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diff --git a/18281.txt b/18281.txt new file mode 100644 index 0000000..d7894d0 --- /dev/null +++ b/18281.txt @@ -0,0 +1,8494 @@ +The Project Gutenberg EBook of An Account of the Proceedings on the Trial +of Susan B. Anthony, by Anonymous + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: An Account of the Proceedings on the Trial of Susan B. Anthony + +Author: Anonymous + +Release Date: April 28, 2006 [EBook #18281] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK TRIAL OF SUSAN B. ANTHONY *** + + + + +Produced by Marilynda Fraser-Cunliffe, Graeme Mackreth and +the Online Distributed Proofreading Team at +http://www.pgdp.net (This file was made using scans of +public domain works from the University of Michigan Digital +Libraries.) + + + + + +AN + +ACCOUNT OF THE PROCEEDINGS + +ON THE + +TRIAL OF + +SUSAN B. ANTHONY, + +ON THE + +Charge of Illegal Voting, + +AT THE + +PRESIDENTIAL ELECTION IN NOV., 1872, + +AND ON THE + +TRIAL OF + +BEVERLY W. JONES, EDWIN T. MARSH +AND WILLIAM B. HALL, + +THE INSPECTORS OF ELECTION BY WHOM HER VOTE WAS RECEIVED. + + +ROCHESTER, N.Y.: +DAILY DEMOCRAT AND CHRONICLE BOOK PRINT, 3 WEST MAIN ST. +1874. + + + + +INDEX. + + + PAGE. + +Anthony, S.B., Indictment, 1 + Her speech on receiving her sentence, 82 + Her campaign speech, 151 + +Crowley, Richard, Opening speech in Miss Anthony's case, 5 + +Gage, Mrs. M. Joslyn, Speech of 179 + +Hall, Wm. B., Indictment, 85 + +Hooker, John, Article on Judge Hunt and the Right of Trial by Jury, 206 + +Hunt, Judge, Opinion against Miss Anthony, 59 + His refusal to submit her case to the jury, 68 + His refusal to permit the jury to be polled, 68 + His sentence of Miss Anthony, 81 + His direction to the jury in the cases of Jones, Hall and Marsh, 144 + Trial by jury "_a matter of form_", 145 + +Jones, Beverly W., Indictment, 85 + Remarks on receiving sentence, 148 + +Marsh, Edwin T., Indictment, 85 + Remarks on being sentenced, 149 + +Selden, H.R., Opening speech in Miss Anthony's case, 12 + Argument in her case, 17 + Argument on motion for new trial, 68 + +Van Voorhis, John, Argument of motion to quash the indictment +in the case of Jones, Marsh and Hall, 94 + Argument in the case of Jones, Marsh and Hall on the merits, 128 + Motion for new trial in the case of Jones, Marsh and Hall, 147 + + + + +PREFACE. + + +At the election of President and Vice President of the United States, +and members of Congress, in November, 1872, SUSAN B. ANTHONY, and +several other women, offered their votes to the inspectors of election, +claiming the right to vote, as among the privileges and immunities +secured to them as citizens by the fourteenth amendment to the +Constitution of the United States. The inspectors, JONES, HALL, and +MARSH, by a majority, decided in favor of receiving the offered votes, +against the dissent of HALL, and they were received and deposited in the +ballot box. For this act, the women, fourteen in number, were arrested +and held to bail, and indictments were found against them severally, +under the 19th Section of the Act of Congress of May 30th, 1870, (16 St. +at L. 144.) charging them with the offense of "knowingly voting without +having a lawful right to vote." The three inspectors were also arrested, +but only two of them were held to bail, HALL having been discharged by +the Commissioner on whose warrant they were arrested. All three, however +were jointly indicted under the same statute--for having "knowingly and +wilfully received the votes of persons not entitled to vote." + +Of the women voters, the case of Miss ANTHONY alone was brought to +trial, a _nolle prosequi_ having been entered upon the other +indictments. Upon the trial of Miss ANTHONY before the U.S. Circuit +Court for the Northern District of New York, at Canandaigua, in June, +1873, it was proved that before offering her vote she was advised by her +counsel that she had a right to vote; and that she entertained no doubt, +at the time of voting, that she was entitled to vote. It was claimed in +her behalf: + +I. That she was legally entitled to vote. + +II. That if she was not so entitled, but voted in good faith in the +belief that it was her right, she was guilty of no crime. + +III. That she did vote in such good faith, and with such belief. + +The court held that the defendant had no right to vote--that good faith +constituted no defence--that there was nothing in the case for the jury +to decide, and directed them to find a verdict of guilty; refusing to +submit, at the request of the defendant's counsel, any question to the +jury, or to allow the clerk to ask the jurors, severally, whether they +assented to the verdict which the court had directed to be entered. The +verdict of guilty was entered by the clerk, as directed by the court, +without any express assent or dissent on the part of the jury. A fine of +$100, and costs, was imposed upon the defendant. + +Miss ANTHONY insists that in these proceedings, the fundamental +principle of criminal law, that no person can be a criminal unless the +mind be so--that an honest mistake is not a crime, has been disregarded; +that she has been denied her constitutional right of trial by jury, the +jury having had no voice in her conviction; that she has been denied her +right to have the response of every juror to the question, whether he +did or did not assent to the verdict which the court directed the clerk +to enter. + +The trial of the three inspectors followed that of Miss ANTHONY, and all +were convicted, the court holding, as in the case of Miss ANTHONY, that +good faith on their part in receiving the votes was not a protection; +which they think a somewhat severe rule of law, inasmuch as the statute +provides the same penalty, and in the same sentence, "for knowingly and +wilfully receiving the vote of any person not entitled to vote, or +refusing to receive the vote of any person entitled to vote." The +inspectors claim, that according to this exposition of the law, they +were placed in a position which required them, without any opportunity +to investigate or take advice in regard to the right of any voter whose +right was questioned, to decide the question correctly, at the peril of +a term in the state's prison if they made a mistake; and, though this +may be a correct exposition of the law in their case, they would be +sorry to see it applied to the decisions of any court, not excepting the +tribunal by which they were convicted. + +The defendant, HALL, is at a loss to know how he could have avoided the +penalty, inasmuch as he did all that he could in the way of rejecting +the votes, without throttling his co-inspectors, and forcing them to +desist from the wrong of receiving them. He is of opinion that by the +ruling of the Court, he would have been equally guilty, if he had tried +his strength in that direction, and had failed of success. + +To preserve a full record of so important a judicial determination, and +to enable the friends of the convicted parties to understand precisely +the degree of criminality which attaches to them in consequence of these +convictions, the following pamphlet has been prepared--giving a more +full and accurate statement of the proceedings than can elsewhere be +found. + + + + +INDICTMENT + +AGAINST SUSAN B. ANTHONY. + + +DISTRICT COURT OF THE UNITED STATES OF AMERICA, + + IN AND FOR THE + +NORTHERN DISTRICT OF NEW YORK. + + * * * + +At a stated session of the District Court of the United States of +America, held in and for the Northern District of New York, at the City +Hall, in the city of Albany, in the said Northern District of New York, +on the third Tuesday of January, in the year of our Lord one thousand +eight hundred and seventy-three, before the Honorable Nathan K. Hall, +Judge of the said Court, assigned to keep the peace of the said United +States of America, in and for the said District, and also to hear and +determine divers Felonies, Misdemeanors and other offenses against the +said United States of America, in the said District committed. + +Brace Millerd, +James D. Wasson, +Peter H. Bradt, +James McGinty, +Henry A. Davis, +Loring W. Osborn, +Thomas Whitbeck, +John Mullen, +Samuel G. Harris, +Ralph Davis, +Matthew Fanning, +Abram Kimmey, +Derrick B. Van Schoonhoven, +Wilhelmus Van Natten, +Adam Winne, +James Goold, +Samuel S. Fowler, +Peter D.R. Johnson, +Patrick Carroll, + +good and lawful men of the said District, then and there sworn and +charged to inquire for the said United States of America, and for the +body of said District, do, upon their oaths, present, that Susan B. +Anthony now or late of Rochester, in the county of Monroe, with force +and arms, etc., to-wit: at and in the first election district of the +eighth ward of the city of Rochester, in the county of Monroe, in said +Northern District of New York, and within the jurisdiction of this +Court, heretofore, to-wit: on the fifth day of November, in the year of +our Lord one thousand eight hundred and seventy-two, at an election duly +held at and in the first election district of the said eighth ward of +the city of Rochester, in said county, and in said Northern District of +New York, which said election was for Representatives in the Congress of +the United States, to-wit: a Representative in the Congress of the +United States for the State of New York at large, and a Representative +in the Congress of the United States for the twenty-ninth Congressional +District of the State of New York, said first election district of said +eighth ward of said city of Rochester, being then and there a part of +said twenty-ninth Congressional District of the State of New York, did +knowingly, wrongfully and unlawfully vote for a Representative in the +Congress of the United States for the State of New York at large, and +for a Representative in the Congress of the United States for said +twenty-ninth Congressional District, without having a lawful right to +vote in said election district (the said Susan B. Anthony being then and +there a person of the female sex,) as she, the said Susan B. Anthony +then and there well knew, contrary to the form of the statute of the +United States of America in such case made and provided, and against the +peace of the United States of America and their dignity. + +Second Count--And the jurors aforesaid upon their oaths aforesaid do +further present that said Susan B. Anthony, now or late of Rochester, in +the county of Monroe, with force and arms, etc., to-wit: at and in the +first election district of the eighth ward of the city of Rochester, in +the county of Monroe, in said Northern District of New York, and within +the jurisdiction of this Court, heretofore, to-wit: on the fifth day of +November, in the year of our Lord one thousand eight hundred and +seventy-two, at an election duly held at and in the first election +district of the said eighth ward, of said city of Rochester, in said +county, and in said Northern District of New York, which said election +was for Representatives in the Congress of the United States, to-wit: a +Representative in the Congress of the United States for the State of New +York at large, and a Representative in the Congress of the United States +for the twenty-ninth Congressional District of the State of New York, +said first election district of said eighth ward, of said city of +Rochester, being then and there a part of said twenty-ninth +Congressional District of the State of New York, did knowingly, +wrongfully and unlawfully vote for a candidate for Representative in the +Congress of the United States for the State of New York at large, and +for a candidate for Representative in the Congress of the United States +for said twenty-ninth Congressional District, without having a lawful +right to vote in said first election district (the said Susan B. Anthony +being then and there a person of the female sex,) as she, the said +Susan B. Anthony then and there well knew, contrary to the form of the +statute of the United States of America in such case made and provided, +and against the peace of the United States of America and their dignity. + + RICHARD CROWLEY, + + Attorney of the United States, + For the Northern District Of New York. + +(Endorsed.) Jan. 24, 1873. + +Pleads not guilty. + + RICHARD CROWLEY, + U.S. Attorney. + +UNITED STATES +CIRCUIT COURT. + + +Northern District of New York. + + + +THE UNITED STATES OF AMERICA + + _vs._ + +SUSAN B. ANTHONY. + + * * * + +HON. WARD HUNT, Presiding. + + * * * + +APPEARANCES. + +For the United States: + + HON. RICHARD CROWLEY. + U.S. District Attorney. + +For the Defendant: + + HON. HENRY R. SELDEN. + JOHN VAN VOORHIS, ESQ. + + +Tried at Canandaigua. Tuesday and Wednesday, June 17th and 18th, 1873, +before Hon. Ward Hunt, and a jury. + +Jury impanneled at 2:30 P.M. + +MR. CROWLEY opened the case as follows: + +_May it please the Court and Gentlemen of the Jury_: + +On the 5th of November, 1872, there was held in this State, as well as +in other States of the Union, a general election for different officers, +and among those, for candidates to represent several districts of this +State in the Congress of the United States. The defendant, Miss Susan B. +Anthony, at that time resided in the city of Rochester, in the county of +Monroe, Northern District of New York, and upon the 5th day of November, +1872, she voted for a representative in the Congress of the United +States, to represent the 29th Congressional District of this State, and +also for a representative at large for the State of New York, to +represent the State in the Congress of the United States. At that time +she was a woman. I suppose there will be no question about that. The +question in this case, if there be a question of fact about it at all, +will, in my judgment, be rather a question of law than one of fact. I +suppose that there will be no question of fact, substantially, in the +case when all of the evidence is out, and it will be for you to decide +under the charge of his honor, the Judge, whether or not the defendant +committed the offence of voting for a representative in Congress upon +that occasion. We think, on the part of the Government, that there is no +question about it either one way or the other, neither a question of +fact, nor a question of law, and that whatever Miss Anthony's intentions +may have been--whether they were good or otherwise--she did not have a +right to vote upon that question, and if she did vote without having a +lawful right to vote, then there is no question but what she is guilty +of violating a law of the United States in that behalf enacted by the +Congress of the United States. + +We don't claim in this case, gentlemen, that Miss Anthony is of that +class of people who go about "repeating." We don't claim that she went +from place to place for the purpose of offering her vote. But we do +claim that upon the 5th of November, 1872, she voted, and whether she +believed that she had a right to vote or not, it being a question of +law, that she is within the Statute. + +Congress in 1870 passed the following statute: (Reads 19th Section of +the Act of 1870, page 144, 16th statutes at large.) + +It is not necessary for me, gentlemen, at this stage of the case, to +state all the facts which will be proven on the part of the Government. +I shall leave that to be shown by the evidence and by the witnesses, and +if any question of law shall arise his Honor will undoubtedly give you +instructions as he shall deem proper. + +_Conceded_, that on the 5th day of November, 1872, Miss Susan B. Anthony +was a woman. + +BEVERLY W. JONES, a witness, called in behalf of the United States, +having been duly sworn, testified as follows: + +_Examined_ by Mr. Crowley: + +Q. Mr. Jones, where do you reside? + +A. 8th ward, Rochester. + +Q. Where were you living on the 5th of November, 1872? + +A. Same place. + +Q. Do you know the defendant, Miss Susan B. Anthony? + +A. Yes, sir. + +Q. In what capacity were you acting upon that day, if any, in relation +to elections? + +A. Inspector of election. + +Q. Into how many election districts is the 8th ward divided, if it +contains more than one? + +A. Two, sir. + +Q. In what election district were you inspector of elections? + +A. The first district. + +Q. Who were inspectors with you? + +A. Edwin T. Marsh and William B. Hall. + +Q. Had the Board of Inspectors been regularly organized? + +A. Yes, sir. + +Q. Upon the 5th day of November, did the defendant, Susan B. Anthony, +vote in the first election district of the 8th ward of the city of +Rochester? + +A. Yes, sir. + +Q. Did you see her vote? + +A. Yes, sir. + +Q. Will you state to the jury what tickets she voted, whether State, +Assembly, Congress and Electoral? + +Objected to as calling for a conclusion. + +Q. State what tickets she voted, if you know, Mr. Jones? + +A. If I recollect right she voted the Electoral ticket, Congressional +ticket, State ticket, and Assembly ticket. + +Q. Was there an election for Member of Congress for that district and +for Representative at Large in Congress, for the State of New York, held +on the 5th of November, in the city of Rochester? + +A. I think there was; yes, sir. + +Q. In what Congressional District was the city of Rochester at the time? + +A. The 29th. + +Q. Did you receive the tickets from Miss Anthony? + +A. Yes, sir. + +Q. What did you do with them when you received them? + +A. Put them in the separate boxes where they belonged. + +Q. State to the jury whether you had separate boxes for the several +tickets voted in that election district? + +A. Yes, sir; we had. + +Q. Was Miss Anthony challenged upon that occasion? + +A. Yes, sir--no; not on that day she wasn't. + +Q. She was not challenged on the day she voted? + +A. No, sir. + +_Cross-Examination_ by Judge Selden: + +Q. Prior to the election, was there a registry of voters in that +district made? + +A. Yes, sir. + +Q. Was you one of the officers engaged in making that registry? + +A. Yes, sir. + +Q. When the registry was being made did Miss Anthony appear before the +Board of Registry and claim to be registered as a voter? + +A. She did. + +Q. Was there any objection made, or any doubt raised as to her right to +vote? + +A. There was. + +Q. On what ground? + +A. On the ground that the Constitution of the State of New York did not +allow women to vote. + +Q. What was the defect in her right to vote as a citizen? + +A. She was not a male citizen. + +Q. That she was a woman? + +A. Yes, sir. + +Q. Did the Board consider that and decide that she was entitled to +register? + +Objected to. Objection overruled. + +Q. Did the Board consider the question of her right to registry, and +decide that she was entitled to registry as a voter? + +A. Yes, sir. + +Q. And she was registered accordingly? + +A. Yes, sir. + +Q. When she offered her vote, was the same objection brought up in the +Board of Inspectors, or question made of her right to vote as a woman? + +A. She was challenged previous to election day. + +Q. It was canvassed previous to election day between them? + +A. Yes, sir; she was challenged on the second day of registering names. + +Q. At the time of the registry, when her name was registered, was the +Supervisor of Election present at the Board? + +A. He was. + +Q. Was he consulted upon the question of whether she was entitled to +registry, or did he express an opinion on the subject to the inspectors? + +MR. CROWLEY: I submit that it is of no consequence whether he did or +not. + +JUDGE SELDEN: He was the Government Supervisor under this act of +Congress. + +MR. CROWLEY: The Board of Inspectors, under the State law, constitute +the Board of Registry, and they are the only persons to pass upon that +question. + +THE COURT: You may take it. + +A. Yes, sir; there was a United States Supervisor of Elections, two of +them. + +By JUDGE SELDEN: + +Q. Did they advise the registry, or did they not? + +A. One of them did. + +Q. And on that advice the registry was made with the judgment of the +inspectors. + +A. It had a great deal of weight with the inspectors, I have no doubt. + +_Re-direct Examination by_ MR. CROWLEY: + +Q. Was Miss Anthony challenged before the Board of Registry? + +A. Not at the time she offered her name. + +Q. Was she challenged at any time? + +A. Yes, sir; the second day of the meeting of the Board. + +Q. Was the preliminary and the general oath administered? + +A. Yes, sir. + +Q. Won't you state what Miss Anthony said, if she said anything, when +she came there and offered her name for registration? + +A. She stated that she did not claim any rights under the constitution +of the State of New York; she claimed her right under the constitution +of the United States. + +Q. Did she name any particular amendment? + +A. Yes, sir; she cited the 14th amendment. + +Q. Under that she claimed her right to vote? + +A. Yes, sir. + +Q. Did the other Federal Supervisor who was present, state it as his +opinion that she was entitled to vote under that amendment, or did he +protest, claiming that she did not have the right to vote? + +A. One of them said that there was no way for the inspectors to get +around placing the name upon the register; the other one, when she came +in, left the room. + +Q. Did this one who said that there was no way to get around placing the +name upon the register, state that she had her right to register but did +not have the right to vote? + +A. I didn't hear him make any such statement. + +Q. You didn't hear any such statement as that? + +A. No, sir. + +Q. Was there a poll list kept of the voters of the first election +district of the 8th ward on the day of election? + +A. Yes, sir. + +Q. (Handing witness two books.) State whether that is the poll list of +voters kept upon the day of election in the first election district of +the 8th ward, of the city of Rochester? + +A. This is the poll list, and also the register. + +Q. Turn to the name of Susan B. Anthony, if it is upon that poll list? + +A. I have it. + +Q. What number is it? + +A. Number 22. + +Q. From that poll list what tickets does it purport to show that she +voted upon that occasion? + +A. Electoral, State, Congress and Assembly. + +_United States rests._ + + +JUDGE SELDEN opened the case in behalf of the defendant, as follows: + +_If the Court please, Gentlemen of the Jury_: + +This is a case of no ordinary magnitude, although many might regard it +as one of very little importance. The question whether my client here +has done anything to justify her being consigned to a felon's prison or +not, is one that interests her very essentially, and that interests the +people also essentially. I claim and shall endeavor to establish before +you that when she offered to have her name registered as a voter, and +when she offered her vote for Member of Congress, she was as much +entitled to vote as any man that voted at that election, according to +the Constitution and laws of the Government under which she lives. If I +maintain that proposition, as a matter of course she has committed no +offence, and is entitled to be discharged at your hands. + +But, beyond that, whether she was a legal voter or not, whether she was +entitled to vote or not, if she sincerely believed that she had a right +to vote, and offered her ballot in good faith, under that belief, +whether right or wrong, by the laws of this country she is guilty of no +crime. I apprehend that that proposition, when it is discussed, will be +maintained with a clearness and force that shall leave no doubt upon the +mind of the Court or upon your minds as the gentlemen of the jury. If I +maintain that proposition here, then the further question and the only +question which, in my judgment, can come before you to be passed upon by +you as a question of fact is whether or not she did vote in good faith, +believing that she had a right to vote. + +The public prosecutor assumes that, however honestly she may have +offered her vote, however sincerely she may have believed that she had a +right to vote, if she was mistaken in that judgment, her offering her +vote and its being received makes a criminal offence--a proposition to +me most abhorrent, as I believe it will be equally abhorrent to your +judgment. + +Before the registration, and before this election, Miss Anthony called +upon me for advice upon the question whether, under the 14th Amendment +of the Constitution of the United States, she had a right to vote. I had +not examined the question. I told her I would examine it and give her my +opinion upon the question of her legal right. She went away and came +again after I had made the examination. I advised her that she was as +lawful a voter as I am, or as any other man is, and advised her to go +and offer her vote. I may have been mistaken in that, and if I was +mistaken, I believe she acted in good faith. I believe she acted +according to her right as the law and Constitution gave it to her. But +whether she did or not, she acted in the most perfect good faith, and if +she made a mistake, or if I made one, that is not a reason for +committing her to a felon's cell. + +For the second time in my life, in my professional practice, I am under +the necessity of offering myself as a witness for my client. + +HENRY R. SELDEN, a witness sworn in behalf of the defendant, testified +as follows: + +Before the last election, Miss Anthony called upon me for advice, upon +the question whether she was or was not a legal voter. I examined the +question, and gave her my opinion, unhesitatingly, that the laws and +Constitution of the United States, authorized her to vote, as well as +they authorize any man to vote; and I advised her to have her name +placed upon the registry and to vote at the election, if the inspectors +should receive her vote. I gave the advice in good faith, believing it +to be accurate, and I believe it to be accurate still. + +[This witness was not cross-examined.] + + +JUDGE SELDEN: I propose to call Miss Anthony as to the fact of her +voting--on the question of the intention or belief under which she +voted. + +MR. CROWLEY: She is not competent as a witness in her own behalf. + +[The Court so held.] + +_Defendant rests._ + + +JOHN E. POUND, a witness sworn in behalf of the United States, testified +as follows: + +_Examined by_ MR. CROWLEY. + +Q. During the months of November and December, 1872, and January, 1873, +were you Assistant United States Dist. Attorney for the Northern +District of New York? + +A. Yes, sir. + +Q. Do you know the defendant, Susan B. Anthony? + +A. Yes, sir. + +Q. Did you attend an examination before Wm. C. Storrs, a United States +Commissioner, in the city of Rochester, when her case was examined? + +A. I did + +Q. Was she called as a witness in her own behalf upon that examination? + +A. She was. + +Q. Was she sworn? + +A. She was. + +Q. Did she give evidence? + +A. She did. + +Q. Did you keep minutes of evidence on that occasion? + +A. I did. + +Q. (Handing the witness a paper.) Please look at the paper now shown you +and see if it contains the minutes you kept upon that occasion? + +A. It does. + +Q. Turn to the evidence of Susan B. Anthony! + +A. I have it. + +Q. Did she, upon that occasion, state that she consulted or talked with +Judge Henry R. Selden, of Rochester, in relation to her right to vote? + +JUDGE SELDEN: I object to that upon the ground that it is incompetent, +that if they refuse to allow her to be sworn here, they should be +excluded from producing any evidence that she gave elsewhere, especially +when they want to give the version which the United States officer took +of her evidence. + +THE COURT: Go on. + +By MR. CROWLEY: + +Q. State whether she stated on that examination, under oath, that she +had talked or consulted with Judge Henry R. Selden in relation to her +right to vote? + +A. She did. + +Q. State whether she was asked, upon that examination, if the advice +given her by Judge Henry R. Selden would or did make any difference in +her action in voting, or in substance that? + +A. She stated on the cross-examination, "I should have made the same +endeavor to vote that I did had I not consulted Judge Selden. I didn't +consult any one before I registered. I was not influenced by his advice +in the matter at all; have been resolved to vote, the first time I was +at home 30 days, for a number of years." + + +_Cross-examination by_ MR. VAN VOORHEES: + +Q. Mr. Pound, was she asked there if she had any doubt about her right +to vote, and did she answer "Not a particle?" + +A. She stated "Had no doubt as to my right to vote," on the direct +examination. + +Q. There was a stenographic reporter there, was there not? + +A. A reporter was there taking notes. + +Q. Was not this question put to her "Did you have any doubt yourself of +your right to vote?" and did she not answer "Not a particle?" + +THE COURT: Well, he says so, that she had no doubt of her right to vote. + +JUDGE SELDEN: I beg leave to state, in regard to my own testimony, Miss +Anthony informs me that I was mistaken in the fact that my advice was +before her registry. It was my recollection that it was on her way to +the registry, but she states to me now that she was registered and came +immediately to my office. In that respect I was under a mistake. + +_Evidence closed._ + + + + +ARGUMENT OF MR. SELDEN FOR THE DEFENDANT. + + +The defendant is indicted under the 19th section of the Act of Congress +of May 31, 1870 (16 St. at L., 144,), for "voting without having a +lawful right to vote." + +The words of the Statute, so far as they are material in this case, are +as follows: + +"If at any election for representative or delegate in the Congress of +the United States, any person shall knowingly ... vote without having a +lawful right to vote ... every such person shall be deemed guilty of a +crime, ... and on conviction thereof shall be punished by a fine not +exceeding $500, or by imprisonment for a term not exceeding three years, +or by both, in the discretion of the court, and shall pay the costs of +prosecution." + +The only alleged ground of illegality of the defendant's vote is that +she is a woman. If the same act had been done by her brother under the +same circumstances, the act would have been not only innocent, but +honorable and laudable; but having been done by a woman it is said to be +a crime. The crime therefore consists not in the act done, but in the +simple fact that the person doing it was a woman and not a man. I +believe this is the first instance in which a woman has been arraigned +in a criminal court, merely on account of her sex. + +If the advocates of female suffrage had been allowed to choose the point +of attack to be made upon their position, they could not have chosen it +more favorably for themselves; and I am disposed to thank those who have +been instrumental in this proceeding, for presenting it in the form of a +criminal prosecution. + +Women have the same interest that men have in the establishment and +maintenance of good government; they are to the same extent as men +bound to obey the laws; they suffer to the same extent by bad laws, and +profit to the same extent by good laws; and upon principles of equal +justice, as it would seem, should be allowed equally with men, to +express their preference in the choice of law-makers and rulers. But +however that may be, no greater _absurdity_, to use no harsher term, +could be presented, than that of rewarding men and punishing women, for +the same act, _without giving to women any voice in the question which +should be rewarded, and which punished_. + +I am aware, however, that we are here to be governed by the Constitution +and laws as they are, and that if the defendant has been guilty of +violating the law, she must submit to the penalty, however unjust or +absurd the law may be. But courts are not required to so interpret laws +or constitutions as to produce either absurdity or injustice, so long as +they are open to a more reasonable interpretation. This must be my +excuse for what I design to say in regard to the propriety of female +suffrage, because with that propriety established there is very little +difficulty in finding sufficient warrant in the constitution for its +exercise. + +This case, in its legal aspects, presents three questions, which I +purpose to discuss. + +1. Was the defendant legally entitled to vote at the election in +question? + +2. If she was not entitled to vote, but believed that she was, and voted +in good faith in that belief, did such voting constitute a crime under +the statute before referred to? + +3. Did the defendant vote in good faith in that belief? + +If the first question be decided in accordance with my views, the other +questions become immaterial; if the second be decided adversely to my +views, the first and third become immaterial. The two first are +questions of law to be decided by the court, the other is a question for +the jury. + +[The Judge here suggested that the argument should be confined to the +legal questions, and the argument on the other question suspended, until +his opinion on those questions should be made known. This suggestion was +assented to, and the counsel proceeded.] + +My first position is that the defendant had the same right to vote as +any other citizen who voted at that election. + +Before proceeding to the discussion of the purely legal question, I +desire, as already intimated, to pay some attention to the propriety and +justice of the rule which I claim to have been established by the +Constitution. + +Miss Anthony, and those united with her in demanding the right of +suffrage, claim, and with a strong appearance of justice, that upon the +principles upon which our government is founded, and which lie at the +basis of all just government, every citizen has a right to take part, +upon equal terms with every other citizen, in the formation and +administration of government. This claim on the part of the female sex +presents a question the magnitude of which is not well appreciated by +the writers and speakers who treat it with ridicule. Those engaged in +the movement are able, sincere and earnest women, and they will not be +silenced by such ridicule, nor even by the villainous caricatures of +Nast. On the contrary, they justly place all those things to the account +of the wrongs which they think their sex has suffered. They believe, +with an intensity of feeling which men who have not associated with them +have not yet learned, that their sex has not had, and has not now, its +just and true position in the organization of government and society. +They may be wrong in their position, but they will not be content until +their arguments are fairly, truthfully and candidly answered. + +In the most celebrated document which has been put forth on this side of +the Atlantic, our ancestors declared that "governments derive their just +powers from the consent of the governed." + +Blackstone says, "The lawfulness of punishing such criminals (i.e., +persons offending merely against the laws of society) is founded upon +this principle: that the law by which they suffer was made by their own +consent; it is a part of the original contract into which they entered +when first they engaged in society; it was calculated for and has long +contributed to their own security." + +Quotations, to an unlimited extent, containing similar doctrines from +eminent writers, both English and American, on government, from the time +of John Locke to the present day, might be made. Without adopting this +doctrine which bases the rightfulness of government upon the consent of +the governed, I claim that there is implied in it the narrower and +unassailable principle that all citizens of a State, who are bound by +its laws, are entitled to an equal voice in the making and execution of +such laws. The doctrine is well stated by Godwin in his treatise on +Political Justice. He says: "The first and most important principle that +can be imagined relative to the form and structure of government, seems +to be this: that as government is a transaction in the name and for the +benefit of the whole, every member of the community ought to have some +share in its administration." + +Again, "Government is a contrivance instituted for the security of +individuals; and it seems both reasonable that each man should have a +share in providing for his own security, and probable, that partiality +and cabal should by this means be most effectually excluded." + +And again, "To give each man a voice in the public concerns comes +nearest to that admirable idea of which we should never lose sight, the +uncontrolled exercise of private judgment. Each man would thus be +inspired with a consciousness of his own importance, and the slavish +feelings that shrink up the soul in the presence of an imagined superior +would be unknown." + +The mastery which this doctrine, whether right or wrong, has acquired +over the public mind, has produced as its natural fruit, the extension +of the right of suffrage to all the adult male population in nearly all +the states of the Union; a result which was well epitomized by President +Lincoln, in the expression, "government by the people for the people." + +This extension of the suffrage is regarded by many as a source of danger +to the stability of free government. I believe it furnishes the greatest +security for free government, as it deprives the mass of the people of +all motive for revolution; and that government so based is most safe, +not because the whole people are less liable to make mistakes in +government than a select few, but because they have no interest which +can lead them to such mistakes, or to prevent their correction when +made. On the contrary, the world has never seen an aristocracy, whether +composed of few or many, powerful enough to control a government, who +did not honestly believe that their interest was identical with the +public interest, and who did not act persistently in accordance with +such belief; and, unfortunately, an aristocracy of sex has not proved an +exception to the rule. The only method yet discovered of overcoming this +tendency to the selfish use of power, whether consciously or +unconsciously, by those possessing it, is the distribution of the power +among all who are its subjects. Short of this the name free government +is a misnomer. + +This principle, after long strife, not yet entirely ended has been, +practically at least, very generally recognized on this side of the +Atlantic, as far as relates to men; but when the attempt is made to +extend it to women, political philosophers and practical politicians, +those "inside of politics," two classes not often found acting in +concert, join in denouncing it. It remains to be determined whether the +reasons which have produced the extension of the franchise to all adult +men, do not equally demand its extension to all adult women. If it be +necessary for men that each should have a share in the administration of +government for his security, and to exclude partiality, as alleged by +Godwin, it would seem to be equally, if not more, necessary for women, +on account of their inferior physical power: and if, as is persistently +alleged by those who sneer at their claims, they are also inferior in +mental power, that fact only gives additional weight to the argument in +their behalf, as one of the primary objects of government, as +acknowledged on all hands, is the protection of the weak against the +power of the strong. + +I can discover no ground consistent with the principle on which the +franchise has been given to all men, upon which it can be denied to +women. The principal argument against such extension, so far as argument +upon that side of the question has fallen under my observation, is based +upon the position that women are represented in the government by men, +and that their rights and interests are better protected through that +indirect representation than they would be by giving them a direct voice +in the government. + +The teachings of history in regard to the condition of women under the +care of these self-constituted protectors, to which I can only briefly +allude, show the value of this argument as applied to past ages; and in +demonstration of its value as applied to more recent times, even at the +risk of being tedious, I will give some examples from my own +professional experience. I do this because nothing adds more to the +efficacy of truth than the translation of the abstract into the +concrete. Withholding names, I will state the facts with fullness and +accuracy. + +An educated and refined woman, who had been many years before deserted +by her drunken husband, was living in a small village of Western New +York, securing, by great economy and intense labor in fine needle work, +the means of living, and of supporting her two daughters at an academy, +the object of her life being to give them such an education as would +enable them to become teachers, and thus secure to them some degree of +independence when she could no longer provide for them. The daughters +were good scholars, and favorites in the school, so long as the mother +was able to maintain them there. A young man, the nephew and clerk of a +wealthy but miserly merchant, became acquainted with the daughters, and +was specially attentive to the older one. The uncle disapproved of the +conduct of his nephew, and failing to control it by honorable means, +resorted to the circulation of the vilest slanders against mother and +daughters. He was a man of wealth and influence. They were almost +unknown. The mother had but recently come to the village, her object +having been to secure to her daughters the educational advantages which +the academy afforded. Poverty, as well as perhaps an excusable if not +laudable pride, compelled her to live in obscurity, and consequently the +assault upon their characters fell upon her and her daughters with +crushing force. Her employment mainly ceased, her daughters were of +necessity withdrawn from school, and all were deprived of the means, +from their own exertions, of sustaining life. Had they been in fact the +harlots which the miserly scoundrel represented them to be, they would +not have been so utterly powerless to resist his assault. The mother in +her despair naturally sought legal redress. But how was it to be +obtained? By the law the wife's rights were merged in those of the +husband. She had in law no individual existence, and consequently no +action could be brought by her to redress the grievous wrong; indeed +_according to the law she had suffered no wrong_, but the husband had +suffered all, and was entitled to all the redress. Where he was the lady +did not know; she had not heard from him for many years. Her counsel, +however, ventured to bring an action in her behalf, joining the +husband's name with hers, as the law required. When the cause came to +trial the defendant made no attempt to sustain the charges which he had +made, well knowing that they were as groundless as they were cruel; but +he introduced and proved a release of the cause of action, signed by the +husband, reciting a consideration of fifty dollars paid to him. The +defendant's counsel had some difficulty in proving the execution of the +release, and was compelled to introduce as a witness, the constable who +had been