Two Amendments and Many Women
At the annual woman suffrage convention of 1872, Miss Anthony led a lively discussion as to whether the 14th and 15th amendments* could be interpreted as extending the vote to women as well as to Negroes. Strong resolutions were adopted in favor of a declaratory act of Congress to affirm this interpretation. A hearing was granted before the Senate Judiciary Committee, and Mrs. Stanton, Miss Anthony and Isabelle Beecher Hooker, on behalf of these resolutions, made arguments which could not have failed to leave conscientious Senators with disturbed peace of mind.
Many Senators, Representatives of Congress and eminent lawyers in all parts of the country interpreted the Fourteenth Amendment as securing the vote to Negroes and to women. The Attorney General of Nebraska ruled that women were voters under that amendment. In order to test this possibility, and acting under legal advice, women in several States, inspired by the action of their national leaders, attempted to register and vote in 1871 and 1872.† Usually their right either to register, or to vote after having registered, was denied by election inspectors, and the method pursued was to bring action against the inspectors for that refusal. Learned and able counsel volunteered in most instances to conduct the defense of the inspectors.
Four cases surpassed all others in importance, three drawing an opinion from the Federal Supreme Court. In chronological order these were:— (1) The case of seventy women in the District of Columbia appealing from the decision of the District Supreme Court, decided December, 1871, chief counsel Senator Matthew Carpenter of Wisconsin; (2) The case of Myra Bradwell, only indirectly bearing upon the subject but testing the meaning of the Fourteenth Amendment, appealing from the Supreme Court of Illinois which had denied her admission to the bar, decision given, December, 1872; (3) The case of Virginia L. Minor, appealing from the Supreme Court of Missouri, chief counsel Francis Minor, an eminently able lawyer of that State, decided October, 1874; and (4) The case of Susan B. Anthony and thirteen other women who, November, 1872, registered and voted in one ward in Rochester, New York. This case did not reach the Federal Supreme Court but attracted the widest comment of all the cases.
The tendency of judges and counsel to turn aside from the consideration of the legal points involved in these cases, in order to deliver lectures upon the proper sphere of women, was a noticeable feature common to all of them, and that prejudice seriously affected the judicial decision will be manifest to readers of the literature of the cases. Manifest, too, will be the muddle in which Court opinions left the Fourteenth Amendment. Even to this day it is doubtful if any exposition, explanation or interpretation of that amendment has been given which is capable of being clearly understood by an average American mind.
Said Albert G. Riddle, counsel for the women voters of the District of Columbia:
“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 that word. We are at once referred to the Fifteenth Amendment for a solution. The Fifteenth Amendment does not confer anything. It is a solemn mandate to all concerned not to deny this right which is clearly recognized as having existed before. . . . You see in a moment this does not confer anything. It uses no words of grant. . . . It expressly recognized, as an already existing fact, that the citizens of the United States have the right to vote. . . . It is absolutely certain that colored male citizens do not claim their admitted right to vote from the Fifteenth Amendment. Whence did they derive it? From the Fourteenth Amendment? If so, then did women acquire it by the same amendment?”
Francis Minor, also counsel in the same case, picked up the argument at that point and carried it forward.
“Clearly, the Fifteenth Amendment does not confer any right of suffrage. Clearly, prior to the Fourteenth Amendment colored men had no right to vote. The Thirteenth Amendment gave them no such right. But between the Thirteenth and Fifteenth 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 Fourteenth Amendment, by what possible authority are they voting by hundreds of thousands? The legislative and constitutional provisions that prohibit their voting still remain unrepealed upon the statute books of many States, but yet they do vote. There is no way by which they legally can vote except by the operation of the Fourteenth Amendment.”
Chief Justice Cartter delivered the opinion of the Court, the main point being, “This clause (the first) of the Fourteenth Amendment (see page 41) does advance them (women) to full citizenship and clothes them with the capacity to become voters. The constitutional capability of becoming a voter created by this amendment lies dormant, as in the case of an infant, until made effective by legislative action.”
Judge Cartter turned aside from his opinion on the legal points under consideration to discourse upon the failure of universal suffrage for men and by implication betrayed his own doubt of the wisdom of universal suffrage. The decision was quoted with ridicule in the press as meaning “that women were voters but had no right to vote.”
