Chapter XXV

TRIALS AND DECISIONS.

Women voting under the XIV. Amendment—Appeals to the Courts—Marilla M. Ricker, of New Hampshire, 1870—Nannette B. Gardner, Michigan—Sarah Andrews Spencer, District of Columbia—Ellen Rand Van Valkenburgh, California—Catharine V. Waite, Illinois—Carrie S. Burnham, Pennsylvania—Sarah M. T. Huntingdon, Connecticut—Susan B. Anthony, New York—Virginia L. Minor, Missouri—Judges McKee, Jameson, Sharswood, Cartter—Associate Justice Hunt—Chief Justice Waite—Myra Bradwell—Hon. Matt. H. Carpenter—Supreme Court Decisions—Mrs. Gage's Review.

We have already shown in previous chapters that by a fair interpretation of the XIV. Amendment women were logically secured in their right to vote. Encouraged by the opinions of able lawyers and judges, they promptly made a practical test of this question by registering and voting during the State and Presidential elections of 1871 and '72. This transferred the discussion, for a time, from the platform and halls of legislation to the courts for final adjudication.

The first woman to offer her vote was Marilla M. Ricker, of Dover, New Hampshire, a young widow of large property. In March,[164] 1870, the day previous to the election, she made application to the selectmen for registry. No objection being made, and one of the Board, promising to put her name on the check-list, she departed, leaving with them several copies of a speech she had prepared in case of a refusal. On election day she appeared at the polls and offered a straight Republican ticket. It was received by the moderator and her name called, but on examination of the list it was found that the selectman had been false to his promise, and her vote was refused. Extended comments were made by the press of the State, Democrats generally sustaining her, while Republicans were bitter in opposition. Mrs. Ricker in the meantime prepared to sue the selectmen, but being strongly opposed by her republican friends, she silently submitted to the injustice, and thus lost the opportunity of being the first woman to prosecute the authorities for refusing the vote of a citizen on the ground of sex. However, she still enjoys the distinction of being the first woman to cast a vote under the XIV. Amendment, as the following spring she saw that her name was on the registry list, and her vote was received without opposition.

The next case was that of Nannette B. Gardner, in Detroit, Michigan. She registered her name in that city March 25, 1871, and voted,[165] unquestioned, April 3d. April 20th, of the same year, Sara Andrews Spencer and Sarah E. Webster, with seventy other women of the District of Columbia, marched in a body to the polls, but their votes were refused at the election as they had been previously refused registration. They immediately took steps to prosecute the Board of Inspectors, and suit was brought in the Supreme Court of the District at the general term, October, 1871. Albert G. Riddle and Francis Miller, able lawyers of the District, and well known advocates of woman suffrage, were retained by the plaintiffs, and in their defense made the following arguments:

Mr. Riddle said: May it please the Court; ... These plaintiffs, describing themselves as women, claim to be citizens of the United States and of this District, with the right of the elective franchise, which they attempted to exercise at the election of April 20th last past, and were prevented. They say that as registration was a prerequisite of the right to vote, they tendered themselves in due form, and demanded it, under the second section of the Act of May 31, 1870 (16th U.S. Stats., 140). That is the "Act to enforce the right of citizens of the United States to vote," etc., and authorizes a suit for refusing registration. They say, that being refused registration, they tendered their votes to the proper inspectors of said election, with proof of their attempt to register, citizenship, etc., as authorized by the third section of said Act, and their votes were refused; and, thereupon, Spencer brings her suit under said second section, against the registering officers, and Webster hers under the third section, which authorizes it, for rejecting her vote. The questions in both cases are identical and presented together.

To the declarations the defendants demur, and thereby raise the only questions we desire to have adjudicated. The defendants, by their demurrer, admit all the allegations of the plaintiffs, severally, but say, that as they are women, they are not entitled to vote in the District of Columbia. That the seventh section of the organic Act, the Constitution of the District, provides, "That all male citizens," etc., "shall be entitled to vote," etc., and that this word male excludes women, of course.

To this the plaintiffs reply that the language of the statute does exclude women, but they say that in the presence of the first section of the XIV. Amendment, which confers the elective franchise upon "all persons," this word "male" is as if unwritten, and that the statute, constitutionally, reads, "That all citizens shall be entitled to vote." For we contend, your honors, that although the Congress "has exclusive legislation in all cases over this District," it can legislate only, as could the States, from which it was taken. It must legislate in accordance with American ideas, and can exercise no power not granted by the Constitution; and that instrument certainly confers no power to limit the right of suffrage. And so we are at issue....

As the first proposition of my brief, I contend, that under our system the right to vote is a natural right.

Obviously, government is of right or it is an usurpation. If of right, it sprang from some right older than itself; and this older right must have existed in persons (people), in each and all alike, male and female. And having this right, they used it to form for themselves a government. Of course, this supposes that all joined in and consented to the government having the power to dissent; for, to just the extent that a government got itself agoing without the free consent of its people, it is without right. The right of self-government, and from that springs our right to govern others, is a natural right. This is the primary idea of American politics, and the foundation of our Government. This was formulated in the second clause of our great Declaration, and no man has dared to deny it....

