Sidebilder
PDF
ePub

country. Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist, the case must be dismissed. Notwithstanding this the records of the courts are full of cases in which the jurisdiction depends upon the citi zenship of women, and not one can be found, we think, in which objection was. made on that account. Certainly none can be found in which it has been held that women could not sue or be sued in the courts of the United States. Again; at the time of the adoption of the Constitution, in many of the States (and in some probably now) aliens could not inherit or transmit inheritance. There are a multitude of cases to be found in which the question has been presented whether a woman was or was not an alien, and as such capable or incapable of inheritance, but in no one has it been insisted that she was not a citizen because she was a woman. On the contrary, her right to citizenship has been in all cases assumed. The only question has been whether, in the particular case under consideration, she had availed herself of the right.

In the Legislative Department of the Gov170*1 ernment, similar proof will be found. Thus, in the preemption laws (5 Stat. at L., 455, § 10), a widow, "being a citizen of the United States," is allowed to make settlement on the public lands and purchase upon the terms specified, and women, "being citizens of the United States," is are permitted to avail themselves of the benefit of the homestead law. 12 Stat. at L., 392.

terms. The United States has no voters in the States of its own creation. The elective officers of the United States are all elected directly or indirectly by state voters. The members of the House of Representatives are to be chosen by the people of the States, and the elec- [*171 tors in each State must have the qualifications requisite for electors of the most numerous branch of the State Legislature. Const., art. 1, § 2. Senators are to be chosen by the Legislatures of the States, and necessarily the members of the Legislature required to make the choice are elected by the voters of the State. Const., art. 1, § 3. Each State must appoint in such manner as the Legislature thereof may direct, the electors to elect the President and Vice-President. Const., art., 2, § 2. The times, places and manner of holding elections for Senators and Representatives are to be prescribed in each State by the Legislature thereof; but Congress may at any time, by law, make or alter such regulations, except as to the place of choosing Senators. Const., art. 1, § 4. It is not necessary to inquire whether this power of supervision thus given to Congress is sufficient to authorize any interference with the state laws prescribing the qualifications of voters, for no such interference has ever been attempted. The power of the State in this particular is certainly supreme until Congress acts.

The Amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens entitled to suffrage under the Constitution and laws of the States, but it operates for this purpose, if at all, through the States and the state laws, and not directly upon the citizen.

Other proof of like character might be found, but certainly more cannot be necessary to es- It is clear, therefore, we think, that the Contablish the fact that sex has never been made stitution has not added the right of suffrage to one of the elements of citizenship in the United the privileges and immunities of citizenship as States. In this respect men have never had they existed at the time it was adopted. This an advantage over women. The same laws makes it proper to inquire whether suffrage precisely apply to both. The Fourteenth was co-extensive with the citizenship of the Amendment did not affect the citizenship of States at the time of its adoption. If it was, women any more than it did of men. In this then it may with force be argued that suffrage particular, therefore, the rights of Mrs. Minor was one of the rights which belonged to citido not depend upon the Amendment. She zenship, and in the enjoyment of which every has always been a citizen from her birth, and citizen must be protected. *But if it [*172 entitled to all the privileges and immunities was not, the contrary may with propriety be of citizenship. The Amendment prohibited assumed. the State, of which she is a citizen from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her. That she had before its adoption.

If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the Constitution and laws of Missouri confining it to men are in violation of the Constitution of the United States, as amended, and consequently void. The direct question is, therefore, presented whether all citizens are necessarily voters.

The Constitution does not define the privileges and immunities of citizens. For that definition we must look elsewhere. In this cas we need not determine what they are, but only whether suffrage is necessarily one of them.

It certainly is nowhere made so in express'

When the Constitution of the United States was adopted, all the several States, with the exception of Rhode Island, had Constitutions of their own. Rhode Island continued to act under its charter from the Crown. Upon an examination of those Constitutions we find that in no State were all citizens permitted to vote. Each State determined for itself who should have that power. Thus, in New Hampshire, "Every male inhabitant of each town and parish with town privileges, and places unincorporated in the State, of twenty-one years of age and upwards, excepting paupers and persons excused from paying taxes at their own request," were its voters; in Massachusetts "Every male inhabitant of twenty-one years of age and upwards, having a freehold estate within the Commonwealth of the annual income of three pounds, or any estate of the value of sixty pounds;" in Rhode Island "Such