employed to find the vagabond husband and obtain his signature. +His testimony disclosed the facts that he found the husband in the +forest in one of our north-eastern counties, engaged in making shingles, +(presumably stealing timber from the public lands and converting it into +the means of indulging his habits of drunkenness,) and only five dollars +of the fifty mentioned in the release had in fact been paid. The Court +held, was compelled to hold, that the party injured _in view of the +law_, had received full compensation for the wrong--and the mother and +daughters with no means of redress were left to starve. This was the act +of the _representative_ of the wife and daughters to whom we are +referred, as a better protector of their rights than they themselves +could be. + +It may properly be added, that if the action had proceeded to judgment +without interference from the husband, and such amount of damages had +been recovered as a jury might have thought it proper to award, the +money would have belonged to the husband, and the wife could not +lawfully have touched a cent of it. Her attorney might, and doubtless +would have paid it to her, but he could only have done so at the peril +of being compelled to pay it again to the drunken husband if he had +demanded it. + +In another case, two ladies, mother and daughter, some time prior to +1860 came from an eastern county of New York to Rochester, where a +habeas corpus was obtained for a child of the daughter, less than two +years of age. It appeared on the return of the writ, that the mother of +the child had been previously abandoned by her husband, who had gone to +a western state to reside, and his wife had returned with the child to +her mother's house, and had resided there after her desertion. The +husband had recently returned from the west, had succeeded in getting +the child into his custody, and was stopping over night with it in +Rochester on the way to his western home. No misconduct on the part of +the wife was pretended, and none on the part of the husband, excepting +that he had gone to the west leaving his wife and child behind, no cause +appearing, and had returned, and somewhat clandestinely obtained +possession of the child. The Judge, following Blackstone's views of +husband's rights, remanded the infant to the custody of the father. He +thought the law required it, and perhaps it did; but if mothers had had +a voice, either in making or in administering the law, I think the +result would have been different. The distress of the mother on being +thus separated from her child can be better imagined than described. The +separation proved a final one, as in less than a year neither father nor +mother had any child on earth to love or care for. Whether the loss to +the little one of a mother's love and watchfulness had any effect upon +the result, cannot, of course, be known. + +The state of the law a short time since, in other respects, in regard to +the rights of married women, shows what kind of security had been +provided for them by their assumed representatives. Prior to 1848, all +the personal property of every woman on marriage became the absolute +property of the husband--the use of all her real estate became his +during coverture, and on the birth of a living child, it became his +during his life. He could squander it in dissipation or bestow it upon +harlots, and the wife could not touch or interfere with it. Prior to +1860, the husband could by will take the custody of his infant children +away from the surviving mother, and give it to whom he pleased--and he +could in like manner dispose of the control of the children's property, +after his death, during their minority, without the mother's consent. + +In most of these respects the state of the law has undergone great +changes within the last 25 years. The property, real and personal, which +a woman possesses before marriage, and such as may be given to her +during coverture, remains her own, and is free from the control of her +husband. + +If a married woman is slandered she can prosecute in her own name the +slanderer, and recover to her own use damages for the injury. + +The mother now has an equal claim with the father to the custody of +their minor children, and in case of controversy on the subject, courts +may award the custody to either in their discretion. + +The husband cannot now by will effectually appoint a guardian for his +infant children without the consent of the mother, if living. + +These are certainly great ameliorations of the law; but how have they +been produced? Mainly as the result of the exertions of a few heroic +women, one of the foremost of whom is her who stands arraigned as a +criminal before this Court to-day. For a thousand years the absurdities +and cruelties to which I have alluded have been embedded in the common +law, and in the statute books, and men have not touched them, and would +not until the end of time, had they not been goaded to it by the +persistent efforts of the noble women to whom I have alluded. + +Much has been done, but much more remains to be done by women. If they +had possessed the elective franchise, the reforms which have cost them a +quarter of a century of labor would have been accomplished in a year. +They are still subject to taxation upon their property, without any +voice as to the levying or destination of the tax; and are still subject +to laws _made by men_, which subject them to fine and imprisonment for +the same acts which men do with honor and reward--and when brought to +trial no woman is allowed a place on the bench or in the jury box, or a +voice in her behalf at the bar. They are bound to suffer the penalty of +such laws, made and administered solely by men, and to be silent under +the infliction. Give them the ballot, and, although I do not suppose +that any great revolution will be produced, or that all political evils +will be removed, (I am not a believer in political panaceas,) but if I +mistake not, valuable reforms will be introduced which are not now +thought of. Schools, almshouses, hospitals, drinking saloons, and those +worse dens which are destroying the morals and the constitutions of so +many of the young of both sexes, will feel their influence to an extent +now little dreamed of. At all events women will not be taxed without an +opportunity to be heard, and will not be subject to fine and +imprisonment by laws made exclusively by men for doing what it is lawful +and honorable for men to do. + +It may be said in answer to the argument in favor of female suffrage +derived from the cases to which I have referred, that men, not +individually, but collectively, are the natural and appropriate +representatives of women, and that, notwithstanding cases of individual +wrong, the rights of women are, on the whole, best protected by being +left to their care. It must be observed, however, that the cases which I +have stated, and which are only types of thousands like them, in their +cruelty and injustice, are the result of ages of legislation by these +assumed protectors of women. The wrongs were less in the men than in the +laws which sustained them, and which contained nothing for the +protection of the women. + +But passing this view, let us look at the matter historically and on a +broader field. + +If Chinese women were allowed an equal share with men in shaping the +laws of that great empire, would they subject their female children to +torture with bandaged feet, through the whole period of childhood and +growth, in order that they might be cripples for the residue of their +lives? + +If Hindoo women could have shaped the laws of India, would widows for +ages have been burned on the funeral pyres of their deceased husbands? + +If Jewish women had had a voice in framing Jewish laws, would the +husband, at his own pleasure, have been allowed to "write his wife a +bill of divorcement and give it in her hand, and send her out of his +house?" + +Would women in Turkey or Persia have made it a heinous, if not capital, +offence for a wife to be seen abroad with her face not covered by an +impenetrable veil? + +Would women in England, however learned, have been for ages subjected to +execution for offences for which men, who could read, were only +subjected to burning in the hand and a few months imprisonment? + +The principle which governs in these cases, or which has done so +hitherto, has been at all times and everywhere the same. Those who +succeed in obtaining power, no matter by what means, will, with rare +exceptions, use it for their exclusive benefit. Often, perhaps +generally, this is done in the honest belief that such use is for the +best good of all who are affected by it. A wrong, however, to those upon +whom it is inflicted, is none the less a wrong by reason of the good +motives of the party by whom it is inflicted. + +The condition of subjection in which women have been held is the result +of this principle; the result of superior strength, not of superior +rights, on the part of men. Superior strength, combined with ignorance +and selfishness, but not with malice. It is a relic of the barbarism in +the shadow of which nations have grown up. Precisely as nations have +receded from barbarism the severity of that subjection has been relaxed. +So long as merely physical power governed in the affairs of the world, +the wrongs done to women were without the possibility of redress or +relief; but since nations have come to be governed by laws, there is +room to hope, though the process may still be a slow one, that injustice +in all its forms, or at least political injustice, may be extinguished. +No injustice can be greater than to deny to any class of citizens not +guilty of crime, all share in the political power of a state, that is, +all share in the choice of rulers, and in the making and administration +of the laws. Persons to which such share is denied, are essentially +slaves, because they hold their rights, if they can be said to have any, +subject to the will of those who hold the political power. For this +reason it has been found necessary to give the ballot to the emancipated +slaves. Until this was done their emancipation was far from complete. +Without a share in the political powers of the state, no class of +citizens has any security for its rights, and the history of nations to +which I briefly alluded, shows that women constitute no exception to the +universality of this rule. + +Great errors, I think, exist in the minds of both the advocates and the +opponents of this measure in their anticipation of the immediate +effects to be produced by its adoption. On the one hand it is supposed +by some that the character of women would be radically changed--that +they would be unsexed, as it were, by clothing them with political +rights, and that instead of modest, amiable and graceful beings, we +should have bold, noisy and disgusting political demagogues, or +something worse, if anything worse can be imagined. I think those who +entertain such opinions are in error. The innate character of women is +the result of God's laws, not of man's, nor can the laws of man affect +that character beyond a very slight degree. Whatever rights may be given +to them, and whatever duties may be charged upon them by human laws, +their general character will remain unchanged. Their modesty, their +delicacy, and intuitive sense of propriety, will never desert them, into +whatever new positions their added rights or duties may carry them. + +So far as women, without change of character as women, are qualified to +discharge the duties of citizenship, they will discharge them if called +upon to do so, and beyond that they will not go. Nature has put barriers +in the way of any excessive devotion of women to public affairs, and it +is not necessary that nature's work in that respect should be +supplemented by additional barriers invented by men. Such offices as +women are qualified to fill will be sought by those who do not find +other employment, and others they will not seek, or if they do, will +seek in vain. To aid in removing as far as possible the disheartening +difficulties which women dependent upon their own exertions encounter, +it is, I think, desirable that such official positions as they can fill +should be thrown open to them, and that they should be given the same +power that men have to aid each other by their votes. I would say, +remove all legal barriers that stand in the way of their finding +employment, official or unofficial, and leave them as men are left, to +depend for success upon their character and their abilities. As long as +men are allowed to act as milliners, with what propriety can they +exclude women from the post of school commissioners when chosen to such +positions by their neighbors? To deny them such rights, is to leave them +in a condition of political servitude as absolute as that of the African +slaves before their emancipation. This conclusion is readily to be +deduced from the opinion of Chief Justice Jay in the case of _Chisholm's +Ex'rs vs. The State of Georgia (2 Dallas, 419-471)_, although the +learned Chief Justice had of course no idea of any such application as I +make of his opinion. + +The action was assumpsit by a citizen of the State of South Carolina, +and the question was, whether the United States Court had jurisdiction, +the State of Georgia declining to appear. + +The Chief Justice, in the course of his opinion, after alluding to the +feudal idea of the character of the sovereign in England, and giving +some of the reasons why he was not subject to suit before the courts of +the kingdom, says: + +"The same feudal ideas run through all their jurisprudence, and +constantly remind us of the distinction between the prince and the +subject. No such ideas obtain here. At the revolution the sovereignty +devolved on the people; and they are truly the sovereigns of the +country, but _they are sovereigns without subjects_ (unless the African +slaves among us may be so called), and have none to govern but +themselves; the citizens of America _are equal as fellow-citizens, and +as joint tenants in the sovereignty_." + +Now I beg leave to ask, in case this charge against Miss Anthony can be +sustained, what equality and what sovereignty is enjoyed by the half of +the citizens of these United States to which she belongs? Do they not, +in that event, occupy, _politically_, exactly the position which the +learned Chief Justice assigns to the African slaves? Are they not shown +to be _subjects_ of the other half, who are the sovereigns? And is not +their _political subjection_ as absolute as was that of the African +slaves? If that charge has any basis to rest upon, the learned Chief +Justice was wrong. The sovereigns of this country, according to the +theory of this prosecution, are not sovereigns without subjects. Though +two or three millions of their subjects have lately ceased to be such, +and have become freemen, they still hold twenty millions of subjects in +absolute _political_ bondage. + +If it be said that my language is stronger than the facts warrant, I +appeal _to the record in this case_ for its justification. + +As deductions from what has been said, I respectfully insist, 1st. That +upon the principles upon which our government is based, the privilege of +the elective franchise cannot justly be denied to women. 2d. That women +need it for their protection. 3d. That the welfare of both sexes will be +promoted by granting it to them. + +Having occupied much more time than I intended in showing the justice +and propriety of the claim made by my client to the privileges of a +voter, I proceed to the consideration of the present state of the law on +that subject: + +It would not become me, however clear my own convictions may be on the +subject, to assert the right of women, under our constitution and laws +as they now are, to vote at presidential and congressional elections, is +free from doubt, because very able men have expressed contrary opinions +on that question, and, so far as I am informed, there has been no +authoritative adjudication upon it; or, at all events, none upon which +the public mind has been content to rest as conclusive. I proceed, +therefore, to offer such suggestions as occur to me, and to refer to +such authorities bearing upon the question, as have fallen under my +observation, hoping to satisfy your honor, not only that my client has +committed no criminal offense, but that she has done nothing which she +had not a legal and constitutional right to do. + +It is not claimed that, under our State constitution and the laws made +in pursuance of it, women are authorized to vote at elections, other +than those of private corporations, and, consequently, the right of Miss +Anthony to vote at the election in question, can only be established by +reference to an authority superior to and sufficient to overcome the +provisions of our State constitution. Such authority can only be found, +and I claim that it is found in the constitution of the United States. +For convenience I beg leave to bring together the various provisions of +that constitution which bear more or less directly upon the question: + +ARTICLE I, 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." + +The same Article, Section 3, "The Senate of the United States shall be +composed of two senators from each State, chosen by the legislature +thereof for six years; and each senator shall have one vote." + +ARTICLE II, Section 1. "Each State shall appoint in such manner as the +legislature thereof may direct, a number of electors equal to the whole +number of senators and representatives to which the State may be +entitled in the Congress." + +ARTICLE IV, Section 2. "The citizens of each State shall be entitled to +all the privileges and immunities of citizens in the several States." + +Same Article, Section 4. "The United States shall guarantee to every +State in the union a republican form of government." + + +THIRTEENTH AMENDMENT. + +DECEMBER 18, 1865. + +"1. 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." + +"2. Congress shall have power to enforce this article by appropriate +legislation." + + +FOURTEENTH AMENDMENT. + +JULY 28, 1868. + +Section 1. "All persons born or naturalized in the United States, and +subject to the jurisdiction thereof, are citizens of the United States +and of the State wherein they reside. No State shall make or enforce any +law which shall abridge the privileges or immunities of citizens of the +United States; nor shall any State deprive any person of life, liberty +or property, without due process of law, nor deny to any person within +its jurisdiction the equal protection of the laws." + +Section 2. "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 rebellion or other +crime, 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." + + * * * * * + +Section 5. "The Congress shall have power to enforce, by appropriate +legislation, the provisions of this article." + + +FIFTEENTH AMENDMENT. + +Section 1. "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." + +Section 2. "The Congress shall have power to enforce this article by +appropriate legislation." + + +By reference to the provisions of the original Constitution, here +recited, it appears that prior to the thirteenth, if not until the +fourteenth, amendment, the whole power over the elective franchise, even +in the choice of Federal officers, rested with the States. The +Constitution contains no definition of the term "citizen," either of the +United States, or of the several States, but contents itself with the +provision that "the citizens of each State shall be entitled to all the +privileges and immunities of citizens of the several States." The States +were thus left free to place such restrictions and limitations upon the +"privileges and immunities" of citizens as they saw fit, so far as is +consistent with a republican form of government, subject only to the +condition that no State could place restrictions upon the "privileges or +immunities" of the citizens of any other State, which would not be +applicable to its own citizens under like circumstances. + +It will be seen, therefore, that the whole subject, as to what should +constitute the "privileges and immunities" of the citizen being left to +the States, no question, such as we now present, could have arisen under +the original constitution of the United States. + +But now, by the fourteenth amendment, the United States have not only +declared what constitutes citizenship, both in the United States and in +the several States, securing the rights of citizens to "all persons born +or naturalized in the United States;" but have absolutely prohibited the +States from making or enforcing "_any law which shall abridge the +privileges or immunities of citizens of the United States_." + +By virtue of this provision, I insist that the act of Miss Anthony in +voting was lawful. + +It has never, since the adoption of the fourteenth amendment, been +questioned, and cannot be questioned, that women as well as men are +included in the terms of its first section, nor that the same +"privileges and immunities of citizens" are equally secured to both. + +What, then, are the "privileges and immunities of citizens of the United +States" which are secured against such abridgement, by this section? I +claim that these terms not only include the right of voting for public +officers, but that they include that right as pre-eminently the most +important of all the privileges and immunities to which the section +refers. Among these privileges and immunities may doubtless be classed +the right to life and liberty, to the acquisition and enjoyment of +property, and to the free pursuit of one's own welfare, so far as such +pursuit does not interfere with the rights and welfare of others; but +what security has any one for the enjoyment of these rights when denied +any voice in the making of the laws, or in the choice of those who make, +and those who administer them? The possession of this voice, in the +making and administration of the laws--this _political_ right--is what +gives security and value to the other rights, which are merely personal, +not political. A person deprived of political rights is essentially a +slave, because he holds his personal rights subject to the will of those +who possess the political power. This principle constitutes the very +corner-stone of our government--indeed, of all republican government. +Upon that basis our separation from Great Britain was justified. +"Taxation without representation is tyranny." This famous aphorism of +James Otis, although sufficient for the occasion when it was put forth, +expresses but a fragment of the principle, because government can be +oppressive through means of many appliances besides that of taxation. +The true principle is, that all government over persons deprived of any +voice in such government, is tyranny. That is the principle of the +declaration of independence. We were slow in allowing its application to +the African race, and have been still slower in allowing its application +to women; but it has been done by the fourteenth amendment, rightly +construed, by a definition of "citizenship," which includes women as +well as men, and in the declaration that "the privileges and immunities +of citizens shall not be abridged." If there is any privilege of the +citizen which is paramount to all others, it is the right of suffrage; +and in a constitutional provision, designed to secure the most valuable +rights of the citizen, the declaration that the privileges and +immunities of the citizen shall not be abridged, must, as I conceive, be +held to secure that right before all others. It is obvious, when the +entire language of the section is examined, not only that this +declaration was designed to secure to the citizen this _political_ +right, but that such was its principal, if not its sole object, those +provisions of the section which follow it being devoted to securing the +_personal_ rights of "life, liberty, property, and the equal protection +of the laws." The clause on which we rely, to wit:--"No State shall make +or enforce any law which shall abridge the privileges or immunities of +citizens of the United States," might be stricken out of the section, +and the residue would secure to the citizen every right which is now +secured, excepting the political rights of voting and holding office. +_If the clause in question does not secure those political rights, it is +entirely nugatory, and might as well have been omitted._ + +If we go to the lexicographers and to the writers upon law, to learn +what are the privileges and immunities of the "citizen" in a republican +government, we shall find that the leading feature of citizenship is the +enjoyment of the right of suffrage. + +The definition of the term "citizen" by _Bouvier_ is: "One who under the +constitution and laws of the United States, has a right to vote for +Representatives in Congress, and other public officers, and who is +qualified to fill offices in the gift of the people." + +By _Worcester_--"An inhabitant of a republic who enjoys the rights of a +freeman, and has a right to vote for public officers." + +By _Webster_--"In the United States, a person, native or naturalized, +who has the privilege of exercising the elective franchise, or the +qualifications which enable him to vote for rulers, and to purchase and +hold real estate." + +The meaning of the word "citizen" is directly and plainly recognized by +the latest amendment of the constitution (the fifteenth.) + +"_The right of the 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." This clause assumes +that the right of citizens, _as such_, to vote, is an existing right. + +Mr. Richard Grant White, in his late work on Words and their Uses, says +of the word citizen: "A citizen is a person who has certain political +rights, and the word is properly used only to imply or suggest the +possession of these rights." + +Mr. Justice Washington, in the case of _Corfield vs. Coryell (4 Wash, +C.C. Rep. 380)_, speaking of the "privileges and immunities" of the +citizen, as mentioned in Sec. 2, Art. 4, of the constitution, after +enumerating the personal rights mentioned above, and some others, as +embraced by those terms, says, "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." At that time the States had +entire control of the subject, and could abridge this privilege of the +citizen at its pleasure; but the judge recognizes the "elective +franchise" as among the "privileges and immunities" secured, to a +qualified extent, to the citizens of every State by the provisions of +the constitution last referred to. When, therefore, the States were, by +the fourteenth amendment, absolutely prohibited from abridging the +privileges of the citizen, either by enforcing existing laws, or by the +making of new laws, the right of every "citizen" to the full exercise of +this privilege, as against State action, was absolutely secured. + +Chancellor Kent and Judge Story both refer to the opinion of Mr. Justice +Washington, above quoted, with approbation. + +The Supreme Court of Kentucky, in the case of _Amy, a woman of color, +vs. Smith (1 Littell's Rep. 326)_, discussed with great ability the +questions as to what constituted citizenship, and what were the +"privileges and immunities of citizens" which were secured by Sec. 2, +Art. 4, of the constitution, and they showed, by an unanswerable +argument, that the term "citizens," as there used, was confined to those +who were entitled to the enjoyment of the elective franchise, and that +that was among the highest of the "privileges and immunities" secured +to the citizen by that section. The court say that, "to be a citizen it +is necessary that he should be entitled to the enjoyment of these +privileges and immunities, upon the same terms upon which they are +conferred upon other citizens; and unless he is so entitled, _he cannot, +in the proper sense of the term, be a citizen_." + +In the case of _Scott vs. Sanford (19 How. 404)_, Chief Justice Taney +says: "The words 'people of the United States,' and 'citizens,' are +synonymous terms, and mean the same thing; they describe the _political +body, who, according to our republican institutions, form the +sovereignty and hold the power, and conduct the government through their +representatives_. They are what we familiarly call the sovereign people, +and every citizen is one of this people, and a constituent member of +this sovereignty." + +Mr. Justice Daniel, in the same case, (p. 476), says: "Upon the +principles of etymology alone, the term citizen, as derived from +_civitas_, conveys the idea of connection or identification with the +state or government, and a participation in its functions. But beyond +this, there is not, it is believed, to be found in the theories of +writers on government, or in any actual experiment heretofore tried, an +exposition of the term citizen, which has not been understood as +conferring the actual possession and enjoyment, or the perfect right of +acquisition and enjoyment of _an entire equality of privileges, civil +and political_." + +Similar references might be made to an indefinite extent, but enough has +been said to show that the term citizen, in the language of Mr. Justice +Daniel, conveys the idea "of identification with the state or +government, and a participation in its functions." + +Beyond question, therefore, the first section of the fourteenth +amendment, by placing the citizenship of women upon a par with that of +men, and declaring that the "privileges and immunities" of the citizen +shall not be abridged, has secured to women, equally with men, the right +of suffrage, unless that conclusion is overthrown by some other +provision of the constitution. + +It is not necessary for the purposes of this argument to claim that this +amendment prohibits a state from making or enforcing any law whatever, +regulating the elective franchise, or prescribing the conditions upon +which it may be exercised. But we do claim that in every republic the +right of suffrage, in some form and to some extent, is not only one of +the privileges of its citizens, but is the first, most obvious and most +important of all the privileges they enjoy; that in this respect _all +citizens are equal_, and that the effect of this amendment is, to +prohibit the States from enforcing any law which denies this right to +any of its citizens, or which imposes any restrictions upon it, which +are inconsistent with a republican form of government. Within this +limit, it is unnecessary for us to deny that the States may still +regulate and control the exercise of the right. + +The only provisions of the constitution, which it can be contended +conflict with the construction which has here been put upon the first +section of the fourteenth amendment, are the fifteenth amendment, and +the second section of the fourteenth. + +In regard to the fifteenth amendment, I shall only say, that if my +interpretation of the fourteenth amendment is correct, there was still +an object to be accomplished and which was accomplished by the +fifteenth. The prohibition of any action abridging the privileges and +immunities of citizens, contained in the fourteenth amendment, applies +only to the States, and leaves the United States government free to +abridge the political privileges and immunities of citizens of the +United States, as such, at its pleasure. By the fifteenth amendment both +the United States and the State governments, are prohibited from +exercising this power, "on account of race, color, or previous +condition of servitude" of the citizen. + +The first remark to be made upon the second section of the fourteenth +amendment is, that it does not give and was not designed to give to the +States any power to deny or abridge the right of any citizen to exercise +the elective franchise. So far as it touches that subject, it was +designed to be restrictive upon the States. It gives to them no power +whatever. It takes away no power, but it gives none, and if the States +possess the power to deny or abridge the right of citizens to vote, it +must be derived from some other provision of the constitution. I believe +none such can be found, which was not necessarily abrogated by the first +section of this amendment. + +It may be conceded that the persons who prepared this section supposed, +that, by other parts of the constitution, or in some other way, the +States would still be authorized, notwithstanding the provisions of the +first section, to deny to the citizens the privilege of voting, as +mentioned in the second section; but their mistake cannot be held to add +to, or to take from the other provisions of the constitution. It is very +clear that they did not intend, by this section, _to give_ to the States +any such power, but, believing that the States possessed it, they +designed to hold the prospect of a reduction of their representation in +Congress _in terrorem_ over them to prevent them from exercising it. +They seem not to have been able to emancipate themselves from the +influence of the original constitution which conceded this power to the +States, or to have realized the fact that the first section of the +amendment, when adopted, would wholly deprive the States of that power. + +But those who prepare constitutions are never those who adopt them, and +consequently the views of those who frame them have little or no bearing +upon their interpretation. The question for consideration here is, what +the people, who, through their representatives in the legislatures, +adopted the amendments, understood, or must be presumed to have +understood, from their language. They must be presumed to have known +that the "privileges and immunities" of citizens which were secured to +them by the first section beyond the power of abridgment by the States, +gave them the right to exercise the elective franchise, and they +certainly cannot be presumed to have understood that the second section, +which was also _designed to be restrictive_ upon the States, would be +held to confer by implication a power upon them, which the first section +in the most express terms prohibited. + +It has been, and may be again asserted, that the position which I have +taken in regard to the second section is inadmissible, because it +renders the section nugatory. That is, as I hold, an entire mistake. The +leading object of the second section was the readjustment of the +representation of the States in Congress, rendered necessary by the +abolition of chattel slavery [_not of political slavery_], effected by +the thirteenth amendment. This object the section accomplishes, and in +this respect it remains wholly untouched, by my construction of it. + +Neither do I think the position tenable which has been taken by one +tribunal, to which the consideration of this subject was presented, that +the constitutional provision does not execute itself. + +The provisions on which we rely were negative merely, and were designed +to nullify existing as well as any future State legislation interfering +with our rights. This result was accomplished by the constitution +itself. Undoubtedly before we could exercise our right, it was necessary +that there should be a time and place appointed for holding the election +and proper officers to hold it, with suitable arrangements for receiving +and counting the votes. All this was properly done by existing +laws, and our right _being made complete by the Constitution, no further +legislation was required in our behalf_. When the State officers +attempted to interpose between us and the ballot-box the State +Constitution or State law, whether ancient or recent, abridging or +denying our equal right to vote with other citizens, we had but to refer +to the United States Constitution, prohibiting the States from enforcing +any such constitutional provision or law, and our rights were complete; +we needed neither Congressional nor State legislation in aid of them. + +The opinion of Mr. Justice Bradley, in a case in the United States +Circuit Court in New Orleans (_1 Abb. U.S. Rep. 402_) would seem to be +decisive of this question, although the right involved in that case was +not that of the elective franchise. The learned justice says: "It was +very ably contended on the part of the defendants that the fourteenth +amendment was intended only to secure to all citizens _equal capacities +before the law_. That was at first our view of it. But it does not so +read. The language is: 'No State shall abridge the privileges or +immunities of citizens of the United States.' What are the privileges +and immunities of citizens? Are they capacities merely? Are they not +also rights?" + +Senator Carpenter, who took part in the discussion of the fourteenth +amendment in the Senate, and aided in its passage, says: "The fourteenth +amendment executes itself in _every_ State of the Union.... It is thus +the will of the United States in every State, and silences every State +Constitution, usage or law which conflicts with it.... And if this +provision does protect the colored citizen, then it protects every +citizen, black or white, male or female.... And all the privileges and +immunities which I vindicate to a colored citizen, I vindicate to our +mothers, our sisters and our daughters."--_Chicago Legal News_, vol. +iv., No. 15. + +It has been said, with how much or how little truth I do not know, that +the subject of securing to women the elective franchise was not +considered in the preparation, or in the adoption of these amendments. +It is wholly immaterial whether that was so or not. It is never possible +to arrive at the intention of the people in adopting constitutions, +except by referring to the language used. As is said by Mr. Cooley, "the +intent is to be found in the instrument itself" (p. 55), and to that I +have confined my remarks. It is not a new thing for constitutional and +legislative acts to have an effect beyond the anticipation of those who +framed them. It is undoubtedly true, that in exacting _Magna Charta_ +from King John, the Barons of England provided better securities for the +rights of the common people than they were aware of at the time, +although the rights of the common people were neither forgotten nor +neglected by them. It has also been said, perhaps with some truth, that +the framers of the original Constitution of the United States "builded +better than they knew;" and it is quite possible that in framing the +amendments under consideration, those engaged in doing it have +accomplished a much greater work than they were at the time aware of. I +am quite sure that it will be fortunate for the country, if this great +question of female suffrage, than which few greater were ever presented +for the consideration of any people, shall be found, almost +unexpectedly, to have been put at rest. + +The opinion of Mr. Justice Bradley, in regard to this amendment, in the +case before referred to, if I understand it, corresponds very nearly +with what I have here said. The learned judge, in one part of his +opinion, says: "It is possible that those who framed the article were +not themselves aware of the far-reaching character of its terms. They +may have had in mind but one particular phase of social and political +wrong, which they desired to redress--yet, if the amendment, as framed +and expressed, does, in fact, have a broader meaning, and does extend +its protecting shield over those who were never thought of when it was +conceived and put in form, and does reach such social evils which were +never before prohibited by constitutional amendment, it is to be +presumed that the American people, in giving it their imprimatur, +understood what they were doing, and meant to decree what has, in fact, +been done.... + +"It embraces much more. The 'privileges and immunities' secured by the +original Constitution were only such as each State gave its own +citizens. Each was prohibited from discriminating in favor of its own +citizens, and against the citizens of other States. + +"But the fourteenth amendment prohibits any State from abridging the +privileges or immunities of the citizens of the United States, whether +its own citizens or any others. It not merely requires equality of +privileges, but it demands that _the privileges and immunities of all +citizens shall be absolutely unabridged, unimpaired_. (_1 Abbott's U.S. +Rep. 397._) + +It will doubtless be urged as an objection to my position (that +citizenship carries with it the right to vote) that it would, in that +case, follow that infants and lunatics, who, as well as adults and +persons of sound mind, are citizens, would also have that right. This +objection, which appears to have great weight with certain classes of +persons, is entirely without force. It takes no note of the familiar +fact, that every legislative provision, whether constitutional or +statutory, which confers any _discretionary_ power, is always confined +in its operation to persons who are _compos mentis_. It is wholly +unnecessary to except idiots and lunatics out of any such statute. They +are excluded from the very nature of the case. The contrary supposition +would be simply absurd. And, in respect to every such law, infants, +during their minority, are in the same class. But are women, _who are +not infants_, ever included in this category? Does any such principle +of exclusion apply to them? Not at all. On the contrary, they stand, in +this respect, upon the same footing as men, with the sole exception of +the right to vote and the right to hold office. In every other respect, +whatever rights and powers are conferred upon persons by law may be +exercised by women as well as by men. They may transact any kind of +business for themselves, or as agents or trustees for others; may be +executors or administrators, with the same powers and responsibilities +as men; and it ought not to be a matter of surprise or regret that they +are now placed, by the fourteenth amendment, in other respects upon a +footing of perfect equality. + +Although not directly connected with the argument as to the right +secured to women by the Constitution, I deem it not improper to allude +briefly to some of the popular objections against the propriety of +allowing females the privilege of voting. I do this because I know from +past experience that these popular objections, having no logical bearing +upon the subject, are yet, practically, among the most potent arguments +against the interpretation of the fourteenth amendment, which I consider +the only one that its language fairly admits of. + +It is said that women do not desire to vote. Certainly many women do +not, but that furnishes no reason for denying the right to those who do +desire to vote. Many men decline to vote. Is that a reason for denying +the right to those who would vote? + +I believe, however, that the public mind is greatly in error in regard +to the proportion of female citizens who would vote if their right to do +so were recognized. In England there has been to some extent a test of +that question, with the following result, as given in the newspapers, +the correctness of which, in this respect, I think there is no reason to +doubt: + +"Woman suffrage is, to a certain extent, established in England, with +the result as detailed in the London _Examiner_, that in 66 municipal +elections, out of every 1,000 women who enjoy equal rights with men on +the register, 516 went to the poll, which is but 48 less than the +proportionate number of men. And out of 27,949 women registered, where a +contest occurred, 14,416 voted. Of men there were 166,781 on the +register, and 90,080 at the poll. The _Examiner_ thereupon draws this +conclusion: 'Making allowance for the reluctance of old spinsters to +change their habits, and the more frequent illness of the sex, it is +manifest that women, if they had opportunity, would exercise the +franchise as freely as men. There is an end, therefore, of the argument +that women would not vote if they had the power.'" + +Our law books furnish, perhaps, more satisfactory evidence of the +earnestness with which women in England are claiming the right to vote, +under the reform act of 1867, aided by Lord Brougham's act of 1850. + +The case of _Chorlton_, appellant, _vs. Lings_, respondent, came before +the Court of Common Pleas in England in 1869. It was an appeal from the +decision of the revising barrister, for the borough of Manchester, to +the effect "that Mary Abbott, being a woman, was not entitled to be +placed on the register." Her right was perfect in all respects excepting +that of sex. The court, after a very full and able discussion of the +subject, sustained the decision of the revising barrister, denying to +women the right to be placed on the register, and consequently denying +their right to vote. The decision rested upon the peculiar phraseology +of several Acts of Parliament, and the point decided has no +applicability here. My object in referring to the case has been to call +attention to the fact stated by the reporter, _that appeals of 5,436 +other women were consolidated and decided with this_. No better evidence +could be furnished of the extent and earnestness of the claim of women +in England to exercise the elective franchise.