It follows, then, if the right of government is a natural right, and to be exercised alone by the ballot, that the right to vote is a natural right. This never has been and never can be successfully controverted....

I will read from the highest American authority upon our politico-constitutional questions, partly in support of my proposition that the right to vote is a natural right, and also to show that the assumed claim of one part of the people to exclude another from all share in the Government has the most doubtful and shadowy foundation in right, and to an American it needs no evidence to show that a portion of the people thus excluded are in a state of vassalage. I read from Story on the Constitution, volume 1st, commencing at

Sec. 578. The most strenuous advocate for universal suffrage has never yet contended that the right should be absolutely universal. No one has ever been sufficiently visionary to hold that all persons of every age, degree, and character, should be entitled to vote in all elections of all public officers. Idiots, infants, minors, and persons insane or utterly imbecile, have been, without scruple, denied the right as not having the sound judgment and discretion fit for its exercise. In many countries, persons guilty of crimes have also been denied the right as a personal punishment, or as a security to society. In most countries, females, whether married or single, have been purposely excluded from voting, as interfering with sound policy and the harmony of social life ... And yet it would be extremely difficult, upon any mere theoretical reasoning, to establish any satisfactory principle upon which the one-half of every society has thus been systematically excluded by the other half from all right of participating in government, which would not at the same time apply to and justify many other exclusions. If it be said that all men have a natural, equal, and inalienable right to vote, because they are all born free and equal; that they all have common rights and interests entitled to protection; and, therefore, have an equal right to decide, either personally or by their chosen representatives, upon the laws and regulations which shall control, measure, and sustain those rights and interests; that they can not be compelled to surrender, except by their free consent, what by the bounty and order of Providence belongs to them in common with all their race. What is there in these considerations which is not equally applicable to females as free, intelligent, moral, responsible beings, entitled to equal rights and interests and protection, and having a vital stake in all the regulations and laws of society? And, if an exception, from the nature of the case, could be felt in regard to persons who are idiots, infants, and insane, how can this apply to persons who are of more mature growth, and are yet deemed minors by the municipal law?

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 been 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, commentary, 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 manner 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 inconsistent 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 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 in 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 Parliament; 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 difference 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 (Parish 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 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, and 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 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 for me. Let us read it:

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, 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 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 Independence. We were one hundred years coming to it; but we have reached it at last—certainly by recognizing the political rights of the black man—and, 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. 345.)

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 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 dram-shop and gambling hell; and men of conscience and capacity are discarded, to the promotion of vagabonds to power.

This condition demonstrates that the right to vote ought not to be, and is not, an absolute right. The fact that the practical working of the assumed right would be destructive of civilization is decisive that the right does not exist.... It will be seen by the first clause of the XIV. Amendment, that the plaintiffs, in common with all other persons born in the United States, are citizens thereof, and, if to make them citizens is to make them voters, the plaintiffs may, of right, vote. It will be inferred from what has already been said, that to make a person a citizen is not to make him or her a voter. All that has been accomplished by this Amendment to the Constitution, or by its previous provisions, is to distinguish them from aliens, and make them capable of becoming voters.

In giving expression to my own judgment, this clause does advance them to full citizenship, and clothes them with the capacity to become voters. The provision ends with the declaration of their citizenship. It is a constitutional provision that does not execute itself. It is the creation of a constitutional condition that requires the supervention of legislative power in the exercise of legislative discretion to give it effect. 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. Congress, the legislative power of this jurisdiction, as yet, has not seen fit to carry the inchoate right into effect, as is apparent in the law regulating the franchise of this District. When that shall have been done, it will be the pleasure of this court to administer the law as they find it. Until this shall be done, the consideration of fitness and unfitness, merit and demerit, are considerations for the law-making power. The demurrer in these cases is sustained.

After the reading of the opinion of the Court by Chief Justice Cartter, Mr. Riddle, counsel for the plaintiffs, in open court, prayed an appeal to the Supreme Court of the United States. And that highest tribunal affirmed the decision of Judge Cartter.

This contradictory decision of Judge Cartter averring that the XIV. Amendment clothed women with the capacity to become voters, but did not create them voters, afforded opportunity for criticism and ridicule. The Washington Sunday Morning Herald wittily reported[166] this trial in the Supreme Court of the District of Columbia.

On July 21st, 1871, Ellen Rand Van Valkenburg, of Santa Cruz, California, having applied for registration and been refused, brought suit against Albert Brown, of Brown County, who acted as Register upon this occasion. Although later suits exceeded this in interest it was notable for being the first decision under the new amendments.[167]

September 16, 1871, suit was brought by Carrie S. Burnham, an unmarried woman, residing in Philadelphia. She was duly assessed by the canvassers of the Fourteenth Ward of that city as a resident of the Eleventh Election District of that ward. Two days afterwards she paid her tax, and her name was registered on the canvassers' printed list of legal voters in that division. Having complied with all the laws regulating suffrage in Pennsylvania, she presented her ballot in legal form at the proper time and place at the general election, but her vote was refused. Her argument in the Court of Common Pleas and the opinion of the judge, will be given in the Pennsylvania chapter.

