Spencer v. Board of Registration | Cases | Westlaw

*1 **169 I. Male citizens only can exercise the elective franchise in the District of Columbia.

II. The elective franchise is not a natural right and is made to rest, in the United States, upon the authority of law which defines the qualifications of those citizens who may exercise it.

III. By the first clause of the fourteenth amendment the plaintiff and all other persons born in the United States are citizens thereof, and are therefore capable of becoming voters. But the amendment does not execute itself, and it requires legislative action to authorize them to vote. Congress has carried this right into effect in this District, by extending its exercise only to male citizens.

In the first of the above entitled actions the plaintiff, in her declaration, alleges that the defendants were the board of registration of the legal voters in the District of Columbia, at an election for a Delegate to Congress and other officers to be holden on the 20th of April, 1870; and that registration was a legal prerequisite to the exercise of the elective franchise; that she presented herself to said board and gave her name and residence; that she was of full age and a citizen entitled to vote at said election, and demanded that her name should be registered with the other legal voters; which said request and demand the defendants wrongfully refused, and her name was not registered. That, afterward, at the election for said Delegate, &c., she offered her vote to the proper judges of said election accompanied by proof of her attempt to register; **170 and that her said vote was refused for the reason that the defendants had not placed her name on the registration.

The defendants demur to the declaration on the ground that it shows the plaintiff was not a voter in the District of Columbia; that she was a woman, and, as such, not permitted to vote by the laws of said District.

In the case of Sarah Webster, the action is against the superintendents of election for refusing to receive her vote, and as both cases involve the same principle they were argued at the same time.

*2 These cases involving the same questions are presented together.

The plaintiffs claim the elective franchise under the first section of the 14th amendment of the Constitution. (14 Stat., 358.)

The fourth paragraph of the regulations of the governor and judges of this District made registration a condition-precedent to the right of voting at the election of April 20, 1871. (Pamphlet??ed., 18.)

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, &c., when their ballots were rejected, under the 7th section of the act providing a government for the District of Columbia. (16 Stat., 421.)

Spencer brings her suit for this refusal of registration, and Webster for the rejection of her vote, under the 2d and 3d sections of the act of May 31, 1870. (16 Stat., 140.)

The 7th 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 14th amendment, this word male is without effect and the act authorizes “all citizens” to exercise the elective franchise.

In support of this proposition we make the following points, to be elaborated on the argument:

The foundation of American politics is, that the right of self-government is natural. (2d Par. Declaration of Independence.)

“All power is inherent in the people,” is the declaration of the first bill of rights in the last edition of the State constitutions, and repeated in nearly all of the thirty-four, which follow. (Amer. Const., ed. 1864.)

Not one of these instruments pretends to create and confer the right of self-government. They recognize it as natural and pre-existent, and only furnish the means for its exercise.

This is strikingly shown in the discrimination which each of these constitutions makes, by the exclusion of certain classes from the exercise of the elective franchise. Their nearly uniform language is “all white male citizens of the age,” &c., may vote. (Amer. Const.)

These provisions, so carefully inserted, alone prevented women and colored persons from the exercise of the elective franchise; and are the broadest admissions of their inherent right to vote.

At common law, women entitled to vote. In re Jane Allen, Law Mag., 1868-'9, p. 121; Olive vs. Ingram, 7 Mod. Rep., p. 263; Anstey's Notes, pp. 74-104.

In the Constitution, as it existed with its old amendments, no restriction or limitation can be found of the natural right of persons to exercise the elective franchise.

The fourteenth amendment declares:

“SEC. 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.”

*3 **172 Persons with the other qualifications, and not citizens, by force and virtue of this solemn language became citizens. Mere persons were clothed with citizenship.

In all municipalities, whoever acquired the freedom of a city or burg, became a citizen of it, and the citizen enjoyed all the rights and privileges of the city or burg; “are members of the civil society and participate in all its advantages.” (Vattel laws of N., 101.) A citizen, says Webster, is one in the United States who enjoys the elective franchise.