The most important phase of the Myra Bradwell case is the explicit evidence that popular opinion at the time so governed the views of the Supreme Court of Illinois and of the Federal Supreme Court as completely to control their verdict. The Illinois Court discoursed at great length upon the sphere of women and whether it would “promote justice to permit women to engage in trials at the bar.” Mrs. Bradwell's qualification was admitted but her petition was denied because she was not only a woman, but a married woman. Illinois denied to women the right to hold office, and to a married woman the right to make contracts. Mrs. Bradwell had pointed out that a woman, a married woman, under precisely the same conditions, had been admitted to the bar in Iowa, but this precedent fixed by a neighboring State made no impression upon the mental operations of either the Illinois or the Federal Supreme Courts, which were molded by older custom. Justice Miller rendered the judgment of the Federal Supreme Court, denying that “privileges and immunities” protected by the United States include the practice of law; and Justice Bradley, concurring, gave a further opinion in which he delivered a long address on the historic sphere of woman in which “man is or should be woman's protector and defender.”
The Minor case traveled somewhat farther. Francis Minor, Mrs. Virginia Minor's husband, joined with her in the appeal as required by the Missouri law, and served as chief counsel. Said he:
“While the Negro votes today in Missouri, there is not a syllable of affirmative legislation by the State conferring the right upon him. Whence then does he derive it? There is but one reply. The Fourteenth Amendment conferred upon the Negro race in this country citizenship of the United States, and the ballot followed as an incident to that condition. Or to use the more forcible language of this Court in the Slaughter house cases (16 Wall, 71) ‘The Negro having by the Fourteenth Amendment been declared a citizen of the United States, is thus made a voter in every State of the Union.’ . . . If the Fourteenth Amendment does not secure the ballot to women, neither does it to the Negro; for it does not in terms confer the ballot upon any one.”
In summing up, Mr. Minor claimed that the plaintiff was entitled to any and all the “privileges and immunities” guaranteed to all citizens by the first section of the Fourteenth Amendment, and that the elective franchise is a privilege of citizenship in the highest sense of the word.
The decision delivered by Chief Justice Waite was long and indefinite. The chief points were: “The constitution does not define privileges and immunities of citizens.” “The amendment did not add to the privileges and immunities of a citizen.” “No new voters were necessarily made by it.” “The constitution has not added the right of suffrage to the privileges and immunities of citizens.” Since “The constitution of the United States does not confer the right of suffrage upon anyone,” the constitution and laws of the several States which commit that trust to men alone “are not necessarily void.” “If suffrage was one of these privileges and immunities, why amend the constitution to prevent its being denied on account of race?”
Neither Judge nor Court has yet been able to point out in terms comprehensible to the average man on the street, wherein lay the “potent alembic” cited by Mr. Riddle in the District of Columbia case which had granted the vote to Negro men. The laws of no State had conferred the vote upon them. The Federal Supreme Court before 1884, in all cases seeking interpretation of the two amendments, held that the constitution of the United States, including the new amendments, conferred the vote upon no one. If neither State nor federal constitutions nor laws had conferred the vote upon colored men, where did they get it? The military reconstruction act had given the Negro the vote in disloyal states, but that act did not apply to the loyal States and presumably was intended as a temporary measure. No other act of any kind had been passed.
Justice Miller in the case of ex parte Yarborough, in 1884, delivering the opinion of the Federal Supreme Court, declared:
“While it is true, as said in the Reese case, that the Fifteenth Amendment gave no affirmative right to the colored man to vote . . . yet it does substantially confer on the Negro the right to vote, and Congress has the power to protect and enforce that right.”*
In bewilderment, the public asked, “How may an amendment substantially confer a right when it does not confer it?” Just why the Congress, in which sat many of the ablest men of the nation, was unable or unwilling to write amendments which could be understood by those who read them is difficult of comprehension, but the explanation is undoubtedly to be found in the fact that the Fourteenth Amendment was a compromise of many conflicting views.