Mrs. Catharine V. Waite, of Illinois, also instituted suit for the refusal of her vote proffered in the fall of 1871, and received an adverse decision, a report of which will be found in the Illinois chapter.

Two years previous to these suits for the recognition of the political rights of women a contest of a different character was commenced in Illinois. Mrs. Myra Bradwell, editor of the Chicago Legal News, in September, 1869, having passed the examination, and received the required certificate of qualification, applied for admission to the bar of that State, which was refused by its Supreme court, on the ground that she was a woman. She made this denial of her civil rights a test case by bringing a writ of error against the State of Illinois in the Supreme Court of the United States. We copy from the Legal News of February 5, 1870:

A WOMAN CAN NOT PRACTICE LAW OR HOLD ANY OFFICE IN ILLINOIS.

Full Report of the Proceedings in the Supreme Court upon the Application of Myra Bradwell to be admitted to the Bar.

Licensing Attorneys.—The following extract from rule 76 shows what is required by the Supreme Court of applicants for admission to the bar:

Ordered, That rules 69 and 70 be rescinded, and applicants for license to practice law in the courts of this State, on presenting to any member of this court a certificate of qualification, signed by the Circuit Judge and State's Attorney of the circuit in which the applicant may reside, setting forth that the applicant has been examined and found qualified, will be a sufficient voucher on which to grant a license.

Certificate of Admission.—The undersigned have examined Mrs. Myra Bradwell as to her qualifications to enter upon the practice of the law, and finding her qualified therefor, recommended that a license should be issued to her.

E. S. Williams, Judge Seventh Judicial Circuit. Charles H. Reed, State's Attorney.

Chicago, Illinois, August 2, 1869.

Motion to be Admitted.—Robert Hervey, Esq., of the Chicago Bar, at the September term, kindly, at the request of the applicant, filed her certificate of examination and of character from Judge Jameson of the Superior Court of Chicago; also the following written application prepared by her, and moved the court that she be admitted:

Supreme Court of Illinois—Third Grand Division—September Term. 1869—(In the matter of the Application of Myra Bradwell for license to practice law.)

To the Honorable the Judges of the Supreme Court of Illinois: Now comes your petitioner, Myra Bradwell, a resident of Chicago, Ill., over twenty-one years of age, and presents to your honors, under rule 76 of this honorable court, the certificate of the Hon. E. S. Williams, Judge of the Circuit Court for the Seventh District, and the Hon. Charles H. Reed, State's Attorney for the said circuit, stating that they have examined your petitioner and found her qualified to practice law, and recommend that a license issue to her for that purpose, and also a certificate as to character from the Superior Court of Chicago, as required by the statute and the rule aforesaid, and moves your honors that an order of this honorable court may be entered directing a license to be given to your petitioner. Your petitioner suggests that the only question involved in her case is—Does being a woman disqualify her under the laws of Illinois from receiving a license to practice law?—and claims that the Legislature has answered this question in the negative. The first section of chapter eleven of the Revised Statutes, in regard to the admission of attorneys, is as follows:

No person shall be permitted to practice as an attorney or counselor-at-law, or to commence, conduct, or defend any action, suit, or plaint, in which he is not a party concerned, in any court of record within this State, either by using or subscribing his own name or the name of any other person without having previously obtained a license for that purpose from some two of the Justices of the Supreme Court, which license shall constitute the person receiving the same an attorney and counselor-at-law, and shall authorize him to appear in all the courts of record within this State, and there to practice as an attorney and counselor-at-law, according to the laws and customs thereof, for and during his good behavior in said practice, and to demand and receive all such fees as are or hereafter may be established for any services which he shall or may render as an attorney or counselor-at-law in this State.

Your petitioner claims that the pronoun he, not only in this section, but the whole chapter, is used indefinitely for any person, and may refer to either a man or woman.

The Legislature devoted the whole of chapter 90 to construing various expressions and words used in the Revised Statutes, and in section 28 said:

When any party or person is described or referred to by words importing the masculine gender, females as well as males shall be deemed to be included.

It is declared by Act No. 29, appendix to the Revised Statutes, that the several chapters composing the Revised Statutes shall be deemed and taken as one act.

It is evident that if a woman should practice law without a license, recover for her services, and be sued for three times the amount, that under Sec. 11 of Chap. 11 for practicing law without a license, it would be no defense for her to say that the masculine pronoun was used in this section.

Section 3 of our Declaration of Rights, says "that all men have a natural and indefeasible right to worship Almighty God," etc. It will not be contended that women are not included within this provision.

The 8th section declares "that no freeman shall be imprisoned or disseized of his freehold," etc., but by the judgment of his peers or the law of the land. Will woman be deprived of the guarantees in this section and the right of trial by jury because the masculine pronoun is used? Under the 11th section no man's property can be taken or applied to public use without the consent, etc. Is not the property of a woman as secure under this provision as that of a man? In the chapter upon forcible entry and detainer, the masculine pronoun is used throughout, but no court would hesitate for a moment in holding a woman to be within its provisions if she should wrongfully hold possession of premises.

