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Judges would sit to execute
legislative judgments and decrees; not to declare the law,
or to administer the justice of the country.

That the elective franchise is a privilege of citizenship, we
have the authority of Judge Washington, for he says:

What are the privileges and immunities of citizens in the
several States? We feel no hesitation in confining these
expressions to those privileges and immunities which are in
their nature fundamental; which belong of right to the
citizens of all free governments; and which have, at all
times, been enjoyed by the citizens of the several States
which compose this Union, from the time of their becoming
free, independent, and sovereign. What those fundamental
principles are, it would perhaps be more tedious than
difficult to enumerate.

They may, however, be all comprehended under the following
general heads: Protection by the Government, the enjoyment
of life and liberty, with the right to acquire and possess
property of every kind, and to pursue and obtain happiness
and safety, subject, nevertheless, to such restraints as the
Government may justly prescribe for the general good of the
whole; the right of a citizen of one State to pass through,
or to reside in any other State for purposes of trade,
agriculture, professional pursuits, or otherwise; to claim
the benefit of the writ of _habeas corpus_; to institute and
maintain actions of every kind in the courts of the State;
to take, hold, and dispose of property, either real or
personal; and an exemption from higher taxes or imposition
than are paid by the citizens of the other State, may be
mentioned as some of the particular privileges and
immunities of citizens, which are clearly embraced by the
general description of privileges deemed to be fundamental;
to which may be added, the elective franchise, as regulated
and established by the laws or Constitution of the State in
which it is to be exercised (Corfield _vs._ Corryell, 4
Wash. C.C., 380). Cited and approved in Dunham _vs._
Lamphere, 3 Gray, 276 (Mass.); Bennett _vs._ Boggs, Baldwin
Rep., 72.

A proper construction of Art. 1, Sec. 2, of the Constitution of
the United States will further demonstrate the proposition we are
endeavoring to uphold. That section is as follows:

ARTICLE 1, 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.

This section consists of two clauses, but in neither is there a
word as to the sex of the elector. He, or she, must be one of the
people, or "citizens," as they are designated in the
Constitution, that is all.--(Story's Comms. 579.)

The "people" are to elect. This clause fixes the class of voters;
the other clause is in subordination to that, and merely
provides, that as touching qualifications, there shall be one and
the same standard for the Federal and for the State elector. Both
are mentioned and neither is or can be excluded by the other.

The right to vote is very different from the qualification
necessary in a voter. A person may have the right to vote, and
yet not possess the necessary qualifications for exercising it.
In this case, the right to vote is derived from the Federal
Constitution, which designates the class of persons who may
exercise it, and provides that the Federal elector shall conform
to the regulations of the State, so far as time, place, and
manner of exercising it are concerned. But it is clear that under
this authority the State has no right to lay down an arbitrary
and impossible rule. As before stated by the Chief-Justice of
Nevada: "To make the enjoyment of a right depend upon an
impossible condition, is equivalent to an absolute denial of it
under any condition."

In conclusion, we will consider, as briefly as possible, the
points made by the Supreme Court of Missouri. We quote from the
opinion:

The question presented then is, whether there is a conflict
between the Constitution of the United States and the
Constitution and laws of the State of Missouri on this
subject. That the different States of the Union had a right,
previous to the adoption of what is known as the XIV.
Amendment to the Constitution of the United States, to limit
the right to vote at election by their constitutions and
laws to the male sex, I think can not at this day be
questioned.

Undoubtedly the practice in the different States, as we have
before said, is against the claim made by the plaintiff,
although, as we shall show, in the early days of the Republic
this practice was by no means universal. But when the Court
states that the right of the States to do this can not be
questioned, it assumes the very point in controversy, and it
fails to notice the distinction between "the rights of
citizenship which a State may confer within its own limits, and
the rights of citizenship as a member of the Union."
(Chief-Justice Taney in Scott _vs._ Sandford, 19 Howard, 405.)

"The difference," says Judge Cooley (Story on Constitution,
section 1937), "is in a high degree important." And while it may
be true that the voter himself rarely, if ever, thinks of any
difference between his vote for State and for Federal officers,
yet, in law, there is a wide distinction.

In the one case he exercises the franchise under one jurisdiction
or sovereignty, and in the other under a totally different one.
In voting for Federal officers he exercises the freeman's right
to take part in the government of his own creation, and he does
this in contemplation of law, in his character or capacity of a
citizen of the United States, and his right so to vote legally
depends upon such status or character. Clearly, then, the right
of a citizen of the United States to vote for Federal officers
can only be exercised under the authority or sovereignty of the
United States, not under some other authority or sovereignty, and
consequently the citizen of the United States could not justly
have been deprived of such right by the State, even before the
adoption of the XIV. Amendment.

But whatever doubt there may have been as to this, we hold that
the adoption of the XIV. Amendment put an end to it and placed
the matter beyond controversy. The history of that Amendment
shows that it was designed as a limitation on the powers of the
States, in many important particulars, and its language is clear
and unmistakable. "No State shall make or enforce any law which
shall abridge the privileges and immunities of citizens of the
United States." Of course all the citizens of the United States
are by this protected in the enjoyment of their privileges and
immunities. Among the privileges, that of voting is the highest
and greatest. To an American citizen there can be none greater or
more highly to be prized; and the preservation of this privilege
to the citizens of the United States respectively is, by this
Amendment, placed under the immediate supervision and care of the
Government of the United States, who are thus charged with its
fulfillment and guaranty.

By ratifying this Amendment the several States have relinquished
and quit-claimed, so to speak, to the United States, all claim or
right, on their part, to "make or enforce any law which shall
abridge the privileges and immunities of citizens of the United
States." The State of Missouri, therefore, is estopped from
longer claiming this right to limit the franchise to "males," as
a State prerogative; and the Supreme Court of Missouri should
have so declared, and its failure to do so is error; because, by
retaining that word in the State Constitution and laws, not this
plaintiff only, but large numbers of other citizens of the United
States are "abridged" in the exercise of their "privileges and
immunities as citizens of the United States," by being deprived
of their right or privilege to vote for United States officers,
as claimed by the plaintiff in her petition. Not only this, but
we say further, that the ratification of this amendment was, in
intendment of law, a solemn agreement, on the part of the States,
that all existing legislation inconsistent therewith should be
repealed, or considered as repealed, and that none of like
character should take place in the future. The State of Missouri
has acted upon this idea in part, and its subsequent legislation,
on the subject of the ballot, has been as follows: The
ratification of the XV. Amendment (which we do not consider as
having any direct bearing on the point now being considered,
inasmuch as this Amendment is merely prohibitory--not conferring
any right, but treating the ballot in the hands of the negro as
an existing fact, and forbidding his deprivation thereof). Next,
amending the State Constitution and registration law, by simply
omitting the word "white" from the clause "white male citizens."

This constitutes the entire legislation of the State of Missouri
on this subject since the adoption of the XIV. Amendment, and
this omission of the word "white" was designed to make the State
Constitution conform to the Amendment, so far as the negro was
concerned, leaving the women citizens of the United States still
under the ban of "involuntary servitude," in plain violation of
the Amendment.

So that, while the negro votes to-day in Missouri, there is not a
syllable of affirmative legislation by the State conferring the
right upon him.



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