Belva Lockwood. Jill Norgren
The Organic Act did not comport with the law of the Constitution.
Riddle also advanced what had become the standard natural rights argument that consent of the governed preceded the creation of the Republic. “I contend,” he said, “that under our system the right to vote is a natural right [that] supposes that all joined in and consented to the government.”38 Returning to the force of the Fourteenth as well as Fifteenth Amendment, he argued that the first section of the Fourteenth removed “all hindrance” to the exercise of suffrage, while the Fifteenth “is a solemn mandate to all concerned not to deny this [suffrage] right.”39 The two amendments, he continued, harmonized and supported the women’s claim that they were entitled to vote.
The members of the District of Columbia Supreme Court, however, did not agree. Writing in the manner of a gentle father lecturing his child, District Supreme Court Chief Justice Cartter told the women plaintiffs that he and his colleagues on the bench had “listened patiently and with interest to ingenious argument…but have failed to be convinced of the correctness of the position.”40 He dismissed the natural rights argument as likely to involve the destruction of civil government and concluded that Congress, as the legislative power of the District, was within its rights in not issuing a declaratory act enfranchising the women of Washington. It was the opinion of the court that the women would have to return to Congress to win the right that body had patently denied in 1867 and, again, in February 1871: “The constitutional capability of becoming a voter created by this [Fourteenth] Amendment lies dormant, as in the case of an infant, until made effective by legislative action. Congress, the legislative power of this jurisdiction, as yet, has not seen fit to carry the inchoate right into effect, as is apparent in the law regulating the franchise of this District.”41 Cartter denied the suits and assigned court costs against the women.
The outcome was not unanticipated and did not discourage other members of the NWSA from similar challenges. Woodhull, the flamboyant rising star of the suffrage movement, repeated the dare in the November 1871 New York City elections. Susan B. Anthony went to the polls in November 5, 1872, cast a ballot, and two weeks later was arrested by a United States marshal for “knowingly voting without having a lawful right to vote.”42 Federal authorities hoped to intimidate Anthony, who, refusing to be quieted, traveled throughout New York State criticizing the Republican Party for blocking the popular democratic movements excited by emancipation and black manhood suffrage.43
In this hostile climate, the Washington women were fortunate to have the services of male attorneys who were willing to risk professional reputations as well as public notoriety. The number of women lawyers in the United States could be counted on one hand, but Riddle and Miller appeared to be the ideal surrogates. They worked closely with their UFA clients, and when the disappointing Cartter decision was handed down in September 1871, they requested a rehearing.
When they were refused the two men filed an appeal with the United States Supreme Court, and on February 23, 1872, Chief Justice Salmon P. Chase announced that the Court would hear the appeal. It appeared that through Spencer and Webster the high court would address the question of women’s right to vote and that Riddle and Miller would be associated with a landmark decision. But the Spencer-Webster cases were never argued. Records show that the Supreme Court of the District of Columbia, as ordered by Chase, sent the trial transcript to the high court. And then the attorneys on one, or both, sides failed to appear for argument, not once, but twice. As a result, on October 16, 1874, Morrison R. Waite, the new chief justice, issued a short memorandum: “This is the second term at which this case has been called for argument, and…neither party is now prepared to argue the same.”44 He ordered that the cases be dismissed.
What happened to keep Riddle and Miller from appearing at the U.S. Supreme Court? In 1871 the Spencer-Webster cases advanced cutting-edge legal theory and offered the first opportunity for the Supreme Court of the United States to address the question of woman suffrage. The women of the District continued to anticipate their day in court, reasoning that Riddle and Miller, having already argued before Cartter, were fully prepared to make the appeal at the high court. Given the importance of the issue of voting rights, and the expectations of their clients, it is difficult to believe that the attorneys stepped aside or back. But it appears that this is what they did.
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