In the whole Chancery Code of this State, consisting of 53 sections, the word woman, female, she, her, herself, or any other feminine pronouns are not to be found, while in the 5th, 8th, 15th, 18th, 19th, 24th, 25th, 26th, 27th, 28th, 29th, 30th, 31st, 36th, 37th, and 46th, and some others, the masculine pronouns frequently occur. The same construction that would exclude a woman from the provisions of the statute in regard to the admission of attorneys, would place her without the Chancery Code. Yet no respectable attorney would claim because defendants in chancery are represented in the law by masculine pronouns, that a woman could not be made a defendant in chancery.

Myra Bradwell.

All of which is respectfully submitted.

COMMUNICATION FROM THE COURT.

No order having been entered or opinion filed in this case, on the seventh of October the applicant received from the court, through Hon. Norman L. Freeman, Supreme Court Reporter, the following communication:

State of Illinois, Supreme Court, Third Grand } Division, Clerk's Office, Ottawa, Oct. 6, 1869. }

Mrs. Myra Bradwell—Madam: The court instruct me to inform you that they are compelled to deny your application for a license to practice as an attorney-at-law in the courts of this State, upon the ground that you would not be bound by the obligations necessary to be assumed where the relation of attorney and client shall exist, by reason of the disability imposed by your married condition—it being assumed that you are a married woman.

Applications of the same character have occasionally been made by persons under twenty-one years of age, and have always been denied upon the same ground that they are not bound by their contracts, being under a legal disability in that regard.

Until such disability shall be removed by legislation, the court regards itself powerless to grant your application.

N. L. Freeman.

Very respectfully, your obedient servant,

The applicant, satisfied that under the common law, as modified by our statutes, she could not properly be denied a license to practice law solely upon the ground of her married condition, on the 18th of November filed the following printed argument:

ADDITIONAL BRIEF.

In the Supreme Court of Illinois—Third Grand Division—September Term, 1869. [In the matter of the application of Myra Bradwell to obtain a license to practice as an Attorney-at-law.] And now again comes the said Myra Bradwell, it having been suggested to her that the court had assumed that she is a married woman, and therefore queried whether this would not prevent her from receiving a license, and files this her additional brief.

Your petitioner admits to your honors that she is a married woman (although she believes that fact does not appear in the record), but insists most firmly that under the laws of Illinois it is neither a crime nor a disqualification to be a married woman.

I propose to state very briefly,

1. What is an attorney?

2. Who may act as attorneys?

3. The rights and powers of married women in relation to their business and property under the common law.

4. Their rights and powers as to transacting business under the recent statutes of our State, with reference to their transacting business in their own names and acting as attorneys.

5. The avenues of trade and the professions opened to women by the liberal enactments of the law-makers, and the construction of the courts.

6. How the Legislature has regarded petitioner with reference to her rights to carry on business in her own name and act for herself.

I. What is an Attorney?—An attorney is "one who takes the turn or place of another."—Webster. "An attorney at-law," says Bouvier, "is an officer in a court of justice who is employed by a party in a cause to manage the same for him." All attorneys are agents. They transact business, and appear for, and in the place of their clients who have not the requisite learning, time, or desire to appear in suits for themselves.

Mr. Story, in his work upon "Agency," and Mr. Bouvier, in his "Institutes," in treating of the different kinds of agents, both speak first of attorneys-at-law. All the elementary writers upon law tell us that attorneys are agents. Without reference to our recent statutes modifying the common law, we will open the books and see who may be attorneys or agents.

II. Who may be Attorneys or Agents.—Mr. Story, in his work on Agency, says, sec. 7:

Secondly, who are capable of becoming agents? And here it may be stated that there are few persons who are excluded from acting as agents, or from exercising an authority delegated to them by others. Therefore, it is by no means necessary for a person to be sui juris or capable of acting in his or her own right, in order to qualify himself or herself to act for others. Thus, for example, monks, infants, femes covert, persons attainted, outlawed, or excommunicated villains, and aliens, may be agents for others.... A feme covert may be an attorney of another, to make livery to her husband upon a feoffment; and a husband may take such livery to his wife, although they are generally deemed but one person in law. She may also act as agent or otherwise of her own husband, and as such, with his consent, bind him by her contract, or other act; or she may act as the agent of another, in a contract, with her own husband.

III. Under the Common Law.—In Cox vs. Kitchin, 1 Bos. & Pul., 438, where a feme covert represented herself falsely to the tradesman to be a feme sole, and obtained goods on credit, it was held that she rendered herself personally responsible.

In Derry vs. Mazarine, 1 Ld. Raymond, 147, it was held that the wife of an alien, who was doing business in her own name, in England, was liable as a feme sole. In Hauptman vs. Catlin, 20 N. Y., 248, the Court of Appeals says:

Even before the late statute respecting married women, they were regarded as femes sole in respect to their separate property, and were as to such property liable on their contracts respecting the same, to the same extent and as though they were not under the disability of coverture. It was held by Lord Mansfield and his associates, in Corbett vs. Poelnitz, 1 T. R., 5, that if a husband and wife choose to separate, and the husband allows the wife a separate maintenance, she may contract and be sued as though she were unmarried, and may be held to bail and imprisoned on a ca. sa. without her husband. The court made this innovation on the ground that "the times alter new customs, and new manners arise, which require new exceptions, and a different application of the general rule.