Worcester gives the same definition; Bouvier's Law Dic. the same; so does Richard Grant White; so decided Justice Daniel in the Dred Scott case, (19 How., 476;) such was the holding of the Chief-Justice in the same case, (Id., 404;) Ch. J. Jay ruled the same in Chisol vs. Georgia, (2 Dall., 471;) so also Wirt, Att'y Gen'l, 1st Op., 508; (see, also, Cooper vs. Mayor of Sa., 4 Ga., 72.)

No authority exists, ancient or modern, for defining “citizen” so as to exclude any political right or privilege.

With the fullest knowledge of this use of the artificial term “citizen,” this amendment uses it, and without any intimation that it was not to express its full signification.

These persons are to enjoy “the privileges and immunities of citizens” unabridged.

These terms appear once before in the Constitution, (section 2d, article 4th,) and were decided there to embrace the elective franchise. Corfield vs. Coryell, 4 Wash. C. C. Rep., 373.

Kent approves and adopts this decision, 2 Kent Com., 71; Curtis, J., in Conner vs. Elliott, 18 Howard, 593; (see, also, Abbott vs. Bailey, 6 Pick., 92.)

With full knowledge of this definition of “privileges and immunities,” which was never questioned, they were placed in this amendment, and put the meaning of the word citizen as here used beyond cavil.

These words in the 14th amendment embrace much more than when used in section 2, article 4. They extend to subjects never thought of before, “and reach social evils never before prohibited,” &c.—Bradley, J. Live Stock, &c., vs. Crescent City, &c., 1st Abbott's U. S. Reps., 397.

Is the elective franchise a privilege of citizenship? If not, **173 within what class of political rights does it fall? If the 14th amendment does not confer the elective franchise, it is without effect. Before its adoption, every person born in the United States, and subject to the laws, could do every other thing and enjoy every other right except to vote. Will it be contended that this article secured nothing, advanced nothing, and conferred nothing? And were the States thus solemnly denied the right to abridge nothing?

*4 Colored male persons excluded from voting by the word “white” in the State constitutions, as were women by the word “male,” have voted—and, it is conceded, rightfully—since the adoption of the 15th amendment, although this word “white” still stands in the various constitutions. This is conclusive of the matter in this issue.

That amendment declares:

“SEC. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

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

This article not even by implication confers the right of suffrage upon any person, nor does it profess to.

It recognizes the right as already existing, and insures its exercise.

It prohibits all interference with the right of certain persons to vote; not because they are of a race, nor because of their color, nor yet because they had been slaves, but wholly and solely because they are citizens of the United States, thus forever affirming that whatever other rights citizens as such may possess, their right to vote shall never again be questioned.

It is true this amendment was made in the interest of the colored race, but in making it Congress and the States have in part defined the term citizen, in the interest of all persons, and all are alike entitled to the benefits of their work.

**174 Colored persons are thus declared voters solely because they are citizens.

When we recur to the 14th amendment we find that they became such citizens solely because they were a part of the “all persons born, &c., in the United States.”

The effect of this 1st clause of the 14th amendment was merely to override by superior power their exclusion from the exercise of their always acknowledged inherent right of self-government. It confers no new rights, but admits them to a new enjoyment of a very old one.

Women “born or naturalized in the United States” are one-half of the “all persons” of this amendment; affected, carried forward, and elevated by the same power, to precisely the same place. It deals with all alike. In its presence the excluding word “male” is exorcised from the State courts, and from the act of Congress in force in this District, and the plaintiffs were entitled to vote at the election referred to.

This amendment merely declares and vindicates the natural and common law in favor of women.

It will be difficult to find a vice in this argument, or avoid the force of this conclusion.

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 fourteenth amendment of the Constitution.

*5 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 20, 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, &c., **175 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 fourteenth 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 **176 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.

*6 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 into 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 **177 in the population of our large centers and cities as can well be done, short of an absolute declaration that all men shall vote, irrespective of qualifications. The result in these centers 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.

*7 Has it become a constitutional right, under the provisions of the fourteenth and fifteenth amendments of the Constitution? which provide as follows:

Fourteenth amendment, 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.”

Fifteenth 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.”

Section 2.—“The Congress shall have power to enforce this article by appropriate legislation.”

It will be seen by the first clause of the fourteenth 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 **178 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 considerations of fitness and unfitness, merit and demerit, are considerations for the law-making power. The demurrer in these cases is sustained.