No defence that elec

tion was voidable.

in perjury.

1 See supra, §§ 181-185.

2 State v. Bailey, 21 Me. 62; State v. Cohoon, 12 Ired. 178. See supra, §§ 1263, 1282. For offences of this class see U. S. Rev. Stat. §§ 5506 et seq.

8 Steinwehr v. State, 5 Sneed, 586. 4 See supra, § 84. See, however, State v. Liston, 9 Humph. 603; Gordon v. State, 52 Ala. 308. Compare, as bearing on this point, R. v. Price, 3 P. & D. 421; 11 A. & E. 727. As to right of idiots and lunatics see Clark v. Robinson, 88 Ill. 498.

5 U. S. v. Anthony, 11 Blatch. 200; Minor v. Happersett, 53 Mo. 58; and see supra, § 84. But see contra, Com. v. Bradford, 9 Met. 268.

In U. S. v. Anthony, supra, we have from Hunt, J., the following valuable exposition of the law on this topic :

"The defendant is indicted under the Act of Congress of May 31, 1870, for having voted for a representative in Congress, in November, 1872. Among other things, that act makes it an offence for any person knowingly

to vote for such representative without having a lawful right to vote. It is charged that the defendant thus voted, she not having a right to vote, because she is a woman. The defendant insists that she has a right to vote; and that the provision of the Constitution of this State, limiting the right to vote to persons of the male sex, is in violation of the fourteenth amendment of the Constitution of the United States, and is void.

"The thirteenth, fourteenth, and fifteenth amendments were designed mainly for the protection of the newly emancipated negroes, but full effect must, nevertheless, be given to the language employed. The thirteenth amendment provides, that neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.' If honestly received and fairly applied, this provision would have been enough to guard the rights of the colored race. In some States it

was attempted to be evaded by enactments cruel and oppressive in their nature-as, that colored persons were forbidden to appear in the towns, except in a menial capacity; that they should reside on and cultivate the soil without being allowed to own it; that they were not permitted to give testimony in cases where a white man was a party. They were excluded from performing particular kinds of business, profitable and reputable, and they were denied the right of suffrage. To meet the difficulties arising from this state of things, the fourteenth and fifteenth amendments were enacted.

"The fourteenth amendment creates and defines citizenship of the United States. It had long been contended, and had been held by many learned authorities, and had never been judicially decided to the contrary, that there was no such thing as a citizen of the United States, except as that condition arose from citizenship of some State. No mode existed, it was said, of obtaining a citizenship of the United States, except by first becoming a citizen of some State. This question is now at rest. The fourteenth amendment defines and declares who shall be citizens of the United States, to wit: 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The latter qualification was intended to exclude the children of foreign representatives and the like. With this qualification, every person born in the United States or naturalized, is declared to be a citizen of the United States and of the State wherein he resides.

"After creating and defining citizenship of the United States, the fourteenth amendment provides, that no

State shall make or enforce any which shall abridge the privileges or immunities of citizens of the United States.' This clause is intended to be a protection, not to all our rights, but to our rights as citizens of the United States only; that is, to rights existing or belonging to that condition or capacity. The expression, citizen of a State, used in the previous paragraph, is carefully omitted here. In art. 4, § 2, subdivision 1, of the Constitution of the United States, it had been already provided, that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.' The rights of citizens of the States and of citizens of the United States are each guarded by these different provisions. That these rights are separate and distinct was held in the Slaughter-house Cases, 16 Wallace, 36, recently decided by the Supreme Court. The rights of citizens of the State, as such, are not under consideration in the fourteenth amendment. They stand as they did before the adoption of the fourteenth amendment, and are fully guaranteed by other provisions. The rights of citizens of the States have been the subject of judicial decision on more than one occasion. Corfield v. Coryell, 4 Wash. C. C. R. 371; Ward v. Maryland, 12 Wallace, 418, 430; Paul v. Virginia, 8 Wallace, 168. These are the fundamental privileges and immunities belonging of right to the citizens of all free governments, such as the right of life and liberty, the right to acquire and possess property, to transact business, to pursue happiness in his own manner, subject to such restraint as the government may adjudge to be necessary for the general good. In Crandall v. Nevada, 6

Wallace, 35, 44, is found a statement of some of the rights of a citizen of the United States, namely, to come to the seat of government to assert any claim he may have upon the government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions, and to have free access to its seaports, through which all the operations of foreign commerce are conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States. Another privilege of a citizen of the United States,' says Mr. Justice Miller, in the Slaughter-house Cases, is to demand the care and protection of the federal government over his life, liberty, and property, when on the high seas or within the jurisdicforeign government.' The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus,' he says, are rights of the citizen guaranteed by the federal Constitution.'