IV. Under the Recent Statutes.—In Conway vs. Smith and Wife, 13 Wis., 125, the court held that "the statute gives to married women, as necessarily incidental to the power of holding property to their own use, the power of making all contracts necessary or convenient to its beneficial enjoyment, and such contracts are to be regarded as valid in law, and may be enforced by legal remedies." Cole, J., dissenting.

In Barton vs. Beer, 35 Barbour, 81, the court, in treating of the liability of a married woman, says:

If she acts as a feme sole, she ought, in justice to the public, to be subjected to all the duties and liabilities of a feme sole.

In Emerson vs. Clayton, 32 Ill., 493, this honorable court held, that a married woman might bring replevin in her own name, for her separate property, against a third party, or even against her own husband, and that the act designed to make and did make a radical and thorough change in the condition of a feme covert; that she is to be regarded as unmarried, so far as her separate property is concerned.

In Pomeroy vs. Manhattan Life Insurance Co., 40 Ill., 398, Walker, C. J., in delivering the opinion of the court, says:

Under the statute she is entitled to the benefits it confers, and must be held liable for her acts performed in pursuance of the authority it confers. If it gives the rights of a sole ownership, it must impose the liabilities incident to such an act.

In Brownell vs. Dixon, 39 Ill., 207. this court not only held, under the act of 1861, that a married woman possessed of separate property might employ "an agent to transact her business", but that she might employ her own husband as such agent.

Relying upon the doctrine laid down in this case, we insist that the power "to employ an agent" carries with it the liability to pay such an agent a reasonable compensation for his services; and that if a married woman employs a man to work on her farm for one day, and agrees to give him two dollars therefor, and fails so to do, that a fair construction of the act of 1861 would allow him to sue her before a justice of the peace, and not drive him to the expense of filing a bill in chancery that would amount to more than a denial of justice.

Now, if under the Act of 1861 she can employ an agent to transact her business, we insist under the Act of 1869, giving the wife her own earnings, and the rights to sue for the same in her own name, free from her husband, that she has the right to be employed as an agent, or attorney, or physician, if she is capable, and to agree to do the duties of her profession. It would almost seem that this question is answered by the following extract from the opinion of this honorable court, as delivered by Mr. Justice Lawrence, in Carpenter vs. Mitchell, 2 Legal News, 44:

It may be said that a married woman can not adequately enjoy her separate property unless she can make contracts in regard to it. This is true, and hence her power to make contracts, so far as may be necessary for the use and enjoyment of her property, must be regarded as resulting by implication from the statute. If she owns houses she must be permitted to contract for their repair or rental. If she owns a farm she must be permitted to bargain for its cultivation, and to dispose of its products. We give these as illustrations of the power of contracting which is fairly implied in the law.

It is true, in this opinion the learned Judge confines his remarks strictly to the contracts of the wife made in relation to her separate property, and not in relation to general trade. This case arose before the passage of the Act of 1869. The right of a married woman to bring a suit in her own name is a necessary incident to the law. (Cole vs. Van Riper, 1 Legal News, 41.)

V. The Trades and Professions open to Women.—The doors of many of our universities and law schools are now open to women upon an equality with men. The Government of the United States has employed women in many of its departments, and appointed many, both single and married, to office. Almost every large city in the Union has its regularly-admitted female physicians. The law schools of the nation have now many women in regular attendance, fitting themselves to perform the duties of the profession. The bar itself is not without its women lawyers, both single and married.

Mrs. Arabella A. Mansfield, wife of Prof. J. M. Mansfield, of Mount Pleasant, Iowa, was admitted to the bar of Iowa, upon the unanimous petition of the attorneys of that place, after a very careful examination, not only of the applicant, but of the statutes regulating the admission of attorneys.

The statute of Iowa provides that "any white male person, twenty-one years of age, who is an inhabitant of this State," and who satisfies the court, "that he possesses the requisite learning, and that he is of good moral character, may, by such court, be licensed to practice in all the courts of the State, upon taking the usual oath of office."

The clause construing statutes is as follows:

Words importing the singular number only, may be extended to several persons or things; and words importing the plural number only may be applied to one person, or thing; and words importing the masculine gender only may be extended to females.

In Mrs. Mansfield's case, the court not only held that she could be admitted, notwithstanding the fact that she was a married woman, under the clause of the statute giving a construction to the masculine noun "male," and pronoun "he"; but that the affirmative declaration, that male persons may be admitted, is not an implied denial of the right to females. We know of no instance in the United States, where a woman, whether married or single, who has complied with the statutes of the State in which she lived and applied for admission, that the proper court has refused to grant her license.