--_Law Rep. Com. Pleas, +4-374._ + +I infer, without being able to say how the fact is, that the votes given +by women, as mentioned in the newspapers, were given at municipal +elections merely, and that the cases decided by the Court of Common +Pleas relate to elections for members of Parliament. + +Another objection is, that the right to hold office must attend the +right to vote, and that women are not qualified to discharge the duties +of responsible offices. + +I beg leave to answer this objection by asking one or more questions. +How many of the male bipeds who do our voting are qualified to hold high +offices? How many of the large class to whom the right of voting is +supposed to have been secured by the fifteenth amendment, are qualified +to hold office? + +Whenever the qualifications of persons to discharge the duties of +responsible offices is made the test of their right to vote, and we are +to have a competitive examination on that subject, open to all +claimants, my client will be content to enter the lists, and take her +chances among the candidates for such honors. + +But the practice of the world, and our own practice, give the lie to +this objection. Compare the administration of female sovereigns of great +kingdoms, from Semiramis to Victoria, with the average administration of +male sovereigns, and which will suffer by the comparison? How often have +mothers governed large kingdoms, as regents, during the minority of +their sons, and governed them well? Such offices as the "sovereigns" who +rule them in this country have allowed women to hold (they having no +voice on the subject), they have discharged the duties of with ever +increasing satisfaction to the public; and Congress has lately passed +an act, making the official bonds of married women valid, so that they +could be appointed to the office of postmaster. + +The case of _Olive vs. Ingraham (7 Modern Rep. 263)_ was an action +brought to try the title to an office. On the death of the sexton of the +parish of St. Butolph, the place was to be filled by election, the +voters being the housekeepers who "paid Scot and lot" in the parish. The +widow of the deceased sexton (Sarah Bly) entered the lists against +Olive, the plaintiff in the suit, and received 169 indisputable votes, +and 40 votes given by women who were "housekeepers, and paid to church +and poor." The plaintiff had 174 indisputable votes, and 22 votes given +by such women as voted for Mrs. Bly. Mrs. Bly was declared elected. The +action was brought to test two questions: 1. Whether women were legal +voters; and 2. Whether a woman was capable of holding the office. The +case was four times argued in the King's Bench, and all the judges +delivered opinions, holding that the women were competent voters; that +the widow was properly elected, and could hold the office. + +In the course of the discussion it was shown that women had held many +offices, those of constable, church warden, overseer of the poor, keeper +of the "gate house" (a public prison), governess of a house of +correction, keeper of castles, sheriffs of counties, and high constable +of England. + +If women are legally competent to hold minor offices, I would be glad to +have the rule of law, or of propriety, shown which should exclude them +from higher offices, and which marks the line between those which they +may and those which they may not hold. + +Another objection is that women cannot serve as soldiers. To this I +answer that capacity for military service has never been made a test of +the right to vote. If it were, young men from sixteen to twenty-one +would be entitled to vote, and old men from sixty and up-wards would +not. If that were the test, some women would present much stronger +claims than many of the male sex. + +Another objection is that engaging in political controversies is not +consistent with the feminine character. Upon that subject, women +themselves are the best judges, and if political duties should be found +inconsistent with female delicacy, we may rest assured that women will +either effect a change in the character of political contests, or +decline to engage in them. This subject may be safely left to their +sense of delicacy and propriety. + +If any difficulty on this account should occur, it may not be impossible +to receive the votes of women at their places of residence. This method +of voting was practiced in ancient Rome under the republic; and it will +be remembered that when the votes of the soldiers who were fighting our +battles in the Southern States were needed to sustain their friends at +home, no difficulty was found in the way of taking their votes at their +respective camps. + +I humbly submit to your honor, therefore, that on the constitutional +grounds to which I have referred, Miss Anthony had a lawful right to +vote; that her vote was properly received and counted; that the first +section of the fourteenth amendment secured to her that right, and did +not need the aid of any further legislation. + +But conceding that I may be in error in supposing that Miss Anthony had +a right to vote, she has been guilty of no crime, if she voted in good +faith believing that she had such right. + +This proposition appears to me so obvious, that were it not for the +severity to my client of the consequences which may follow a conviction, +I should not deem it necessary to discuss it. + +To make out the offence, it is incumbent on the prosecution to show +affirmatively, not only that the defendant knowingly voted, but that she +so voted _knowing that she had no right to vote_. That is, the term +"knowingly," applies, not to the fact of voting, but to the fact of +_want of right_. Any other interpretation of the language would be +absurd. We cannot conceive of a case where a party could vote without +knowledge of the fact of voting, and to apply the term "knowingly" to +the more act of voting, would make nonsense of the statute. This word +was inserted as defining the essence of the offence, and it limits the +criminality to cases where the voting is not only without right, but +where it is done wilfully, with a _knowledge that it is without right_. +Short of that there is no offence within the statute. This would be so +upon well established principles, even if the word "knowingly" had been +omitted, but that word was inserted to prevent the possibility of doubt +on the subject, and to furnish security against the inability of stupid +or prejudiced judges or jurors, to distinguish between wilful wrong and +innocent mistake. If the statute had been merely, that "if at any +election for representative in Congress any person shall vote without +having a lawful right to vote, such person shall be deemed guilty of a +crime," there could have been justly no conviction under it, without +proof that the party voted _knowing_ that he had not a right to vote. If +he voted innocently supposing he had the right to vote, but had not, it +would not be an offence within the statute. An innocent mistake is not a +crime, and no amount of judicial decisions can make it such. + +Mr. Bishop says, (1 Cr. Law, Sec.205): "There can be no crime unless _a +culpable intent_ accompanies the criminal act." The same author, (1 Cr. +Prac. Sec.521), repeated in other words, the same idea: "In order to +render a party criminally responsible, _a vicious will_ must concur with +a wrongful act." + +I quote from a more distinguished author: "_Felony is always accompanied +with an evil intention, and therefore shall not be imputed to a mere +mistake, or misanimadversion_, as where persons break open a door, in +order to execute a warrant, which will not justify such proceeding: +_Affectio enim tua nomen imponit operi tuo: item crimen non contrahitur +nisi nocendi, voluntas intercedat_," which, as I understand, may read: +"For your volition puts the name upon your act; and _a crime is not +committed unless the will of the offender takes part in it_." + + 1 Hawk. P.C., p. 99, Ch. 85, Sec.3. + +This quotation by Hawkins is, I believe, from Bracton, which carries the +principle back to a very early period in the existence of the common +law. It is a principle, however, which underlies all law, and must have +been recognized at all times, wherever criminal law has been +administered, with even the slightest reference to the principles of +common morality and justice. + +I quote again on this subject from Mr. Bishop: "The doctrine of _the +intent_ as it prevails in the criminal law, is necessarily _one of the +foundation principles of public justice_. There is only one criterion by +which the guilt of man is to be tested. It is whether the mind is +criminal. Criminal law relates only to crime. And neither in +philosophical speculation, nor in religious or moral sentiment, would +any people in any age allow that a man should be deemed guilty unless +his mind was so. It is, therefore, a principle of our legal system, as +probably it is of every other, that _the essence of an offence is the +wrongful intent without which it cannot exist_." (_1 Bishop's Crim. Law, +Sec.287._) + +Again, the same author, writing on the subject of _knowledge_, as +necessary to establish the intent, says: "It is absolutely necessary to +constitute guilt, as in indictments for uttering forged tokens, or other +attempts to defraud, or for receiving stolen goods, and offences of a +similar description." (_1 Crim. Prac. Sec.504._) + +In regard to the offence of obtaining property by false pretenses, the +author says: "The indictment must allege that the defendant knew the +pretenses to be false. _This is necessary upon the general principles of +the law_, in order to show an offence, even though the statute does not +contain the word 'knowingly.'" (_2 Id. Sec.172._) + +As to a _presumed knowledge_ of the law, where the fact involves a +question of law, the same author says: "The general doctrine laid down +in the foregoing sections," (i.e. that every man is presumed to know the +law, and that ignorance of the law does not excuse,) "is plain in itself +and plain in its application. Still there are cases, the precise nature +and extent of which are not so obvious, wherein ignorance of the law +constitutes, in a sort of indirect way, not in itself a defence, but a +foundation on which another defence rests. Thus, if the guilt or +innocence of a prisoner, depends on the fact to be found by the jury, of +his having been or not, when he did the act, in some precise mental +condition, _which mental condition is the gist of the offence_, the jury +in determining this question of mental condition, _may_ take into +consideration his ignorance or misinformation in a matter of law. For +example, to constitute larceny, there must be an intent to steal, which +involves the knowledge that the property taken does not belong to the +taker; yet, if all the facts concerning the title are known to the +accused, and so the question is one merely of law whether the property +is his or not, still he may show, and the showing _will be a defence_ to +him against the criminal proceeding, that he _honestly believed it his +through a misapprehension of the law_." + + (1 Cr. Law, Sec.297.) + +The conclusions of the writer here, are correct, but in a part of the +statement the learned author has thrown some obscurity over his own +principles. The doctrines elsewhere enunciated by him, show with great +clearness, that in such cases _the state of the mind constitutes the +essence of the offence_, and if the state of the mind which the law +condemns does not exist, in connection with the act, there is no +offence. It is immaterial whether its non-existence be owing to +ignorance of law or ignorance of fact, in either case the fact which the +law condemns, the criminal intent, is wanting. It is not, therefore, in +an "indirect way," that ignorance of the law in such cases constitutes a +defence, but in the most direct way possible. It is not a fact which +jurors "may take into consideration," or not, at their pleasure, but +which they must take into consideration, because, in case the ignorance +exists, no matter from what cause, _the offence which the statute +describes is not committed_. In such case, ignorance of the law is not +interposed as a shield to one committing a criminal act, but merely to +show, as it does show, that no criminal act has been committed. + +I quote from Sir Mathew Hale on the subject. Speaking of larceny, the +learned author says: "As it is _cepit_ and _asportavit_, so it must be +_felonice_, or _animo furandi_, otherwise it is not felony, for _it is +the mind_ that makes the taking of another's goods to be a felony, or a +bare trespass only; but because the intention and mind are secret, the +intention must be judged of by the circumstances of the fact, and these +circumstances are various, and may sometimes deceive, yet regularly and +ordinarily these circumstances following direct in the case. If A., +thinking he hath a title to the house of B., seizeth it as his own ... +this regularly makes no felony, but a trespass only; but yet this may be +a trick to colour a felony, and the ordinary discovery of a felonious +intent is, if the party doth it secretly, or being charged with the +goods denies it." + + (1 Hales P.C. 509.) + +I concede, that if Miss Anthony voted, knowing that as a woman she had +no right to vote, she may properly be convicted, and that if she had +dressed herself in men's apparel, and assumed a man's name, or resorted +to any other artifice to deceive the board of inspectors, the jury might +properly regard her claim of right, to be merely colorable, and might, +in their judgment, pronounce her guilty of the offence charged, in case +the constitution has not secured to her the right she claimed. All I +claim is, that if she voted in perfect good faith, believing that it was +her right, she has committed no crime. An innocent mistake, whether of +law or fact, though a wrongful act may be done in pursuance of it, +cannot constitute a crime. + +[The following cases and authorities were referred to and commented upon +by the counsel, as sustaining his positions: _U.S. vs. Conover, 3 +McLean's Rep. 573; The State vs. McDonald, 4 Harrington, 555; The State +vs. Homes, 17 Mo. 379; Rex vs. Hall, 3 C. & P. 409, (S.C. 14 Eng. C.L.); +The Queen vs. Reed, 1 C. & M. 306. (S.C. 41 Eng. C.L.); Lancaster's +Case, 3 Leon. 208; Starkie on Ev., Part IV, Vol. 2, p. 828, 3d Am. Ed._] + +The counsel then said, there are some cases which I concede cannot be +reconciled with the position which I have endeavoured to maintain, and I +am sorry to say that one of them is found in the reports of this State. +As the other cases are referred to in that, and the principle, if they +can be said to stand on any principle, is in all of them the same, it +will only be incumbent on me to notice that one. That case is not only +irreconcilable with the numerous authorities and the fundamental +principles of criminal law to which I have referred, but the enormity of +its injustice is sufficient alone to condemn it. I refer to the case of +_Hamilton vs. The People_, (_57 Barb. 725_). In that case Hamilton had +been convicted of a misdemeanor, in having voted at a general election, +after having been previously convicted of a felony and sentenced to two +years imprisonment in the state prison, and not having been pardoned; +the conviction having by law deprived him of citizenship and right to +vote, unless pardoned and restored to citizenship. The case came up +before the General Term of the Supreme Court, on writ of error. It +appeared that on the trial evidence was offered, that before the +prisoner was discharged from the state prison, he and his father applied +to the Governor for a pardon, and that the Governor replied in writing, +that on the ground of the prisoner's being a minor at the time of his +discharge from prison, a pardon would not be necessary, and that he +would be entitled to all the rights of a citizen on his coming of age. +They also applied to two respectable counsellors of the Supreme Court, +and they confirmed the Governor's opinion. All this evidence was +rejected. It appeared that the prisoner was seventeen years old when +convicted of the felony, and was nineteen when discharged from prison. +The rejection of the evidence was approved by the Supreme Court on the +ground that the prisoner was bound to know the law, and was presumed to +do so, and his conviction was accordingly confirmed. + +Here a young man, innocent so far as his conduct in this case was +involved, was condemned, for acting in good faith upon the advice, +(mistaken advice it may be conceded,) of one governor and two lawyers to +whom he applied for information as to his rights; and this condemnation +has proceeded upon the assumed ground, conceded to be false in fact, +that he knew the advice given to him was wrong. On this judicial fiction +the young man, in the name of justice, is sent to prison, punished for a +mere mistake, and a mistake made in pursuance of such advice. It cannot +be, consistently with the radical principles of criminal law to which I +have referred, and the numerous authorities which I have quoted, that +this man was guilty of a crime, that his _mistake_ was a crime, and I +think the judges who pronounced his condemnation, upon their own +principles, better than their victim, deserved the punishment which they +inflicted. + +The condemnation of Miss Anthony, her good faith being conceded, would +do no less violence to any fair administration of justice. + +One other matter will close what I have to say. Miss Anthony believed, +and was advised that she had a right to vote. She may also have been +advised, as was clearly the fact, that the question as to her right +could not be brought before the courts for trial, without her voting or +offering to vote, and if either was criminal, the one was as much so as +the other. Therefore she stands, now arraigned as a criminal, for taking +the only steps by which it was possible to bring the great +constitutional question as to her right, before the tribunals of the +country for adjudication. If for thus acting, in the most perfect good +faith, with motives as pure and impulses as noble as any which can find +place in your honor's breast in the administration of justice, she is by +the laws of her country to be condemned as a criminal, she must abide +the consequences. Her condemnation, however, under such circumstances, +would only add another most weighty reason to those which I have already +advanced, to show that women need the aid of the ballot for their +protection. + +Upon the remaining question, of the good faith of the defendant, it is +not necessary for me to speak. That she acted in the most perfect good +faith stands conceded. + +Thanking your honor for the great patience with which you have listened +to my too extended remarks, I submit the legal questions which the case +involves for your honor's consideration. + + * * * + +THE COURT addressed the jury as follows: + +_Gentlemen of the Jury_: + +I have given this case such consideration as I have been able to, and, +that there might be no misapprehension about my views, I have made a +brief statement in writing. + +The defendant is indicted under the act of Congress of 1870, for having +voted for Representatives in Congress in November, 1872. Among other +things, that Act makes it an offence for any person knowingly to vote +for such Representatives without having a 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; 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 14th Amendment of +the Constitution of the United States, and is void. The 13th, 14th and +15th Amendments were designed mainly for the protection of the newly +emancipated negroes, but full effect must nevertheless be given to the +language employed. The 13th Amendment provided that neither slavery nor +involuntary servitude should longer exist in the United States. 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 14th and 15th +Amendments were enacted. + +The 14th Amendment created and defined 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 14th Amendment defines and declares who should 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 Amendment provides that +no State shall make or enforce any law which shall abridge the +privileges or immunities of a citizen 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, the rights existing or +belonging to that condition or capacity. The words "or citizen of a +State," used in the previous paragraph are carefully omitted here. In +article 4, paragraph 2, of the Constitution of the United States it had +been already provided in this language, viz: "the citizens of each State +shall be entitled to all the privileges and immunities of the 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 were separate and distinct, was held in +the Slaughter House Cases recently decided by the United States Supreme +Court at Washington. The rights of citizens of the State, as such, are +not under consideration in the 14th Amendment. They stand as they did +before the adoption of the 14th 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 agt. +Coryell, 4 Wash.; C.C.R., 371. Ward agt. Maryland; 12 Wall., 430. Paul +agt. Virginia, 8 Wall., 140._ + +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 _Cromwell agt. Nevada, 6 Wallace, 36_, is found a statement of +some of the rights of a citizen of the United States, viz: "To come to +the seat of the 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. He has the right of free access to its seaports through which +all operations of foreign commerce are conducted, to the sub-treasuries, +land offices, and courts of justice in the several States." Another +privilege of a citizen of the United States, says Miller, Justice, 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 jurisdiction of a foreign government. The right to +assemble and petition for a redress of grievances, the privilege of the +writ of _habeas corpus_, he says, are rights of the citizen guaranteed +by the Federal Constitution. + +The right of voting, or the privilege of voting, is a right or privilege +arising under the Constitution of the State, and not 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, 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 31 years, or after he +had reached the age of 50, 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 agt. Coryell_. +(Supra.) The United States rights appertaining to this subject are those +first under article I, paragraph 2, 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 15th Amendment, which +provides that the right of a citizen 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. 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 Assembly, this would, I conceive, +be a violation of a right belonging to one 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 guaranty. 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 15th Amendment. If the 15th +Amendment had contained the word "sex," the argument of the defendant +would have been potent. She would have said, 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 the +spirit of the 14th or of the 15th Amendment. This view is assumed in the +second section of the 14th 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 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 Myra Bradwell, decided at a +recent term of the Supreme Court of the United States, sustains both the +positions above put forth, viz: First, that the rights referred to in +the 14th 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 +practice as an attorney and counsellor at law, in the Courts of +Illinois. Her application was denied, and upon appeal to the Supreme +Court of the United States, it was there held that to give jurisdiction +under the 14th Amendment, the claim must be of a right pertaining to +citizenship of the United States, and that the claim made by her did +not come within that class of cases. Mr. Justice Bradley and Mr. +Justice Field held that a woman was not entitled to a license to +practice law. It does not appear that the other Judges passed upon that +question. + +The 14th Amendment gives no right to a woman to vote, and the voting by +Miss Anthony was in violation of the law. + +If she believed she had a right to vote, and voted in reliance upon that +belief, does that relieve her from the penalty? It is argued that the +knowledge referred to in the act relates to her knowledge of the +illegality of the act, and not to the act of voting; for it is said that +she must know that she voted. Two principles apply here: First, +ignorance of the law excuses no one; second, every person is presumed to +understand and to intend the necessary effects of his own acts. Miss +Anthony knew that she was a woman, and that the constitution of this +State prohibits her from voting. She intended to violate that +provision--intended to test it, perhaps, but certainly intended to +violate it. The necessary effect of her act was to violate it, and this +she is presumed to have intended. There was no ignorance of any fact, +but all the facts being known, she undertook to settle a principle in +her own person. She takes the risk, and she cannot escape the +consequences. It is said, and authorities are cited to sustain the +position, that there can be no crime unless there is a culpable intent; +to render one criminally responsible a vicious will must be present. A +commits a trespass on the land of B, and B, thinking and believing that +he has a right to shoot an intruder on his premises, kills A on the +spot. Does B's misapprehension of his rights justify his act? Would a +Judge be justified in charging the jury that if satisfied that B +supposed he had a right to shoot A he was justified, and they should +find a verdict of not guilty? No Judge would make such a charge. To +constitute a crime, it is true, that there must be a criminal intent, +but it is equally true that knowledge of the facts of the case is always +held to supply this intent. An intentional killing bears with it +evidence of malice in law. Whoever, without justifiable cause, +intentionally kills his neighbor, is guilty of a crime. The principle is +the same in the case before us, and in all criminal cases. The precise +question now before me has been several times decided, viz.: that one +illegally voting was bound and was assumed to know the law, and that a +belief that he had a right to vote gave no defense, if there was no +mistake of fact. (Hamilton against The People, 57th of Barbour, p. 625; +State against Boyet, 10th of Iredell, p. 336; State against Hart, 6th +Jones, 389; McGuire against State, 7 Humphrey, 54; 15th of Iowa reports, +404.) No system of criminal jurisprudence can be sustained upon any +other principle. Assuming that Miss Anthony believed she had a right to +vote, that fact constitutes no defense if in truth she had not the +right. She voluntarily gave a vote which was illegal, and thus is +subject to the penalty of the law. + +Upon this evidence I suppose there is no question for the jury and that +the jury should be directed to find a verdict of guilty. + +JUDGE SELDEN: I submit that on the view which your Honor has taken, that +the right to vote and the regulation of it is solely a State matter. +That this whole law is out of the jurisdiction of the United States +Courts and of Congress. The whole law upon that basis, as I understand +it, is not within the constitutional power of the general Government, +but is one which applies to the States. I suppose that it is for the +jury to determine whether the defendant is guilty of a crime or not. And +I therefore ask your Honor to submit to the jury these propositions: + +First--If the defendant, at the time of voting, believed that she had a +right to vote and voted in good faith in that belief, she is not guilty +of the offense charged. + +Second--In determining the question whether she did or did not believe +that she had a right to vote, the jury may take into consideration, as +bearing upon that question, the advice which she received from the +counsel to whom she applied. + +Third--That they may also take into consideration, as bearing upon the +same question, the fact that the inspectors considered the question and +came to the conclusion that she had a right to vote. + +Fourth--That the jury have a right to find a general verdict of guilty +or not guilty as they shall believe that she has or has not committed +the offense described in the Statute. + +A professional friend sitting by has made this suggestion which I take +leave to avail myself of as bearing upon this question: "The Court has +listened for many hours to an argument in order to decide whether the +defendant has a right to vote. The arguments show the same question has +engaged the best minds of the country as an open question. Can it be +possible that the defendant is to be convicted for acting upon such +advice as she could obtain while the question is an open and undecided +one?" + +THE COURT: You have made a much better argument than that, sir. + +JUDGE SELDEN: As long as it is an open question I submit that she has +not been guilty of an offense. At all events it is for the jury. + +THE COURT: I cannot charge these propositions of course. The question, +gentlemen of the jury, in the form it finally takes, is wholly a +question or questions of law, and I have decided as a question of law, +in the first place, that under the 14th Amendment, which Miss Anthony +claims protects her, she was not protected in a right to vote. And I +have decided also that her belief and the advice which she took does +not protect her in the act which she committed. If I am right in this, +the result must be a verdict on your part of guilty, and I therefore +direct that you find a verdict of guilty. + +JUDGE SELDEN: That is a direction no Court has power to make in a +criminal case. + +THE COURT: Take the verdict, Mr. Clerk. + +THE CLERK: Gentlemen of the jury, hearken to your verdict as the Court +has recorded it. You say you find the defendant guilty of the offense +whereof she stands indicted, and so say you all? + +JUDGE SELDEN: I don't know whether an exception is available, but I +certainly must except to the refusal of the Court to submit those +propositions, and especially to the direction of the Court that the jury +should find a verdict of guilty. I claim that it is a power that is not +given to any Court in a criminal case. + +Will the Clerk poll the jury? + +THE COURT: No. Gentlemen of the jury, you are discharged. + +On the next day a motion for a new trial was made by Judge Selden, as +follows: + +_May it please the Court_: + +The trial of this case commenced with a question of very great +magnitude--whether by the constitution of the United States the right of +suffrage was secured to female equally with male citizens. It is likely +to close with a question of much greater magnitude--whether the right of +trial by jury is absolutely secured by the federal constitution to +persons charged with crime before the federal courts. + +I assume, without attempting to produce any authority on the subject, +that this Court has power to grant to the defendant a new trial in case +it should appear that in the haste and in the lack of opportunity for +examination which necessarily attend a jury trial, any material error +should have been committed prejudicial to the defendant, as otherwise no +means whatever are provided by the law for the correction of such +errors. + +The defendant was indicted, under the nineteenth section of the act of +Congress of May 31st, 1870, entitled, "An act to enforce the right of +citizens of the United States to vote in the several states of this +Union, and for other purposes," and was charged with having knowingly +voted, without having a lawful right to vote, at the congressional +election in the eighth ward of the City of Rochester, in November last; +the only ground of illegality being that the defendant was a woman. + +The provisions of the act of Congress, so far as they bear upon the +present case, are as follows: + +"Section 19. If at any election for representative or delegate in the +Congress of the United States, any person shall knowingly personate and +vote, or attempt to vote, in the name of any other person, whether +living, dead or fictitious, or vote more than once at the same election +for any candidate for the same office, or vote at a place where he may +not be lawfully entitled to vote, or vote without having a lawful right +to vote, ... every such person shall be deemed guilty of a crime, and +shall for such crime be liable to prosecution in any court of the United +States, of competent jurisdiction, and, on conviction thereof, shall be +punished by a fine not exceeding $500 or by imprisonment for a term not +exceeding three years, or both, in the discretion of the Court, and +shall pay the costs of prosecution." + +It appeared on the trial that before voting the defendant called upon a +respectable lawyer, and asked his opinion whether she had a right to +vote, and he advised her that she had such right, and the lawyer was +examined as a witness in her behalf, and testified that he gave her such +advice, and that he gave it in good faith, believing that she had such +right. + +It also appeared that when she offered to vote, the question whether as +a woman she had a right to vote, was raised by the inspectors, and +considered by them in her presence, and they decided that she had a +right to vote, and received her vote accordingly. + +It was also shown on the part of the government, that on the examination +of the defendant before the commissioner, on whose warrant she was +arrested, she stated that she should have voted, if allowed to vote, +without reference to the advice she had received from the attorney whose +opinion she had asked; that she was not influenced to vote by that +opinion; that she had before determined to offer her vote, and had no +doubt about her right to vote. + +At the close of the testimony the defendant's counsel proceeded to +address the jury, and stated that he desired to present for +consideration three propositions, two of law and one of fact: + +First--That the defendant had a lawful right to vote. + +Second--That whether she had a lawful right to vote or not, it she +honestly believed that she had that right and voted in good faith in +that belief, she was guilty of no crime. + +Third--That when she gave her vote she gave it in good faith, believing +that it was her right to do so. + +That the two first propositions presented questions for the Court to +decide, and the last for the jury. + +When the counsel had proceeded thus far, the Court suggested that the +counsel had better discuss in the first place the questions of law; +which the counsel proceeded to do, and having discussed the two legal +questions at length, asked leave then to say a few words to the jury on +the question of fact. The Court then said to the counsel that he thought +that had better be left until the views of the Court upon the legal +questions should be made known. + +The District Attorney thereupon addressed the Court at length upon the +legal questions, and at the close of his argument the Court delivered an +opinion adverse to the positions of the defendant's counsel upon both of +the legal questions presented, holding that the defendant was not +entitled to vote; and that if she voted in good faith in the belief in +fact that she had a right to vote, it would constitute no defense--the +grounds of the decision on the last point being that she was bound to +know that by law she was not a legal voter, and that even if she voted +in good faith in the contrary belief, it constituted no defense to the +crime with which she was charged. The decision of the Court upon these +questions was read from a written document. + +At the close of the reading, the Court said that the decision of these +questions disposed of the case and left no question of fact for the +jury, and that he should therefore direct the jury to find a verdict of +guilty, and proceeded to say to the jury that the decision of the Court +had disposed of all there was in the case, and that he directed them to +find a verdict of guilty, and he instructed the clerk to enter a verdict +of guilty. + +At this point, before any entry had been made by the clerk, the +defendant's counsel asked the Court to submit the case to the jury, and +to give to the jury the following several instructions: + +First--That if the defendant, at the time of voting, believed that she +had a right to vote, and voted in good faith in that belief, she is not +guilty of the offence charged. + +Second--In determining the question whether she did or did not believe +that she had a right to vote, the jury may take into consideration, as +bearing upon that question, the advice which she received from the +counsel to whom she applied. + +Third--That they may also take into consideration as bearing upon the +same question, the fact that the inspectors considered the question, and +came to the conclusion that she had a right to vote. + +Fourth--That the jury have a right to find a general verdict of guilty +or not guilty, as they shall believe that she has or has not been guilty +of the offense described in the statute. + +The Court declined to submit the case to the jury upon any question +whatever, and directed them to render a verdict of guilty against the +defendant. + +The defendant's counsel excepted to the decision of the Court upon the +legal questions to its refusal to submit the case to the jury: to its +refusal to give the instructions asked; and to its direction to the jury +to find a verdict of guilty against the defendant--the counsel insisting +that it was a direction which no Court had a right to give in a criminal +case. + +The Court then instructed the clerk to take the verdict, and the clerk +said, "Gentlemen of the jury, hearken to the verdict as the Court hath +recorded it. You say you find the defendant guilty of the offence +charged. So say you all." + +No response whatever was made by the jury, either by word or sign. They +had not consulted together in their seats or otherwise. Neither of them +had spoken a word. Nor had they been asked whether they had or had not +agreed upon a verdict. + +The defendant's counsel then asked that the clerk be requested to poll +the jury. The Court said, "that cannot be allowed. Gentlemen of the +jury, you are discharged," and the jurors left the box. No juror spoke a +word during the trial, from the time they were impanelled to the time of +their discharge. + +Now I respectfully submit, that in these proceedings the defendant has +been substantially denied her constitutional right of trial by jury. The +jurors composing the panel have been merely silent spectators of the +conviction of the defendant by the Court. They have had no more share in +her trial and conviction than any other twelve members of the jury +summoned to attend this Court, or any twelve spectators who have sat by +during the trial. If such course is allowable in this case, it must be +equally allowable in all criminal cases, whether the charge be for +treason, murder or any minor grade of offence which can come under the +jurisdiction of a United States court; and as I understand it, if +correct, substantially abolishes the right of trial by jury. + +It certainly does so in all those cases, where the judge shall be of the +opinion that the facts which he may regard as clearly proved, lead +necessarily to the guilt of the defendant. Of course by refusing to +submit any question to the jury, the judge refuses to allow counsel to +address the jury in the defendant's behalf. + +The constitutional provisions which I insist are violated by this +proceeding are the following: + +Constitution of the United States, article 3, section 2. "The trial of +all crimes, except in cases of impeachment, shall be by jury." + +Amendments to Constitution, article 6. "In all criminal prosecutions, +the accused shall enjoy the right to a speedy and public trial, by an +impartial jury of the State and District wherein the crime shall have +been committed, which district shall have been previously ascertained by +law; and to be informed of the nature and cause of the accusation; to +be confronted with the witnesses against him; to have compulsory process +for obtaining witnesses in his favor, and to have the assistance of +counsel for his defense." + +In accordance with these provisions, I insist that in every criminal +case, where the party has pleaded not guilty, whether upon the trial the +guilt of such party appears to the Judge to be clear or not, the +response to the question, guilty or not guilty, must come from the jury, +must be their voluntary act, and cannot be imposed upon them by the +Court. + +No opportunity has been given me to consult precedents on this subject, +but a friend has referred me to an authority strongly supporting my +position, from which I will quote, though I deem a reference to +precedents unnecessary to sustain the plain declarations of the +Constitution: I refer to the case of the _State