A participant in the controversy, in writing its inner history, throws light upon the puzzling situation. He quotes Alexander Stevens, the father of the reconstruction measures and leader of the majority in the House of Representatives, as saying:
“Don't imagine that I sanction the shilly-shally, bungling thing that I shall have to report to the House tomorrow.”†
Replying to a protest following the public announcement of the provisions of the amendment, Mr. Stevens wrote:
“In the course of last week the members from New York, from Illinois and from Indiana, held, each separately, a caucus to consider whether equality of suffrage, present or prospective, ought to form a part of the Republican program for the coming canvass. They were afraid, so some of them told me, that if there was ‘a nigger in the woodpile’ at all (that was the phrase) it would be used against them as an electioneering handle, and some of them—hang their cowardice!—might lose their elections. By inconsiderable majorities each of these caucuses decided that Negro suffrage, in any shape, ought to be excluded from the platform; and they communicated these decisions to us. Our committee hadn't backbone enough to maintain its ground. Yesterday the vote on your plan was reconsidered, your amendment was laid on the table, and in the course of the next three hours we contrived to patch together—well, what you've read this morning.”*
The Fourteenth Amendment extends certain rights to the Negro, but not the suffrage. It merely threatens to cut down the representation of States which deny the vote to any male inhabitants. The Fifteenth Amendment declares in stern tones that the right to vote shall not be denied on account of race, color or previous condition of servitude and gives the Congress power to enforce the provision.
It takes a careful reading of the long congressional debates on the subject to reveal the “potent alembic” that was challenged by Mr. Riddle as destroying the force of the word “white” as one of a voter's qualifications. It was politics. The National Republican party passed on to the State Republican parties an interpretation that was not written in the law: The Negro must have the vote in the South to protect himself from the domination of white men. The Republican party must have the support of loyal men in the secession States if there is to be peace, and the loyal men are the Negroes. The right of the State to make its own suffrage laws shall be respected, and therefore no conferring of the vote upon the Negro shall be done by federal act. These amendments mean however that the Negro shall have the right to vote in your State. They do not confer the vote, they merely threaten you with penalties if you deny the vote.
Politics, therefore, put into the amendments the meaning not clear to the reader of the text, and over whose obscurity courts and lawyers tripped. The Negro voted by the authority of the federal law forbidding the States to deny him the right to do so, but not conferring the right upon him. The States accepted this political order and allowed him to vote, although no State law conferred the vote upon him. This strained attempt not to offend State's rights sensibilities, when considered in connection with the methods of ratification, including “the crack of the party whip” at the North and the threat of the bayonet at the South, offers a curious example of State's rights in theory and centralized autocracy in practice.
It was in connection with the controversy and confusion over the 14th and 15th Amendments, that one of the most spirited chapters of all suffrage history was enacted. It was the last and most noteworthy of the four cases enumerated above through which the women of that day tried to get into the electorate by way of the door opened by the 14th amendment. On November 5, 1872, Susan B. Anthony and thirteen other women voted in a ward of Rochester, New York, in an effort to test the provisions of the amendments as applying to women. The Supreme Court of the nation had already passed upon the District of Columbia cases, and the decision had not only aroused keen criticism and comment but many lawyers charged the Court with prejudice and failure to meet squarely the question involved. Other cases were pending and Rochester gave a fresh impulse to the popular discussion as to what the Fourteenth and Fifteenth Amendments really meant.
At this juncture politics, directed by Washington, took a hand in the Rochester proceedings. A few days after Miss Anthony's vote, a Deputy United States Marshal appeared at the various houses of the Rochester women voters and arrested them in the name of the United States government, upon the criminal charge of “having voted without having a lawful right to vote.” Authority for the United States government to take charge of the alleged violation of State election laws was laboriously drawn from the so-called Ku Klux Klan law which had been passed by Congress to prevent disfranchised rebels from exercising the suffrage before being pardoned. The women were gathered, fitly enough, in the same office where before the war fugitive black men and women had been examined and returned to slavery. Bail of $500 each was ordered for their appearance at the Albany term of the United States District Court in January, 1873. Miss Anthony refused to give bail and petitioned for a writ of habeas corpus, her petition being presented by Judge Selden, one of the most eminent attorneys in the State of New York.*
On January 16 and 17, 1873, the annual national woman suffrage convention met in Washington. Miss Anthony named the possible methods of securing the vote for women as: by State constitutional amendments, to be adopted by electors at the polls, by a federal constitutional amendment to be adopted by a two-thirds vote of both Houses of the Congress and ratified by three-fourths of the State Legislatures, or, by taking “their right under the Fourteenth Amendment.” She pointed out that court decisions permitting women to avail themselves of this right, or a declaratory act of Congress, were necessary. “The vaults in yonder Capitol,” said she, “hold the petitions of 100,000 women for a declaratory act; and the calendars of our courts show that many women are already testing their right to vote under the Fourteenth Amendment. I stand here under indictment for having exercised my right as a citizen to vote at the last election, and by a fiction of the law I am now in custody and not a free person.”