VI. How the Legislature have Regarded your Petitioner.—It has been held, in England, that a wife who does business in her own name, with either the express or implied consent of her husband, should be treated as a feme sole, and be sued as such; and, with such consent, could be an administrator, executor, or guardian, in England or America.

The Legislature has, in repeated instances, acknowledged the capability and capacity of your petitioner to transact business, by providing that the Chicago Legal News, edited by her, and containing the decisions rendered by your honors, should be received in evidence in all the courts of this State, and in the following extract from the charter of the Chicago Legal News Company:

And all the real and personal estate of said Myra Bradwell shall be liable for the debts of said company, contracted while she is a stockholder therein, and all stock of said company owned by her, and the earnings thereof, shall be her sole and separate property, the same as if she were an unmarried woman; and she shall have the same right to hold any office or offices in said company, or transact any of its business that a feme sole would have.—Legal News, Edition Laws of 1869, p. 93. Sec. 4, p. 93.

Your petitioner claims that a married woman is not to be classed with an infant since the passage of the Act of 1869. A married woman may sue in her own name for her earnings, an infant can not. A married woman, if an attorney, could be committed for contempt of court the same as any other attorney. If she should collect money and refuse to pay it over, she could be sued for it the same as if she were single. A married woman is liable at law for all torts committed by her, unless done under the real or implied coercion of her husband. Having received a license to practice law as an attorney, and having acted as such, she would be estopped from saying she was not liable as an attorney upon any contract made by her in that capacity.

The fees that a married woman receives for her services as an attorney are just as much her earnings as the dollar that a sewing-woman receives for her day's work, and are just as much protected by the Act of 1869. Is it for the court to say, in advance, that it will not admit a married woman? Should she be admitted, and fail to perform her duty, or to comply with all her contracts as an attorney, could not the court, upon application, strike her name from the roll, or inflict more summary punishment?

Your petitioner has complied with all the provisions of the statutes of the State regulating the admission of attorneys, and asks, as a matter of right and justice, standing as she does upon the law of the land, that she be admitted.

Not a line of written law, or a single decision in our State, can be found disqualifying a married woman from acting as an attorney. This honorable court can send me from its bar, and prevent me from practicing as an attorney, and it is of small consequence; but if, in so doing, your honors say to me: "You can not receive a license to practice as an attorney-at-law in the courts of this State upon the ground that you would not be bound by the obligations necessary to be assumed, where the relation of attorney and client shall exist, by reason of the disability imposed by your married condition"; you, in my judgment, in striking me down, strike a blow at the rights of every married woman in the great State of Illinois who is dependent on her labor for support, and say to her, you can not enter into the smallest contract in relation to your earnings or separate property, that can be enforced against you in a court of law.

This result can, in my opinion, only be reached by disregarding the liberal statutes of our State, passed for the sole purpose of extending the rights of married women, and forever removing from our law, relating to their power to contract in regard to their earnings and property, the fossil foot-prints of the feudal system, and following the strictest rules of the common law.

Lord Mansfield, notwithstanding the fact that slaves had been held, bought and sold for years in the streets of London, declared that the moment a slave touched British soil his shackles fell. The same noble lord held that a married woman might under certain circumstances, contract, and sue, and be sued at law, as a single woman, upon the ground that, the reason of the law ceasing, the law itself must cease; and that, as the usages of society alter, the law must adapt itself to the various situations of mankind. Mr. Justice Buller, in speaking of this decision years afterward, declared that "the points there decided were founded in good sense, and adapted to the transactions, the understanding, and the welfare of mankind."

Apply this reasoning in our State, now that the Legislature has removed every claim that the husband had, under the common law, upon the property of the wife, except his life estate in her hands, which only commences with her death, and all difficulty is removed, and the case is clear.

Myra Bradwell.

Applicant, with a view of placing herself in a position to obtain the benefit of the provisions of the Constitution of the United States, and the Civil Rights Bill, applicable to her case, on the second day of January, 1870, filed the following affidavit and points:

In the Supreme Court of Illinois, Third Grand Division—September Term, 1869. [In the matter of the application of Myra Bradwell to obtain a license to practice as an Attorney-at-law]—State of Illinois, County of Cook, ss.: Myra Bradwell, being duly sworn, doth depose and say that she was born in Manchester, in the State of Vermont, and that she was a citizen of said State last named, that she is now a citizen of the United States; that she is and has been for many years last past a resident of Chicago, in said State of Illinois, and further deponent says not.

Myra Bradwell.

Subscribed and sworn to before me this 31st day of December, a.d. 1869.

E. B. Payne, Notary Public. [Seal.]

And now again comes the said Myra Bradwell, and files the following additional points:

VII. Your petitioner claims under the XIV. Amendment to the Constitution of the United States, and the act commonly known as the "Civil Rights Bill," the "full and equal benefit of all laws and proceedings for the security of person and property," and the right to exercise and follow the profession of an attorney-at-law upon the same terms, conditions, and restrictions as are applied to and imposed upon every other citizen of the State of Illinois, and none other.