vs. Shule_, (_10 +Iredell, 153_,) the substance of which is stated in _2 Graham & +Waterman_ on New Trials, page 363. Before stating that case I quote from +the text of G. & W. + + "The verdict is to be the result of the deliberation of the jury + upon all the evidence in the case. The Court has no right to + anticipate the verdict by an expression of opinion calculated so to + influence the jury as to take from them their independence of + action." + +In the _State vs. Shule_, two defendants were indicted for an affray. +"The jury remaining out a considerable time, at the request of the +prosecuting attorney they were sent for by the Court. The Court then +charged them that although Jones, (the other defendant,) had first +commenced a battery upon Shule, yet, if the jury believed the evidence, +the defendant, Shule, was also guilty. Thereupon, one of the jurors +remarked that they had agreed to convict Jones, but were about to acquit +Shule. The Court then charged the jury again, and told them that they +could retire if they thought proper to do so. The jury consulted +together a few minutes in the Court room. The prosecuting attorney +directed the clerk to enter a verdict of guilty as to both defendants. +When the clerk had entered the verdict, the jury were asked to attend to +it, as it was about to be read by the clerk. The clerk then read the +verdict in the hearing of the jury. The jury, upon being requested, if +any of them disagreed to the verdict to make, it known by a nod, seemed +to express their unanimous assent; and no juror expressed his dissent." +In reviewing the case the Court say: "The error complained of is, that +before the jury had announced their verdict, and in fact after they had +intimated an intention to acquit the defendant, Shule, the Court allowed +the clerk to be directed to enter a verdict finding him guilty, and +after the verdict was so entered, allowed the jury to be asked if any of +them disagreed to the verdict which had been recorded by the clerk. No +juror expressed his dissent; but by a nod which appeared to be made by +each juror, expressed their unanimous assent. The innovation is, that +instead of permitting the jury to give their verdict, the Court allows a +verdict to be entered for them, such as it is to be presumed the Court +thinks they ought to render, and then they are asked if any of them +disagree to it; thus making a verdict for them, unless they are bold +enough to stand out against a plain intimation of the opinion of the +Court." A _venire de novo_ was ordered. The principal difference between +this case and the one under consideration is, that in the latter the +Court directed the clerk to enter the verdict, and in the former he was +allowed to do so, and in the latter the Court denied liberty to the +jurors to dissent from the verdict, and in the former the Court allowed +such dissent. + +With what jealous care the right of trial by jury in criminal cases has +been guarded by every English speaking people from the days of King +John, indeed from the days of King Alfred, is known to every lawyer and +to every intelligent layman, and it does not seem to me that such a +limitation of that right as is presented by the proceedings in this +case, can be reconciled either with constitutional provisions, with the +practice of courts, with public sentiment on the subject, or with safety +in the administration of justice. How the question would be regarded by +the highest Court of this State may fairly be gathered from its decision +in the case of _Cancemi, 18 N.Y., 128_, where, on a trial for murder, +one juror, some time after the trial commenced, being necessarily +withdrawn, a stipulation was entered into, signed by the +District-Attorney, and by the defendant and his counsel, to the effect +that the trial should proceed before the remaining eleven jurors, and +that their verdict should have the same effect as the verdict of a full +panel would have. A verdict of guilty having been rendered by the eleven +jurors, was set aside and a new trial ordered by the Court of Appeals, +on the ground that the defendant could not, even by his own consent, be +lawfully tried, by a less number of jurors than twelve. It would seem to +follow that he could not waive the entire panel, and effectually consent +to be tried by the Court alone, and still less could the Court, against +his protest, assume the duties of the jury, and effectually pronounce +the verdict of guilty or not guilty in their stead. + +It will doubtless be insisted that there was no disputed question of +fact upon which the jury were required to pass. In regard to that, I +insist that however clear and conclusive the proof of the facts might +appear to be, the response to the question, guilty or not guilty, must +under the Constitution come from the jury and could not be supplied by +the judgment of the Court, unless, indeed, the jury should see fit to +render a special verdict, which they always may, but can never be +required, to do. + +It was the province of the Court to instruct the jury as to the law, and +to point out to them how clearly the law, on its view of the +established facts, made out the offence; but it has no authority to +instruct them positively on any question of fact, or to order them to +find any particular verdict. That must be their spontaneous work. + +But there was a question of fact, which constituted the very essence of +the offence, and one on which the jury were not only entitled to +exercise, but were in duty bound to exercise, their independent +judgment. That question of fact was, whether the defendant, at the time +when she voted, knew that she had not a right to vote. The statute makes +this knowledge the very gist of the offence, without the existence of +which, in the mind of the voter, at the time of voting, there is no +crime. There is none by the statute and none in morals. The existence of +this knowledge, in the mind of the voter, at the time of voting, is +under the statute, necessarily a fact and nothing but a fact, and one +which the jury was bound to find as a fact, before they could, without +violating the statute, find the defendant guilty. The ruling which took +that question away from the jury, on the ground that it was a question +of law and not of fact, and which declared that as a question of law, +the knowledge existed, was, I respectfully submit, a most palpable +error, both in law and justice. It was an error in law, because its +effect was to deny any force whatever to the most important word which +the statute uses in defining the offense--the word "knowingly." It was +also unjust, because it makes the law declare a known falsehood as a +truth, and then by force of that judicial falsehood condemns the +defendant to such punishment as she could only lawfully be subject to, +if the falsehood were a truth. + +I admit that it is an established legal maxim that every person +(judicial officers excepted) is bound, and must be presumed, to know the +law. The soundness of this maxim, in all the cases to which it can +properly be applied, I have no desire to question; but it has no +applicability whatever to this case. It applies in every case where a +party does an act which the law pronounces criminal, whether the party +knows or does not know that the law has made the act a crime. That maxim +would have applied to this case, if the defendant had voted, knowing +that she had no legal right to vote; without knowing that the law had +made the act of knowingly voting without a right, a crime. In that case +she would have done the act which the law made a crime, and could not +have shielded herself from the penalty by pleading ignorance of the law. +But in the present case the defendant has not done the act which the law +pronounces a crime. The law has not made the act of voting without a +lawful right to vote, a crime, where it is done by mistake, and in the +belief by the party voting that he has the lawful right to vote. The +crime consists in voting "knowingly," without lawful right. Unless the +knowledge exists in fact, is the very gist of the offence is wanting. To +hold that the law presumes conclusively that such knowledge exists in +all cases where the legal right is wanting, and to reject all evidence +to the contrary, or to deny to such evidence any effect, as has been +done on this trial, is to strike the word "knowingly" out of the +statute--and to condemn the defendant on the legal fiction that she was +acting in bad faith, it being all the while conceded that she was in +fact acting in good faith. I admit that there are precedents to sustain +such ruling, but they cannot be reconciled with the fundamental +principles of criminal law, nor with the most ordinary rules of justice. +Such a ruling cannot but shock the moral sense of all right-minded, +unprejudiced men. + +No doubt the assumption by the defendant of a belief of her right to +vote might be made use of by her as a mere cover to secure the privilege +of giving a known illegal vote, and of course that false assumption +would constitute no defence to the charge of illegal voting. If the +defendant had dressed herself in male attire, and had voted as John +Anthony, instead of Susan, she would not be able to protect herself +against a charge of voting with a knowledge that she had no right to +vote, by asserting her belief that she had a right to vote as a woman. +The artifice would no doubt effectually overthrow the assertion of good +faith. No such question, however, is made here. The decision of which I +complain concedes that the defendant voted in good faith, in the most +implicit belief that she had a right to vote, and condemns her on the +strength of the legal fiction, conceded to be in fact a mere fiction, +that she knew the contrary. + +But if the facts admitted of a doubt of the defendant's good faith, that +was a question for the jury, and it was clear error for the court to +assume the decision of it. + +Again. The denial of the right to poll the jury was most clearly an +error. Under the provisions of the constitution which have been cited, +the defendant could only be convicted on the verdict of a jury. The case +of Cancemi shows that such jury must consist of twelve men; and it will +not be claimed that anything less than the unanimous voice of the jury +can be received as their verdict. How then could the defendant be +lawfully deprived of the right to ask every juror if the verdict had his +assent? I believe this is a right which was never before denied to a +party against whom a verdict was rendered in any case, either civil or +criminal. The following cases show, and many others might be cited to +the same effect, that the right to poll the jury is an absolute right in +all cases, civil and criminal. (The People vs. Perkins, 1 Wend. 91. +Jackson vs. Hawks, 2 Wend. 619. Fox vs. Smith. 3 Cowen, 23.) + +The ground on which the right of the defendant to vote has been denied, +is, as I understand the decision of the court, "that the rights of the +citizens of the state as such were not under consideration in the +fourteenth amendment; that they stand as they did before that +amendment.... The right of voting or the privilege of voting is a right +or privilege arising under the constitution of the state, and not of the +United States. If the right belongs to any particular person, it is +because such person is entitled to it as a citizen of the state where he +offers to exercise it, and not because of citizenship of the United +States.... The regulation of the suffrage is conceded to the states as a +state right." + +If this position be correct, which I am not now disposed to question, I +respectfully insist that the congress of the United States had no power +to pass the act in question, that by doing so it has attempted to usurp +the rights of the states, and that all proceedings under the act are +void. + +I claim therefore that the defendant is entitled to a new trial. + +First--Because she has been denied her right of trial by jury. + +Second--Because she has been denied the right to ask the jury severally +whether they assented to the verdict which the court had recorded for +them. + +Third--Because the court erroneously held, that the defendant had not a +lawful right to vote. + +Fourth--Because the court erroneously held, that if the defendant, when +she voted, did so in good faith, believing that she had a right to vote, +that fact constituted no defence. + +Fifth--Because the court erroneously held that the question, whether the +defendant, at the time of voting knew that she had not a right to vote, +was a question of law to be decided by the court, and not a question of +fact to be decided by the jury. + +Sixth--Because the court erred in holding that it was a presumption of +law that the defendant knew that she was not a legal voter, although in +fact she had not that knowledge. + +Seventh--Because congress had no constitutional right to pass the act +under which the defendant was indicted, and the act and all proceedings +under it are void. + +Sir, so far as my information in regard to legal proceedings extends, +this is the only court in any country where trial by jury exists, in +which the decisions that are made in the haste and sometimes confusion +of such trials, are not subject to review before any other tribunal. I +believe that to the decisions of this court, in criminal cases, no +review is allowed, except in the same court in the informal way in which +I now ask your honor to review the decisions made on this trial. This is +therefore the court of last resort, and I hope your honor will give to +these, as they appear to me, grave questions, such careful and +deliberate consideration as is due to them from such final tribunal. + +If a new trial shall be denied to the defendant, it will be no +consolation to her to be dismissed with a slight penalty, leaving the +stigma resting upon her name, of conviction for an offence, of which she +claims to be, and I believe is, as innocent as the purest of the +millions of male voters who voted at the same election, are innocent of +crime in so voting. If she is in fact guilty of the crime with which she +stands charged, and of which she has been convicted by the court, she +deserves the utmost penalty which the court under the law has power to +impose; if she is not guilty she should be acquitted, and not declared +upon the records of this high court guilty of a crime she never +committed. + +The court after hearing the district attorney, denied the motion. + +JUDGE HUNT--(Ordering the defendant to stand up), "Has the prisoner +anything to say why sentence shall not be pronounced?" + +MISS ANTHONY--Yes, your honor, I have many things to say; for in your +ordered verdict of guilty, you have trampled under foot every vital +principle of our government. My natural rights, my civil rights, my +political rights, my judicial rights, are all alike ignored. Robbed of +the fundamental privilege of citizenship, I am degraded from the status +of a citizen to that of a subject; and not only myself individually, but +all of my sex, are, by your honor's verdict, doomed to political +subjection under this, so-called, form of government. + +JUDGE HUNT--The Court cannot listen to a rehearsal of arguments the +prisoner's counsel has already consumed three hours in presenting. + +MISS ANTHONY--May it please your honor, I am not arguing the question, +but simply stating the reasons why sentence cannot, in justice, be +pronounced against me. Your denial of my citizen's right to vote, is the +denial of my right of consent as one of the governed, the denial of my +right of representation as one of the taxed, the denial of my right to a +trial by a jury of my peers, as an offender against law, therefore, the +denial of my sacred rights to life, liberty, property and-- + +JUDGE HUNT--The Court cannot allow the prisoner to go on. + +MISS ANTHONY--But your honor will not deny me this one and only poor +privilege of protest against this high-handed outrage upon my citizen's +rights. May it please the Court to remember that since the day of my +arrest last November, this is the first time that either myself or any +person of my disfranchised class has been allowed a word of defense +before judge or jury-- + +JUDGE HUNT--The prisoner must sit down--the Court cannot allow it. + +MISS ANTHONY--All of my prosecutors, from the 8th ward corner grocery +politician, who entered the complaint, to the United States Marshal, +Commissioner, District Attorney, District Judge, your honor on the +bench, not one is my peer, but each and all are my political sovereigns; +and had your honor submitted my case to the jury, as was clearly your +duty, even then I should have had just cause of protest, for not one of +those men was my peer; but, native or foreign born, white or black, rich +or poor, educated or ignorant, awake or asleep, sober or drunk, each and +every man of them was my political superior; hence, in no sense, my +peer. Even, under such circumstances, a commoner of England, tried +before a jury of Lords, would have far less cause to complain than +should I, a woman, tried before a jury of men. Even my counsel, the Hon. +Henry R. Selden, who has argued my cause so ably, so earnestly, so +unanswerably before your honor, is my political sovereign. Precisely as +no disfranchised person is entitled to sit upon a jury, and no woman is +entitled to the franchise, so, none but a regularly admitted lawyer is +allowed to practice in the courts, and no woman can gain admission to +the bar--hence, jury, judge, counsel, must all be of the superior class. + +JUDGE HUNT--The Court must insist--the prisoner has been tried according +to the established forms of law. + +MISS ANTHONY--Yes, your honor, but by forms of law all made by men, +interpreted by men, administered by men, in favor of men, and against +women; and hence, your honor's ordered verdict of guilty, against a +United States citizen for the exercise of "_that citizen's right to +vote_," simply because that citizen was a woman and not a man. But, +yesterday, the same man made forms of law, declared it a crime +punishable with $1,000 fine and six months' imprisonment, for you, or +me, or any of us, to give a cup of cold water, a crust of bread, or a +night's shelter to a panting fugitive as he was tracking his way to +Canada. And every man or woman in whose veins coursed a drop of human +sympathy violated that wicked law, reckless of consequences, and was +justified in so doing. As then, the slaves who got their freedom must +take it over, or under, or through the unjust forms of law, precisely +so, now, must women, to get their right to a voice in this government, +take it; and I have taken mine, and mean to take it at every possible +opportunity. + +JUDGE HUNT--The Court orders the prisoner to sit down. It will not allow +another word. + +MISS ANTHONY--When I was brought before your honor for trial, I hoped +for a broad and liberal interpretation of the Constitution and its +recent amendments, that should declare all United States citizens under +its protecting aegis--that should declare equality of rights the national +guarantee to all persons born or naturalized in the United States. But +failing to get this justice--failing, even, to get a trial by a jury +_not_ of my peers--I ask not leniency at your hands--but rather the full +rigors of the law. + +JUDGE HUNT--The Court must insist-- + +(Here the prisoner sat down.) + +JUDGE HUNT--The prisoner will stand up. + +(Here Miss Anthony arose again.) + +The sentence of the Court is that you pay a fine of one hundred dollars +and the costs of the prosecution. + +MISS ANTHONY--May it please your honor, I shall never pay a dollar of +your unjust penalty. All the stock in trade I possess is a $10,000 debt, +incurred by publishing my paper--_The Revolution_--four years ago, the +sole object of which was to educate all women to do precisely as I have +done, rebel against your man-made, unjust, unconstitutional forms of +law, that tax, fine, imprison and hang women, while they deny them the +right of representation in the government; and I shall work on with +might and main to pay every dollar of that honest debt, but not a penny +shall go to this unjust claim. And I shall earnestly and persistently +continue to urge all women to the practical recognition of the old +revolutionary maxim, that "Resistance to tyranny is obedience to God." + +JUDGE HUNT--Madam, the Court will not order you committed until the fine +is paid. + + * * * + +INDICTMENT AGAINST BEVERLY W. JONES, EDWIN T. MARSH, AND WILLIAM B. +HALL. + + * * * + +DISTRICT COURT OF THE UNITED STATES OF AMERICA, IN AND FOR THE NORTHERN +DISTRICT OF NEW YORK. + + * * * + +At a stated Session of the District Court of the United States of +America, held in and for the Northern District of New York, at the City +Hall, in the city of Albany, in the said Northern District of New York, +on the third Tuesday of January, in the year of our Lord one thousand +eight hundred and seventy-three, before the Honorable Nathan H. Hall, +Judge of the said Court, assigned to keep the peace of the said United +States of America, in and for the said District, and also to hear and +determine divers Felonies, Misdemeanors and other offences against the +said United States of America, in the said District committed. + +Brace Millerd, +James D. Wasson, +Peter H. Bradt, +James McGinty, +Henry A. Davis, +Loring W. Osborn, +Thomas Whitbeck, +John Mullen, +Samuel C. Harris, +Ralph Davis, +Matthew Fanning, +Abram Kimmey, +Derrick B. Van Schoonhoven, +Wilhelmus Van Natten, +James Kenney, +Adam Winne, +James Goold, +Samuel S. Fowler, +Peter D.R. Johnson, +Patrick Carroll, + +good and lawful men of the said District, then and there sworn and +charged to inquire for the said United States of America, and for the +body of said District, do, upon their oaths, present, that at the City +of Rochester, in the County of Monroe, in the Northern District of New +York, on the 15th day of October, A.D. 1872, Beverly W. Jones, Edwin T. +Marsh and William B. Hall were then and there Inspectors of Elections in +and for the first election District of the eighth ward of said City of +Rochester, duly elected, appointed, qualified and acting as such +Inspectors. + +And the Jurors aforesaid, upon their oaths aforesaid, do further present +that on the day aforesaid, said Inspectors duly met at the place +designated for holding a poll of an election to be had and held at and +in said election District on the fifth day of November, A.D. 1872, for +Representatives in the Congress of the United States, to-wit: a +Representative in the Congress of the United States for the State of New +York at large, and a Representative in the Congress of the United States +for the Twenty-Ninth Congressional District of the State of New York, +said first election District of said eighth ward then and there being a +part of said Twenty-Ninth Congressional District of the State of New +York, and for other officers, and at said place on said day did then and +there duly organize themselves as a board for the purpose of Registering +the names of the legal voters of such District, and did then and there +proceed to make a list of all persons entitled to vote at said election +in said District, said list to constitute and to be known as the +Registry of electors of said District. + +And said Board of Inspectors again duly met on the Friday of the week +preceding the day of said election, to-wit, on the first day of +November, A.D. 1872, at the place designated for holding the poll of +said election in and for said first election District, for the purpose +of receiving and correcting said list, and for that purpose duly met at +eight o'clock in the morning of the day aforesaid, at the place +aforesaid, and remained in session until nine o'clock in the evening of +that day; and for the purpose aforesaid, said Board of Inspectors again +duly met at the place aforesaid, at eight o'clock in the morning of the +day following, to-wit, the second day of November, A.D. 1872, and +remained in session until nine o'clock in the evening of that day. + +And the Jurors aforesaid, upon their oaths aforesaid, do further present +that on the said second day of November, A.D. 1872, at the City of +Rochester, in the County of Monroe, in the Northern District of New +York, and within the jurisdiction of this Court, to-wit, at the place +designated for holding the poll of said election for said +Representatives in the Congress of the United States, and other officers +in and for said first election District of said eighth ward as +aforesaid, and between the hours of eight o'clock in the morning, and +nine o'clock in the evening of said second day of November, A.D. 1872, +Beverly W. Jones, Edwin T. Marsh and William B. Hall, being then and +there Inspectors of Elections in and for said first election District of +said eighth ward of said City of Rochester, duly elected, appointed, +qualified and acting as such, and having then and there duly met for the +purpose of revising and correcting said list of all persons entitled to +vote at said election as aforesaid, known as the registry of electors +for said election district, they, said Beverly W. Jones, Edwin T. Marsh +and William B. Hall, _did then and, there knowingly and wilfully +register as a voter of said District, one Susan B. Anthony, she, said +Susan B. Anthony then and there not being entitled to be registered as a +voter of said District in that she, said Susan B. Anthony was then and +there a person of the female sex, contrary to the form, of the statute +of the United States of America in such case made and provided, and +against the peace of the United States of America and their dignity_. + +_Second Count_: And the Jurors aforesaid, upon their oaths aforesaid, do +further present that at the City of Rochester, in the County of Monroe, +in the Northern District of New York, on the fifteenth day of October, +A.D. 1872, Beverly W. Jones, Edwin T. Marsh and William B. Hall, were +then and there Inspectors of Elections in and for the first election +District of the eight ward of said City of Rochester, duly elected, +appointed, qualified and acting as such. + +And the Jurors aforesaid, upon their oaths aforesaid, do further present +that on the day aforesaid, said Inspectors duly met at the place +designated for the holding of the poll of an election to be had and held +at and in said election District on the fifth day of November, A.D. +1872, for Representatives in the Congress of the United States, to-wit: +a Representative in the Congress of the United States for the State of +New York at large, and a Representative in the Congress of the United +States for the Twenty-Ninth Congressional District of the State of New +York, said first election district of said eighth ward then and there +being a part of said Twenty-Ninth Congressional District of the State of +New York, and for other officers, and at said place on said day, did +then and there duly organize themselves as a Board for the purpose of +Registering the names of the legal voters of said District, and did then +and there proceed to make a list of all persons entitled to vote at said +election in said District, said list to constitute and to be known as +the registry of electors of said District. + +And said Board of Inspectors again duly met on the Friday of the week +preceding the day of said election, to-wit, on the first day of +November, A.D. 1872, at the place designated for holding the poll of +said election in and for said first Election District, for the purpose +of revising and correcting said list, and for that purpose duly met at +eight o'clock in the morning of the day aforesaid, at the place +aforesaid, and remained in session until nine o'clock in the evening of +that day; and for the purpose aforesaid, said Board of Inspectors again +duly met at the place aforesaid, at eight o'clock in the morning of the +day following, to-wit, the second day of November, A.D. 1872, and +remained in session until nine o'clock in the evening of that day. + +And the Jurors aforesaid, upon their oaths aforesaid, do further +present, that on the said first day of November, A.D. 1872, at the City +of Rochester, in the County of Monroe, in the Northern District of New +York, and within the jurisdiction of this Court, to-wit, at the place +designated for holding the poll of said election for said +Representatives in the Congress of the United States, and other officers +in and for said first election District of said eighth ward of said City +of Rochester, and between the hours of eight o'clock in the morning, and +nine o'clock in the evening of said first day of November, A.D. 1872, +Beverly W. Jones, Edwin T. Marsh and William B. Hall being then and +there Inspectors of Elections in and for said first election District of +said eighth ward of said City of Rochester, duly elected, appointed, +qualified and acting as such as aforesaid, and having then and there +duly met for the purpose of revising and correcting said list of all +persons entitled to vote at said election as aforesaid, known as the +Registry of electors for said election District, they, said Beverly W. +Jones, Edwin T. Marsh and William B. Hall, _did then and there knowingly +and wilfully register as voters of said District, certain persons, +to-wit_: Susan B. Anthony, Sarah Truesdale, Mary Pulver, Mary Anthony, +Ellen S. Baker, Margaret Leyden, Anna L. Moshier, Nancy M. Chapman, +Lottie B. Anthony, Susan M. Hough, Hannah Chatfield, Mary S. Hibbard, +Rhoda DeGarmo, and Jane Cogswell, said persons then and there not being +entitled to be Registered as voters of said District, in that each of +said persons was then and there a person of the female sex, contrary to +the form of the statute of the United States of America in such case +made and provided, and against the peace of the United States of America +and their dignity. + +_Third Count_: And the Jurors aforesaid, upon their oaths aforesaid, do +further present that Beverly W. Jones, Edwin T. Marsh and William D. +Hall, of the City of Rochester, in the County of Monroe, with force and +arms, &c., to-wit, at and in the first election District of the eighth +ward of said City of Rochester, in the County of Monroe, in the Northern +District of New York, and within the jurisdiction of this Court, +heretofore, to-wit, on the fifth day of November, A.D. 1872, at an +election duly held at and in the said first election District of the +said eighth ward of said City of Rochester, in said County, and in said +Northern District of New York, which said election was for +Representatives in the Congress of the United States, to-wit, a +Representative in the Congress of the United States for the State of New +York at large, and a Representative in the Congress of the United States +for the Twenty-Ninth Congressional District of the State of New York, +said first election District of said eighth ward of said City of +Rochester being then and there a part of said Twenty-Ninth Congressional +District of the State of New York, and said Beverly W. Jones, Edwin T. +Marsh, and William B. Hall, being then and there Inspectors of Elections +in and for said first election District of said eighth ward of said City +of Rochester, in said County of Monroe, duly elected, appointed, and +qualified and acting as such, they, said Beverly W. Jones, Edwin T. +Marsh, and William B. Hall, as such Inspectors of Elections, did then +and there, to-wit, on the fifth day of November, A.D. 1872, at the first +election District of the eighth ward of the City of Rochester, in the +County of Monroe, in the Northern District of New York, and within the +jurisdiction of this Court, knowingly and wilfully receive the votes of +certain persons, and not then and there entitled to vote, to-wit: Susan +B. Anthony, Sarah Truesdale, Mary Pulver, Mary Anthony, Ellen S. Baker, +Margaret Leyden, Hannah L. Mosher, Nancy M. Chapman, Susan M. Hough, +Guelma S. McLean, Hannah Chatfield, Mary S. Hibbard, Rhoda DeGarmo, and +Jane Cogswell, each of said persons then and there being a person of the +female sex, and then and there not entitled to vote, as they, said +Beverly W. Jones, Edwin T. Marsh and William B. Hall then and there well +knew, contrary to the form of the statute of the United States of +America in such case made and provided, and against the peace of the +United States of America and their dignity. + +_Fourth Count_: And the Jurors aforesaid, upon their oaths aforesaid, do +further present, that Beverly W. Jones, Edwin T. Marsh and William B. +Hall, now, or late of Rochester, in the County of Monroe, with force and +arms, &c., to-wit, at and in the first election District of the eighth +ward of the City of Rochester, in the County of Monroe, in said Northern +District of New York, and within the jurisdiction of this Court +heretofore, to wit, on the fifth day of November, A.D. 1872, at an +election duly held at and in the said first election District of said +eighth ward of said City of Rochester, in said County of Monroe, in said +Northern District of New York, which said election was for +Representatives in the Congress of the United States, to-wit: a +Representative in the Congress of the United States for the State of New +York at large, and a Representative in the Congress of the United States +for the Twenty-Ninth Congressional District of the State of New York, +said first election District of said eighth ward being then and there a +part of said Twenty-Ninth Congressional District, and they, said Beverly +W. Jones, Edwin T. Marsh, and William B. Hall, being then and there +Inspectors of Elections in and for said first election District of said +eighth ward of said City of Rochester, in said County of Monroe, duly +appointed, elected, qualified and acting as such, they said Beverly W. +Jones, Edwin T. Marsh, and William B. Hall, did then and there, to-wit, +at said first election District of said eighth ward of said City of +Rochester, in said County of Monroe, in said Northern District of New +York, on said fifth day of November, A.D. 1872, knowingly and wilfully +receive the votes of certain persons for candidate for Representative in +the Congress of the United States for the State of New York at large, +and candidate for Representative in the Congress of the United States +for the Twenty-Ninth Congressional District of the State of New York, +said persons then and there not being entitled to vote for said +Representatives in the Congress of the United States, viz.: Susan B. +Anthony, Sarah Truesdale, Mary Pulver, Mary Anthony, Ellen S. Baker, +Margaret Leyden, Hannah L. Mosher, Nancy M. Chapman, Lottie B. Anthony, +Susan M. Hough, Guelma L. McLean, Hannah Chatfield, Mary S. Hibbard, +Rhoda DeGarmo and Jane Cogswell, each of said persons then and there +being a person of the female sex, and then and there not entitled to +vote for said Representatives in Congress, as they, said Beverly W. +Jones, Edwin T. Marsh and William B. Hall, then and there well knew, +contrary to the form of the statute of the United States of America in +such case made and provided, against the peace of the United States of +America and their dignity. + + RICHARD CROWLEY, + Attorney of the United States, in and for the + Northern District of New York. + +(Endorsed.) January 22, 1873. + +Jones and Marsh plead not guilty. + + RICHARD CROWLEY, + + U.S. Attorney. + +Hall did not plead at all. + + + + * * * + +UNITED STATES CIRCUIT COURT. + + * * * + +NORTHERN DISTRICT OF NEW YORK. + + * * * + +THE UNITED STATES OF AMERICA. + + _vs._ + +BEVERLY W. JONES, EDWIN T. MARSH, AND +WILLIAM B. HALL. + + * * * + +HON. WARD HUNT, Presiding. + + * * * + +APPEARANCES. + +For the United States: + + HON. RICHARD CROWLEY, + U.S. District Attorney. + + +For the Defendants: + + JOHN VAN VOORHIS, ESQ. + + * * * + +Tried at Canandaigua, Wednesday, June 18th, 1873, before Hon. Ward Hunt +and a Jury. + +Case opened in behalf of the U.S. by Mr. Crowley. + +MR. VAN VOORHIS: I wish to raise some questions upon the indictment in +this case. This indictment, I claim, is bad for two reasons, and should +be quashed. + +First--The Act of Congress under which it is framed, is invalid so far +as it relates to this offence, because not authorized by the +Constitution of the United States. + +Second--There is no sufficient statement of any offence in the +indictment. + + +First. + +Congress has no power to pass laws for the punishment of Inspectors of +Elections, elected or appointed under the laws of the State of New York, +for receiving illegal votes, or registering as voters, persons who have +no right to be registered. + +No law of Congress defines the qualifications of voters in the several +States. These are found only in the State Constitutions and Statutes. +The offenses charged in the indictment are, that the defendants, being +State officers, have violated the laws of the State. If it be so, they +may be tried and punished in accordance with the State laws. No +proposition can be clearer. If the United States can also punish them +for the same offense, it follows that they may be twice indicted, tried, +convicted and punished for one offense. A plea in a State Court, of a +conviction and sentence, in a United States Court would constitute no +bar or defense, (_12 Metcalf_, _387_, _Commonwealth v. Peters_,) and the +defendants might be punished twice for the same offense. This cannot be, +and if the act in question be valid, the State of New York is ousted of +jurisdiction. And where does Congress derive the power to pass laws to +punish offenders against the laws of a State? This case must be tried +under the laws of the United States. Against those laws, no offense is +charged to have been committed. Such power, if it exist, must be +somewhere expressly granted, or it must be necessary in order to execute +some power that is expressly granted. + +The Act of Congress in question, became a law on May 31st, 1870. It is +entitled-- + +"AN ACT TO ENFORCE THE RIGHT OF CITIZENS OF THE UNITED STATES TO VOTE IN +THE SEVERAL STATES, AND FOR OTHER PURPOSE." + +The indictment is found under the 19th section of the Act as it passed +originally, and the 20th section as amended by the Act of February 28th, +1871. + +The 19th Section, so far as it is necessary to quote it here, is as +follows: + + "_That if at any election for representatives or delegates in the + Congress of the United States any person shall knowingly_ personate + and vote, or attempt to vote, in the name of any other person, + whether living or dead, or fictitious; or vote more than once at + the same election for any candidate for the same office; or vote at + a place where he may not be entitled to vote; _or vote without + having a lawful right to vote, ... or knowingly and wilfully + receives the vote of any person not entitled to vote_, or refuses + to receive the vote of any person entitled to vote; ... every such + person shall be deemed guilty of a crime, and shall for such crime + be liable to prosecution in any Court of the United States of + competent jurisdiction, and on conviction thereof, shall be + punished by a fine not exceeding five hundred dollars, or by + imprisonment for a term not exceeding three years, or both, in the + discretion of the Court, and shall pay the costs of prosecution." + +Section 20, as amended, so far as pertinent, reads as follows: + + "That if at any registration of voters for an election for + representatives or delegates in the Congress of the United States, + any person shall _knowingly_ ... hinder any person having a lawful + right to register, from duly exercising that right; or compel or + induce by any of such means, or other unlawful means, ANY OFFICER + OF REGISTRATION to admit to registration any person not legally + entitled thereto; ... _or if any such officer shall knowingly and + wilfully register as a voter any person not entitled to be + registered_, or refuse so to register any person entitled to be + registered, ... _every such person shall be deemed guilty of a + crime, and shall be liable to prosecution and punishment therefor, + as provided in section 19 of said Act of May 31, 1870, for persons + guilty of the crimes therein specified_." + +No law of Congress describes the qualifications of voters in this State, +or in any State. + +Congress has provided no registry law. Therefore, what constitutes the +offenses charged in this indictment, must be looked for in the laws of +the State. By no Act of Congress can it be determined in what case a +person votes, "_without having a right to vote_." By no Act of Congress +can it be determined when an Inspector of Election has received the vote +of "_any person not entitled to vote_," or has registered "_as a voter, +any person not entitled to be registered_." These are the offenses +alleged in this indictment. They are penal offenses by the Statutes of +New York. The jurisdiction of the State Courts over them is complete, +and cannot be questioned. + +By the Act of May 31, 1870, above cited, Congress has ordained, in legal +effect, that if any person violates the penal Code of the State of New +York, or any State, in respect of voting, he may be punished by the +United States. And the offense is a variable quantity; what is a crime +in one State under this Act, is a legal right and duty in another. A +citizen of Rhode Island, for instance, who votes when not possessed in +his own right, of an estate in fee simple--in fee tail, for life, or in +reversion or remainder, of the value of $134 or up-wards, may be +convicted of a crime under this Act, and imprisoned in a State Prison. +He voted in violation of the laws of his State. A citizen of New York +votes under precisely similar circumstances, and with the same +qualifications, and his act is a legal one, and he performs a simple +duty. Any State may, by its Constitution and laws, permit women to vote. +Had these defendants been acting as Inspectors of Elections in such +State, their act would be no crime, and this indictment could not be +sustained, for the only illegality alleged is, that the citizens whose +votes were received were women, and therefore not entitled to vote. + +The Act of Congress thus, is simply an Act to enforce the diverse penal +statutes of the various States in relation to voting. In order to make a +case, the United States must combine the federal law with the statutes +of the State where the _venue_ of the prosecution is laid. + +Before the enactment of the 13th, 14th and 15th Amendments, it is not, +and never was pretended, that Congress possessed any such power. +Subdivision 1 of Section 2, of Article one of the Constitution, provides +as follows: + + "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 requisite for + electors of the most numerous branch of the State Legislature." + +By this provision, what shall qualify a person to be an elector, is left +entirely to the States. Whoever, in any State, is permitted to vote for +members of the most numerous branch of its legislature, is also +competent to vote for Representatives in Congress. The State might +require a property qualification, or it might dispense with it. It might +permit negroes to vote, or it might exclude them. It