as are admitted free of the company and so-, ciety" of the Colony; in Connecticut such perBons as had "Maturity in years, quiet and peaceable behavior, a civil conversation, and forty shillings freehold or forty pounds personal estate," if so certified by the selectmen; in New York "Every male inhabitant of full age who shall have personally resided within one of the counties of the State for six months immediately preceding the day of election if during the time aforesaid he shall have been a freeholder, possessing a freehold of the value of twenty pounds within the county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to the State;" in New Jersey "All inhabitants of full age who are worth fifty pounds, proclamation money, clear estate in the same, and have resided in the county in which they claim a vote for twelve months immediately preceding the election;" in Pennsylvania "Every freeman of the age of twenty-one years, having resided in the State two years next before the election, and within that time paid a state or county tax which shall have been assessed at least six 173*] months before the election;" in *Delaware and Virginia "as exercised by law at present;" in Maryland "All freemen above twenty-one years of age having a freehold of fifty acres of land in the county in which they offer to vote and residing therein, and all freemen having property in the State above the value of thirty pounds current money, and huving resided in the county in which they offer to vote one whole year next preceding the election;" in North Carolina, for Senators, "All freemen of the age of twenty-one years who have been inhabitants of any one county within the State twelve months immediately preceding the day of election, and possessed of a freehold within the same county of fifty acres of land for six months next before and at the day of election," and for members of the House of Commons "All freemen of the age of twentyone years who have been inhabitants in any one county within the State twelve months immediately preceding the day of any election, and shall have paid public taxes;" in South Carolina "Every free white man of the age of twenty-one years, being a citizen of the State and having resided therein two years previous to the day of election, and who hath a freehold of fifty acres of land, or a town lot on which he hath been legally seised and possessed at least six months before such election, or (not having such freehold or town lot) hath been a resident within the election district in which he offers to give his vote six months before said election, and hath paid a tax the preceding year of three shillings sterling towards the support of the government;" and in Georgia "Such citizens and inhabitants of the State as shall have attained to the age of twentyone years, and shall have paid tax for the year next preceding the election, and shall have resided six months within the county."

In this condition of the law in respect to suffrage in the several states, it cannot for a moment be doubted that if it had been intended to make all citizens of the United States voters, the framers of the Constitution would not have left it to implication. So important a change in the condition of citizenship as it

actually existed, if intended, would have been expressly declared. 174*] *But if further proof is necessary to show that no such change was intended, it can easily be found both in and out of the Constitution. By article 4, § 2, it is provided that "The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." If suffrage is necessarily apart of citizenship, then the citizens of each State must be entitled to vote in the several States precisely as their citizens are. This is more than asserting that they may change their residence and become citizens of the State and thus be voters. It goes to the extent of insisting that while retaining their original citizenship they may vote in any State. This, we think, has never been claimed. And again, by the very terms of the Amendment we have been considering (the fourteenth), "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in the rebellion, or other crimes, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." Why this, if it was not in the power of the Legislature to deny the right of suffrage to some male inhabitants? And if suffrage was necessarily one of the absolute rights of citizenship, why confine the operation of the limitation to male inhabitants? Women and children are, as we have seen, "persons." They are counted in the enumeration upon which the appropriation is to be made, but if they were necessarily voters because of their citizenship unless clearly excluded, why inflict the penalty for the exclusion of males alone? Clearly, no such form of words would have been *se- [*175 lected to express the idea here indicated, if suffrage was the absolute right of all citizens.

And still again; after the adoption of the Fourteenth Amendment, it was deemed necessary to adopt a fifteenth, as follows; "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." The Fourteenth Amendment had already provided that no State should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race, etc? Nothing is more evident than that the greater must include the less, and if all were already protected, why go through with the form of amending the Constitution to protect a part?

It is true that the United States guaranties to every State a republican form of government. Const., art. 4, § 4. It is also true that

no State can pass a bill of attainder (Const. | male citizens of the age of twenty-one years who art. 1, § 10), and that no person can be deprived of life, liberty or property without due process of law. Const. Amend., 5. All these several provisions of the Constitutions must be construed in connection with the other parts of the instrument, and in the light of the surrounding circumstances. The guaranty is of a republican form of gov-being inhabitants of any one county in the ernment. No particular government is designated as republican, neither is the exact form to be guarantied, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended.

The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all, the people participated to some extent, through their representatives elected in the 176*] manner specially provided. *These governments the Constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution.

had resided in the State two years, or in the county in which they offered to vote one year next before the election. Then followed Tennessee, in 1796, with voters of freemen of the age of twenty-one years and upwards, possessing a freehold in the county wherein they may vote, and being inhabitants of the State, or freemen State, six months immediately preceding the day of election. But we need not particularize further. No new State has ever been admitted to the Union which has conferred the right of suffrage upon women, and this has never been considered a valid objection to her admission. On the contrary, as is claimed in the argument, the right of suffrage was withdrawn from women as early as 1807 in the State of New Jersey, without any attempt to obtain the interference of the United States to prevent it. Since then the governments of the insurgent States have been re-organized under a requirement that before their representatives could be admitted to seats in Congress they must have adopted new Constitutions, republican in form. In no one of these Constitutions was suffrage conferred upon women, and yet the States have all been restored to their original position as States in the Union.