And that having complied with all the laws of the State, and the rules and regulations of this honorable court, for the admission of attorneys, it is contrary to the true intent and meaning of said Amendment and said "Civil Rights Bill," for your petitioner to be refused a license to practice law, upon the sole ground of her "married condition."

VIII. And your petitioner further claims, that having been born in the State of Vermont, and having been a citizen of the State last named, and of the United States, and having removed to the State of Illinois, where she has resided for many years, that under the second section of the IV. Article of the Constitution of the United States, which is in these words, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," she has guaranteed to her the privileges and immunities which every other citizen of the State of Illinois has, among which may be named the protection of the Government, the right to the enjoyment of life and liberty, to acquire and possess property, to reside in the State, to carry on trade, and the right to follow any professional pursuit under the laws of the State, which must work equally upon all the citizens of the State, and that under this section of the Constitution she has a right to receive a license to practice law upon the same terms and conditions as the most favored citizen of the State of Illinois.

(People vs. Washington, 36 California R., 662. Corfield vs. Coryell, 4 Washington C. R., 381.)

Myra Bradwell.

On last week the court filed an opinion denying the application, for a very carefully prepared copy of which we are indebted to Mr. Freeman:

OPINION OF THE COURT DENYING THE APPLICATION.

[In the matter of the application of Mrs. Myra Bradwell for a license to practice as an Attorney-at-Law.] Opinion of the Court Delivered by Mr. Justice Lawrence.—At the last term of the court Mrs. Myra Bradwell applied for a license as an attorney-at-law, presenting the ordinary certificates of character and qualifications. The license was refused, and it was stated as a sufficient reason, that under the decisions of this court the applicant, as a married woman, would be bound neither by her express contracts, nor by those implied contracts which it is the policy of the law to create between attorney and client. Since the announcement of our decision, the applicant has filed a printed argument in which her right to a license is earnestly and ably maintained. Of the ample qualifications of the applicant we have no doubt, and we put our decision in writing in order that she or other persons interested may bring the question before the next Legislature.

The applicant, in her printed argument, combats the decision of the court in the case of Carpenter vs. Mitchell, June term, 1869, in which we held a married woman was not bound by contracts having no relation to her own property. We are not inclined to go over again the grounds of that decision. It was the result of a good deal of deliberation and discussion in our council chamber, and the confidence of the present members of this court in its correctness can not easily be shaken. We are in accord with all the courts in this country which have had occasion to pass upon a similar question, the Supreme Court of Wisconsin in Conway vs. Smith, 13 Wis., 125, differing from us only on the minor point as to whether, in regard to contracts concerning the separate property of married women, the law side of the court would take jurisdiction.

As to the main question, the right of married women to make contracts not affecting their separate property, the position of those who assert such right is, that because the Legislature has expressly removed the common law disabilities of married women in regard to holding property not derived from their husbands, it has therefore, by necessary implication, also removed all their common law disabilities in regard to making contracts, and invited them to enter, equally with men, upon those fields of trade and speculation by which property is acquired through the agency of contracts.

The hiatus between the premise and the conclusion is too wide for us to bridge. It may be desirable that the Legislature should relieve married women from all their common law disabilities. But to say that it has done so in the Act of 1861, the language of which is carefully guarded, and which makes no allusion to contracts, and does not use that or any equivalent term, would be simple misinterpretation. It would be going as far beyond the meaning of that act as that act goes beyond the common law in changing the legal status of women. The act itself is wise and just, and therefore entitled to a liberal interpretation.

This we have endeavored to give it in the cases that have come before us, but we do not intend to decide that the Legislature has gone to a length in its measure of reform for which the language it has carefully used furnishes no warrant.

It is urged, however, that the law of the last session of the Legislature, which gives to married women the separate control of their earnings, must be construed as giving to them the right to contract in regard to their personal services. This act had no application to the case of Carpenter vs. Mitchell, having been passed after that suit was commenced, and we were unmindful of it when considering this application at the last term. Neither do we now propose to consider how far it extends the power of a married woman to contract, since, after further consultation in regard to this application, we find ourselves constrained to hold that the sex of the applicant, independently of coverture; is, as our law now stands, a sufficient reason for not granting this license.

Although an attorney-at-law is an agent, as claimed by the applicant's argument, when he has been retained to act for another, yet he is also much more than an agent. He is an officer of the court, holding his commission in this State, from two of the members of this court, and subject to be disbarred by this court for what our statute calls "mal-conduct in his office." He is appointed to assist in the administration of justice, is required to take an oath of office, and is privileged from arrest while attending courts.

Our statute provides that no person shall be permitted to practice as an attorney or counselor-at-law, without having previously obtained a license for that purpose from two of the justices of the Supreme Court. By the second section of the act, it is provided that no person shall be entitled to receive a license until he shall have obtained a certificate, from the court of some county, of his good moral character, and this is the only express limitation upon the exercise of the power thus intrusted to this court. In all other respects it is left to our discretion to establish the rules by which admission to this office shall be determined. But this discretion is not an arbitrary one, and must be held subject to at least two limitations. One is, that the court should establish such terms of admission as will promote the proper administration of justice; the second, that it should not admit any persons or class of persons who are not intended by the Legislature to be admitted, even though their exclusion is not expressly required by the statute.

