elective franchise. The letter of the law controlling the subject is to be found in the seventh section of the act of February 21, 1871, entitled, “An Act to provide a government for the District of Columbia," as follows:

And be it further enacted, That all male citizens of the United States, above the age of twenty-one years, who shall have been actual residents of said District for three months prior to the passage of this act, except such as are non compos mentis, and persons convicted of infamous crimes, shall be entitled to vote at said election, in the election district or precinct in which he shall then reside, and shall have so resided for thirty days immediately preceding said election, and shall be eligible to any office within the said district, and for all subsequent elections, twelve months prior residence shall be required to constitute a voter; but the Legislative Assembly shall have no right to abridge or limit the right of suffrage.

It will be seen by the terms of this act that females are not included within its privileges. On the contrary, by implication, they are excluded. We do

not understand that it is even insisted in argument that authority for the exercise of the franchise is to be derived from law. The position taken is, that the plaintiffs have a right to vote, independent of the law; even in defiance of the terms of the law. The claim, as we understand it, is, that they have an inherent right, resting in nature, and guaranteed by the Constitution in such wise that it may not be defeated by legislation. In virtue of this natural and constitutional right, the plaintiffs ask the court to overrule the law, and give effect to rights lying behind it, and rising superior to its authority.

The Court has listened patiently and with interest to ingenious argument in support of the claim, but have failed to be convinced of the correctness of the position, whether on authority or in reason. In all periods, and in all countries, it may be safely assumed that no privilege has been held to be more exclusively within the control of conventional power than the privilege of voting, each State in turn regulating the subject by the sovereign political will. The nearest approach to the natural right to vote, or govern — two words in this connection signifying the same thing-is to be found in those countries and governments that assert the hereditary right to rule. The assumption of Divine right would be a full vindication of the natural right contended for here, provided it did not involve the hereditary obligation to obey.

Again, in other States, embracing the Republics, and especially our own, including the States which make up the United States, this right has been made to rest upon the authority of political power, defining who may be an elector, and what shall constitute his qualification; most States in the past period declaring property as the familiar basis of a right to vote; others, intelligence; others, more numerous, extending the right to all male persons who have attained the age of majority. While the conditions of the right have varied in several States, and from time to time been modified in the same State, the right has uniformly rested upon the express authority of the political power, and been made to revolve within the limitations of express law. Passing from this brief allusion to the political history of the question to the consideration of its inherent merits, we do not hesitate to believe that the legal vindication of the natural right of all citizens to vote would, at this stage of popular intelligence, involve the destruction of civil government. There is nothing in the history of the past that teaches us otherwise. There is little in current history that promises a better result. The right of all men to vote is as fully recognized in the population of our large centres and cities as can well be done, short of an absolute declaration that all men shall vote, irrespective of qualifications. The result in these centres is political profligacy and violence verging upon anarchy. The influences working out this result are apparent in the utter neglect of all agencies to conserve the virtue, integrity and wisdom of government, and the appropriation of all agencies calculated to demoralize and debase the integrity of the elector. Institutions of learning, calculated to bring men up to their highest state of political citizenship, and indispensable to the qualifications of the mind and morals of the responsible voter, are postponed to the agency of the dramshop and gambling hell; and men of conscience and capacity are discarded, to the promotion of vagabonds to power.