The convention passed resolutions declaring its confidence that the Fourteenth Amendment enfranchised women as certainly as Negroes, and again called upon Congress for a Declaratory Act.
Miss Anthony hastened from Washington to Albany, where her petition was denied by United States District Judge N. K. Hall and her bail increased to $1,000 with orders for appearance at the May term in Rochester. This was in January. Again she refused to give bail, but Judge Selden, her counsel, against her wishes and without her knowledge, went on her bond. When she learned that by this fact “she had lost her chance of getting her case before the Supreme Court by writ of habeas corpus, she tried to have the bond cancelled but to her chagrin her counsel pronounced this impossible.”* Immediately after Judge Hall's decision, all the women and the three inspectors were indicted by a Grand Jury. Between the hearing before Judge Hall and his decision, Miss Anthony had time, accompanied by her counsel, to appear before the Commission on Amendments to the New York State Constitution, then sitting in Albany, and make a powerful plea to include woman suffrage in the proposed changes.
Before the May term of Court, Miss Anthony held a meeting in every post office district of her county (Monroe), 29 in number, speaking upon the subject, “Is it a crime for a United States citizen to vote?” The United States District Attorney, Richard Crowley, notified her that if she did not desist he would have the case moved to another county when the Court met, and made good his threat. Claiming that no jury could be drawn which might not be prejudiced in her favor, he asked and secured a change of venue to the United States District Court at Canandaigua, Ontario County, allowing just 22 days before the trial. The change was ordered on Friday, and on Monday she held her first meeting in Ontario County and followed it by 21 other meetings. Matilda Joslyn Gage came to her aid and held 16 meetings. When on June 17, 1873, the trial took place, the court room was filled by politicians, lawyers and prominent citizens, among them ex-President Fillmore and Judge Hall who had denied the writ of habeas corpus. The jury was sworn in, with Judge Ward Hunt presiding, United States District Attorney Crowley appearing for the United States government and Henry R. Selden and John Van Voorhis for the women voters.
Some hours were consumed in the arguments presented. The one point which stands out most conspicuously after the lapse of half a century was this statement of Judge Selden's:
“Miss Anthony believed and was advised that she had a right to vote under the provisions of the Federal Constitutional Amendments. She was advised as clearly that the question of her right could not be brought before the courts for trial without her voting or offering to vote. Her motives were pure and noble and carried no intent of fraud or crime. If by the laws of her country she shall be condemned a criminal for taking the only step by which it was possible to bring the great constitutional question of her right before the courts for adjudication, it adds another reason to those I have advanced to show that women need the ballot for their protection.”
When the last word had been spoken, those assembled were shocked to see the presiding Judge draw from his pocket a written opinion, clearly prepared before he had heard evidence or argument. He directed the jury to bring in a verdict of guilty, and when Judge Selden protested at this unwarranted act, he refused to have the jury polled and in the midst of the controversy discharged it!
The character of Judge Hunt's previously prepared opinion was equally astonishing. Said he: “Miss Anthony knew that she was a woman and that the constitution of this State prohibits her from voting.” Since Miss Anthony based her claim to a vote upon the fact that she was a citizen of the United States and upon the belief that the vote was included among the “privileges and immunities” which the Fourteenth Amendment, as a part of the federal constitution, forbade any State to abridge, this point of view begged the whole question. Quite possibly this curious failure even to comprehend what the contention was about would not have been expressed had the Judge waited to hear the case before he wrote his opinion.
He further held that although she might have believed that she had the right to vote and voted in good faith, and that she had been advised that such right was hers, nevertheless she was guilty of a crime because she had had no legal right to a vote, the motive having no bearing upon the question.
There was widespread condemnation of Judge Hunt's conduct of the case, and none were more outspoken than some members of the jury who boldly declared that had they had the opportunity they would not have voted guilty. The Albany Law Journal, though scornfully disapproving woman suffrage, admitted that the Judge usurped power in taking the case from the jury, and editorial discussion of the question “Can a judge direct a verdict of guilty” was frequent. Those who had sympathy neither with woman suffrage nor the effort to test the Fourteenth Amendment, pronounced Judge Hunt's assumption of authority a dangerous and menacing threat to free government.