The substance of the last limitation is simply that this important trust reposed in us should be exercised in conformity with the designs of the power creating it.

Whether, in the existing social relations between men and women, it would promote the proper administration of justice, and the general well-being of society, to permit women to engage in the trial of cases at the bar, is a question opening a wide field of discussion upon which it is not necessary for us to enter. It is sufficient to say that, in our opinion, the other implied limitation upon our power, to which we have above referred, must operate to prevent our admitting women to the office of attorney-at-law. If we were to admit them, we should be exercising the authority conferred upon us in a manner which, we are fully satisfied, was never contemplated by the Legislature.

Upon this question it seems to us neither this applicant herself, nor any unprejudiced and intelligent person, can entertain the slightest doubt. It is to be remembered that at the time this statute was enacted we had, by express provision, adopted the common law of England; and, with three exceptions, the statutes of that country passed prior to the fourth year of James the First, so far as they were applicable to our condition.

It is to be also remembered that female attorneys-at-law were unknown in England, and a proposition that a woman should enter the courts of Westminster Hall in that capacity, or as a barrister, would have created hardly less astonishment than one that she should ascend the bench of Bishops, or be elected to a seat in the House of Commons. It is to be further remembered, that when our act was passed, that school of reform which claims for women participation in the making and administering of the laws had not then arisen, or, if here and there a writer had advanced such theories, they were regarded rather as abstract speculations than as an actual basis for action.

That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth. It may have been a radical error, and we are by no means certain it was not, but that this was the universal belief certainly admits of no denial. A direct participation in the affairs of government, in even the most elementary form, namely, the right of suffrage, was not then claimed, and has not yet been conceded, unless recently in one of the newly-settled Territories of the West.

In view of these facts, we are certainly warranted in saying, that when the Legislature gave to this court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended equally to men and women.

Neither has there been any legislation since that period which would justify us in presuming a change in the legislative intent. Our laws to-day in regard to women, are substantially what they have always been, except in the change wrought by the acts of 1861 and 1869, giving to married women the right to control their own property and earnings.

Whatever, then, may be our individual opinions as to the admission of women to the bar, we do not deem ourselves at liberty to exercise our power in a mode never contemplated by the Legislature, and inconsistent with the usages of courts of the common law from the origin of the system to the present day.

But it is not merely an immense innovation in our own usages as a court that we are asked to make. This step, if taken by us, would mean that in the opinion of this tribunal, every civil office in this State may be filled by women—that it is in harmony with the spirit of our Constitution and laws that women should be made governors, judges, and sheriffs. This we are not yet prepared to hold.

In our opinion, it is not the province of a court to attempt, by giving a new interpretation to an ancient statute, to introduce so important a change in the legal position of one-half the people. Courts of justice were not intended to be made the instruments of pushing forward measures of popular reform. If it be desirable that those offices which we have borrowed from the English law, and which from their origin some centuries ago down to the present time, have been filled exclusively by men, should also be made accessible to women, then let the change be made, but let it be made by that department of the Government to whom the Constitution has intrusted the power of changing the laws. The great body of our law rests merely upon ancient usage. The right of a husband in this State to the personal property of his wife, before the act of 1861, rested simply upon such usage, yet who could have justified this court if, prior to the passage of that act, it had solemnly decided that it was unreasonable that the property of the wife should vest in the husband, and this usage should no longer be recognized? Yet was it not as unreasonable that a woman by marriage should lose the title of her personal property, as it is that she should not receive from us a license to practice law? The rule in both cases, until the law of 1861, rested upon the same common law usage and could have pleaded the same antiquity. In the one case it was never pretended that this court could properly overturn the rule, and we do not see how we could be justified should we disregard it in the other. The principle can not be too strictly and conscientiously observed, that each of the three departments of the Government should avoid encroachment upon the other, and that it does not belong to the judiciary to attempt to inaugurate great social or political reforms. The mere fact that women have never been licensed as attorneys-at-law is, in a tribunal where immemorial usage is as much respected as it is and ought to be in courts of justice, a sufficient reason for declining to exercise our discretion in their favor, until the propriety of their participating in the offices of State and the administration of public affairs shall have been recognized by the law-making department of the Government—that department to which the initiative in great measures of reform properly belongs. For us to attempt, in a matter of this importance, to inaugurate a practice at variance with all the precedents of the law we are sworn to administer, would be an act of judicial usurpation deserving of the gravest censure. If we could disregard, in this matter, the authority of those unwritten usages which make the great body of our law, we might do so in any other, and the dearest rights of person and property would become a matter of mere judicial discretion.

But it is said the 28th section of chapter 90 of the Revised Statutes of 1845 provides that, whenever any person is referred to in the statute by words importing the masculine gender, females as well as males shall be deemed to be included. But the 36th section of the same chapter provides that this rule of construction shall not apply where there is anything in the subject or context repugnant to such construction. That is the case in the present instance.

In the view we have taken of this question the argument drawn by the applicant from the Constitution of the United States has no pertinency.