might permit women +to vote, or even foreigners, and the federal constitution would not be +infringed. If a State had provided a different qualification for an +elector of Representatives in Congress, from that required of an elector +of the most numerous branch of its Legislature, the power of the federal +constitution might be invoked, and the law annuled. But never was the +idea entertained, that this provision of the Constitution authorizes +Congress to pass laws for the punishment of individuals in the States +for illegal voting, or State returning officers for receiving illegal +votes. + +This power, if it exist, must be found in the recent Amendments to the +U.S. Constitution. + +I assume that your Honor will hold, as you did yesterday in Miss +Anthony's case, that these amendments do not confer the right to vote +upon citizens of the United States, and therefore not upon women. That +decision is the law of this case. It follows necessarily from that +decision, that these amendments have nothing to do with the right of +voting, except so far as that right "_is denied or abridged by the +United States, or by any State, on account of race, color, or previous +condition of servitude_." + +The thirteenth article of the Amendments to the Constitution of the +United States, in Section 1, ordains 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_." + +Section 2, ordains that "_Congress shall have power to enforce this +Article by appropriate legislation_." + +The fourteenth article of the Amendments to the Constitution of the +United States, ordains in Section 1, "_All persons born or naturalized +in the United States, and subject to the jurisdiction thereof, are +citizens of the United States, and of the State where they reside. No +State shall make or enforce any law, which shall abridge the privileges +or immunities of citizens of the United States. Nor shall any State +deprive any person of life, liberty or property, without due process of +law, nor deny to any person within its jurisdiction, the equal +protection of the laws._" + +Section five enacts, "_The Congress shall have power to enforce by +appropriate legislation, the provisions of this Article._" + +The fifteenth article of Amendment to the Constitution ordains in its +first section, that "That 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." + +Section two enacts, that "_The Congress shall have power to enforce this +Article by appropriate legislation._" + +These are the provisions of the Constitution relied on to support the +legislation of Congress now before this Court. Some features of that +legislation may be constitutional and valid. Whether this be so or not, +it is not necessary now to determine. The question here is, has +Congress, by either of these amendments, been clothed with the power, to +pass laws to punish inspectors of elections in this State for receiving +the votes of women? + +The thirteenth amendment simply abolishes slavery, and authorizes such +legislation as shall be necessary to make that enactment effectual. + +The power in question is not found there. + +The fourteenth amendment defines who are citizens of the United States, +and prohibits the States from making or enforcing "_any law which shall +abridge the privileges or immunities_" of such citizens. + +Either the right to vote is one of the "_privileges or immunities_" of +the United States citizen, which the states are forbidden to abridge, or +it is not. If it is, then the women whose votes these defendants +received, being citizens of the United States, and in every other way +qualified to vote, possessed the right to vote, and their votes were +rightfully received. If it is not, then the fourteenth amendment confers +no power upon Congress, to legislate, on the subject of voting in the +States. There is no other clause or provision of that amendment which +can by any possibility confer such power--a power which cannot be +implied, but which, if it exist, must be expressly given in some part of +the Constitution, or clearly needed to carry into effect some power that +is expressly given. + +No such power is conferred by the fifteenth amendment. That amendment +operates upon the States and upon the United States, and not upon the +citizen. "The right of citizens of the United States to vote, shall not +be denied or abridged by 'THE UNITED STATES OR BY ANY STATE.'" The terms +"_United States_" and "State," as here used, mean the government of the +United States and of the States. They do not apply to individuals or to +offenses committed by individuals, but only to acts done by the State or +the United States. + +But at any rate, the operation of this amendment, and the power given to +Congress to enforce it, is limited to offenses committed in respect of +depriving persons of the right to vote because of their "_race, color, +or previous condition of servitude_." + +This is not such a case. There is no ground for saying that these +defendants have committed any offense against the spirit or the letter +of the fifteenth amendment, or any legitimate legislation for its +enforcement. + +Congress cannot make laws to regulate the duties of Inspectors, and it +cannot inflict a penalty. + + +Second. + +_No offense is stated in the indictment._ + +The first count in the indictment is for knowingly and wilfully +registering as a voter, Susan B. Anthony. This count is under Section 26 +of the Act of May 31, 1870, as amended by the Act of February 28, 1871. + +The indictment contains no averment that the defendants were "_officers +of registration_," and charged with the duty of making a correct +registry of voters. It simply alleges that they were _Inspectors of +Elections_. What that means, the indictment does not inform us. It is +not an office defined by the Acts of Congress upon which this indictment +was found, nor has the Court any information of which it can take notice +as to what are the duties of such officers. In the absence of any claim +in the indictment to that effect, the Court will not presume the +existence of so important a circumstance against the defendants, and +therefore this count of the indictment must fail. + +2. The second count is for the same offense, and obnoxious to the same +objection. The only variation being that the first count charges the +illegal registry of one woman, and the second, fourteen. + +3. The third count charges that the defendants, being inspectors of +elections, received the votes of fourteen women who had no right to +vote, wrongfully. + +This count does not allege that it was the duty of the defendants to +receive or count the votes. It simply alleges that they were Inspectors +of Election. Their duties as such are not stated. It is not alleged that +as such inspectors they were charged with the duty of receiving and +counting votes. It is not claimed by the indictment that these votes +were counted or put into the ballot box--or affected the result. The +defendants simply received the votes. What they did with them, does not +appear. Any bystander, who had received these votes, could be convicted +under this indictment as well as they. + +WILLIAM F. MORRISON, a witness called in behalf of the United States, +testified as follows: + +_Examined_ by Mr. Crowley: + +Q. Where did you live, in November, 1872? + +A. City of Rochester. + +Q. Where do you live now? + +A. Same place. + +Q. Did you occupy any official position in the month of November, 1872? + +A. I did. + +Q. And do you now? + +A. Yes, sir. + +Q. What is it? + +A. City Clerk. + +Q. Have you any registration lists and poll lists of the 1st Election +District, 8th Ward, City of Rochester, in your possession? + +A. I have. + +Q. Will you produce them? + +[Witness produces two books.] + +Q. Do you know the defendants, Beverly W. Jones, Edwin T. Marsh, and Wm. +B. Hall, or any of them? + +A. I know them all. + +Q. Do you know their hand-writing? + +A. I cannot say that I do. + +Q. What are those books you hold in your hand? + +A. The register of the Board of Registry, and the poll list kept on +election day. + +Q. In what district? + +A. 1st election district of the 8th Ward. + +Q. By whom were those books left in your office, if by any one? + +A. To the best of my knowledge, they were left by Beverly W. Jones, +Chairman of the Board of Inspectors. + +Q. By whom do they purport to be signed? + +A. Beverly W. Jones, Wm. B. Hall, and Edwin T. Marsh. + +Q. Is there a certificate attached to them, purporting to show what they +are? + +A. There is a certificate attached to the register, but not to the poll +list. + +Q. Please read the certificate attached to the registration list. + +A. "We, the undersigned, composing the Board of Registry for the first +district, 8th Ward, City of Rochester, do certify that the foregoing is +a correct list of the voters in said district, so far as the same is +known to us. Dated Nov. 2d, 1872." + +Q. In what Congressional District was the first election district of the +8th Ward, in November, 1872? + +A. 29th. + +Q. Was there an election for Members of Congress for that district, and +for Members of Congress at Large for the State, held in that ward and +election district, last November? + +A. Yes, sir. + +Q. And candidates voted for both of those officers by those who saw fit +to vote for them? + +A. Yes, sir. + +Q. What day was the election? + +A. 5th day of November. + +MR. CROWLEY: We offer the poll list and the registration of voters in +evidence. + +[Poll list marked Ex. "A." Registration list, marked Ex. "B."] + +[This witness was not cross-examined.] + +SYLVESTER LEWIS, a witness sworn in behalf of the United States, +testified as follows: + +_Examined by_ MR. CROWLEY: + +Q. Where did you live in November, 1872? + +A. In the city of Rochester. + +Q. Do you know the defendants, Jones, Marsh and Hall? + +A. I do. + +Q. Do you know whether or not they acted as a Board of Registry for the +registration of voters in the first election district, 8th ward, City of +Rochester, preceding the last general election? + +A. I know they acted at the November election. + +Q. Did they act as a Board of Registry preceding the election? + +A. Yes, sir. + +Q. Was you present on any day when they were registering voters? + +A. I was present on Friday mostly, and on Saturday. + +Q. Were all three of these defendants there? + +A. They were the most of the time. + +Q. Receiving the names of persons who claimed to be entitled to vote? + +A. Yes, sir. + +Q. And taking a registration list? + +A. Yes, sir. + +Q. Did you see Miss Anthony and other ladies there upon that day? + +A. I saw Miss Anthony there on the first day, and other ladies. + +Q. Did you see there, upon that day, the following named persons: Susan +B. Anthony, Sarah Truesdell, Mary Pulver, Mary Anthony, Ellen S. Baker, +Margaret Leyden, Ann S. Mosher, Nancy M. Chapman, Lottie B. Anthony, +Susan M. Hough, Hannah Chatfield, Mary S. Hibbard, Rhoda DeGarmo, Jane +Cogswell. + +A. I saw a number of them; I didn't see the whole of them. + +Q. Do you know by sight, any of those persons whose names I have read? + +A. I know a number of them. + +Q. Did you see a number of them there? + +A. I did. + +Q. Did you see any of them register on that day? + +A. I did. + +Q. Have you a list of those that you saw register? + +A. I have, (producing a paper.) + +Q. Please state to the Jury, those that you saw register on that day. + +A. I can hardly recollect which day they registered. + +Q. Either of the days preceding the election, when this Board was in +session. + +A. Rhoda DeGarmo, Mary Anthony, Sarah C. Truesdell, Susan M. Hough, Mrs. +M.E. Pulver. + +By MR. VAN VOORHIS: + +Q. What paper are you reading from? + +A. From a memorandum I made at the time--No, it is a paper that was +given on the last day of registry. + +Q. A paper that you made yourself? + +A. The names that I took. + +Q. On the last day of registry? + +A. Yes, sir. + +By MR. CROWLEY: + +Q. State them. + +A. The names of the parties that I found on the poll list as having +registered; I didn't see them all register myself, but I did a good +portion of them. + +Q. I am asking you to state who you saw register. I don't ask you who +were registered before your attention was called to the list. + +A. Well, I saw Rhoda DeGarmo register; Miss Mary Anthony, Sarah C. +Truesdell, Susan M. Hough; I think I saw Nancy M. Chatfield register; +Mrs. Margaret Leyden, Mrs. M.E. Pulver; those I recollect; I was better +acquainted with those than with the others. + +Q. At the time you saw these ladies register, were the three inspectors, +Hall, Jones, and Marsh present? + +A. Some of the time I saw all three, I think, there; at other times I +saw but two of them; sometimes Hall and Jones, sometimes Marsh and +Jones, sometimes Hall and Marsh; I think they took turns when they went +to dinner. + +Q. On the day of election were you at the polls? + +A. I was. + +Q. Did you see any of these women vote on the day of election? + +A. I did. + +Q. Were these defendants present when their votes were received? + +A. They were. + +Q. And did they receive their votes? + +A. They did. + +Q. Who did you see vote, or offer their votes upon the day of election? + +A. Susan B. Anthony, Mrs. McLean, Rhoda DeGarmo, Mary Anthony, Ellen S. +Baker, Sarah C. Truesdell, Mrs. Hough, Mrs. Mosher, Mrs. Leyden, Mrs. +Pulver. I recollect seeing those ladies; in fact, I think I saw the +whole of them vote with the exception of two, but I will not be positive +on that point. + +Q. But you saw those whose names you have given? + +A. Yes, sir. + +Q. Do you know how many tickets they voted, or offered to the +inspectors? + +A. I think they voted four tickets. + +Q. Do you know how these tickets were endorsed, or what they were +called? + +A. I was not near enough to see the endorsement; I noticed which boxes +they went into. + +Q. Upon the day of election were the defendants Jones, Marsh, and Hall, +acting as inspectors of election? + +A. Yes, sir. + +Q. Receiving votes? + +A. Yes, sir. + +Q. And were acting as inspectors of election when these ladies voted? + +A. Yes, sir. + +Q. About what time in the day, or what time in the morning was it that +these ladies voted? + +A. I think there had been but a very few votes received in the morning +when a number of them voted. + +Q. Well, was it about 5 o'clock in the morning--very early? + +A. No, sir; not so early as that; the probability is that there was not +over 20 or 25 votes received before they presented theirs. + +_Conceded_: That the women named in the indictment were women on the 5th +day of November, 1872. + +_Cross-Examination by_ MR. VAN VOORHIS: + +Q. Which of those persons did you see register? + +A. Mrs. Hough, Mrs. Pulver, Mrs. Truesdell, Mrs. Leyden. + +Q. Do you swear you saw Mrs. Leyden register? + +A. I think I did. + +Q. Take a second thought and see if you are willing to say you saw her +register--please look off that paper. Do you recollect seeing those +persons register, or do you suppose they did, because you find it on a +paper there? + +A. No, sir; I recollect seeing pretty much all of them on my list with +the exception of one or two; I won't be fully positive I saw Mrs. Leyden +register; I saw her vote. + +Q. Did you go to Mrs. Leyden's house and advise her to go and register? + +A. I don't think I did. + +THE COURT: That is not important. + +Q. Do you recollect seeing any others register except those you have now +mentioned? + +A. I think I saw Mary Anthony. + +Q. Any other? + +A. Mrs. Chapman. + +Q. Can you recollect this without looking at that paper? + +A. Well, the object in looking at that paper is to try to refresh my +memory on which day they registered. + +Q. Does that paper contain dates? + +A. No, sir; it contains the names of all those who registered. + +Q. You copied that paper from the registry, didn't you? + +A. They were copied by Hall at the time of the election, and handed to +me. + +Q. What was your business at the registry at that time? + +A. I had a poll list; I was checking parties that I supposed had a legal +right to vote. + +Q. What sort of a poll list? + +Objected to as immaterial. + +THE COURT: It is only competent as a test of his knowledge. + +A. I had canvassed the ward and taken a list of all the voters in the +first district; all those that I supposed would be entitled to vote. + +Q. You had canvassed the ward in the employment of somebody? + +Objected to as immaterial. + +Q. How many of these people did you see vote? + +A. I think I saw the whole of them vote, with the exception of Mrs. +Hough and Mrs. Cogswell. + +Q. Who took Miss Anthony's vote? + +A. Mr. Jones. + +Q. Were both the other inspectors present when he took it? + +A. I believe they were. + +Q. Did Jones take all of the votes of those persons whose names you have +on your list? + +A. I don't think he did. + +Q. Who took any others that you saw? + +A. I saw Mr. Hall take some of the ballots. + +Q. How many? + +A. I couldn't tell how many. + +Q. Did you see him take more than one? + +A. I don't know as I did. + +Q. Do you know whose it was? + +A. If I recollect right, it was Mrs. DeGarmo's. + +Q. At that time was Jones there? + +A. No, I believe Jones had stepped out. + +Q. Hall received the vote on account of Jones being absent? + +A. I believe so. + +Q. Jones' position was at the window receiving votes? + +A. Yes, sir. + +Q. Who put them in the boxes? + +A. Jones and Hall. + +Q. You were not near enough to see what these ballots were? + +A. No, sir. + +Q. How many ballot boxes were there? + +A. Six, if I recollect right. + +Q. And six tickets voted at that poll? + +A. Six tickets altogether; there was the Constitutional Amendment voted +at that election. + +Q. Did you observe which boxes the tickets of these persons were put +into? + +A. I did. + +Q. Which were they? + +A. I think that the ballots that these ladies voted. + +Q. I don't want what you think; I want what you know. + +A. Well, they went into those boxes; Member of Congress, Member at +Large. + +Q. Were there two boxes for Congressmen? + +A. I think there was; I am not quite positive; I rather think I am +mistaken about that. + +Q. Well, give us what you know about the boxes? + +A. The most that I know about is, that the remark was made by the +inspector that they voted the four tickets. + +Q. You heard the remark made that they voted four tickets; who made that +remark? + +A. Mr. Jones or Mr. Hall; when they passed their ballots they would say, +"They vote all four tickets; no Constitutional Amendment voted." + +Q. That was the practice of the inspector, no matter who voted? + +A. Yes, sir. + +Q. Then you didn't see the tickets as they went into the boxes? + +A. No, sir. + +Q. You can't swear which boxes they went into? + +A. I understood from the inspectors that they voted all the tickets with +the exception of the Constitutional Amendment. + +Q. I don't ask for any conversation; I ask for what you know by what you +saw. + +A. Well, I wasn't near enough to read the tickets. + +Q. Did you hear either of the inspectors say anything about it? + +A. I did. + +Q. Which one? + +A. I heard the inspector that would be at the window where the ballots +would be received. + +Q. Name him. + +A. I heard Mr. Jones say that they voted the four tickets. + +Q. Was that all he said? + +A. Well, he would declare it in this way; sometimes he would say, "They +vote all the tickets with the exception of the Amendment;" that is the +way he generally declared it. + +Q. I want to get at what he said when these votes were taken? + +A. He didn't at all times declare the ticket voted. + +Q. Are you willing to testify that you recollect distinctly, anything +that was said by either of the inspectors when these ladies voted? + +A. Most decidedly; I heard Jones say that they voted the Congressional +ticket; I heard him say that they voted all the tickets. + +Q. At the time they voted? + +A. The question would be asked what tickets they voted, and he would +say, "All the tickets with the exception of the Amendment." + +Q. Did he mention the Congressional ticket? + +A. I think he did. + +Q. Do you recollect that he did? + +A. My impression is that he said so; I can't say positively. + +Q. Did you say anything there, about getting twenty women to vote? + +Objected to as immaterial. + +MR. VAN VOORHIS: I propose to show that this witness said to parties +there that he would go and get twenty Irish women to vote, to offset +these votes. + +Objected to as immaterial. + +Objection sustained. + +WILLIAM F. MORRISON recalled. + +_Examined by_ MR. CROWLEY: + +Q. Please point out the following names, if you find them in the +registration list: Susan B. Anthony? + +A. I find it. + +Q. Sarah Truesdell? + +A. Sarah C. Truesdell. + +Q. Mary Pulver? + +A. M.P. Pulver. + +Q. Mary Anthony? + +A. I find it. + +Q. Ellen S. Baker? + +A. Yes, sir; I have it. + +Q. Margaret Leyden? + +A. Margaret L. Leyden. + +Q. Ann S. Mosher? + +A. Hannah L. Mosher. + +Q. Nancy M. Chapman? + +A. Nancy M. Chapman. + +Q. Lottie B. Anthony? + +A. Lottie B. Anthony. + +Q. Susan M. Hough? + +A. Susan M. Hough. + +Q. Hannah Chatfield? + +A. Hannah Chatfield. + +Q. Mary S. Hibbard? + +A. Mary S. Hibbard. + +Q. Rhoda DeGarmo? + +A. I don't find any such name; I find Robert DeGarmo and Elias DeGarmo. + +Q. Jane Cogswell? + +A. Jane Cogswell. + +Q. Now turn to the names of voters contained in the list copied upon +election day; do you find the name of Susan B. Anthony upon that list? + +A. I do. + +Q. Sarah Truesdell? + +A. Yes, sir. + +Q. Mary Pulver? + +A. Yes, sir. + +Q. Mary Anthony? + +A. Yes, sir. + +Q. Mary S. Baker? + +A. Yes, sir. + +Q. Margaret Leyden? + +A. Yes, sir. + +Q. Ann S. Mosher? + +A. Hannah L. Mosher. + +Q. Nancy Chapman? + +A. Yes, sir. + +Q. Lottie B. Anthony? + +A. Yes, sir. + +Q. Susan M. Hough? + +A. Yes, sir. + +Q. Hannah Chatfield? + +A. Yes, sir. + +Q. Mary S. Hibbard? + +A. Yes, sir. + +Q. Rhoda DeGarmo? + +A. I find Mrs. Rosa DeGarmo. + +Q. Jane Cogswell? + +A. Yes, sir. + +Q. Upon the list copied by the inspectors upon the day of election, is +there any heading purporting to show what tickets these people voted? + +A. Yes, sir. + +Q. Please state from the heading what tickets it purports to show they +voted? + +A. The first column is Electoral; the second, State; the third, +Congress; the fourth, Assembly; the fifth, Constitutional Amendment. + +Q. Please look and see which of those tickets the list purports to show +that they voted? + +MR. VAN VOORHIS: I object to any marks upon that book which the witness +didn't make, as any evidence that these persons voted for members of +Congress. + +By THE COURT: + +Q. What is the statement there? + +A. After the name of Miss Susan B. Anthony in the column of electors +there is a small, straight mark. + +MR. VAN VOORHIS: I object to that, as not evidence of what these votes +were. + +THE COURT: I think it is competent. + +By MR. CROWLEY: + +Q. State, Mr. Morrison? + +A. Opposite each of the names that I have read there are checks, showing +that they voted Electoral, State, Congressional and Assembly +tickets--four tickets. + +Q. There are a large number of the inspectors' books of the last +election filed with you as City Clerk, are there not? + +A. Yes, sir. + +Q. Do you know what the custom or habit is of copying these books when +people vote? + +Objected to. + +Q. What custom the inspectors have of indicating what tickets a person +votes when he offers his vote? + +Objected to. Question withdrawn. + +_Cross-Examination by_ MR. VAN VOORHIS. + +Q. All you know about these tickets or that book, is what appears on the +face of it, is it not? + +A. Yes, sir; that is all. + +Q. You don't know who made those straight marks? + +A. I don't. + +Q. Or why they were made, so far as you have any knowledge? + +A. No, sir. + +Q. Do you know what those letters are? [Pointing on the book.] + +A. Preliminary oath and general oath, I should say. + +Q. You would say that to each of these persons the preliminary oath was +administered, and also the general oath? + +A. Yes, sir; it so shows here. + +MRS. MARGARET LEYDEN, a witness called in behalf of the United States, +having been duly affirmed, testified as follows: + +_Examined by_ MR. CROWLEY: + +Q. Did you reside in the City of Rochester in the month of November, +1872? + +A. Yes, sir. + +Q. Did you reside in the 8th ward? + +A. I did. + +Q. In the first election district of that ward? + +A. I did. + +Q. Was your name registered before the election which took place on the +5th of November, 1872? + +A. It was. + +Q. By whom? + +A. I think Mr. Jones; in fact, all three of the inspectors were there. + +Q. Did you, upon the 5th day of November, vote? + +A. I did. + +Q. Who received your vote? + +A. Mr. Jones. + +Q. Were the other inspectors there at the time? + +A. Yes, sir. + +Q. Did you vote for a candidate for Congress? + +A. I did. + +_Cross-Examination by_ MR. VAN VOORHIS: + +Q. Was Mr. Lewis there when you registered? + +A. Mr. Lewis was not there. + +Q. Do you recollect who took your vote? + +A. I think Mr. Jones took it; I know he did. + +Q. Was your ballot folded up? + +A. It was. + +Q. Could any person read it, or see what you voted, or who you voted +for? + +A. No one but my husband. + +Q. He saw it before you voted? + +A. Yes, sir. + +Q. Was your husband present when you voted? + +Objected to as immaterial. + +A. He was. + +Q. No one had seen your ballot except your husband before you handed it +in? + +A. No, sir. + +Q. And when you handed it in it was folded, so that no one could see it? + +A. It was. + +THE COURT: What is the object of this? + +MR. VAN VOORHIS: The District Attorney inquired if she voted a certain +ticket, and assumes to charge these inspectors with knowing what she +voted. It is to show that the ticket being folded, the inspector could +not see what was in it. + +Q. In voting, did you believe that you had a right to vote, and vote in +good faith? + +Objected to as immaterial. + +Objection sustained. + +_Re-Direct Examination by_ MR. CROWLEY: + +Q. You have heard me name the different persons, have you not, when I +asked Mr. Morrison questions? + +A. Yes, sir. + +Q. Were these people, or any of them, present, and were they registered +at the same time you were? + +A. Some of them were present. + +Q. Who? + +A. Mrs. Lottie B. Anthony; there was one lady that registered who didn't +vote; I think Mrs. Anthony was the only lady that was present that +voted; I can't recollect any more names. + +Q. Who of these ladies were present when you voted and voted with you, +if any? + +A. Miss Susan B. Anthony, Mrs. Pulver, Mrs. Mosher, Mrs. Lottie B. +Anthony, Miss Mary Anthony, Miss Baker, Mrs. Chapman. + +Q. Did they all vote on that occasion? + +A. They did. + +_Re-Cross Examination by_ MR. VAN VOORHIS. + +Q. Mrs. Lottie B. Anthony is the wife of Alderman Anthony? + +A. Yes, sir. + +_United States rests._ + +Case opened in behalf of the defendants by MR. VAN VOORHIS. + +BEVERLY W. JONES, one of the defendants, having been duly sworn as a +witness in his own behalf, testified as follows: + +_Examined by_ MR. VAN VOORHIS. + +Q. Mr. Jones, where do you reside? + +A. Eighth ward, city of Rochester. + +Q. What is your age? + +A. Twenty-five last spring. + +Q. Are you one of the defendants in this indictment? + +A. Yes, sir. + +Q. Were you inspector of election in the 8th ward? + +A. Yes, sir. + +Q. Which district? + +A. First district. + +Q. Were you elected or appointed? + +A. Elected. + +Q. By the people of the ward? + +A. Yes, sir. + +Q. Were you present at the Board of Registry when Miss Anthony and +others appeared there and demanded to be registered? + +A. I was. + +Q. Won't you state what occurred there? + +A. Miss Anthony and two other ladies came into the room; Miss Anthony +asked if this was the place where they registered the names of voters; I +told her it was; she said she would like to have her name registered; I +told her I didn't think we could register her name; it was contrary to +the Constitution of the State of New York; she said she didn't claim any +rights under the Constitution of the State of New York; she claimed her +rights under the Constitution of the United States; under an amendment +to the Constitution; she asked me if I was conversant with the 14th +amendment; I told her I had read it and heard of it several times. + +Q. Before you go further, state who was present at that time? + +A. William B. Hall and myself were the only inspectors; Mr. Marsh was +not there; Daniel J. Warner, the United States Supervisor, Silas J. +Wagner, another United States Supervisor, and a United States Marshal. + +Q. State which one of these was Republican, and which one Democratic. + +A. Silas J. Wagner, Republican; Daniel J. Warner, Democratic. + +Q. Now go on. + +A. She read the 14th amendment to the Constitution of the United States; +while she was reading the amendment and discussing different points, Mr. +Daniel J. Warner said-- + +MR. CROWLEY: I submit to the Court that it is entirely immaterial what +either Warner or Wagner said. + +THE COURT: I don't see that that is competent in any view of the case. + +Q. (By the Court). Was your objection to registering Miss Anthony on the +ground that she was a woman? + +A. I said it was contrary to the Constitution of the State of New York, +and I didn't think that we could register her. + +Q. (By the Court.) On what ground was that? + +A. Well, on the ground that she was a woman. + +By MR. VAN VOORHIS: + +Q. You may proceed and state what occurred there? + +A. Mr. Warner said-- + +Objected to. + +THE COURT: I don't think that is competent, what Warner said: + +MR. VAN VOORHIS: The district attorney has gone into what occurred at +that time, and I ask to be permitted to show _all_ that occurred at the +time of the registry; this offense was committed there; it is a part of +the _Res Gesta_; all that occurred at the moment Miss Anthony presented +herself and had her name put upon the registry. + +THE COURT: I don't think that is competent. + +MR. VAN VOORHIS: I ask to show what occurred at the time of registry. + +THE COURT: I don't think it is competent to state what Warner or Wagner +advised. + +MR. VAN VOORHIS: So that the question may appear squarely in the case I +offer to show what was said and done at the time Miss Anthony and the +other ladies registered, by them, the inspectors, and the federal +Supervisors, Warner and Wagner, in their presence, in regard to that +subject. + +THE COURT: I exclude it. + +MR. VAN VOORHIS: Does that exclude all conversations that occurred there +with any persons? + +THE COURT: It excludes anything of that character on the subject of +advising them. Your case is just as good without it as with it. + +MR. VAN VOORHIS: I didn't offer it in view of the advice, but to show +precisely what the operation of the minds of these inspectors was at +that time, and what the facts are. + +THE COURT: It is not competent. + +By MR. VAN VOORHIS: + +Q. Were you present on the day of election? + +A. Yes, sir. + +Q. Did you receive the votes of these persons? + +A. I did. + +Q. How many ballot boxes were there there? + +A. Six. + +Q. What position did you occupy during the day? + +A. Chairman of the Board. + +Q. Did you stand at the window and receive the votes? + +A. Most of the time I did. + +Q. Were those ballots which you received from them folded? + +A. They were. + +Q. Did you or any of the inspectors see or know the contents of any of +the ballots? + +MR. CROWLEY: If your Honor please, I submit it is entirely immaterial +whether these inspectors saw the names upon the ballots. + +THE COURT: I have excluded that already. It is not competent. It is +proved that they put in votes, and it is proved by one of the ladies +that she did vote for a candidate for Congress. + +MR. VAN VOORHIS: I propose to show by the witness that he didn't know +the contents of any ballot, and didn't see it. + +THE COURT: That will be assumed. He could not do it with any propriety. + +By MR. VAN VOORHIS: + +Q. Did either one of the inspectors object to receiving the votes of the +women at the polls? + +A. Yes, sir. + +Q. Which one? + +A. William B. Hall. + +Q. Did he take any part in receiving votes, and, if so, state what part? + +A. I believe that he took the ballot of one lady, and placed it in the +box. I stepped out, I believe, for a few moments. + +Q. Did it to accommodate you while you stepped out? + +A. Yes, sir. + +Q. On the day of registry did the inspectors as a board decide +unanimously to register these votes, all three of you consenting? + +A. We did. + +Q. When you came to receive the votes, Hall dissented? + +A. He did, sir. + +Q. But the other two were a majority, and he was overruled; was this the +way it was, or wasn't there anything in form said about it? + +A. He was overruled; I felt it my duty to take the ballots. + +Q. In receiving those ballots did you act honestly in accordance with +your sense of duty, and in accordance with your best judgment? + +A. I did. + +By MR. CROWLEY: + +Q. All three of the inspectors agreed in receiving these names for +registration, did they not? + +A. Yes, sir. + +By MR. VAN VOORHIS: + +Q. I meant to have asked you in reference to the challenges; state +whether or not challenges were entered against these voters prior to the +day of election? + +A. There was. + +Q. On their presenting their votes, what was done? + +A. I told Miss Anthony, when she offered her vote, that she was +challenged; she would have to swear her ballot in if she insisted upon +voting; she said she insisted upon voting, and I presented her the Bible +and administered to her the preliminary oath, which she took. I turned +to the gentleman that challenged her, and asked him if he still insisted +upon her taking the general oath. + +Q. Were questions asked her? + +A. There were, after taking the preliminary oath. + +Q. In accordance with the instruction? + +A. Yes, sir. + +Q. Go on. + +A. I turned to the gentleman that challenged her, and asked him if he +still insisted on his challenge; he said he did; I told her she would +have to take the general oath; I administered the general oath, and she +took it. + +Q. Was that done in each case of the women who voted? + +A. It was. + +By MR. CROWLEY: + +Q. As I understand you, all three of the inspectors agreed in permitting +these people to be registered? + +A. They didn't at first. + +Q. Well, they did before they were registered, did they not? + +A. They did before their names were put upon the book. + +Q. And when they voted, yourself and Mr. Marsh were in favor of +receiving the votes, and Hall was opposed to receiving the votes? + +A. Yes, sir. + +By MR. VAN VOORHIS: + +Q. Did you suppose at that time that the law required you to take their +votes? + +Objected to. Sustained. + +By MR. CROWLEY: + +Q. Did you have two meetings for the purpose of registration prior to +election? + +A. Yes, sir. + +Q. Upon the days fixed by the laws of the State of New York? + +A. Yes, sir. + +Q. You made a list or registry, did you not, upon those days? + +A. We did. + +Q. Upon the day of election you had a list of voters? + +A. Yes, sir. + +Q. Those produced here to-day are the lists kept upon that occasion, are +they not? + +A. (After looking at Exhibits A. and B.) Those are the books. + +By THE COURT: + +Q. Did these ladies vote the Congressional ticket, all of them? + +A. I couldn't swear to that. + +Q. Look at the book as to that. + +A. It does not tell for certain; the clerks may have made a mistake in +making these marks; they do very often. + +Q. Did you make any of the entries in that book? + +A. No, sir; a clerk appointed by me did it. + +By MR. CROWLEY: + +Q. When you counted up your votes at night, when the polls closed, did +you compare your votes with the list? + +A. Yes, sir. + +Q. Did you find it correct? + +A. We found it fell short of the poll list several ballots; I can't tell +how many. + +Q. Do you know whether it fell short on members of Congress? + +A. Yes, sir, it did. + +Q. Did you make a certificate and return of that fact? + +A. Yes, sir; the certificate was filed in the Clerk's office. + +EDWIN T. MARSH, one of the defendants, having been duly affirmed as a +witness in his own behalf, testified as follows: + +_Examined by_ MR. VAN VOORHIS: + +Q. Were you one of the inspectors of the 8th ward? + +A. I was. + +Q. How was you appointed? + +A. I was appointed by the Common Council just before the first meeting +of the board. + +Q. What is your age? + +A. I am 33. + +Q. Did you hear the statement of Mr. Jones? + +A. I did. + +Q. To save time, I will ask you whether that was substantially correct +as you understand it? + +A. Yes, sir. + +Q. Now, I will ask you the question if, in registering and receiving +these votes, you believed that the law required you to do it, and you +acted conscientiously and honestly? + +Objected to. + +THE COURT: Put the question as you did to the other witness--whether in +receiving these votes he acted honestly and according to the best of his +judgment. + +By MR. VAN VOORHIS: + +Q. Answer that question, please? + +A. I most assuredly did. + +[This witness was not cross-examined.] + +WILLIAM C. STORRS, a witness sworn in behalf of the defendants, +testified as follows: + +_Examined by_ MR. VAN VOORHIS: + +Q. Where do you reside? + +A. City of Rochester. + +Q. What office do you hold? + +A. United States Commissioner. + +Q. How long have you held that office? + +A. Fifteen years. + +Q. Do you know these defendants, Jones and Marsh? + +A. I do, sir. + +Q. Was any application made to you, by any person, at any time, for a +warrant against them for this offence? + +Objected to. + +MR. VAN VOORHIS: If the counsel objects I will not insist upon the +evidence. + +[This witness was not cross-examined.] + +SUSAN B. ANTHONY, called as a witness in behalf of the defendants. + +MISS ANTHONY: I would like to know if the testimony of a person who has +been convicted of a crime, can be taken? + +THE COURT: They call you as a witness, madam. + +The witness, having been duly affirmed, testified as follows: + +_Examined by_ MR. VAN VOORHIS: + +Q. Miss Anthony, I want you to state what occurred at the Board of +Registry, when your name was registered? + +A. That would be very tedious, for it was full an hour. + +Q. State generally what was done, or what occupied that hour's time? + +Objected to. + +Q. Well, was the question of your right to be registered a subject of +discussion there? + +A. It was. + +Q. By and between whom? + +A. Between the supervisors, the inspectors, and myself. + +Q. State, if you please, what occurred when you presented yourself at +the polls on election day? + +A. Mr. Hall decidedly objected-- + +MR. CROWLEY: I submit to the Court that unless the counsel expects to +change the version given by the other witnesses, it is not necessary to +take up time. + +THE COURT: As a matter of discretion, I don't see how it will be of any +benefit. It was fully related by the others, and doubtless correctly. + +MR. CROWLEY: It is not disputed. + +THE WITNESS: I would like to say, if I might be allowed by the Court, +that the general impression that I swore I was a male citizen, is an +erroneous one. + +By MR. VAN VOORHIS: + +Q. You took the two oaths there, did you? + +A. Yes, sir. + +By THE COURT: + +Q. You presented yourself as a female, claiming that you had a right to +vote? + +A. I presented myself not as a female at all, sir; I presented myself as +a citizen of the United States. I was called to the United States ballot +box by the 14th amendment, not as a female, but as a citizen, and I went +there. + +MR. VAN VOORHIS: We have a number of witnesses to prove what occurred at +the time of registry, and what advice was given by these federal +supervisors, but under your Honor's ruling it is not necessary for us to +call them. Inasmuch as Mr. Hall is absent, I ask permission to put in +his evidence as he gave it before the Commissioners. + +MR. CROWLEY: I have not read it, your Honor, but I am willing they +should use so much of it as is competent under your Honor's ruling. + +THE COURT: Will it change the case at all, Mr. Van Voorhis? + +MR. VAN VOORHIS: It only varies it a little as to Hall. He stated that +he depended in consenting to the registry, upon the advice of Mr. +Warner, who was his friend, and upon whom he looked as a political +father. + +THE COURT: I think you have all the question that any evidence could +give you in the case. These men have sworn that they acted honestly, and +in accordance with their best judgment. Now, if that is a defense, you +have it, and it will not make it any stronger to multiply evidence. + +MR. VAN VOORHIS: I suppose it will be conceded that Hall stands in the +same position as to his motives? + +MR. CROWLEY: Yes; we have no evidence to offer upon that question at +all. + +_Evidence closed._ + + * * * + +Mr. Van Voorhis addressed the Court at some length, as follows: + +May it please the Court, I submit that there is no ground whatever to +charge these defendants with any criminal offense. + +1. Because the women who voted were legal voters. + +2. Because they were challenged and took the oaths which the statute +requires of Electors, and the Inspectors had no right, after such oath, +to reject their votes. + + 1 R.S. Edmonds Ed., 126-127. + +The duty of Inspectors of Election is defined by the Statute as follows: + "Sec. 13. If any person offering to vote at any election shall be + challenged in relation to his right to vote at that election, by an + Inspector, or by any other person entitled to vote at the same + poll, one of the Inspectors shall tender to him the following + preliminary oath: 'You do swear (or affirm) that you will truly and + fully answer all such questions as shall be put to you touching + your place of residence and qualifications as an Elector.'" + + "Sec. 14. The Inspectors or one of them shall then proceed to question + the person challenged in relation to his name; his then place of + residence; how long he has resided in the town or ward where the + vote is offered; what was the last place of his residence before he + came into that town or ward, and also as to his citizenship, and + whether a native or a naturalized citizen, and if the latter, when, + where, and in what court, or before what officer, he was + naturalized; whether he came into the town or ward for the purpose + of voting at that election; how long he contemplates residing in + the town or ward; and all such other questions as may tend to test + his qualifications as a resident of the town or ward, citizenship + and right to vote at that poll." + + "Sec. 15. If any person shall refuse to take the said preliminary oath + when so tendered, or to answer fully any questions which shall be + so put to him, his vote shall be rejected." + + "Sec. 16. After receiving the answers of the person so challenged, the + board of inspectors shall point out to him the qualifications, if + any, in respect to which he shall appear to them deficient." + + "Sec. 17. If the person so offering shall persist in his claim to + vote, and the challenge shall not be withdrawn, one of the + inspectors shall then administer the following oath: 'You do swear + (or affirm as the case may be) that you have been a citizen of the + United States for ten days, and are now of the age of twenty one + years; that you have been an inhabitant of this State for one year + next preceding this election, and for the last four months a + resident of this County; that you have been for thirty days next + preceding this election a resident of this Assembly district (or + Senate or Congressional district or districts, ward, town, village + or city from which the officer is to be chosen for whom said person + offers to vote); that you are now a resident of this town (or ward, + as the case may be) and of the election district in which you now + offer to vote, and that you have not made any bet or wager, and are + not directly or indirectly interested in any bet or wager depending + upon the result of this election, and that you have not voted at + this election.'" + + "Sec. 18. Prescribes the form of oath to be administered to colored + men." + + "Sec. 19. If any person shall refuse to take the oath so tendered, his + vote shall be rejected." + +The defendants performed their duty strictly and fully according to the +statute. + +The persons offering to vote were challenged; the defendants +administered the preliminary oath to them; all the questions required by +the statute were answered fully and truly; the challenge was still +insisted on; the general oath was administered by the defendants to +them; they took that oath, and every word contained in it was true in +their case. The inspectors had no alternative. They could not reject the +votes. + +This statute has been construed by the Court of Appeals of this State in +the case of _The People vs. Pease, 27 N.Y. 45_. + +In that case it is held, that inspectors of election have no authority +by statute to reject a vote except in three cases: (1) after a refusal +to take the preliminary oath, or (2) fully to answer any questions put, +or (3) on refusal to take the general oath. + +_Davies_ J., in his opinion after an examination of the provisions of +the statute says: + + "_It is seen, therefore, that the inspectors have no authority, by + statute, to reject a vote except in the three cases: after refusal + to take the preliminary oath, or fully to answer any questions put, + or on refusal to take the general oath. And the only judicial + discretion vested in them is, to determine whether any question put + to the person offering to vote, has or has not, been fully + answered. If the questions put have been fully answered, and such + answers discover the fact, that the person offering to vote is not + a qualified voter, yet if he persists in his claim to vote it is + imperative upon the inspectors to administer to him the general + oath, and if taken, to receive the vote and deposit the same in the + ballot box._" + +_Selden_, J., who wrote in the same case, examines this question with +great care and reaches the same conclusion. He says: + + "The course required by the statute, to be pursued where the right + of any person to vote is challenged, cannot be reconciled with any + discretionary power of rejection vested in the inspectors. (Citing + the statute as above quoted.) The inspectors are, first, to + administer what is called the preliminary oath, requiring the + person offering the vote to answer such questions as shall be put + to him touching his place of residence and qualifications as an + elector. The statute then mentions several questions which are to + be addressed to him by the inspectors, and authorizes such other + questions as may tend to test his qualifications as a voter. If he + refuse to take the oath, or to answer fully, his vote is to be + rejected; but if he answers fully, the inspectors are required to + point out to him the qualifications, if any, in which he shall + appear to them to be deficient. If he still persists in his right + to vote, and the challenge is not withdrawn, the inspectors are + required to administer to him the general oath, in which he states + in detail, and swears, that he possesses all the qualifications the + Constitution and laws require the voter to possess. _If he refuse + to take the oath, his vote shall be rejected._ Is not the inference + irresistible, that, if he take the oath, it shall be received? If + his vote is to be rejected after he takes the oath, why not reject + it before? _As I construe the statute, the inspectors have no + discretion left them in such a case_ (where the person offering to + vote is not shown by a record to have been convicted of a crime, or + by his own oath to be interested in a bet upon the election,) _but + must deposit the ballot in the box, whatever they may believe or + know of the want of qualifications of the voter. They are required + to act upon the evidence which the statute prescribes, and have no + judicial power to pass upon the question of its truth or falsehood; + nor can they act upon their own opinion or knowledge._" + +These views were concurred in by all the Judges. _Denio_, J., who wrote +a dissenting opinion in the case, concurred with the other Judges as to +the powers and duties of inspectors. + +The defendants, then, have not in the least violated any law of the +State of New York. They performed their duty according to the statute +and in accordance with the decision of the highest court of the State, +and in accordance with the printed instructions furnished them by the +Secretary of State. What further can be demanded of them? No United +States statute prescribes or attempts to prescribe their duties. They +cannot legally be convicted and should be discharged. + +3. Because no malice is shown. Whether the women were entitled to have +their names registered and to vote, or not, the defendants believed they +had such right, and acted in good faith, according to their best +judgment, in allowing the registry of their names--and in receiving +their votes--and whether they decided right or wrong in point of law, +they are not guilty of any criminal offense. + +The substance of the statute is, as to registration: + + "If any such officer shall ... _knowingly and wilfully_ register as + a voter any person not entitled to be registered, or refuse to so + register any person entitled to be registered ... every such person + shall be deemed guilty of a crime." + +Act of May 31, 1870, Sec. 20, As Amended by Act of Feb. 28, 1871, Sec. 1. + +And as to voting: + + "If any person shall ... _knowingly and wilfully_ receive the vote + of any person not entitled to vote, or refuse to receive the vote + of any person entitled to vote ... every such person shall be + deemed guilty of a crime." + +Act of May 31, 1870, Sec. 19. + +To bring an inspector within either of these sections he must know as +_matter of fact_, that the person offering to vote, or to be registered, +is not entitled to be registered or to vote. + +The inspectors were _compelled to decide the question_, and to decide it +instantly, with no chance for examination or even consultation--and if +they decided in good faith, according to the best of their ability, they +are excused, whether they decided correctly or not in point of law. + +This is too well settled to admit of dispute--settled by authority as +well as by the plainest principles of justice and common sense. + +The law never yet placed a public officer in a position where he would +be compelled to decide a doubtful legal question, and to act upon his +decision, _subject to the penalty of fine_ or imprisonment if he chanced +to err in his decision. + +All that is ever required of an officer, so placed, whether a judicial +or ministerial officer, _so far as is necessary to escape any +imputations of crime_, is good faith. + +Ministerial officers may be required, in some cases to act at their +peril as to _civil_ responsibilities, but as to _criminal +responsibilities_ never. + +Inspectors of elections, however, _acting in good faith_, incur neither +civil nor criminal responsibilities. + +In _Jenkins vs. Waldron (11 John 114)_, which was an action on the case +against inspectors of election for refusing to receive the vote of the +plaintiff, a duly qualified voter, it was held, that the action would +not lie _without proving malice_. Spencer, J., delivering the opinion of +the Court, closes as follows: "It would in our opinion be opposed to all +the principles of law, justice and sound policy, to hold that officers +called upon to exercise their deliberate judgments, _are answerable for +a mistake in law_, either civilly or criminally, where their motives are +pure and untainted with fraud or malice." + +The same point precisely was decided in a like case, in the Supreme +Court of this State recently and _Jenkins vs. Waldron approved_. + + Goetchens vs. Mathewson, 5 Lansing, 214. + +In Harman v. Tappenden and fifteen others (1 East 555) the plaintiff was +a freeman of the company of free fishermen and dredgermen of the manor +and hundred of Faversham in Kent, and the defendants, as officers of the +company, caused him "wrongfully, unlawfully and unjustly" to be +disfranchised, and removed from his said office of freeman. He was +restored by mandamus, and brought his action on the case against the +defendants who removed him, to recover his damages. + +On the trial before Lord Kenyon, C.J., a verdict was taken for the +plaintiff for nominal damages, with leave to the defendant to move to +enter a non-suit. + +On that motion Lord Kenyon, C.J., said: + + "Have you any precedent to show that an action of this sort will + lie, without proof of malice in the defendants, or that the act of + disfranchisement was done on purpose to deprive the plaintiff of + the particular advantage which resulted to him from his corporate + character? I believe this is a case of the first impression, where + an action of this kind had been brought, _upon a mere mistake, or + error in judgment_. The plaintiff had broken a by-law, for which he + had incurred certain penalties, and happening to be personally + present in the court, he was called upon to show cause why he + should not pay the forfeitures; to which not making any answer, but + refusing to pay them, the court proceeded, taking the offense _pro + confesso_, without any proof, to call on him to show cause why he + should not be disfranchised; and they accordingly made the order. + This was undoubtedly irregular, but it was nothing more than a + mistake, and there was no ground to impute any malicious motives to + the persons making the order." + +Lawrence, J., said: + "There is no instance of an action of this sort maintained for an + act merely from error of judgment. Perhaps the action might have + been maintained, if it had been proved that the defendants' + contriving and intending to injure and prejudice the plaintiff, and + to deprive him of the benefit of his profits from the fishery, + which as a member of this body he was entitled to, according to the + custom, had _wilfully and maliciously_ procured him to be + disfranchised, in consequence of which he was deprived of such + profits. But here there was no evidence of any wilful and malicious + intention to deprive the plaintiff of his profits, or that they had + disfranchised him with that intent, _which is necessary to maintain + this action_. They were indeed guilty of an error in their + proceedings to disfranchise him, in not going into any proof of the + offence charged against him, but taking his silence as a + confession. In the case of _Drewe v. Coulton_, where the action was + against the Mayor of Saltash, who was returning officer, for + refusing the plaintiff's vote at an election, which was claimed in + right of a burgage tenement; Wilson, J., nonsuited the plaintiff + _because malice was not proved_; and he observed, that though Lord + Holt, in the case of _Ashby v. White_, endeavored to show that the + action lay for the obstruction of the right, yet the House of + Lords, in the justification of their conduct, supposed to be + written by the Chief Justice, puts it upon a different principle, + the _wilfulness of the act_. The declaration in that case was + copied from the precedent in _Milward v. Sargeant_, which came on + in this court on a writ of error, _Hill 26, Geo. 3_, for refusing + the plaintiff's vote for the borough of Hastings. There the charge + was 'that the defendant contriving and wrongfully intending to + injure and prejudice the plaintiff, and to hinder and deprive him + of his privilege of voting, did not take or allow his vote.' All + which allegations Mr. Justice Wilson, in the case above alluded to, + thought were essential to be proved in order to sustain the + action." + + "_Per Curiam._ Rule discharged." + +The Reporter's head note is: "An action does not lie against individuals +for acts erroneously done by them _in a corporate capacity_ from which +detriment has happened to the plaintiff. At least, not without proof of +malice." + +The case of _Drewe v. Coulton_ is given at length in a note to _Harman +v. Tappenden and others 1 East 563_, and fully sustains what is said of +it by Mr. Justice Lawrence. + +The election was for member to serve in Parliament for the borough of +SALTASH. The defendant was Mayor and returning officer. The question +presented to him was "whether the owners of burgage tenements in the +borough, had a right of voting, or whether that right was confined to +the freemen of the corporation." The defendant had rejected the vote +offered by the plaintiff, he claiming the right as a burgage tenant. + +The action was for that refusal, charging the defendant with "contriving +and wrongfully intending to deprive the plaintiff &c., obstructed and +hindered him from giving his vote." + +Wilson, J., among other things, says: + "This is in the nature of it, an action for misbehavior by a public + officer in his duty. Now I think, that it cannot be called a + misbehavior, _unless maliciously and wilfully done, and that the + action will not lie for a mistake in law_. The case of the bridge + master is in point [Bul N.P. 64.]. It is there said, that an action + on the case lies against a ministerial officer for _wilful_ + misbehavior, as denying a poll for one who is a candidate for an + elective office, such as bridge master &c." "In all the cases put, + the misbehavior must be _wilful and by wilful_ I understand + _contrary to a man's own conviction_. Therefore I think from the + opening of counsel, this is not a wilful refusal of the vote.... In + very few instances is an officer answerable for what he does to the + best of his judgment, in cases where he is compelled to act. But + the action lies where the officer has an option whether he will act + or not. Besides, I think, that if an action were to be brought upon + every occasion of this kind by every person whose vote was refused, + it would be such an inconvenience as the law would not endure. A + returning officer in such a case would be in a most perilous + situation. _This gentleman was put in a situation where he was + bound to act; and if he acted to the best of his judgment it would + be a great hardship that he should be answerable for the + consequences, even though he is mistaken in a point of law._ It was + a very material observation of Mr. Gibbs, that the words of the + resolution of the _House of Lords_ in _Ashby v. White_ followed the + words of the statute of William III. For if that statute were + declaratory of the common law, as it purports to be ['Be it enacted + and declared that all false returns wilfully made' &c.] and an + action would not lie at common law for a false return, unless the + return be proved to have been made maliciously, as well as falsely, + it should seem, by a parity of reasoning, that a person whose vote + is refused by a returning officer, cannot maintain an action + against him, unless the refusal _be proved to have been wilful and + malicious_. And if malice were necessary before the statute by the + common law, and since by the statute which is declaratory thereof, + to sustain an action for a false return which includes perhaps the + votes of all, it seems equally necessary in an action like the + present where the injury complained of is to one only. + + "I do not mean to say, that in this kind of action, it is necessary + to prove _express_ malice. It is sufficient if malice may be + implied from the conduct of the officer; as if he had decided + contrary to a last resolution of the House of Commons. There _I + should leave it to the jury to imply malice_. But taking all _the + circumstances of this case together, malice can in no shape be + imputed to the defendant. The plaintiff may have a right to vote, + but that depends upon an intricate question of law, with respect to + burgage tenures_; the right itself founded on ancient documents and + usages, and not acted upon for many years.... + + "_From these grounds, therefore, it cannot be inferred that the + defendant has acted wilfully and maliciously in refusing the + plaintiff's vote; and unless that be so he is not liable in this + action._ + + ... "But without determining whether the statute be declaratory of + the common law, or not; if not, the case rests on that of _Ashby v. + White_. Now all the debates and arguments in that case _go upon the + malice_; and all those who have acted on that determination since + have considered that the refusal must be _wilful and malicious_ in + order to support the action.... + + "And in my opinion, it cannot be said, that because an officer is + mistaken in a point of law, this action will lie against him.... It + has also been said, that this is not like a case where a burdensome + office is thrown upon a man, without his consent, wherein he is + compellable to act; for that here the defendant has chosen to + become a member of a corporation by which he had put himself in a + situation to become a returning officer, and therefore that he is + _bound to understand the whole law as far as it relates to his + public situation, and is answerable for any determination he may + make contrary to that law. But I much doubt whether that rule be + generally true_; and in the present instance I am clearly of + opinion that the want of malice is a full defense." + +Lawrence, J., sat with Wilson. + +The plaintiff was nonsuited and no new trial was moved for. + +_Bernardiston v. Some_ (2 Lev. 114, 1 East. 586, note b.) was an action +against the sheriff of Suffolk, charging that the defendant, intending +to deprive him of the office of Knight of the Shire, made a double +return. Upon a trial at bar, Twysden, Rainsford, and Wylie Js. held, and +so directed the jury, that if the return was made _maliciously_, they +ought to find for the plaintiff, which they did and gave him L800. On +motion in arrest of judgment, Hale, C.J., being in court; he, Twysden & +Wylie, Js. held that for as much as the return was laid to be _falso et +malitiose et ea intentione_, to put the plaintiff to charge and expense, +and so found by the jury, the action lay. Rainsford, J., doubted. But +notwithstanding this charge of malice, judgment was reversed _in Cam +scacc (vide 3 Lev. 30_) and that judgment of reversal was affirmed in +Parliament. Lord Chief justice North's first reason against the action +was, because the sheriff as to declaring the Mayoralty is _judge_ and no +action will lie against a judge for what he does judicially, though it +should be laid _falso malitiose et scienter_. This reversal occasioned +the passage of the statute (7 and 8 W. III c. 7) which gives an action +against the returning officer, for all false returns "wilfully made, and +for double returns _falsely, wilfully and maliciously made_." + +_Groenvelt v. Burwell & al_ (1 Salk. 396, S.C. 2 Ld Ray. 230, Comyns +76.) In this case, the Censors of the College of Physicians and +Surgeons, in London, were empowered to inspect, govern and censure, all +practices of physic in London--and to punish by fine and imprisonment. +They convicted the plaintiff of administering noxious medicines, and +fined him L20, and imprisonment 12 months. Being taken in execution, he +brought trespass against the Censors. It was held + +1. That the Censors had judicial power. + +2. That being judges of the matter, what they had adjudged was not +traversable. That the plaintiff could not be permitted to gainsay, what +the Censors had said by their judgment--that the medicines were noxious. + +3. Though the medicines were really good, yet no action lies against the +Censors, because it is a wrong judgment in a matter within the limits of +their jurisdiction; and a judge is not answerable, either to the King or +the party, for the mistakes or errors of his judgment in a matter of +which he has jurisdiction; It would expose the justice of the nation, +and _no man would execute the office upon peril of being arraigned by +action or indictment for every judgment he pronounces_. + +All that I have quoted from the English cases and our own to show that +_malice_ must be proven to make out the offense, _is expressly contained +in the_ statute under which this indictment is framed. The words are +(Sec. 19) "shall knowingly and _wilfully_ receive the vote of any person +not entitled to vote." (And Section 20 as amended) "If any such officer +shall knowingly and _wilfully_ register, as a voter any person not +entitled to vote." + +And wilfully means, to use the language of Mr. Justice Wilson, +"_contrary to a man's own conviction_." + +If it be said that the defendants must be presumed to know the law, that +is answered above by the quotations from the opinion of Mr. Justice +Wilson. + +Besides when the statute speaks of "knowledge," aside from the +expression "wilfully" it means _knowledge_ as a _fact_--not any _forced +presumption of knowledge_ against the clear facts of the case. + +To this extent and _to this extent only_, does the presumption that +defendants were bound to know the law go, viz: They were bound to know +that if they _as a fact_ "knowingly and wilfully registered as a voter +any person not entitled to be registered" or "knowingly and wilfully +received the vote of any person not entitled to vote," in either case +they were liable to the penalty; and they could not be allowed to urge +in their defense any ignorance that _the law made those facts criminal_. + +Here is a total absence of any pretence of malice. The defendants acted +honestly and according to their best judgment. This is conceded. The +most that can be said against them is, that they have erred in judgment. +They are not lawyers, nor skilled in the law. They had presented to them +a legal question which, to say the least, has puzzled some of the ablest +legal minds of the nation. The penalty is the same, on which ever side +they err. If they can be convicted of crime, a test must be imposed upon +them, which no judge in the land could stand. + +The defendants should be discharged by this Court. + +Mr. Crowley then rose to make his argument, when the Court said: + +THE COURT: I don't think it is necessary for you to spend time in +argument, Mr. Crowley. I think upon the last authority cited by the +counsel there is no defense in this case. It is entirely clear that +where there is a distinct judicial act, the party performing the +judicial act is not responsible, civilly or criminally, unless +corruption is proven, and in many cases not when corruption is proven. +But where the act is not judicial in its character--where there is no +discretion--then there is no legal protection. That is the law, as laid +down in the authority last quoted, and the authority quoted by Judge +Selden in his opinion. It is undoubtedly good law. They hold expressly +in that case that the inspectors are administrative officers, and not +judicial officers. + +Now, this is the point in the case, in my view of it: If there was any +case in which a female was entitled to vote, then it would be a subject +of examination. If a female over the age of 21 was entitled to vote, +then it would be within the judicial authority of the inspectors to +examine and determine whether in the given case the female came within +that provision. If a married woman was entitled to vote, or if a married +woman was not entitled to vote, and a single woman was entitled to vote, +I think the inspectors would have a right in a case before them, to +judge upon the evidence whether the person before them was married or +single. If they decided erroneously, their judicial character would +protect them. But under the law of this state, as it stands, under no +circumstances is a woman entitled to vote. When Miss Anthony, Mrs. +Leyden and the other ladies came there and presented themselves for +registry, and presented themselves to offer their votes, when it +appeared that they were women--that they were of the female sex--the +power and authority of the inspectors was at an end. When they act upon +a subject upon which they have no discretion, I think there is no +judicial authority. There is a large range of discretion in regard to +the votes offered by the male sex. If a man offers his vote, there is a +question whether he is a minor--whether he is 21 years of age. The +subject is within their jurisdiction. If they decide correctly, it is +well; if they decide erroneously, they act judicially, and are not +liable. If the question is whether the person presenting his vote is a +foreigner or naturalized, or whether he has been a resident of the state +or district for a sufficient length of time, the subject is all within +their jurisdiction, and they have a right to decide, and are protected +if they decide wrong. + +But upon the view which has been taken of this question of the right of +females to vote, by the United States Court at Washington, and by the +adjudication which was made this morning, upon this subject there is no +discretion, and therefore I must hold that it affords no protection. + +In that view of the case, is there anything to go to the jury? + +MR. VAN VOORHIS: Yes, your Honor. + +THE COURT: What? + +MR. VAN VOORHIS: The jury must pass upon the whole case, and +particularly as to whether any ballots were received for representative +in Congress, or candidates for representative in Congress, and whether +the defendants acted wilfully and maliciously. + +THE COURT: It is too plain to argue that. + +MR. VAN VOORHIS: There is nothing but circumstantial evidence. + +THE COURT: Your own witness testified to it. + +MR. VAN VOORHIS: But "knowingly," your Honor, implies knowing that it is +a vote for representative in Congress. + +THE COURT: That comes within the decision of the question of law. I +don't see that there is anything to go to the jury. + +MR. VAN VOORHIS: I cannot take your Honor's view of the case, but of +course must submit to it. We ask to go to the jury upon this whole case, +and claim that in this case, as in all criminal cases, the right of +trial by jury is made inviolate by the constitution--that the Court has +no power to take it from the jury. + +THE COURT: I am going to submit it to the jury. + +_Gentlemen of the Jury_: + +This case is now before you upon the evidence as it stands, and I shall +leave the case with you to decide-- + +MR. VAN VOORHIS: I claim the right to address the jury. + +THE COURT: I don't think there is anything upon which you can +legitimately address the jury. + +Gentlemen, the defendants are charged with knowingly, willfully and +wrongfully receiving the votes of the ladies whose names are mentioned, +in November last, in the City of Rochester. They are charged in the same +indictment with willfully and improperly registering those ladies. I +decided in the case this morning, which many of you heard, probably, +that under the law as it stands the ladies who offered their votes had +no right to vote whatever. I repeat that decision, and I charge you that +they had no right to offer their votes. They having no right to offer +their votes, the inspectors of election ought not to receive them. The +additional question exists in this case whether the fact that they acted +as inspectors will relieve them from the charge in this case. You have +heard the views which I have given upon that. I think they are +administrative officers. I charge you that they are administrative and +ministerial officers in this respect, that they are not judicial +officers whose action protects them, and that therefore they are liable +in this case. But, instead of doing as I did in the case this +morning--directing a verdict--I submit the case to you with these +instructions, and you can decide it here, or you may go out. + +MR. VAN VOORHIS: I ask your Honor to instruct the jury that if they find +these inspectors acted honestly, in accordance with their best judgment, +they should be acquitted. + +THE COURT: I have expressly ruled to the contrary of that, gentlemen; +that that makes no difference. + +MR. VAN VOORHIS: And that in this country--under the laws of this +country-- + +THE COURT: That is enough--you need not argue it, Mr. Van Voorhis. + +MR. VAN VOORHIS: Then I ask your Honor to charge the jury that they must +find the fact that these inspectors received the votes of these persons +knowingly, and that such votes were votes for some person for member of +Congress, there being in the case no evidence that any man was voted +for, for member of Congress, and there being no evidence except that +secret ballots were received; that the jury have a right to find for the +defendants, if they choose. + +THE COURT: I charge the jury that there is sufficient evidence to +sustain the indictment, upon this point. + +MR. VAN VOORHIS: I ask your Honor also to charge the jury that there is +sufficient evidence to sustain a verdict of not guilty. + +THE COURT: I cannot charge that. + +MR. VAN VOORHIS: Then why should it go to the jury? + +THE COURT: As a matter of form. + +MR. VAN VOORHIS: If the jury should find a verdict of not guilty, could +your Honor set it aside? + +THE COURT: I will debate that with you when the occasion arises. + +Gentlemen, you may deliberate here, or retire, as you choose. + +The jury retired for consultation, and the Court took a recess until 7 +P.M. + +The Court re-convened at 7 o'clock, when the clerk called the jury, and +asked them if they had agreed upon their verdict. + +The foreman replied in the negative, whereupon the Court said: + +THE COURT: Is there anything upon which I can give you any advice, +gentlemen, or any information? + +A JUROR: We stand 11 for conviction, and 1 opposed. + +THE COURT: If that gentleman desires to ask any questions in respect to +the questions of law, or the facts in the case, I will give him any +information he desires. (No response from the jury.) It is quite proper, +if any gentleman has any doubt about anything, either as to the law or +the facts, that he should state it to the Court. Counsel are both +present, and I can give such information as is correct. + +A JUROR: I don't wish to ask any questions. + +THE COURT: Then you may retire again, gentlemen. The Court will adjourn +until to-morrow morning. + +The jury retired, and after an absence of about ten minutes returned +into court. + +The clerk called the names of the jury and then said: + +THE CLERK: Gentlemen, have you agreed upon your verdict? + +THE FOREMAN: We have. + +THE CLERK: How say you, do you find the prisoners at the bar guilty of +the offense whereof they stand indicted, or not guilty? + +THE FOREMAN: Guilty. + +THE CLERK: Hearken to your verdict as it stands recorded by the Court. +You say you find the prisoners at the bar guilty of the offense whereof +they stand indicted, and so say you all. + +MR. VAN VOORHIS: I ask that the jury be polled. + +The clerk polled the jury, each juror answering in the affirmative to +the question, "Is this your verdict?" + +On the next day, June 19, 1873, the counsel for the defendants, Mr. John +Van Voorhis, made a motion to the Court, for a new trial in behalf of +Beverly W. Jones, Edwin T. Marsh and William B. Hall. The argument was +oral and is not given, but the following are the grounds of the motion: + +1. The indictment contains no sufficient statement of any crime under +the Acts of Congress, upon which it is framed. + +2. The Court has no jurisdiction of the subject matter of the offense. + +3. It was an error, for which a new trial should be granted, to refuse +the defendants the fundamental right to address the jury, through their +counsel. This is a right guaranteed by the United States Constitution. +(_See Article VI. of the amendments to the U.S. Constitution. 1 Graham & +Waterman on New Trials, pages 682, 683 and 684._) + +4. The defendants were substantially deprived of the right of jury +trial. The instructions of the Court to the jury were imperative. They +were equivalent to a direction to find a verdict of guilty. It was said +by the Court in the hearing of the jury, that the case was submitted to +the jury "as a matter of form." The jury was not at liberty to exercise +its own judgment upon the evidence, and without committing a gross +discourtesy to the Court, could render no verdict except that of guilty. + +5. Admitting that the defendants acted without malice, or any corrupt +motive, and in accordance with their best judgments, and in perfect good +faith, it was error to charge that that was no defense. + +6. The defendants are admitted to have acted in accordance with their +duty as defined by the laws of New York (_1 R.S., Edmond's Ed., pp. +126-127, sections 13, 14, 15, 16, 17, 18 and 19_) as construed by the +Court of Appeals. (_People vs. Pease, 27 N.Y. 45._) + +They are administrative officers and bound to regard only the evidence +which the Statute prescribes. They are not clothed with the power, to +reject the vote of a person who has furnished the evidence, which the +law requires, of right to vote, on what they or either of them might +know, as to the truth or falsity of such evidences. They have no +discretion, and must perform their duty, as it is defined by the laws of +New York and the decisions of her Courts. + +7. The defendant, William B. Hall, has been tried and convicted in his +absence from the Court. This is an error fatal to the conviction in his +case. + +The Court denied the motion. + +The Court then asked the defendants if they had anything to say why +sentence should not be pronounced, in response to which Beverly W. Jones +said: + +"Your honor has pronounced me guilty of crime; the jury had but little +to do with it. In the performance of my duties as an inspector of +election, which position I have held for the last four years, I acted +conscientiously, faithfully and according to the best of my judgment and +ability. I did not believe that I had a right to reject the ballot of a +citizen who offered to vote, and who took the preliminary and general +oaths; and answered all questions prescribed by law. The instructions +furnished me by the State authorities declared that I had no such right. +As far as the registry of the names is concerned, they would never have +been placed upon the registry, if it had not been for Daniel Warner, the +Democratic federal Supervisor of elections, appointed by this Court, who +not only advised the registry, but addressed us, saying, 'Young men, do +you know the penalty of the law if you refuse to register these names?' +And after discharging my duties faithfully and honestly and to the best +of my ability, if it is to vindicate the law that I am to be imprisoned, +I willingly submit to the penalty." + +And Edwin T. Marsh said: + +"In October last, just previous to the time fixed for the sitting of the +Board of Registrars in the first district of the eighth ward of +Rochester, a vacancy occurred. I was solicited to act, and consenting, +was duly appointed by the Common council. + +"I had never given the matter a thought until called to the position, +and as a consequence knew nothing of the law. On the morning of the +first day of the last session of the Board, Miss Anthony and other women +presented themselves and claimed the right to be registered. So far as I +knew, the question of woman suffrage had never come up in that shape +before. We were in a position where we could take no middle course. + +"Decide which way we might, we were liable to prosecution. We devoted +all the time to acquiring information on the subject, that our duties as +Registrars would allow. + +"We were expected, it seems, to make an infallible decision, inside of +two days, of a question in regard to which some of the best minds of +the country are divided. The influences by which we were surrounded, +were nearly all in unison with the course we took. I believed then, and +believe now, that we acted _lawfully_. + +"I faithfully discharged the duties of my office, according to the best +of my ability, in strict compliance with the oath administered to me. I +consider the argument of our counsel unanswered and unanswerable." + +"_The verdict is not the verdict of the jury._ + +"_I am_ NOT GUILTY _of the charge_." + +The Court then sentenced the defendants to pay a fine of $25 each, and +the costs of the prosecution. + + + + +APPENDIX. + +ADDRESS OF + +SUSAN B. ANTHONY, + +Delivered in twenty-nine of the Post Office Districts of Monroe, and +twenty-one of Ontario, in her canvass of those Counties, prior to her +trial in June, 1873. + + * * * + +_Friends and Fellow-citizens_: I stand before you to-night, under +indictment for the alleged crime of having voted at the last +Presidential election, without having a lawful right to vote. It shall +be my work this evening to prove to you that in thus voting, I not only +committed no crime, but, instead, simply exercised my _citizen's right_, +guaranteed to me and all United States citizens by the National +Constitution, beyond the power of any State to deny. + +Our democratic-republican government is based on the idea of the natural +right of every individual member thereof to a voice and a vote in making +and executing the laws. We assert the province of government to be to +secure the people in the enjoyment of their unalienable rights. We throw +to the winds the old dogma that governments can give rights. Before +governments were organized, no one denies that each individual possessed +the right to protect his own life, liberty and property. And when 100 or +1,000,000 people enter into a free government, they do not barter away +their natural rights; they simply pledge themselves to protect each +other in the enjoyment of them, through prescribed judicial and +legislative tribunals. They agree to abandon the methods of brute force +in the adjustment of their differences, and adopt those of civilization. + +Nor can you find a word in any of the grand documents left us by the +fathers that assumes for government the power to create or to confer +rights. The Declaration of Independence, the United States Constitution, +the constitutions of the several states and the organic laws of the +territories, all alike propose to protect the people in the exercise of +their God-given rights. Not one of them pretends to bestow rights. + +"All men are created equal, and endowed by their Creator with certain +unalienable rights. Among these are life, liberty and the pursuit of +happiness. That to secure these, governments are instituted among men, +deriving their just powers from the consent of the governed." + +Here is no shadow of government authority over rights, nor exclusion of +any class from their full and equal enjoyment. Here is pronounced the +right of all men, and "consequently," as the Quaker preacher said, "of +all women," to a voice in the government. And here, in this very first +paragraph of the declaration, is the assertion of the natural right of +all to the ballot; for, how can "the consent of the governed" be given, +if the right to vote be denied. Again: + +"That whenever any form of government becomes destructive of these ends, +it is the right of the people to alter or abolish it, and to institute a +new government, laying its foundations on such principles, and +organizing its powers in such forms as to them shall seem most likely to +effect their safety and happiness." + +Surely, the right of the whole people to vote is here clearly implied. +For however destructive to their happiness this government might +become, a disfranchised class could neither alter nor abolish it, nor +institute a new one, except by the old brute force method of +insurrection and rebellion. One-half of the people of this nation to-day +are utterly powerless to blot from the statute books an unjust law, or +to write there a new and a just one. The women, dissatisfied as they are +with this form of government, that enforces taxation without +representation,--that compels them to obey laws to which they have never +given their consent,--that imprisons and hangs them without a trial by a +jury of their peers, that robs them, in marriage, of the custody of +their own persons, wages and children,--are this half of the people left +wholly at the mercy of the other half, in direct violation of the spirit +and letter of the declarations of the framers of this government, every +one of which was based on the immutable principle of equal rights to +all. By those declarations, kings, priests, popes, aristocrats, were all +alike dethroned, and placed on a common level, politically, with the +lowliest born subject or serf. By them, too, men, as such, were deprived +of their divine right to rule, and placed on a political level with +women. By the practice of those declarations all class and caste +distinction will be abolished; and slave, serf, plebeian, wife, woman, +all alike, bound from their subject position to the proud platform of +equality. + +The preamble of the federal constitution says: + + "We, the people of the United States, in order to form a more + perfect union, establish justice, insure _domestic_ tranquility, + provide for the common defence, promote the general welfare and + secure the blessings of liberty to ourselves and our posterity, do + ordain and establish this constitution for the United States of + America." + +It was we, the people, not we, the white male citizens, nor yet we, the +male citizens; but we, the whole people, who formed this Union. And we +formed it, not to give the blessings of liberty, but to secure them; not +to the half of ourselves and the half of our posterity, but to the whole +people--women as well as men. And it is downright mockery to talk to +women of their enjoyment of the blessings of liberty while they are +denied the use of the only means of securing them provided by this +democratic-republican government--the ballot. + +The early journals of Congress show that when the committee reported to +that body the original articles of confederation, the very first article +which became the subject of discussion was that respecting equality of +suffrage. Article 4th said: + + "The better to secure and perpetuate mutual friendship and + intercourse between the people of the different States of this + Union, the free inhabitants of each of the States, (paupers, + vagabonds and fugitives from justice excepted,) shall be entitled + to all the privileges and immunities of the free citizens of the + several States." + +Thus, at the very beginning, did the fathers see the necessity of the +universal application of the great principle of equal rights to all--in +order to produce the desired result--a harmonious