A motion for a new trial was denied. A fine of $100 and the costs of the prosecution were the penalties imposed. Miss Anthony responded with the declaration that she would never pay a penny of the unjust penalty, whereupon Judge Hunt said that the Court would not order her committed until the fine was paid, and although this procedure was contrary to the custom and the law, the fine was neither paid nor remitted.
Had the Judge demanded the penalty or imprisonment, Miss Anthony would have gone to prison and could then have taken her case directly to the Supreme Court of the United States by writ of habeas corpus. Lawyers claimed that the fact that she had been denied a trial by jury would have made her discharge certain. Had this case been permitted to find its way to the Supreme Court, or had the jury at Canandaigua been allowed to perform the ordinary function of jurymen, history might have been decisively changed.
The trial of the inspectors which followed attracted little attention by comparison, but it was in reality an even more unwarranted usurpation of authority. The inspectors served under the laws of New York and any failure to perform their duty in accordance with that law was clearly an offense against State, not national, law. Yet they were arrested by officers of the United States and tried by a Judge of the Federal Supreme Court for the crime of violating a New York law! The inspectors were found guilty, although it was made quite clear that they believed it to be their duty to accept the women's votes and that they acted in good faith and without criminal intent. This time the jury was permitted to act, although counsel was denied the privilege &,of addressing it, and the judge virtually directed it to bring in a verdict of guilty, which it did.
In February, 1874, about nine months after their trial, the three inspectors were seized by the United States authorities and thrown into jail because they had not paid their fines. As was well known, they had been advised not to do so. Senator Sargent of California promptly presented a petition to President Grant who at once remitted their fines. They were, however, in jail a week, during which time the best of meals were furnished them by the fifteen women voters; hundreds of citizens called to pay their respects, and the entire city regarded the proceedings as a joke.
The press gibed at United States District Attorney Crowley unmercifully for prosecuting the young men and being afraid to attack the woman “who shrinks not from any of the terrors of the law,” but she was neither arrested nor approached again in reference to her fine. She was importuned to allow an appeal to be made to President Grant, for whom she had voted, to remit her fine, but this she refused to do. Instead, by the advice of Judge Selden she addressed an appeal from Judge Hunt's decision to Congress in her own name. Her petition was presented in the Senate by Senator Sargent of California, afterward Minister to Germany, January, 1874, and was referred to the Judiciary Committee, which through its chairman, Senator Edmunds of Vermont, asked to be discharged from consideration, as Congress had no authority to act.
Senator Matt H. Carpenter of Wisconsin, acknowledging that Congress could not remit the fine imposed, nor secure a new trial, yet condemned the injustice of the trial, denouncing it as without precedent, and called the attention of Congress to the need of an amended system of jurisprudence, since “a citizen may be tried, condemned and put to death by the erroneous judgment of a single judge, and no court can grant him relief or a new trial.” In the House the petition was reported adversely by the Judiciary Committee, a letter being incorporated in the report from District Attorney Crowley urging the Committee “not to degrade a just judge and applaud a criminal.” As Judges Hall and Hunt and District Attorney Crowley were appointees of the Administration, political considerations assisted the committee in arriving at its conclusions.
Benjamin F. Butler, however, offered a minority report recommending that the prayer of the petitioner be granted. He too declared that she had had a mistrial, and though both Senator Carpenter and Mr. Butler had been careful not to accuse too boldly the motives or the qualifications of Judge Hunt, their subtle comments were recognized as a severe reproof.
Although the women failed to secure an opinion from the Federal Supreme Court that the Fourteenth Amendment included women under its provision concerning “the privileges and immunities of citizens,” the conviction remained with suffrage leaders and many able lawyers that the words of the law could be only so interpreted. Again and again in after years eminently qualified lawyers with briefs in hand begged suffragists to make further appeals to the Court for affirmation of their rights as set forth in the amendment, but the women knew that the “potent alembic” of politics would not be made to operate in their case, and they steadfastly refused to waste any more time in efforts to get favorable judicial decisions to support their claim to the suffrage under the provisions of that amendment.