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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.



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