union and a +homogeneous people. + +Luther Martin, attorney-general of Maryland, in his report to the +Legislature of that State of the convention that framed the United +States Constitution, said: + + "Those who advocated the equality of suffrage took the matter up on + the original principles of government: that the reason why each + individual man in forming a State government should have an equal + vote, is because each individual, before he enters into government, + is equally free and equally independent." + +James Madison said: + + "Under every view of the subject, it seems indispensable that the + mass of the citizens should not be without a voice in making the + laws which they are to obey, and in choosing the magistrates who + are to administer them." Also, "Let it be remembered, finally, that + it has ever been the pride and the boast of America that the rights + for which she contended were the rights of human nature." + +And these assertions of the framers of the United States Constitution of +the equal and natural rights of all the people to a voice in the +government, have been affirmed and reaffirmed by the leading statesmen +of the nation, throughout the entire history of our government. + +Thaddeus Stevens, of Pennsylvania, said in 1866: + + "I have made up my mind that the elective franchise is one of the + inalienable rights meant to be secured by the declaration of + independence." + +B. Gratz Brown, of Missouri, in the three days' discussion in the United +States Senate in 1866, on Senator Cowan's motion to strike "male" from +the District of Columbia suffrage bill, said: + + "Mr. President, I say here on the floor of the American Senate, I + stand for universal suffrage; and as a matter of fundamental + principle, do not recognize the right of society to limit it on any + ground of race or sex. I will go farther and say, that I recognize + the right of franchise as being intrinsically a natural right. I do + not believe that society is authorized to impose any limitations + upon it that do not spring out of the necessities of the social + state itself. Sir, I have been shocked, in the course of this + debate, to hear Senators declare this right only a conventional and + political arrangement, a privilege yielded to you and me and + others; not a right in any sense, only a concession! Mr. President, + I do not hold my liberties by any such tenure. On the contrary, I + believe that whenever you establish that doctrine, whenever you + crystalize that idea in the public mind of this country, you ring + the death-knell of American liberties." + +Charles Sumner, in his brave protests against the fourteenth and +fifteenth amendments, insisted that, so soon as by the thirteenth +amendment the slaves became free men, the original powers of the United +States Constitution guaranteed to them equal rights--the right to vote +and to be voted for. In closing one of his great speeches he said: + + "I do not hesitate to say that when the slaves of our country + became 'citizens' they took their place in the body politic as a + component part of the 'people,' entitled to equal rights, and under + the protection of these two guardian principles: First--That all + just governments stand on the consent of the governed; and second, + that taxation without representation is tyranny; and these rights + it is the duty of Congress to guarantee as essential to the idea of + a Republic." + +The preamble of the Constitution of the State of New York declares the +same purpose. It says: + + "We, the people of the State of New York, grateful to Almighty God + for our freedom, in order to secure its blessings, do establish + this Constitution." + +Here is not the slightest intimation, either of receiving freedom from +the United States Constitution, or of the State conferring the blessings +of liberty upon the people; and the same is true of every one of the +thirty-six State Constitutions. Each and all, alike declare rights +God-given, and that to secure the people in the enjoyment of their +inalienable rights, is their one and only object in ordaining and +establishing government. And all of the State Constitutions are equally +emphatic in their recognition of the ballot as the means of securing the +people in the enjoyment of these rights. + +Article 1 of the New York State Constitution says: + + "No member of this State shall be disfranchised or deprived of the + rights or privileges secured to any citizen thereof, unless by the + law of the land, or the judgment of his peers." + +And so carefully guarded is the citizen's right to vote, that the +Constitution makes special mention of all who may be excluded. It says: + + "Laws may be passed excluding from the right of suffrage all + persons who have been or may be convicted of bribery, larceny or + any infamous crime." + +In naming the various employments that shall not affect the residence of +voters--the 3d section of article 2d says "that being kept at any alms +house, or other asylum, at public expense, nor being confined at any +public prison, shall deprive a person of his residence," and hence his +vote. Thus is the right of voting most sacredly hedged about. The only +seeming permission in the New York State Constitution for the +disfranchisement of women is in section 1st of article 2d, which says: + + "Every male citizen of the age of twenty-one years, &c., shall be + entitled to vote." + +But I submit that in view of the explicit assertions of the equal right +of the whole people, both in the preamble and previous article of the +constitution, this omission of the adjective "female" in the second, +should not be construed into a denial; but, instead, counted as of no +effect. Mark the direct prohibition: "No member of this State shall be +disfranchised, unless by the 'law of the land,' or the judgment of his +peers." "The law of the land," is the United States Constitution: and +there is no provision in that document that can be fairly construed into +a permission to the States to deprive any class of their citizens of +their right to vote. Hence New York can get no power from that source to +disfranchise one entire half of her members. Nor has "the judgment of +their peers" been pronounced against women exercising their right to +vote; no disfranchised person is allowed to be judge or juror--and none +but disfranchised persons can be women's peers; nor has the legislature +passed laws excluding them on account of idiocy or lunacy; nor yet the +courts convicted them of bribery, larceny, or any infamous crime. +Clearly, then, there is no constitutional ground for the exclusion of +women from the ballot-box in the State of New York. No barriers whatever +stand to-day between women and the exercise of their right to vote save +those of precedent and prejudice. + +The clauses of the United States Constitution, cited by our opponents as +giving power to the States to disfranchise any classes of citizens they +shall please, are contained in sections 2d and 4th of article 1st. The +second says: + + "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 requisite for + electors of the most numerous branch of the State Legislature." + +This cannot be construed into a concession to the States of the power to +destroy the right to become an elector, but simply to prescribe what +shall be the qualifications, such as competency of intellect, maturity +of age, length of residence, that shall be deemed necessary to enable +them to make an intelligent choice of candidates. If, as our opponents +assert, the last clause of this section makes it the duty of the United +States to protect citizens in the several States against higher or +different qualifications for electors for representatives in Congress, +than for members of Assembly, then must the first clause make it equally +imperative for the national government to interfere with the States, and +forbid them from arbitrarily cutting off the right of one-half of the +people to become electors altogether. Section 4th says: + + "The times, places and manner of holding elections for Senators and + Representatives shall 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 places of choosing + Senators." + +Here is conceded the power only to prescribe times, places and manner of +holding the elections; and even with these Congress may interfere, with +all excepting the mere place of choosing Senators. Thus you see, there +is not the slightest permission in either section for the States to +discriminate against the right of any class of citizens to vote. Surely, +to regulate cannot be to annihilate! nor to qualify to wholly deprive. +And to this principle every true Democrat and Republican said amen, when +applied to black men by Senator Sumner in his great speeches for EQUAL +RIGHTS TO ALL from 1865 to 1869; and when, in 1871, I asked that Senator +to declare the power of the United States Constitution to protect women +in their right to vote--as he had done for black men--he handed me a +copy of all his speeches during that reconstruction period, and said: + + "Miss Anthony, put 'sex' where I have 'race' or 'color,' and you + have here the best and strongest argument I can make for woman. + There is not a doubt but women have the constitutional right to + vote, and I will never vote for a sixteenth amendment to guarantee + it to them. I voted for both the fourteenth and fifteenth under + protest; would never have done it but for the pressing emergency of + that hour; would have insisted that the power of the original + Constitution to protect all citizens in the equal enjoyment of + their rights should have been vindicated through the courts. But + the newly made freedmen had neither the intelligence, wealth nor + time to wait that slow process. Women possess all these in an + eminent degree, and I insist that they shall appeal to the courts, + and through them establish the powers of our American _magna + charta_, to protect every citizen of the Republic. But, friends, + when in accordance with Senator Summer's counsel, I went to the + ballot-box, last November, and exercised my citizen's right to + vote, the courts did not wait for me to appeal to them--they + appealed to me, and indicted me on the charge of having voted + illegally." + +Senator Sumner, putting sex where he did color, said: + + "Qualifications cannot be in their nature permanent or + insurmountable. Sex cannot be a qualification any more than size, + race, color, or previous condition of servitude. A permanent or + insurmountable qualification is equivalent to a deprivation of the + suffrage. In other words, it is the tyranny of taxation without + representation, against which our revolutionary mothers, as well as + fathers, rebelled." + +For any State to make sex a qualification that must ever result in the +disfranchisement of one entire half of the people, is to pass a bill of +attainder, or an _ex post facto_ law, and is therefore a violation of +the supreme law of the land. By it, the blessings of liberty are forever +withheld from women and their female posterity. To them, this government +has no just powers derived from the consent of the governed. To them +this government is not a democracy. It is not a republic. It is an +odious aristocracy; a hateful obligarchy of sex. The most hateful +aristocracy ever established on the face of the globe. An obligarchy of +wealth, where the rich govern the poor; an obligarchy of learning, where +the educated govern the ignorant; or even an obligarchy of race, where +the Saxon rules the African, might be endured; but this obligarchy of +sex, which makes father, brothers, husband, sons, the obligarchs over +the mother and sisters, the wife and daughters of every household; which +ordains all men sovereigns, all women subjects, carries dissension, +discord and rebellion into every home of the nation. And this most +odious aristocracy exists, too, in the face of Section 4, of Article 4, +which says: + + "The United States shall guarantee to every State in the Union a + republican form of government." + +What, I ask you, is the distinctive difference between the inhabitants +of a monarchical and those of a republican form of government, save +that in the monarchical the people are subjects, helpless, powerless, +bound to obey laws made by superiors--while in the republican, the +people are citizens, individual sovereigns, all clothed with equal +power, to make and unmake both their laws and law makers, and the moment +you deprive a person of his right to a voice in the government, you +degrade him from the status of a citizen of the republic, to that of a +subject, and it matters very little to him whether his monarch be an +individual tyrant, as is the Czar of Russia, or a 15,000,000 headed +monster, as here in the United States; he is a powerless subject, serf +or slave; not a free and independent citizen in any sense. + +But, it is urged, the use of the masculine pronouns he, his and him, in +all the constitutions and laws, is proof that only men were meant to be +included in their provisions. If you insist on this version of the +letter of the law, we shall insist that you be consistent, and accept +the other horn of the dilemma, which would compel you to exempt women +from taxation for the support of the government, and from penalties for +the violation of laws. + +A year and a half ago I was at Walla Walla, Washington Territory. I saw +there a theatrical company, called the "Pixley Sisters," playing before +crowded houses, every night of the whole week of the territorial fair. +The eldest of those three fatherless girls was scarce eighteen. Yet +every night a United States officer stretched out his long fingers, and +clutched six dollars of the proceeds of the exhibitions of those orphan +girls, who, but a few years before, were half starvelings in the streets +of Olympia, the capital of that far-off north-west territory. So the +poor widow, who keeps a boarding house, manufactures shirts, or sells +apples and peanuts on the street corners of our cities, is compelled to +pay taxes from her scanty pittance. I would that the women of this +republic, at once, resolve, never again to submit to taxation, until +their right to vote be recognized. + +Miss Sarah E. Wall, of Worcester, Mass., twenty years ago, took this +position. For several years, the officers of the law distrained her +property, and sold it to meet the necessary amount; still she persisted, +and would not yield an iota, though every foot of her lands should be +struck off under the hammer. And now, for several years, the assessor +has left her name off the tax list, and the collector passed her by +without a call. + +Mrs. J.S. Weeden, of Viroqua, Wis., for the past six years, has refused +to pay her taxes, though the annual assessment is $75. + +Mrs. Ellen Van Valkenburg, of Santa Cruz, Cal., who sued the County +Clerk for refusing to register her name, declares she will never pay +another dollar of tax until allowed to vote; and all over the country, +women property holders are waking up to the injustice of taxation +without representation, and ere long will refuse, _en masse_, to submit +to the imposition. + +There is no she, or her, or hers, in the tax laws. + +The statute of New York reads: + + "Every person shall be assessed in the town or ward where _he_ + resides when the assessment is made, for the lands owned by _him_, + &c." "Every collector shall call at least once on the person taxed, + or at _his_ usual place of residence, and shall demand payment of + the taxes charged on _him_. If any one shall refuse to pay the tax + imposed on _him_, the collector shall levy the same by distress and + sale of _his_ property." + +The same is true of all the criminal laws: + + "No person shall be compelled to be a witness against _himself_, + &c." + +The same with the law of May 31st, 1870, the 19th section of which I am +charged with having violated; not only are all the pronouns in it +masculine, but everybody knows that that particular section was intended +expressly to hinder the rebels from voting. It reads "If any person +shall knowingly vote without _his_ having a lawful right," &c. Precisely +so with all the papers served on me--the U.S. Marshal's warrant, the +bail-bond, the petition for habeas corpus, the bill of indictment--not +one of them had a feminine pronoun printed in it; but, to make them +applicable to me, the Clerk of the Court made a little carat at the left +of "he" and placed an "s" over it, thus making _she_ out of _he_. Then +the letters "is" were scratched out, the little carat under and "er" +over, to make _her_ out of _his_, and I insist if government officials +may thus manipulate the pronouns to tax, fine, imprison and hang women, +women may take the same liberty with them to secure to themselves their +right to a voice in the government. + +So long as any classes of men were denied their right to vote, the +government made a show of consistency, by exempting them from taxation. +When a property qualification of $250 was required of black men in New +York, they were not compelled to pay taxes, so long as they were content +to report themselves worth less than that sum; but the moment the black +man died, and his property fell to his widow or daughter, the black +woman's name would be put on the assessor's list, and she be compelled +to pay taxes on the same property exempted to her husband. The same is +true of ministers in New York. So long as the minister lives, he is +exempted from taxation on $1,500 of property, but the moment the breath +goes out of his body, his widow's name will go down on the assessor's +list, and she will have to pay taxes on the $1,500. So much for the +special legislation in favor of women. + +In all the penalties and burdens of the government, (except the +military,) women are reckoned as citizens, equally with men. Also, in +all the privileges and immunities, save those of the jury box and ballot +box, the two fundamental privileges on which rest all the others. The +United States government not only taxes, fines, imprisons and hangs +women, but it allows them to pre-empt lands, register ships, and take +out passport and naturalization papers. Not only does the law permit +single women and widows to the right of naturalization, but Section 2 +says: "A married woman may be naturalized without the concurrence of her +husband." (I wonder the fathers were not afraid of creating discord in +the families of foreigners); and again: "When an alien, having complied +with the law, and declared his intention to become a citizen, dies +before he is actually naturalized, his widow and children shall be +considered citizens, entitled to all rights and privileges as such, on +taking the required oath." If a foreign born woman by becoming a +naturalized citizen, is entitled to all the rights and privileges of +citizenship, is not a native born woman, by her national citizenship, +possessed of equal rights and privileges? + +The question of the masculine pronouns, yes and nouns, too, has been +settled by the United States Supreme Court, in the Case of _Silver +versus Ladd_, December, 1868, in a decision as to whether a woman was +entitled to lands, under the Oregon donation law of 1850. Elizabeth +Cruthers, a widow, settled upon a claim, and received patents. She died, +and her son was heir. He died. Then Messrs. Ladd & Nott took possession, +under the general pre-emption law, December, 1861. The administrator, +E.P. Silver, applied for a writ of ejectment at the land office in +Oregon City. Both the Register and Receiver decided that an unmarried +woman could not hold land under that law. The Commissioner of the +General Land Office, at Washington, and the Secretary of the Interior, +also gave adverse opinions. Here patents were issued to Ladd & Nott, and +duly recorded. Then a suit was brought to set aside Ladd's patent, and +it was carried through all the State Courts and the Supreme Court of +Oregon, each, in turn, giving adverse decisions. At last, in the United +States Supreme Court, Associate Justice Miller reversed the decisions of +all the lower tribunals, and ordered the land back to the heirs of Mrs. +Cruthers. The Court said: + + "In construing a benevolent statute of the government, made for the + benefit of its own citizens, inviting and encouraging them to + settle on its distant public lands, the words 'single man,' and + 'unmarried man' may, especially if aided by the context and other + parts of the statute, be taken in a generic sense. Held, + accordingly, that the Fourth Section of the Act of Congress, of + September 27th, 1850, granting by way of donation, lands in Oregon + Territory, to every white settler or occupant, American half-breed + Indians included, embraced within the term _single man_ an + _unmarried woman_." + +And the attorney, who carried this question to its final success, is now +the United States senator elect from Oregon, Hon. J.H. Mitchell, in whom +the cause of equal rights to women has an added power on the floor of +the United States Senate. + +Though the words persons, people, inhabitants, electors, citizens, are +all used indiscriminately in the national and state constitutions, there +was always a conflict of opinion, prior to the war, as to whether they +were synonymous terms, as for instance: + + "_No person_ shall be a _representative_ who shall not have been + seven years a _citizen_, and who shall not, when elected, be an + _inhabitant_ of that state in which he is chosen. No _person_ shall + be a senator who shall not have been a _citizen_ of the United + States, and an _inhabitant_ of that state in which he is chosen." + +But, whatever room there was for a doubt, under the old regime, the +adoption of the fourteenth amendment settled that question forever, in +its first sentence: "All persons born or naturalized in the United +States and subject to the jurisdiction thereof, are citizens of the +United States and of the state wherein they reside." + +And the second settles the equal status of all persons--all citizens: + + "No state shall make or enforce any law which shall abridge the + privileges or immunities of citizens; nor shall any state deprive + any person of life, liberty or property, without due process of + law, nor deny to any person within its jurisdiction the equal + protection of the laws." + +The only question left to be settled, now, is: Are women persons? And I +hardly believe any of our opponents will have the hardihood to say they +are not. Being persons, then, women are citizens, and no state has a +right to make any new law, or to enforce any old law, that shall abridge +their privileges or immunities. Hence, every discrimination against +women in the constitutions and laws of the several states, is to-day +null and void, precisely as is every one against negroes. + +Is the right to vote one of the privileges or immunities of citizens? I +think the disfranchised ex-rebels, and the ex-state prisoners will all +agree with me, that it is not only one of them, but the one without +which all the others are nothing. Seek first the kingdom of the ballot, +and all things else shall be given thee, is the political injunction. + +Webster, Worcester and Bouvier all define citizen to be a person, in the +United States, entitled to vote and hold office. + +Prior to the adoption of the thirteenth amendment, by which slavery was +forever abolished, and black men transformed from property to persons, +the judicial opinions of the country had always been in harmony with +these definitions. To be a person was to be a citizen, and to be a +citizen was to be a voter. + +Associate Justice Washington, in defining the privileges and immunities +of the citizen, more than fifty years ago, said: "they included all such +privileges as were fundamental in their nature. And among them is the +right to exercise the elective franchise, and to hold office." + +Even the "Dred Scott" decision, pronounced by the abolitionists and +republicans infamous, because it virtually declared "black men had no +rights white men were bound to respect," gave this true and logical +conclusion, that to be one of the people was to be a citizen and a +voter. + +Chief Judge Daniels said: + + "There is not, it is believed, to be found in the theories of + writers on government, or in any actual experiment heretofore + tried, an exposition of the term citizen, which has not been + considered as conferring the actual possession and enjoyment of the + perfect right of acquisition and enjoyment of an entire equality of + privileges, civil and political." + +Associate Justice Taney said: + + "The words 'people of the United States,' and 'citizens,' are + synonymous terms, and mean the same thing. They both describe the + political body, who, according to our republican institutions, form + the sovereignty, and who hold the power and conduct the government, + through their representatives. They are what we familiarly call the + sovereign people, and every citizen is one of this people, and a + constituent member of this sovereignty." + +Thus does Judge Taney's decision, which was such a terrible ban to the +black man, while he was a slave, now, that he is a person, no longer +property, pronounce him a citizen, possessed of an entire equality of +privileges, civil and political. And not only the black man, but the +black woman, and all women as well. + +And it was not until after the abolition of slavery, by which the +negroes became free men, hence citizens, that the United States +Attorney, General Bates, rendered a contrary opinion. He said: + + "The constitution uses the word 'citizen' only to express the + political quality, (not equality mark,) of the individual in his + relation to the nation; to declare that he is a member of the body + politic, and bound to it by the reciprocal obligations of + allegiance on the one side, and protection on the other. The + phrase, 'a citizen of the United States,' without addition or + qualification, means neither more nor less than a member of the + nation." + +Then, to be a citizen of this republic, is no more than to be a subject +of an empire. You and I, and all true and patriotic citizens must +repudiate this base conclusion. We all know that American citizenship, +without addition or qualification, means the possession of equal rights, +civil and political. We all know that the crowning glory of every +citizen of the United States is, that he can either give or withhold his +vote from every law and every legislator under the government. + +Did "I am a Roman citizen," mean nothing more than that I am a "member" +of the body politic of the republic of Rome, bound to it by the +reciprocal obligations of allegiance on the one side, and protection on +the other? Ridiculously absurd question, you say. When you, young man, +shall travel abroad, among the monarchies of the old world, and there +proudly boast yourself an "American citizen," will you thereby declare +yourself neither more nor less than a "member" of the American nation? + +And this opinion of Attorney General Bates, that a black citizen was not +a voter, made merely to suit the political exigency of the republican +party, in that transition hour between emancipation and enfranchisement, +was no less infamous, in spirit or purpose, than was the decision of +Judge Taney, that a black man was not one of the people, rendered in +the interest and at the behest of the old democratic party, in its +darkest hour of subjection to the slave power. Nevertheless, all of the +adverse arguments, adverse congressional reports and judicial opinions, +thus far, have been based on this purely partisan, time-serving opinion +of General Bates, that the normal condition of the citizen of the United +States is that of disfranchisement. That only such classes of citizens +as have had special legislative guarantee have a legal right to vote. + +And if this decision of Attorney General Bates was infamous, as against +black men, but yesterday plantation slaves, what shall we pronounce upon +Judge Bingham, in the house of Representatives, and Carpenter, in the +Senate of the United States, for citing it against the women of the +entire nation, vast numbers of whom are the peers of those honorable +gentlemen, themselves, in morals!! intellect, culture, wealth, +family--paying taxes on large estates, and contributing equally with +them and their sex, in every direction, to the growth, prosperity and +well-being of the republic? And what shall be said of the judicial +opinions of Judges Carter, Jameson, McKay and Sharswood, all based upon +this aristocratic, monarchial idea, of the right of one class to govern +another? + +I am proud to mention the names of the two United States Judges who have +given opinions honorable to our republican idea, and honorable to +themselves--Judge Howe, of Wyoming Territory, and Judge Underwood, of +Virginia. + +The former gave it as his opinion a year ago, when the Legislature +seemed likely to revoke the law enfranchising the women of that +territory, that, in case they succeeded, the women would still possess +the right to vote under the fourteenth amendment. + +Judge Underwood, of Virginia, in noticing the recent decision of Judge +Carter, of the Supreme Court of the District of Columbia, denying to +women the right to vote, under the fourteenth and fifteenth amendment, +says; + + "If the people of the United States, by amendment of their + constitution, could expunge, without any explanatory or assisting + legislation, an adjective of five letters from all state and local + constitutions, and thereby raise millions of our most ignorant + fellow-citizens to all of the rights and privileges of electors, + why should not the same people, by the same amendment, expunge an + adjective of four letters from the same state and local + constitutions, and thereby raise other millions of more educated + and better informed citizens to equal rights and privileges, + without explanatory or assisting legislation?" + +If the fourteenth amendment does not secure to all citizens the right to +rote, for what purpose was that grand old charter of the fathers +lumbered with its unwieldy proportions? The republican party, and Judges +Howard and Bingham, who drafted the document, pretended it was to do +something for black men; and if that something was not to secure them in +their right to vote and hold office, what could it have been? For, by +the thirteenth amendment, black men had become people, and hence were +entitled to all the privileges and immunities of the government, +precisely as were the women of the country, and foreign men not +naturalized. According to Associate Justice Washington, they already had +the + + "Protection of 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 to such + restraints as the government may justly prescribe for the general + welfare of the whole; the right of a citizen of one state to pass + through or to reside in any other state for the purpose of trade, + agriculture, professional pursuit, or otherwise; to claim the + benefit of the writ of habeas corpus, to institute and maintain + actions of any 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 impositions than are paid by the other citizens of + the state." + +Thus, you see, those newly freed men were in possession of every +possible right, privilege and immunity of the government, except that of +suffrage, and hence, needed no constitutional amendment for any other +purpose. What right, I ask you, has the Irishman the day after he +receives his naturalization papers that he did not possess the day +before, save the right to vote and hold office? And the Chinamen, now +crowding our Pacific coast, are in precisely the same position. What +privilege or immunity has California or Oregon the constitutional right +to deny them, save that of the ballot? Clearly, then, if the fourteenth +amendment was not to secure to black men their right to vote, it did +nothing for them, since they possessed everything else before. But, if +it was meant to be a prohibition of the states, to deny or abridge their +right to vote--which I fully believe--then it did the same for all +persons, white women included, born or naturalized in the United States; +for the amendment does not say all male persons of African descent, but +all persons are citizens. + +The second section is simply a threat to punish the states, by reducing +their representation on the floor of Congress, should they disfranchise +any of their male citizens, on account of color, and does not allow of +the inference that the states may disfranchise from any, or all other +causes; nor in any wise weaken or invalidate the universal guarantee of +the first section. What rule of law or logic would allow the conclusion, +that the prohibition of a crime to one person, on severe pains and +penalties, was a sanction of that crime to any and all other persons +save that one? + +But, however much the doctors of the law may disagree, as to whether +people and citizens, in the original constitution, were one and the +same, or whether the privileges and immunities in the fourteenth +amendment include the right of suffrage, the question of the citizen's +right to vote is settled forever by the fifteenth amendment. "The +citizen's right to vote shall not be denied by the United States, nor +any state thereof; on account of race, color, or previous condition of +servitude." How can the state deny or abridge the right of the citizen, +if the citizen does not possess it? There is no escape from the +conclusion, that to vote is the citizen's right, and the specifications +of race, color, or previous condition of servitude can, in no way, +impair the force of the emphatic assertion, that the citizen's right to +vote shall not be denied or abridged. + +The political strategy of the second section of the fourteenth +amendment, failing to coerce the rebel states into enfranchising their +negroes, and the necessities of the republican party demanding their +votes throughout the South, to ensure the re-election of Grant in 1872, +that party was compelled to place this positive prohibition of the +fifteenth amendment upon the United States and all the states thereof. + +If we once establish the false principle, that United States citizenship +does not carry with it the right to vote in every state in this Union, +there is no end to the petty freaks and cunning devices, that will be +resorted to, to exclude one and another class of citizens from the right +of suffrage. + +It will not always be men combining to disfranchise all women; native +born men combining to abridge the rights of all naturalized citizens, as +in Rhode Island. It will not always be the rich and educated who may +combine to cut off the poor and ignorant; but we may live to see the +poor, hardworking, uncultivated day laborers, foreign and native born, +learning the power of the ballot and their vast majority of numbers, +combine and amend state constitutions so as to disfranchise the +Vanderbilts and A.T. Stewarts, the Conklings and Fentons. It is a poor +rule that won't work more ways than one. Establish this precedent, admit +the right to deny suffrage to the states, and there is no power to +foresee the confusion, discord and disruption that may await us. There +is, and can be, but one safe principle of government--equal rights to +all. And any and every discrimination against any class, whether on +account of color, race, nativity, sex, property, culture, can but +imbitter and disaffect that class, and thereby endanger the safety of +the whole people. + +Clearly, then, the national government must not only define the rights +of citizens, but it must stretch out its powerful hand and protect them +in every state in this Union. + +But if you will insist that the fifteenth amendment's emphatic +interdiction against robbing United States citizens of their right to +vote, "on account of race, color, or previous condition of servitude," +is a recognition of the right, either of the United States, or any +state, to rob citizens of that right, for any or all other reasons, I +will prove to you that the class of citizens for which I now plead, and +to which I belong, may be, and are, by all the principles of our +government, and many of the laws of the states, included under the term +"previous condition of servitude." + +First.--The married women and their legal status. What is servitude? +"The condition of a slave." What is a slave? "A person who is robbed of +the proceeds of his labor; a person who is subject to the will of +another." + +By the law of Georgia, South Carolina, and all the states of the South, +the negro had no right to the custody and control of his person. He +belonged to his master. If he was disobedient, the master had the right +to use correction. If the negro didn't like the correction, and +attempted to run away, the master had a right to use coercion to bring +him back. + +By the law of every state in this Union to-day, North as well as South, +the married woman has no right to the custody and control of her person. +The wife belongs to her husband; and if she refuses obedience to his +will, he may use moderate correction, and if she doesn't like his +moderate correction, and attempts to leave his "bed and board," the +husband may use moderate coercion to bring her back. The little word +"moderate," you see, is the saving clause for the wife, and would +doubtless be overstepped should her offended husband administer his +correction with the "cat-o'-nine-tails," or accomplish his coercion with +blood-hounds. + +Again, the slave had no right to the earnings of his hands, they +belonged to his master; no right to the custody of his children, they +belonged to his master; no right to sue or be sued, or testify in the +courts. If he committed a crime, it was the master who must sue or be +sued. + +In many of the states there has been special legislation, giving to +married women the right to property inherited, or received by bequest, +or earned by the pursuit of any avocation outside of the home; also, +giving her the right to sue and be sued in matters pertaining to such +separate property; but not a single state of this Union has ever secured +the wife in the enjoyment of her right to the joint ownership of the +joint earnings of the marriage copartnership. And since, in the nature +of things, the vast majority of married women never earn a dollar, by +work outside of their families, nor inherit a dollar from their fathers, +it follows that from the day of their marriage to the day of the death +of their husbands, not one of them ever has a dollar, except it shall +please her husband to _let_ her have it. + +In some of the states, also, there have been laws passed giving to the +mother a joint right with the father in the guardianship of the +children. But twenty years ago, when our woman's rights movement +commenced, by the laws of the State of New York, and all the states, the +father had the sole custody and control of the children. No matter if he +were a brutal, drunken libertine, he had the legal right, without the +mother's consent, to apprentice her sons to rumsellers, or her daughters +to brothel keepers. He could even will away an unborn child, to some +other person than the mother. And in many of the states the law still +prevails, and the mothers are still utterly powerless under the common +law. + +I doubt if there is, to-day, a State in this Union where a married woman +can sue or be sued for slander of character, and until quite recently +there was not one in which she could sue or be sued for injury of +person. However damaging to the wife's reputation any slander may be, +she is wholly powerless to institute legal proceedings against her +accuser, unless her husband shall join with her; and how often have we +heard of the husband conspiring with some outside barbarian to blast the +good name of his wife? A married woman cannot testify in courts in cases +of joint interest with her husband. A good farmer's wife near Earlville, +Ill., who had all the rights she wanted, went to a dentist of the +village and had a full set of false teeth, both upper and under. The +dentist pronounced them an admirable fit, and the wife declared they +gave her fits to wear them; that she could neither chew nor talk with +them in her mouth. The dentist sued the husband; his counsel brought the +wife as witness; the judge ruled her off the stand, saying "a married +woman cannot be a witness in matters of joint interest between herself +and her husband." Think of it, ye good wives, the false teeth in your +mouths are joint interest with your husbands, about which you are +legally incompetent to speak!! If in our frequent and shocking railroad +accidents a married woman is injured in her person, in nearly all of +the States, it is her husband who must sue the company, and it is to her +husband that the damages, if there are any, will be awarded. In +Ashfield, Mass., supposed to be the most advanced of any State in the +Union in all things, humanitarian as well as intellectual, a married +woman was severely injured by a defective sidewalk. Her husband sued the +corporation and recovered $13,000 damages. And those $13,000 belong to +him _bona fide_; and whenever that unfortunate wife wishes a dollar of +it to supply her needs she must ask her husband for it; and if the man +be of a narrow, selfish, niggardly nature, she will have to hear him +say, every time, "What have you done, my dear, with the twenty-five +cents I gave you yesterday?" Isn't such a position, I ask you, +humiliating enough to be called "servitude?" That husband, as would any +other husband, in nearly every State of this Union, sued and obtained +damages for the loss of the services of his wife, precisely as the +master, under the old slave regime, would have done, had his slave been +thus injured, and precisely as he himself would have done had it been +his ox, cow or horse instead of his wife. + +There is an old saying that "a rose by any other name would smell as +sweet," and I submit if the deprivation by law of the ownership of one's +own person, wages, property, children, the denial of the right as an +individual, to sue and be sued, and to testify in the courts, is not a +condition of servitude most bitter and absolute, though under the sacred +name of marriage? + +Does any lawyer doubt my statement of the legal status of married women? +I will remind him of the fact that the old common law of England +prevails in every State in this Union, except where the Legislature has +enacted special laws annulling it. And I am ashamed that not one State +has yet blotted from its statute books the old common law of marriage, +by which Blackstone, summed up in the fewest words possible, is made to +say, "husband and wife are one, and that one is the husband." + +Thus may all married women, wives and widows, by the laws of the several +States, be technically included in the fifteenth amendment's +specification of "condition of servitude," present or previous. And not +only married women, but I will also prove to you that by all the great +fundamental principles of our free government, the entire womanhood of +the nation is in a "condition of servitude" as surely as were our +revolutionary