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doubt, because very able men have expressed contrary opinions on that question, and, so far as I am informed, there has been no authoritative adjudication upon it; or, at all events, none upon which the public mind has been content to rest as conclusive. I proceed, therefore, to offer such suggestions as occur to me, and to refer to such authorities bearing upon the question, as have fallen under my observation, hoping to satisfy your honor, not only that my client has committed no criminal offense, but that she has done nothing which she had not a legal and constitutional right to do.
It is not claimed that, under our State Constitution and the laws made in pursuance of it, women are authorized to vote at elections, other than those of private corporations, and, consequently, the right of Miss Anthony to vote at the election in question, can only be established by reference to an authority superior to and sufficient to overcome the provisions of our State Constitution. Such authority can only be found, and I claim that it is found, in the Constitution of the United States. I refer to the article requiring each state to appoint its Senators and Representatives; to the provision that the citizens of each state are entitled to the privileges and immunities of citizens of the several states and to the Thirteenth, Fourteenth and Fifteenth amendments. Article I, Section 2. “The House of Representatives shall be composed of members chosen every second year, by the people of the several States; and the electors in each state shall have the qualifications for electors of the most numerous branch of the State legislature.” The same Article, Section 3, “The Senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof for six years; and each senator shall have one vote." Article II, Section 1. “Each state shall appoint in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the Congress.” Article IV, Section 2. "The citizens
of each state shall be entitled to all the privileges and immunities of citizens in the several states."
The Thirteenth amendment says that neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” “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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws and that 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." By reference to the provisions of the original Constitution, here recited, it appears that prior to the Thirteenth, if not until the Fourteenth, amendment, the whole power over the elective franchise, even in the choice of Federal officers, rested with the states. The Constitution contains no definition of the term "citizen," either of the United States, or of the several states, but contents itself with the provision that “the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states.” The states were thus left free to place such restrictions and limitations upon the "privileges and immunities” of citizens as they saw fit, so far as is consistent with a republican form of government, subject only to the condition that no state could place restrictions upon the “privileges or immunities” of the citizens of any other state, which would not be applicable to its own citizens under like circumstances.
It will be seen, therefore, that the whole subject, as to what should constitute the privileges and immunities?!
of the citizen being left to the states, no question, such as we now present, could have arisen under the original Constitution of the United States.
But now, by the Fourteenth amendment, the United States have not only declared what constitutes citizenship, both in the United States and in the several states, securing the rights of citizens to "all persons born or naturalized in the United States;" but have absolutely prohibited the states from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States."
By virtue of this provision, I insist that the act of Miss Anthony in voting was lawful.
It has never, since the adoption of the Fourteenth amendment, been questioned, and cannot be questioned, that women as well as men are included in the terms of its first section, nor that the same "privileges and immunities of citizens” are equally secured to both.
What, then, are the “privileges and immunities of citizens of the United States” which are secured against such abridgement, by this section? I claim that these terms not only include the right of voting for public officers, but that they include that right as pre-eminently the most important of all the privileges and immunities to which the section refers. Among these privileges and immunities may doubtless be classed the right of life and liberty, to the acquisition and enjoyment of property, and to the free pursuit of one's own welfare, so far as such pursuit does not interfere with the rights and welfare of others; but what security has any one for the enjoyment of these rights when denied any voice in the making of the laws, or in the choice of those who make, and those who administer them? The possession of this voice, in the making and administration of the laws—this political right-is what gives security and value to the other rights, which are merely personal, not political. A person deprived of political rights is essentially a slave, because he holds his personal rights subject to the will of those who possess the political power. This principle constitutes the very corner-stone of our government–indeed, of all republican government. Upon that basis our separation from Great Britain was justified. "Taxation without representation is tyranny.” This famous aphorism of James Otis, although sufficient for the occasion when it was put forth, expresses but a fragment of the principle, because government can be oppressive through means of many appliances besides that of taxation. The true principle is, that all government over persons deprived of any voice in such government, is tyranny. That is the principle of the Declaration of Independence. We were slow in allowing its application to the African race, and have been slower still in allowing its application to women; but it has been done by the Fourteenth amendment, rightly construed, by a definition of "citizenship,” which includes women as well as men, and in the declaration that “the privileges and immunities of citizens shall not be abridged.” If there is any privilege of the citizen which is paramount to all others, it is the right of suffrage; and in a constitutional provision, designed to secure the most valuable rights of the citizen, the declaration that the privileges and immunities of the citizen shall not be abridged, must, as I conceive, be held to secure that right before all others. It is obvious, when the entire language of the section is examined, not only that this declaration was designed to secure the citizen this political right, but that such was its principal, if not its sole object, those provisions of the section which follow it being devoted to securing the personal rights of “life, liberty, property, and the equal protection of the laws.” The clause on which we rely, to wit: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," might be stricken out of the section, and the residue would secure to the citizen every right which is now secured, excepting the political rights of voting and holding office. If the clause in question does not secure those political rights, it is entirely nugatory, and might as well have been omitted.
If we go to the lexicographers and to the writers upon law, to learn what are the privileges and immunities of the “citizen” in a republican government, we shall find that the leading feature of citizenship is the enjoyment of the right of suffrage. The definition of the term “citizen" by Bouvier is: “One who under the Constitution and laws of the United States, has a right to vote for Representatives in Congress, and other public officers, and who is qualified to fill offices in the gift of the people." By Worcester -"An inhabitant of a republic who enjoys the rights of a freeman, and has a right to vote for public officers." By Webster—“In the United States, a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate.”
The meaning of the word "citizen” is directly and plainly recognized by the latest amendment of the Constitution (the Fifteenth). “The right of the 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.” This clause assumes that the right of citizens, as such, to vote, is an existing right. Mr. Richard Grant White, in his late work on Words and their Uses, says of the word citizen: “A citizen is a person who has certain political rights, and the word is properly used only to imply or suggest the possession of these rights.”
Beyond question, the first section of the Fourteenth amendment, by placing the citizenship of women upon a par with that of men, and declaring that the privileges and immunities” of the citizen shall not be abridged, has secured to women, equally with men, the right of suffrage,
9 Mr. Selden cited also Corfield v. Coryell, 4 Wash C. C. 380. Amy v. Smith, 1 Litt (Ky.) 326.