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Minor, the
plaintiff in error in the above entitled cause, by her attorneys,
John B. Henderson, John M. Krum, and Francis Minor, and says that
in the records and proceedings in the above entitled cause, in
said Supreme Court of the State of Missouri, there is manifest
error in this, to wit:

1st. Because the said Supreme Court erred in affirming the
judgment of the St. Louis Circuit Court--thereby, in effect,
sustaining the demurrer filed in said Circuit Court by the
defendant to the petition of the plaintiff.

2d. Because the said Supreme Court erred in its judgment
affirming the judgment of the St. Louis Circuit
Court--thereby, in effect, declaring that the plaintiff in
error was not entitled to vote at the election mentioned in
the record.

3. Because the said Supreme Court of Missouri erred in
affirming the judgment of the St. Louis Circuit
Court--thereby, in effect, declaring that the Constitution
and laws of Missouri, before recited, do not conflict with
the Constitution of the United States.

STATEMENT.--This was an action, brought by the plaintiff, against
the defendant, a registering officer, for refusing to register
her as a lawful voter.

The defendant demurred to the petition, the defense, in
substance, being based upon the Constitution of Missouri, which
provides (Art 2, Sec. 18) that "every male citizen of the United
States, etc., ... shall be entitled to vote";--and also upon the
registration law of said State, approved March 10, 1871, to the
same effect; and it was claimed, therefore, that the defendant
was justified in refusing to register the plaintiff on account of
her sex.

The plaintiff, however, denied the validity of this clause of the
Missouri Constitution, and the registration act based thereon,
and contended that they are in violation of, and repugnant to,
the Constitution of the United States, and particularly to those
articles and clauses thereof which she had specified in her
petition.

It was admitted, by the pleadings, that the plaintiff was a
native-born, free, white citizen of the United States, and of the
State of Missouri; that the defendant was a Registrar, qualified
and acting as such; that the plaintiff, in proper time, and in
proper form, made application to him to be registered, and that
the defendant refused to register the plaintiff solely for the
reason that she was a female (and that she possessed the
qualifications of an elector, in all respects, except as to the
matter of sex, as before stated). The question was thus broadly
presented of a conflict between the Constitution of the State of
Missouri and that of the United States, as contemplated by the
25th section of the Judiciary act of 1789, and 5th February,
1867.

* * * * *

ARGUMENT AND BRIEF.--We think the chief difficulty in this case
is one of fact rather than of law. The practice is against the
plaintiff. The States, with one exception, which we shall notice
hereafter more in detail, have uniformly claimed and exercised
the right to act, as to the matter of suffrage, just as they
pleased--to limit or extend it, as they saw proper. And this is
the popular idea on the subject. Men accept it as a matter of
fact, and take for granted it must be right. So in the days of
African slavery, thousands believed it to be right--even a Divine
institution. But this belief has passed away; and, in like
manner, this doctrine of the right of the States to exercise
unlimited and absolute control over the elective franchise of
citizens of the United States, must and will give way to a truer
and better understanding of the subject. The plaintiff's case is
simply one of the means by which this end will ultimately be
reached.

We claim, and presume it will not be disputed, that the elective
franchise is a privilege of citizenship within the meaning of the
Constitution of the United States. In order to get a clearer idea
of the true meaning of this term citizenship, it may be well to
recur for a moment to its first introduction and use in American
law.

Before the colonists asserted their independence they were
politically bound to the sovereign of Great Britain, by what is
termed in English law, "allegiance"; and those from whom this
allegiance was due were termed "subjects." But when these
"bands," as they are termed in the Declaration of Independence,
were dissolved, the political relation became changed, and we no
longer hear in the United States the term "subject" and
"allegiance," except the latter, which is used to express the
paramount duty of our citizens to our own government. The term
citizen was substituted for that of "subject." But this was not a
mere change of name; the men who framed the Constitution of the
United States had all been "subjects" of the English king, and
they well knew the radical change wrought by the revolution.

In the new political sovereignty thus created, the feudal idea of
dependence gave way to that of independence, and the people
became their own sovereigns or rulers in the government of their
own creation. Of this body politic, represented by the
Constitution of the United States, all persons born or
naturalized therein and subject to the jurisdiction thereof, are
members; without distinction as to political rights or
privileges, except that the head or chief of the new government
must be native-born--and this exception the more strongly proves
the rule. It is to this Constitution, therefore, we must look for
the limitations, if any, that may be placed upon the political
rights of the people or citizens of the United States. A
limitation not found there, or authorized by that instrument, can
not be legally exercised by any lesser or inferior jurisdiction.

But the subject of suffrage (or the qualifications of electors,
as the Constitution terms it) is simply remitted to the States by
the Constitution, to be regulated by them; not to limit or
restrict the right of suffrage, but to carry the same fully into
effect. It is impossible to believe that anything more than this
was intended. In the first place, it would be inconsistent and at
variance with the idea of the supremacy of the Federal
government; and, next, if the absolute, ultimate, and
unconditional control of the matter had been intended to be given
to the States, it would have been so expressed. It would not have
been left to doubt or implication. In so important a matter as
suffrage, the chief of all political rights or privileges, by
which, indeed, life, liberty, and all others are guarded and
maintained, and without which they would be held completely at
the mercy of others; we repeat, it is impossible to conceive that
this was intended to be left wholly and entirely at the
discretion of the States.

A right so important must not be the subject of implication.[177]
Some positive warrant or authority must be shown for it, and in
the case at bar we challenge its production. There is another
view of the subject that is important to be considered. There can
be no division of citizenship, either of its rights or its
duties. There can be no half-way citizenship. Woman, as a citizen
of the United States, is entitled to all the benefits of that
position, and liable to all its obligations, or to none. Only
citizens are permitted to pre-empt land, obtain passports, etc.,
all of which woman can do; and, on the other hand, she is taxed
(without her "consent") in further recognition of her
citizenship; and yet, as to this chief privilege of all, she is
forbidden to exercise it. We call upon the State to show its
warrant for so doing--for inflicting upon the plaintiff and the
class to which she belongs, the bar of perpetual
disfranchisement, where no crime or offense is alleged or
pretended, and without "due process of law."

We charge it as a "bill of attainder" of the most odious and
oppressive character. The State can no more deprive a citizen of
the United States of one privilege than of another, except by the
"law of the land." There is no security for freedom if this be
denied. To use the language of Mr. Madison, such a course
"violates the vital principle of free government, that those who
are to be bound by laws, ought to have a voice in making them."
(Madison Papers, vol. 3--appendix, p. 12.)

It is sometimes said this is one of the "reserved rights" of the
States. But this can not be, for the simple reason that, as to
the "privileges and immunities" of federal citizenship, they had
no existence prior to the adoption of the Federal Constitution;
how then could they be reserved?

As Mr. Justice Story says: "The States can exercise no powers
whatsoever, which exclusively spring out of the existence of the
National Government, which the Constitution does not delegate to
them.... No State can say that it has reserved what it never
possessed." (Commentaries, 624-627.)

We say, then, that the States may regulate, but they have no
right to prohibit the franchise to citizens of the United States.
They may prescribe the qualifications of the electors. They may
require that they shall be of a certain age, be of sane mind, be
free from crime, etc., because these are conditions for the good
of the whole, and to which all citizens, sooner or later, may
attain.



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