tion of

6

"The right of voting, or the privilege of voting, is a right or privilege arising under the Constitution of the State, and not under the Constitution of the United States. The qualifications are different in the different States. Citizenship, age, sex, residence, are variously required in the different States, or may be so. If the right belongs to any particular person,

1 U. S. v. Anthony, supra, § 84; McGuire v. State, 7 Humph. 54; State v. Hart, 6 Jones (N. C.), 389; State v. Boyett, 10 Ired. 336. Under the Rhode Island statute, using the term fraudulently, honest belief is a defence. State v. Macomber, 7 R. I. 349. The

it is because such person is entitled to it by the laws of the State where he offers to exercise it, and not because of citizenship of the United States. If the State of New York should provide that no person should vote until he had reached the age of thirty years, or after he had reached the age of fifty, or that no person having gray hair, or who had not the use of all his limbs, should be entitled to vote, I do not see how it could be held to be a violation of any right derived or held under the Constitution of the United States. We might say that such regulations were unjust, tyrannical, unfit for the regulation of an intelligent State; but, if rights of a citizen are thereby violated, they are of that fundamental class, derived from his position as a citizen of the State, and not those limited rights belonging to him as a citizen of the United States; and such was the decision in Corfield v. Coryell.

"The United States rights appertaining to this subject are those, first, under article 1, § 2, subdivision 1, of the United States Constitution, which provides that electors of representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the State legislature; and second, under the fifteenth amendment, which provides that the right of citizens of the United States to vote shall not be denied or abridged by the United States or

Mass. Stat. requires that the defendant must vote "knowing himself not to be a qualified voter," which knowledge, therefore, is essential to the offence. Com. v. Bradford, 9 Met. 268. See State v. Sheeley, 15 Iowa, 404.

-

by any State, on account of race, color, or previous condition of servitude.' If the Legislature of the State of New York should require a higher qualification in a voter for a representative in Congress than is required for a voter for a member of the House of Assembly of the State, this would, I conceive, be a violation of a right belonging to a person as a citizen of the United States. That right is in relation to a federal subject or interest, and is guaranteed by the federal Constitution. The inability of a State to abridge the right of voting on account of race, color, or previous condition of servitude, arises from a federal guarantee. Its violation would be the denial of a federal right — that is, a right belonging to the claimant as a citizen of the United States. This right, however, exists by virtue of the fifteenth amendment. If the fifteenth amendment had contained the word 'sex,' the argument of the defendant would have been potent. She would have said, that an attempt by a State to deny the right to vote because one is of a particular sex is expressly prohibited by that amendment. The amendment, however, does not contain that word. It is limited to race, color, or previous condition of servitude. The Legislature of the State of New York has seen fit to say, that the franchise of voting shall be limited to the male sex. In saying this, there is, in my judgment, no violation of the letter, or of

1 State v. Williams, 25 Me. 561; State v. Perkins, 42 Vt. 399; State v. Welch, 21 Minn. 22. See Hamilton v. People, 57 Barb. 625. See Com. v. Silsbee, 9 Mass. 417.

In California it has been held that

the spirit, of the fourteenth or of the fifteenth amendment.

"This view is assumed in the second section of the fourteenth amendment, which enacts, that if the right to vote for federal officers is denied by any State to any of the male inhabitants of such State, except for crime, the basis of representation of such State shall be reduced in a proportion specified. Not only does this section assume that the right of male inhabitants to vote was the especial object of its protection, but it assumes and admits the right of a State, notwithstanding the existence of that clause under which the defendant claims to the contrary, to deny to classes or portions of the male inhabitants the right to vote which is allowed to other male inhabitants. The regulation of the suffrage is thereby conceded to the States as a State's right.

"The case of Bradwell v. The State, 16 Wallace, 130, decided at the recent term of the Supreme Court, sustains both of the positions above put forth, viz., first, that the rights referred to in the fourteenth amendment are those belonging to a person as a citizen of the United States and not as a citizen of a State; and second, that a right of the character here involved is not one connected with citizenship of the United States. Mrs. Bradwell made application to be admitted to practise as an attorney and counsellor at law in the courts of Illinois. Her application was denied, and, upon a

drunkenness is a defence to an indictment for double voting; People v. Harris, 29 Cal. 678; a decision which may lead "repeaters" to get drunk before they "repeat."