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These, then, are so many
express decisions which at once displace Lord Coke's
unsupported assertion and declare the law so as to constrain
my judgment. It is sometimes said, when reference is made to
precedents of this kind, that they have never been approved
by the bar. But that can not be said of these. Hakewell, the
contemporary of Lord Coke and one of the greatest of all
parliamentary lawyers then living--for even Selden and
Granvil were not greater than Hakewell--left behind him the
manuscript to which I have referred, with his comments on
those cases.

Sir William Lee, Chief Justice, in his judgment in the case of
Olive _vs._ Ingraham, expressly says that he had perused them,
and that they contained the expression of Hakewell's entire
approval of the principles upon which they were decided, and of
the results deduced; and we have the statement of Lord Chief
Justice Lee, who had carefully examined those cases, that in the
case of Holt _vs._ Lyle, it was determined that a feme sole
freeholder may claim a vote for Parliament men; but if married,
her husband must vote for her. In the case of Olive _vs._
Ingraham, Justice Probyn says:

The case of Holt _vs._ Lyle, lately mentioned by our Lord
Chief Justice, is a very strong case; "_They who pay ought
to choose whom they shall pay._" And the Lord Chief Justice
seemed to have assented to that general proposition, as
authority for the correlative proposition, that "women, when
_sole_, had a right to vote." At all events, there is here
the strongest possible evidence that in the reign of James
I., the _feme sole_, being a freeholder of a country, or
what is the same thing, of a county, of a city, or town, or
borough, where, of custom, freeholders had the right to
vote, not only had, but exercised the parliamentary
franchise. If married, she could not vote in respect merely
of her freehold, not because of the incapacities of
coverture, but for this simple reason, that, by the act of
marriage, which is an act of law, the title of the _feme
sole_ freeholder becomes vested for life in the husband. The
qualification to vote was not personal, but real;
consequently, her right to vote became suspended as soon and
for as long as she was married. I am bound to consider that
the question as to what weight is due to the dictum of my
Lord Coke is entirely disposed of by those cases from the
reign of James I. and George II., and that the authority of
the latter is unimpeached by any later authority, as the
cases of Rex. _vs._ Stubles, and Regina _vs._ Aberavon,
abundantly show.

In Anstey's Notes on the New Reform Act of 1867, the authorities
and precedents upon the right of women to vote in England are
examined and summed up, and the author concludes:

It is submitted that the weight of authority is very greatly
in favor of the female right of suffrage. Indeed, the
authority against it is contained in the short and hasty
dictum of Lord Coke, referred to above. It was set down by
him in his last and least authoritative institute, and it is
certain that he has been followed neither by the great
lawyers of his time nor by the judicature. The principles of
the law in relation to the suffrage of females will be found
in Coates _vs._ Lyle, Holt _vs._ Ingraham, and The King
_vs._ Stubles, cases decided under the strict rules for the
construction of statutes.

It can not be questioned that from time whereof the memory of man
runneth not to the contrary, unmarried women have been by the
laws of England competent voters, subject to the freehold
qualification which applied alike to men and women. Married women
could not vote because they were not freeholders; by the common
law their property upon marriage became vested in the husband. So
that it appears that the admission of woman to participation in
the affairs of government would not be so much of an innovation
upon the theories and usage of the past as is by some supposed.

In England the theory was that in property representation, all
property should be represented. Here the theory is that of
personal representation, which of course, if carried out fully,
includes the representation of all property. In England, as we
have seen, the owner of the property, whether male or female was
entitled to representation, no distinction being made on account
of sex. If the doctrine contended for by the majority of the
committee be correct, then this Government is less liberal upon
this question than the government of England has been for
hundreds of years, for there is in this country a large class of
citizens of adult age, and owners in their own right of large
amounts of property, and who pay a large proportion of the taxes
to support the Government, who are denied any representation
whatever, either for themselves or their property--unmarried
women, of whom it can not be said that their interests are
represented by their husbands. In their case, neither the English
nor the American theory of representation is carried out, and
this utter denial of representation is justified upon the ground
alone that this class of citizens are women. Surely we can not be
so much less liberal than our English ancestors! Surely the
Constitution of this Republic does not sanction an injustice so
indefensible as that!

By the XIV. Amendment of the Constitution of the United States,
what constitutes citizenship of the United States, is for the
first time declared, and who are included by the term citizen.
Upon this question, before that time, there had been much
discussion judicial, political, and general, and no distinct and
definite definition of qualification had been settled. The people
of the United States determined this question by the XIV.
Amendment to the Constitution, which 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. 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 law.

This amendment, after declaring who are citizens of the United
States, and thus fixing but one grade of citizenship, which
insures to all citizens alike all the privileges, immunities and
rights which accrue to that condition, goes on in the same
section and prohibits these privileges and immunities from
abridgment by the States. Whatever these "privileges and
immunities" are, they attach to the female citizen equally with
the male. It is implied by this amendment that they are inherent,
that they belong to citizenship as such, for they are not therein
specified or enumerated.

The majority of the committee hold that the privileges guaranteed
by the XIV. Amendment do not refer to any other than the
privilege embraced in section 2, of article 4, of the original
text. The committee certainly did not duly consider this
unjustified statement. Section 2, of article 4, provides for the
privileges of "citizens of the _States_," while the first section
of the XIV. Amendment protects the privileges of "_citizens of
the United States_." The term citizens of the _States_ and
citizens of the _United States_ are by no means convertible.

A circuit court of the United States seems to hold a different
view of this question from that stated by the committee. In the
case of The Live Stock Association _vs._ Crescent City (1st
Abbott, 396), Justice Bradley, of the Supreme Court of the United
States, delivering the opinion, uses the following language in
relation to the first clause of the XIV. Amendment:

The new prohibition that "no State shall make or enforce any
law which shall abridge the privileges or immunities of
citizens of the United States" is not identical with the
clause in the Constitution which declared that "the citizens
of each State shall be entitled to all the privileges and
immunities of citizens in the several States." It embraces
much more. It is possible that those who framed the article
were not themselves aware of the far-reaching character of
its terms, yet if the amendment does in fact bear a broader
meaning, and does extend its protecting shield over those
who were never thought of when it was conceived and put in
form, and does reach social evils which were never before
prohibited by constitutional enactment, it is to be presumed
that the American people, in giving it their _imprimatur_,
understood what they were doing and meant to decree what in
fact they have decreed. The "privileges and immunities"
secured by the original Constitution were only such as each
State gave to its own citizens, ... but the XIV. Amendment
prohibits any State from abridging the privileges or
immunities of citizens of the United States, whether its own
citizens or any others. It not merely requires equality of
privileges, but it demands that the privileges and
immunities of all citizens shall be absolutely unabridged
and unimpaired.

In the same opinion, after enumerating some "privileges" of the
citizens, such as were pertinent to the case on trial, but
declining to enumerate all, the Court further says:

These privileges can not be invaded without sapping the
foundation of Republican government.



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