As has been seen, all the citizens of the States Besides this, citizenship, has not in all cases were not invested with the right of suffrage. In been made a condition precedent to the enjoyall, save perhaps New Jersey, this right was ment of the right of suffrage. Thus, in Misonly bestowed upon men and not upon all of souri, persons of foreign birth, who have dethem. Under these circumstances it is certain-clared their intention to become citizens of the ly now too late to contend that a government United States, may under certain circumstanis not republican, within the meaning of this ces vote. The same provision is to be found in guaranty in the Constitution, because women the Constitutions of Alabama, Arkansas, Floriare not made voters. da, Georgia, Indiana, Kansas, Minnesota and Texas.

The same may be said of the other provisions just quoted. Women were excluded from suffrage in nearly all the States by the express provision of their Constitutions and laws. If that had been equivalent to a bill of attainder, certainly its abrogation would not have been left to implication. Nothing less than express language would have been employed to effect so radical a change. So, also, of the Amendment which declares that no person shall be deprived of life, liberty or property without due process of law, adopted as it was as early as 1791. If suffrage was intended to be included within its obligations language better adapted to express that intent would most certainly have been employed. The right of suffrage, when granted, will be protected. He who has it can only be deprived of it by due process of law, but in order to claim protection he múst first show that he has the right.

But we have already sufficiently considered the proof found upon the inside of the Constitution. That upon the outside is equally effective. The Constitution was submitted to the States for adoption in 1787, and was ratified by nine States in 1788, and finally by the thirteen original States in 1790. Vermont was the first new State admitted to the Union, and it came in under a Constitution which conferred the right of suffrage only upon men of the full age of 177*] twenty-one years, having resided in the State for the space of one whole year next before the election, and who were of quiet and peaceable behavior. This was in 1791. The next year, 1792, Kentucky followed with a Constitution confining the right of suffrage to free

Certainly, if the courts can consider any question settled, this is one. For nearly ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage. If uniform practice, [*178 long continued, can settle the construction of so important an instrument as the Constitution of the United States confessedly is, most certainly it has been done here. Our province is to decide what the law is, not to declare what it should be.

We have given this case the careful consideration its importance demands. If the law is wrong, it ought to be changed; but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may, perhaps, be sufficient to induce those having the power to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. No argument as to woman's need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end if we can find it is within the power of a State to withhold.

Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon anyone, and that the Constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we affirm the judgment of the court below.

241*] *HENRY A. TILDEN et al., Plffs. in the acceptance was for the drawer's accomoda

Err., 0.

CHAUNCEY B. BLAIR.

(See S. C., 21 Wall., 241-249.) Acceptor of bill, liability of Illinois contract -judgment for less than due, when affirmed.

1. The liability of an acceptor does not arise from merely writing his name on the bill, but commences with the subsequent delivery to a bona fide holder, or with notice of acceptance given to such holder.

2. Where defendants resided in New York, and there wrote their acceptance upon a draft and then sent it to Illinois to have it negotiated there, the contract is an Illinois contract and draws interest according to the law of that State, although made payable in New York.

3. Where the circuit court gave plaintiff a judgment for the principal of the draft without interest, the judgment was only too favorable to defendant.

It should have been for the full amount of the ac-
ceptance, with interest from the time it fell due.
But the case having been brought here by the de-
fendants, this court can only affirm the judgment.
[No. 207.]

Argued Mar. 4, 1875. Decided Mar. 29, 1875.
N ERROR to the Circuit Court of the United
States for the Southern District of New

I'

York.

The plaintiffs in error, residents of the State of New York, were sued in the court below by the defendant in error, a resident of the State of Illinois, as the acceptors of a draft drawn in Illinois on the acceptors, and accepted and payable in New York. The draft and acceptance are as follows: $5,000.

CHICAGO, August 4th, 1869. Sixty days after date, pay to the order of myself $5,000, value received, with exchange, and charge to account of

WILLIAM T. PELTON.

To Messrs. Tilden & Co.,

New Lebanon, N. Y.

tion, that the statutes of Illinois allow the taking of ten per cent. for the loan and forbearance of money, and forfeit the interest when more than ten per cent. is exacted, but do not forfeit the principal; and found, as a conclusion of law and decided that the transaction was governed by the law of Illinois; that the negotiation of the draft was unlawful as to the interest and lawful as to the principal sum loaned or advanced; and rendered judgment accordingly.

Whereupon the defendants sued out this writ of error.

Mr. Joshua M. Van Cott, for plaintiff in

error:

The acceptance had no inception or validity as a contract while in the hands of the drawer. It could not acquire validity through a usurious contract.

Catlin v. Gunter, 11 N. Y., 368; Jewell v. Wright, 30 N. Y., 259.

This acceptance is a contract made and to be performed in New York, and is governed by the law of New York.

By the law of New York, exacting greater interest than seven per cent. renders the contract illegal and void. If this acceptance had been negotiated in New York, it could not be

enforced there.

By the law of Illinois, exacting greater interest than ten per cent., is illegal.

The fact that the acceptors knew that the draft was to be negotiated in Illinois is, legally, inconsequential. Such a draft is negotiable anywhere, and nothing is derived from consent where no consent is needed.

That the draft was accepted and was payable in New York, appeared on its face and was notice to all the world.

A contract for the payment of money depends, for its validity, upon the law of the

(Written across the face): Accepted; payable place where it is stipulated to be paid.

at the Bank of North America, New York.

TILDEN & Co.

(Indorsed): Pay to the order of A. C. Coventry.
W. T. PELTON.
A. C. COVENTRY."

The acceptors interposed the defense that the acceptance was made without funds, for the accommodation of the drawer, and was negotiated in Illinois, at a rate of interest exceeding twenty-five per cent. per annum, in violation of the statute against usury of the State of

Illinois and of the State of New York.

The issue was tried by the court, a jury having been waived.

The court found, as facts, that the draft was accepted in New York, without funds and for the drawer's accommodation; that it was sent to the drawer, who resided at Chicago, the accepters knowing that it was there to be negotiated; that it was negotiated to the plaintiff at a rate of interest exceeding twenty-five percent. per annum, he having no knowledge that

NOTE.-Bills drawn in one State and payable in another are foreign bills--see note, 7 L. ed. U. S. 528. Lex loci and lex fori as to bills and notes; as to interpretation, effect and validity of, and usury -see note, 3 L. ed. U. S. 205.

Who is deemed to have acted in good faith in tak ing bills and notes. What is notice to preven holder from recovery-see note, 10 L. ed. U. S. 473. Conflict of laws as to interest-see note, 62 L. R. 1. 33.

It is an exercise of comity by the State of New York when it permits its citizen to be sued in its courts to enforce a contract made in another State, to pay a higher rate of interest than its own policy and law allow. In the case of such a contract, both States punish the illegality, the courts of one inflicting the milder penalty of a forfeiture of the interest; the courts of the other inflicting a severer retribution of a forfeiture of both principal and interest. While the sterner penalty of the New York law has no extraterritorial operation in the State and in the courts of Illinois, so the milder penalty of the Illinois law has no extraterritorial operation in the State of New York, and will not be imported there, by a strained comity, to mitigate the penal severity of its

own law.

Confessedly, the contract for the indorsement of this acceptance to the defendant in error violated the lex loci contractus, the lex loci solutions and the lex fori.

Messrs. John E. Burrill and Jno. D. Niles, for defendant in error:

Although the signature of the defendants was affixed to the draft in this State, it was not delivered here, but was sent to Pelton, the drawer, at Chicago, by letter, and it was there received and there negotiated by Pelton, in accordance with the intention of the defon 'onts.

The following cases decide that, under such eircumstances, the acceptance is to be treated as made in Illinois:

Lee v. Selleck, 33 N. Y. (Court of Appeals), 615, where the precise point was decided; see, opinion of Porter, J., p. 618; Cook v. Litchfield, 9 N. Y., 280, opinion of Ruggles, Ch. J., p. 290; Hyde v. Goodnow, 3 N. Y. 270, opinion of Harris, J., p. 270.

The question whether the purchase of the draft by Blair, under the circumstances and at the rate found by the court, was a violation of the usury laws of Illinois or was a usurious transaction within the reach of those statutes, should be determined by the judicial decisions of that State:

Bell v. Morrison, 1 Pet. 360; Green v. Neal, 6 Pet., 291; De Wolf v. Rabaud, 1 Pet., 476; Van Rensselaer v. Kearney, 11 How., 297; Mo Neil v. Holbrook, 12 Pet. 84, Leffingwell v. Warren, 2 Black, 599, 17 L. ed., 261.

In construing these Illinois Statutes of Usury, the courts of that State have held that they do not effect the right to purchase negotiable commercial paper at any price which may be agreed upon between the parties and, consequently, if a party takes commercial negotiable paper in good faith, before maturity and without notice or knowledge that it was drawn or accepted or made without consideration; but believing that it was made for a good and valid consideration, such holder may purchase it at whatever price may be agreed upon; and although the discount be made at a greater rate of interest than ten per cent. per annum, the transaction is not affected by the usury

statutes.

Raplee v. Morgan, 2 Scam., 561; Sherman v. Blackman, 24 Ill., 347; also, see, Hogg v. Ruffner, 1 Black, 115, 17 L. ed. 38; Moncure v. Dermott, 13 Pet., 345.

Mr. Justice Strong delivered the opinion of

the court:

That the contract upon which the suit was brought was made in Illinois, must be considered as established by the findings of the circuit court. It is true the defendants formally accepted the draft in New York, and promised to pay at a bank in New York, but there was no operative acceptance until the draft was negotiated. They sent it back to Illinois, where it had been drawn, for the purpose of having it negotiated there. Pelton, the drawer, for whose accomodation the acceptance was given, was thus constituted the agent of the acceptors to give effect to their action. While the draft remained in his hands it was no binding contract. He had no rights as against the defendants, but he was empowered to negotiate the draft, and thereby to initiate a liability not only of himself, but also of the defendants. It was only when the instrument was negotiated that it became an accepted draft. It has long been settled that the liability of an acceptor does not arise from merely writing his name on the bill, but that it commences with the subsequent delivery to a bona fide holder, or with notice of acceptance given to such holder. 247*] Byles, Bills, 151. That this is so has often been asserted in judicial decisions, and often in New York. Cook v. Litchfield, 9 N. Y. 279; Lee v. Selleck, 33 N. Y., 615; Hyde v. Goodnow, 3 N. Y., 271. The doctrine is most reasonable. It is, therefore, quite immaterial,

|

under the facts of this case, that the defendants resided in New York, and that they there wrote their acceptance upon the draft. In legal effect they accepted the draft in Chicago, when by their authority the drawer negotiated it. and thus caused effect to be given to their undertaking. Nor is the law of the contract changed by the fact that the acceptance was made payable in New York. The place of payment was doubtless designated for the convenience of the acceptors, or to facilitate the negotiation of the draft. But it is a controlling fact that before the acceptance had any operation-before the instrument became a bil, the defendants sent it to Illinois for the purpose of having it negotiated in that Statenegotiated, it must be presumed, at such a rate of discount as by the law of that State was allowable. What more cogent evidence could there be that it was intended to create an Illinois bill? The case is exactly the same it would be if the defendants had been residents of Chicago when the draft was drawn, and had accepted it at Chicago for the accommodation of the drawer, designating New York as the place of payment. It is plain, therefore, that the contract is an Illinois contract, and that the rights and liabilities of the parties must be determined according to the law of that State. By its statutes persons may contract to receive ten per cent. interest upon any debt due them, whether it be verbal or written. If they stipulate for a higher rate they forfeit the interest, but the statute expressly allows the recovery of the principal. The contract is not declared to be void. Only so much of it.is void as extracts the excessive interest. And by a Legislative Act passed February 12, A. D. 1857 (Gross, Stat., 371, 372), it is enacted as follows, viz.: "When any contract or loan shall be made in this State, or between citizens of this State and any other State or country, bearing interest at any rate which was or shall be lawful according [*248 to any law of the State of Illinois, it shall and may be lawful to make the amount of principal and interest of such contract or loan payable in any other State or Territory of the United States, or in the City of London, in England; and in all such cases such contract or loan shall be deemed and considered as governed by the laws of the State of Illinois, and shall not be effected by the laws of the State or country where the same shall be made payable." Provisions very similar to these are also made by the Statute of February 16, 1857. Gross, Stat., 371, 372.

If, then, the contract is, as we think it must be regarded, an Illinois contract, and if, therefore, the rights of the plaintiff are to be determined by the laws of that State, there can be no doubt he was entitled to judgment, and to judgment for the full face of the draft, with interest from the time it fell due. Even if the contract had been usurious, he would have been entitled to a judgment for all that the circuit court allowed him; for, as we have seen, the contract would not have been void, the statute expressly declaring that when usury is taken the principal debt may be recovered, while the interest reserved may not be. The case would be quite different if the law of the State made void an instrument usuriously negotiated. There was, however, no usury. And where a note or a bill is not made void by stat

« ForrigeFortsett »