fathers, when they rebelled against old King George. Women +are taxed without representation, governed without their consent, tried, +convicted and punished without a jury of their peers. And is all this +tyranny any less humiliating and degrading to women under our +democratic-republican government to-day than it was to men under their +aristocratic, monarchical government one hundred years ago? There is not +an utterance of old John Adams, John Hancock or Patrick Henry, but finds +a living response in the soul of every intelligent, patriotic woman of +the nation. Bring to me a common-sense woman property holder, and I will +show you one whose soul is fired with all the indignation of 1776 every +time the tax-gatherer presents himself at her door. You will not find +one such but feels her condition of servitude as galling as did James +Otis when he said: + + "The very act of taxing exercised over those who are not + represented appears to me to be depriving them of one of their most + essential rights, and if continued, seems to be in effect an entire + disfranchisement of every civil right. For, what one civil right is + worth a rush after a man's property is subject to be taken from him + at pleasure without his consent? If a man is not his own assessor + in person, or by deputy, his liberty is gone, or he is wholly at + the mercy of others." + +What was the three-penny tax on tea, or the paltry tax on paper and +sugar to which our revolutionary fathers were subjected, when compared +with the taxation of the women of this Republic? The orphaned Pixley +sisters, six dollars a day, and even the women, who are proclaiming the +tyranny of our taxation without representation, from city to city +throughout the country, are often compelled to pay a tax for the poor +privilege of defending our rights. And again, to show that +disfranchisement was precisely the slavery of which the fathers +complained, allow me to cite to you old Ben. Franklin, who in those +olden times was admitted to be good authority, not merely in domestic +economy, but in political as well; he said: + + "Every man of the commonalty, except infants, insane persons and + criminals, is of common right and the law of God, a freeman and + entitled to the free enjoyment of liberty. That liberty or freedom + consists in having an actual share in the appointment of those who + are to frame the laws, and who are to be the guardians of every + man's life, property and peace. For the all of one man is as dear + to him as the all of another; and the poor man has an equal right, + but more need to have representatives in the Legislature than the + rich one. That they who have no voice or vote in the electing of + representatives, do not enjoy liberty, but are absolutely enslaved + to those who have votes and their representatives; for to be + enslaved is to have governors whom other men have set over us, and + to be subject to laws made by the representatives of others, + without having had representatives of our own to give consent in + our behalf." + +Suppose I read it with the feminine gender: + + "That women who have no voice nor vote in the electing of + representatives, do not enjoy liberty, but are absolutely enslaved + to men who have votes and their representatives; for to be enslaved + is to have governors whom men have set over us, and to be subject + to the laws made by the representatives of men, without having + representatives of our own to give consent in our behalf." + +And yet one more authority; that of Thomas Paine, than whom not one of +the Revolutionary patriots more ably vindicated the principles upon +which our government is founded: + + "The right of voting for representatives is the primary right by + which other rights are protected. To take away this right is to + reduce man to a state of slavery; for slavery consists in being + subject to the will of another; and he that has not a vote in the + election of representatives is in this case. The proposal, + therefore, to disfranchise any class of men is as criminal as the + proposal to take away property." + +Is anything further needed to prove woman's condition of servitude +sufficiently orthodox to entitle her to the guaranties of the fifteenth +amendment? + +Is there a man who will not agree with me, that to talk of freedom +without the ballot, is mockery--is slavery--to the women of this +Republic, precisely as New England's orator Wendell Phillips, at the +close of the late war, declared it to be to the newly emancipated black +men? + +I admit that prior to the rebellion, by common consent, the right to +enslave, as well as to disfranchise both native and foreign born +citizens, was conceded to the States. But the one grand principle, +settled by the war and the reconstruction legislation, is the supremacy +of national power to protect the citizens of the United States in their +right to freedom and the elective franchise, against any and every +interference on the part of the several States. And again and again, +have the American people asserted the triumph of this principle, by +their overwhelming majorities for Lincoln and Grant. + +The one issue of the last two Presidential elections was, whether the +fourteenth and fifteenth amendments should be considered the irrevocable +will of the people; and the decision was, they shall be--and that it is +not only the right, but the duty of the National Government to protect +all United States citizens in the full enjoyment and free exercise of +all their privileges and immunities against any attempt of any State to +deny or abridge. + +And in this conclusion Republicans and Democrats alike agree. + +Senator Frelinghuysen said: + + "The heresy of State rights has been completely buried in these + amendments, that as amended, the Constitution confers not only + national but State citizenship upon all persons born or naturalized + within our limits." + +The Call for the national Republican convention said: + + "Equal suffrage has been engrafted on the national Constitution; + the privileges and immunities of American citizenship have become a + part of the organic law." + +The national Republican platform said: + + "Complete liberty and exact equality in the enjoyment of all civil, + political and public rights, should be established and maintained + throughout the Union by efficient and appropriate State and federal + legislation." + +If that means anything, it is that Congress should pass a law to require +the States to protect women in their equal political rights, and that +the States should enact laws making it the duty of inspectors of +elections to receive women's votes on precisely the same conditions they +do those of men. + +Judge Stanley Mathews--a substantial Ohio democrat--in his preliminary +speech at the Cincinnati convention, said most emphatically: + + "The constitutional amendments have established the political + equality of all citizens before the law." + +President Grant, in his message to Congress March 30th, 1870, on the +adoption of the fifteenth amendment, said: + + "A measure which makes at once four millions of people voters, is + indeed a measure of greater importance than any act of the kind + from the foundation of the Government to the present time." + +How could _four_ millions negroes be made voters if _two_ millions were +not included? + +The California State Republican convention said: + + "Among the many practical and substantial triumphs of the + principles achieved by the Republican party during the past twelve + years, it enumerated with pride and pleasure, the prohibiting of + any State from abridging the privileges of any citizen of the + Republic, the declaring the civil and political equality of every + citizen, and the establishing all these principles in the federal + constitution by amendments thereto, as the permanent law." + +Benjamin F. Butler, in a recent letter to me, said: + + "I do not believe anybody in Congress doubts that the Constitution + authorizes the right of women to vote, precisely as it authorizes + trial by jury and many other like rights guaranteed to citizens." + +And again, General Butler said: + + "It is not laws we want; there are plenty of laws--good enough, + too. Administrative ability to enforce law is the great want of the + age, in this country especially. Everybody talks of law, law. If + everybody would insist on the enforcement of law, the government + would stand on a firmer basis, and questions would settle + themselves." + +And it is upon this just interpretation of the United States +Constitution that our National Woman Suffrage Association which +celebrates the twenty-fifth anniversary of the woman's rights movement +in New York on the 6th of May next, has based all its arguments and +action the past five years. + +We no longer petition Legislature or Congress to give us the right to +vote. We appeal to the women everywhere to exercise their too long +neglected "citizen's right to vote." We appeal to the inspectors of +election everywhere to receive the votes of all United States citizens +as it is their duty to do. We appeal to United States commissioners and +marshals to arrest the inspectors who reject the names and votes of +United States citizens, as it is their duty to do, and leave those alone +who, like our eighth ward inspectors, perform their duties faithfully +and well. + +We ask the juries to fail to return verdicts of "guilty" against honest, +law-abiding, tax-paying United States citizens for offering their votes +at our elections. Or against intelligent, worthy young men, inspectors +of elections, for receiving and counting such citizens' votes. + +We ask the judges to render true and unprejudiced opinions of the law, +and wherever there is room for a doubt to give its benefit on the side +of liberty and equal rights to women, remembering that "the true rule of +interpretation under our national constitution, especially since its +amendments, is that anything for human rights is constitutional, +everything against human rights unconstitutional." + +And it is on this line that we propose to fight our battle for the +ballot--all peaceably, but nevertheless persistently through to complete +triumph, when all United States citizens shall be recognized as equals +before the law. + + + + +SPEECH OF + +MATILDA JOSLYN GAGE, + +In Canandaigua and 16 other towns of Ontario county, previous to Miss +Anthony's Trial, June 17th, 1873. + +THE UNITED STATES ON TRIAL; + + _not_ + +SUSAN B. ANTHONY. + + +Governments derive their just powers from the consent of the governed. +That is the axiom of our republic. From this axiom we understand that +powers used by the government without the consent of the governed, are +_not just_ powers, but that on the contrary, they are _unjust_ powers, +_usurped_ powers, _illegal_ powers. + +In what way does the consent of the governed come? + +By and through the ballot alone. The ballot answers questions. It says +yes, or no. It declares what _principles_ shall rule; it says what +_laws_ shall be made, it tells what _taxes_ are to be raised; it places +men in office or lays their heads low in the dust. It is the _will_ of a +man embodied in that little piece of paper; it is the consent of the +governed. + +Are women governed? Most certainly; they pay taxes,--they are held +amenable to laws; they are tried for crimes; they are fined, imprisoned, +hung. The government wields strong power over them. Have they consented +to this power of the government? Have they a recognized right to the +ballot? Has their consent bean asked through their votes? Have they had +a voice in saying what taxes shall be levied on their property,--what +penalties they shall pay for crimes? _No._ They are ruled without their +consent. The first principles of government are founded on the natural +rights of individuals; in order to _secure_ the exercise of these +natural, individual rights our government professed to be founded. +Governments never created a single right; rights did not come new-born +into the world with our revolutionary fathers. They were men of middle +age when they severed their connexion with Great Britain, but that +severance did not endow them with a single new right. It was at that +time they first entered into the _exercise_ of their natural, individual +rights. Neither our Declaration, nor our Constitution created a single +right; they merely recognized certain rights as in existence. They +recognized those rights as human rights,--as inalienable rights,--as +rights existing by virtue of common humanity. Natural rights never +change, but the power to perceive these natural rights does change, and +various nations have had their own standard. + +Three names, said to be the sweetest the world ever knew, are mother, +home, and heaven. There is one still sweeter--one for which men have +given up mother and home, and for which they have almost sacrificed the +hope of heaven; that word is LIBERTY. + +When the fires of liberty began to creep through Europe in the middle +ages, at a time when hereditary monarchs and the catholic church ruled +the world, men placed its safeguards in municipal corporations. The idea +of municipal corporations descended from Rome to the rest of Europe, and +"free cities" became the germ of personal freedom. But a new world was +needed for the great experiment of individual freedom. Macauley calls +government an experimental science and therefore a progressive science; +history shows this to be true. Liberty did not spring "full armed" like +Minerva from the head of Jove. The liberty possessed by the world has +been gradually secured, and it was left for our country first to +incorporate in its foundation a recognition of individual rights. A +hundred years before the revolutionary war, Massachusetts and Virginia +resisted English tyranny. Massachusetts, in 1664, called herself a +"perfect republic." She preserved a neutral harbor by force of arms +against opposing English factions; she enacted laws against the +supremacy of the English parliament, and she established her own mint. +This last is noticeable, as in the progress of liberty, rights of +property, of which money is the exponent, have always been one of the +foremost. Bancroft says Virginia was always a land of liberty; that +Virginia placed the defense of liberty not in municipal corporations, +_but in persons_, and that the liberty of the individual was ever highly +prized. The difference between a monarchy and a republic is the +difference between force and consent; it is the difference between being +governed and governing yourself; it is the difference between the _men_ +of Russia and the _men_ of the United States; it is the difference +between the political rights of one man as the government and the +political rights of the people as the government. But the world has +never yet seen a true republic, though it has for hundreds of years been +taking steps towards one. + +The original principles of just governments are five, all of which were +acknowledged by the United States at its foundation. These principles +are: + +_First._ The natural right of each individual to self-government. + +_Second._ The exact equality of these rights. + +_Third._ That these rights when not delegated by the individual, are +retained by the individual. + +_Fourth._ That no person can exercise these rights of others without +delegated authority. + +_Fifth._ That the non-use of these rights does not destroy them. + +These five underlying principles are the admitted basis of all +governmental rights, and the old revolutionists acted upon them. They +were men of middle life; they were under an old and established form of +government to which they had not delegated authority, and during all +these years they had made no use of their natural, equal rights. When +they chose to assume the exercise of these rights, they at once took +them up. + +The women of that day were no less in earnest than were the men. Mercy +Otis Warren, sister of that James Otis whose fiery words did so much +towards rousing the colonies, was herself no less in earnest, had no +less influence than her brother. She was a member of the famous +committee of correspondence, and was constantly consulted by Adams, +Jefferson, Franklin, Hancock, Washington and all the foremost men of +that day. Through her lips was first whispered the word, separation. No +less active were the women of New England, and in 1770, five years +before the breaking out of the revolutionary war, the women of Boston +held a public meeting, and formed themselves into a league to resist +taxation. As tea was the article upon which Great Britain was then +making her stand, in order to sustain the _principle_ of taxation, these +women declared they would use no more tea until the tax upon it was +repealed. This league was first formed by the married women, but the +next day the young women met "in innumerable numbers," and took similar +action. They expressly stated, they did not do this so much for +themselves, as for the benefit of their posterity. In the country, the +women of that hour went abroad over the fields and sowed their tea, as +men sow wheat. This action of the women of the revolution was taken +three years before the famous Tea Party of Boston harbor, and was the +real origin of that "Tea Party." The women of the present day, the +"posterity" of these women of the revolution, are now following the +example then set, and are protesting against taxation without +representation. A few weeks ago I attended a meeting of the tax-paying +women of Rochester who met in the Mayor's office in that city, and +there, like their revolutionary mothers, formed a league against +taxation without representation. Meetings for the discussion of measures +are regularly held by them, and they have issued an address, which I +will read you. + + _To the Women of the City of Rochester and the County of Monroe_: + + After twenty-five years of discussion, appeal and work, the Women + of Rochester assembled, are prompted to advise and urge tax-paying + women of the City and County, that the time has come to act, as our + patriot mothers acted in 1770, _in protest against unjust + government_, and the action appropriate and suited to the time, is + strong and earnest protest against the violation of the Republican + principles, which compels the payment of taxes by women, while they + are denied the ballot. + + By order of "THE WOMEN TAX PAYERS' ASSOCIATION of the City of + Rochester and County of Monroe." + +They have also issued this memorial and protest, addressed + + _To the Board of Supervisors of the County of Monroe, and to the + Hon. the Common Council of the City of Rochester_: + + The payment of taxes is exacted in direct violation of the + principles that "Governments derive their just powers from the + consent of the governed," and that "there shall be no taxation + without representation." Therefore we earnestly protest against the + payment of taxes, either Municipal, County, or State, until the + ballot secures us in the right of representation, just and equal + with other citizens. + + By order of "THE WOMEN TAX PAYERS' ASSOCIATION of the City of + Rochester and County of Monroe." + +Thus women are everywhere going back to fundamental principles, and this +action of the women of Rochester is but the commencement of a protest +which will soon become a resistance, and which will extend from the St. +Lawrence to the Gulf of Mexico, from the Atlantic to the Pacific. The +women of the city of Rochester pay taxes on seven millions of property, +and yet not one of these tax payers is consulted as to how, or when that +tax shall be raised, or for what purpose used. This seven millions is +but a small proportion of property on which the women of that city +really pay taxes, as it does not include that much larger amount of +property of which they have been robbed, and over which they are assumed +to have no control. The foundation of a new city hall has recently been +laid in that city. Women's property, without their consent, has been +used for this purpose. Water is soon to be brought in from Hemlock Lake, +and a dozen other projects are on foot, all of which require money, and +towards all of which, the money of tax-paying women will be taken +without their consent. + +To illustrate the extreme injustice with which women are treated in this +matter of taxation, to show you how contrary it is to all natural right, +let us suppose that all the taxable property in the city of Rochester +belonged to women, with the exception of a single small house and lot, +which were owned by a man. As the law is now interpreted, the man who +owned that house and lot could vote a tax upon the property of all those +women at his own will, to build CITY HALLS, COURT HOUSES, JAILS, could +call an election and vote an extraordinary tax to bring in water from a +dozen different lakes, erect fountains at every corner, fence in twenty +parks, vote himself in, Mayor, Alderman, Assessor, Collector with a fat +salary from these women's money, attached to each one of these offices, +and in the end elect himself the sole policeman of the city, to protect +the women from--himself; and this you call just government. It is no +more unjust, no more unrepublican, to take the property of fifty, or a +hundred, or a thousand women in this way, than it would be to take the +property of a single one; the principle is still the same. The women of +to-day, protest, as did their fore-mothers, for principle. Women come +into the world endowed with the same natural rights as men, and this by +virtue of their common humanity, and when prevented or restrained from +their exercise, they are enslaved. Old Ben Franklin once said, "those +that have no vote or voice in the laws, or the election of those who +administer them, do not enjoy liberty, but are _absolutely enslaved_ to +those who have votes, and their representatives." That sentiment is as +true to-day as when uttered. While the women of this nation are +restrained from the exercise of their natural rights of self-government, +they are held enslaved to those who do administer the laws. Said an old +minister of revolutionary fame, "One who is bound to obey the will of +another is as really a slave, though he may have a good master, as if he +had a bad one." Those of you who remember Adolph in Uncle Tom's Cabin, +will recall his apparent freedom. Dressed in style, wearing his master's +garments before the first gloss was off, viewing Uncle Tom, +superciliously through his eye glass, he was a petted companion of his +master and did not feel his bonds. But one day the scene changed. St. +Clair died, and poor Adolph, stripped of all his favors, was dragged off +to the vile slave pen. Do you see no parallel between Adolph and the +women of America? Adolph was restrained by unjust power from exercise of +his natural rights, so are the women of this country, as is most fully +shown, by this prosecution and trial of Susan B. Anthony. + +In this country, two kinds of representation exist, property and +personal. Let us look for a moment, at the Constitution of the United +States. In three years we celebrate our centennial. From what does it +date? Not from the Constitution, as our country existed eleven years +without a Constitution,--in fact, thirteen years, before it was ratified +by the thirteen colonies. The centennial dates from the declaration of +Independence, which was based on underlying principles. But as our +government has recognized its own needs, it has thrown new safeguards +around liberty. Within a year after the Declaration, it was found +necessary to enter into articles of Confederation, and those were soon +followed by the Constitution, as it was found property rights were not +secure "under the action of thirteen different deliberatives." + +England has never possessed personal representation, but only that of +property; and in the secret proceedings upon the framing of our +Constitution, the question as to property, or personal representation +was strongly agitated. Some of the delegates favored the fuller +representation of property than of persons. Others, who advocated the +equality of suffrage, took the matter up on the original principles of +government, recognizing the fact that it was not strength, or wisdom, or +property, that conferred rights, but that "in a state of nature, before +any government is formed, all persons are equally free and independent, +no one having any right or authority to exercise power over another," +and this, without any regard to difference in personal strength, +understanding or wealth. It was also argued, and upon this +acknowledgment the Constitution was based, "that when individuals enter +into government they have _each_ a right to an equal voice in its first +formation, and afterwards have _each_ a right to an equal vote in every +matter which relates to their government. That if it could be done +conveniently, they have a right to exercise it in person. When it cannot +be done in person, but for convenience, representatives are appointed to +act for them, every person has a right to an equal vote in choosing that +representative, who is intrusted to do for the whole, that which, the +whole, if they could assemble, might do in person, and in the +transaction of which they would have an equal voice." + +This was the basis upon which the Constitution was established, and +these, the principles which led to its adoption; principles which +include the full recognition of each person as possessed of the +inalienable right of self-government. + +The argument for equality was continued in the following strain, as +reported by one of the delegates, to the Legislature of Maryland: "That +if we were to admit, because a man was more wise, more strong, more +wealthy, he should be entitled to more votes than another, it would be +inconsistent with the freedom of that other, and would reduce him to +slavery." The following illustration was used: "Suppose, for instance, +_ten individuals_ in a state of nature, about to enter into government, +nine of whom were equally wise, equally strong, equally wealthy, the +tenth is ten times as wise, ten times as strong, or ten times as rich; +if, for this reason, he is to have ten votes for each vote of the +others, the nine might as well have no vote at all, and though the whole +nine might assent to the measure, yet the vote of the tenth would +countervail, and set aside all their votes. If this tenth approved of +what they wished to adopt, it would be well; but if he disapproved, he +could prevent it, and in the same manner he could carry into execution +any measure he wished, contrary to the opinion of all the others, he +having ten votes, and the others altogether but nine. It is evident that +on these principles, the nine would have no will or discretion of their +own, but must be totally dependent on the will and discretion of the +tenth; to him they would be as absolutely slaves as any negro is to his +master. If he did not attempt to carry into execution any measures +injurious to the other nine, it could only be said that they had a good +master; they would not be the less slaves, because they would be totally +dependent upon the will of another and not on their own will. They might +not feel their chains, but they would notwithstanding wear them; and +whenever their master pleased, he might draw them so tight as to gall +them to the bone." Again it was urged that though every individual +should have a voice in the government, yet even then, superior wealth, +strength, or understanding, would give great and undue advantage to +those who possessed them. But the point especially pressed in these +debates was that each individual before entering into government, was +equally free and independent: and therefore the conclusion was drawn +that each person had equal right both at the time of framing a +government, and also after a government or constitution was framed. + +To those who with old English ideas, constantly pressed property +representation, it was replied that "taxation and representation ought +to go together in so far that a person not represented ought not to be +taxed." + +This Constitutional Convention was in session a number of months; its +delegates were partially elected by women's votes, as at that date +women were exercising their right of self-government through voting, +certainly in the States of Massachusetts and New Jersey, if not in +Georgia and Delaware. These women sent their delegates or +representatives to assist in framing a Constitution. + +Let us look at the Preamble of that instrument. It reads thus: + + "We, the PEOPLE of the United States, in order to form a more + perfect union, establish _justice_, insure domestic tranquility, + provide for the _common_ welfare, and secure the blessings of + liberty to ourselves and our posterity, do ordain and establish + this Constitution for the United States of America." + +Here we have a statement as to _who_ established the Constitution. It +was not the thirteen States as States, not the government in its +sovereign capacity, but the people: not the white people alone, not the +native born alone, not the male people alone, but the people in a +collective sense. Justice was not established by this Constitution if +one half the people were left out from its provisions, neither was the +_common_ welfare considered unless all people in common, equally shared +the benefits of the Constitution. And moreover, the posterity of the +people of that time are female as well as male. Therefore not only by +our knowledge of the course of argument taken by the framers of the +Constitution, not only by our knowledge that women as well as men helped +elect delegates to that convention,--not only from the original +principles proclaimed in the Declaration, but also by and through this +Preamble to the Constitution do we find woman equally with man, +recognized as part of the governing power. + +Although women do not rest their claim to self-government upon any human +instrument, it is well to show that even in the Declaration, and the +original Constitution, the "Constitution as it was," the rights of _all_ +people were most emphatically and truly recognized. + +Judge Story in his commentaries upon the Constitution, says, "The +importance of examining _the Preamble_ for the purpose of expounding the +language of a Statute has always been felt and universally conceded in +all judicial proceedings." + + _Com. on Const., 1, 443-4._ + +Chief Justice Jay regarded the Preamble of the Constitution of the +United States as an authoritative guide to a correct interpretation of +that instrument. + + 2 _Dallas_, 414. + +Coke says, "The Preamble of a Statute is a good means to find out the +meaning of the Statute, and as it were, a _key_ to the understanding +thereof." + +Blackstone lays it down as a fundamental principle, that we "must argue +from generals down to particulars." Here is good legal authority. I have +cited men whose opinions are accepted. We have thus argued down from the +_generals_ of the Declaration and Constitution to the particulars which +appertain to each individual alike, and what is the result? Freedom for +all; equal rights. We have read the Preamble of the Constitution, and +quoted authorities to show in what light it must be read in reference to +its following provisions. By its Preamble, the Constitution is shown to +make no distinction in favor of sex. From secret debates of the +convention which framed it, we find the motives and the arguments of its +framers. + +The great foundation and key stone alike of our Republican ideas, _of +our Constitution_, is _individual, personal representation_, and it is +the greatest blessing to the country at large that the question of +representation has come up in the person of Miss Anthony. Men are +_compelled_ to think upon underlying principles. They are compelled to +ask themselves where they get either natural or constitutional right to +govern women. + +From the earliest ages men have queried among themselves as to where lay +the governing power. In the time of Abraham, and even now in some parts +of the world the Patriarch of the tribe is looked upon as its supreme +ruler. Members of Scottish clans to-day, look with more reverence upon +their chief, than upon the Queen: they obey his behests sooner than +parliamentary laws. Other men have believed the governing power lay in +the hands of a select few, an aristocracy, and that these few men could +by right make laws to govern the rest. Others again have believed this +power vested in a single man called King, or Czar, or Pope, but it was +left to our country, and our age, to promulgate the idea that the +governing power lay in the _people themselves_. It took men a great many +thousand years to discover this pregnant fact, and although our +government laid down at the very first, certain underlying truths, it +has taken a very long time even for this country to see, and practice +these principles; but as men have opened their eyes to liberty there +have been constant advances towards securing its full blessings to each +and every individual, and in this progress we had first, the +Declaration; second, the Articles of Confederation; third, the +Constitution; then the ten Conciliatory Amendments, quickly followed by +an eleventh and twelfth, each one of these designed to more fully secure +liberty to the people, and making fifteen successive steps in the short +period of twenty-eight years. + +At the time of framing this government women existed as well as men, +women are part of the people; the people created the government. Now, +when speaking to you to-night, I am speaking to the people of this part +of Ontario County, I am not speaking to men alone, I am not speaking to +women alone, but to you all as people. When people frame a government +the rights not delegated by them to the government, are retained by +them, as is declared by the tenth amendment. Now where do men get their +constitutional right to govern women? Women have either delegated their +right of self-government to certain delegates, by them to be elected +according to all the forms of this government, or they have not so +delegated their rights of self-government, but have retained them. In +either case, according to the genius of our government, what is there to +prevent them from exercising these rights any moment they choose, unless +it is force? What prevents them unless it is unjust illegal power? The +ninth amendment declares that the enumeration of certain rights, shall +not be construed to deny, or disparage others retained by the people. +Remember what are the foundation principles of just government, +principles fully acted upon by the old revolutionists; remember that no +government of whatever kind or character can possibly _create_ the right +of self-government, but only _recognize_ rights as existent; remember +the non-use of a right does not destroy that right. + +I have a natural right to as much fresh air as I can breathe; if you +shut me in a close room with door and windows barred, that does not +invalidate my right to breathe pure, fresh air. I have a natural right +to obey the dictates of my own conscience, and to worship God as I +choose. If you are physically stronger than I am, or if you are legally +stronger than I am and use your strength to prevent the exercise of +these natural rights, you by no means destroy them. Though I do not use +these rights, I still possess them. The framers of this government, the +men and the women who voted at that early day had never until then, +exercised their natural rights of self-government; when they chose, they +took them up. + +But people tell us it was not the intention to include women. What then +was the intention? Did the framers of the Declaration intend to leave +women under the government of Great Britain? Did they intend to set +themselves and their male compeers free, and leave women behind, under a +monarchy? Were not women intended to be included in the benefits of the +constitution? + +Oh, but says some one, they were intended to be generally included, but +the amendments had nothing to do with them. + +Let us look at this. Is it possible to amend a Constitution not in +accordance with its underlying principles? It can be repealed, +abolished, destroyed, but not _amended; except in accordance with its +original character_. The Supreme Court of the United States has declared +that the powers of the Constitution are granted by the people, and are +to be exercised strictly _on them_, and _for their benefit_. + +Story asks, "Who are the parties to this great contract?" and answers +the question by saying, "The people of the United States are the parties +to the Constitution." + + _Com. on Con._ + +_Com. on Con. Legal Rules_, 283, says: + "This first paragraph of the Constitution, declaring its ends, is + the most vital part of the instrument, revealing its spirit and + intent, _and the understanding of its framers_." + +Here we have the recognized legal rule that the understanding or +INTENTION of the framers of an instrument is to be found in its first +paragraph, and the first paragraph of the Constitution declares it was +framed BY THE PEOPLE, and for the purpose of securing the blessings of +liberty to themselves and their posterity. The native-born American +women of to-day, are the posterity of the framers of the Constitution, +which was thus designed for their benefit. The intention to include +women is here positive; women are part of the people now, and ever have +been. "Rules of legal interpretation are general in their character," +and so general has the interpretation of the Constitution been, that not +only did the people who framed the Constitution, and their posterity, +come in for its blessings, but the people also of every nation and +tongue, from continent or isles of the sea, who come to us, are included +in its benefits. Who can say our forefathers _intended_ to include +Chinamen, or Sandwich Islanders, or the Norwegian, Russian, or Italian +in its benefits? Yet they do all share in it as soon as they become +citizens. How absurd we should think the assertion that it was not the +Lord's intention to hold the people of the United States under the law +of the Ten Commandments, as they were given to the Jews alone, some four +thousand years before the United States existed as a nation. +Massachusetts never abolished slavery by legislative act; never +intentionally abolished it. In 1780 that State adopted a new +Constitution with a Bill of Rights, declaring "All men born free and +equal." Upon this, some slaves demanded their freedom, and their masters +granted it. The slavery of men and _women_, both, was thus destroyed in +Massachusetts without intention on the part of the framers of the +Constitution, and this, because it is a legal rule to argue down from +generals to particulars, and that the "words of a statute ought not to +be interpreted to destroy natural justice;" but as Coke says, "Whenever +the question of liberty runs doubtful, _the decision must be given in +favor of liberty_." + + _Digest C.L._ + +When a Charter declares "all men born free and equal," it means, +intends, and includes all women, too; it means all mankind, and this is +the _legal interpretation_ of the language. + +To go back to the Constitution of the United States, let us examine if +women were not intended. The first amendment reads, "Congress shall make +no law respecting an establishment of religion, or prohibiting the free +exercise thereof, or abridging the freedom of speech, or of the press; +or the right of the people peaceably to assemble and to petition the +government for a redress of grievances." + +No mention is there made of women, but who will deny it was not intended +for them to enjoy the right of worshipping as they choose? Were they not +to be protected in freedom of speech, and in the right of assembling to +petition the government for a redress of grievances? Not a man before me +will deny that women were included equally with men in the intention of +the framers. + +The Sixth Amendment reads, "In all criminal prosecutions, the accused +shall enjoy the right to a speedy and public trial, by an impartial jury +of the State and District wherein the crime shall have been committed, +which District shall have been previously ascertained by law; and to be +informed of the nature and cause of the accusation; to be confronted +with the witnesses against _him_; to have compulsory processes for +obtaining witnesses in _his_ favor; and to have the existence of counsel +in _his_ defense." + +The words "him" and "his," are three times mentioned in this amendment, +yet no one can be found wild enough to say women were not intended to be +included in its benefits. Miss Anthony, herself, has already come under +its provisions, and were she denied a speedy and open trial, she could +appeal to the protection of this very amendment, which not only does not +say women, or her, but does alone say _him_ and _his_, and this, +notwithstanding the other legal adage, that laws stand as they are +written. This whole question of constitutional rights, turns on whether +the United States is a nation. If the United States is a nation, it has +_national_ powers. What is the admitted basis of our nation? We reply, +equality of political rights. And what, again, is the basis of political +rights? Citizenship. Nothing more, nothing less. National sovereignty is +only founded upon the political sovereignty of the individual, and +national rights are merely individual rights in a collective form. The +acknowledged basis of rights in each and every one of the thirty-seven +States, is citizenship,--not State citizenship alone, as that alone +cannot exist, but first, national citizenship. _National_ rights are the +fundamental basis of _State_ rights. If this is not true, we are then no +nation, but merely a confederacy, held together by our own separate +wills, and the South was right in its war of secession. Every sovereign +right of the United States exists solely from its existence as a +nation. + +As the nation has grown to know the needs of liberty, it has from time +to time thrown new safeguards around it, as I have shown in its fifteen +progressive steps since 1776. For sixty years there was no change. +Slavery had cast its blight upon our country, and the struggle was for +State supremacy. Men forgot the rights, and need of freedom; but in +1861, the climax was reached, and then came the bitter struggle between +state and national power. Although our underlying principles were all +right, freedom required new guards, and the right of all men to liberty, +was put in a new form. An especial statute or amendment was added to our +National Constitution, declaring that involuntary servitude, unless for +crime, could not exist in this republic. This statute created no new +rights; it merely affirmed and elucidated rights as old as creation, and +which, in a general way, had been recognized at the very first +foundation of our government--even as far back as the old Articles of +Association, before the Declaration of Independence. This amendment was +the sixteenth step in _securing_ the rights of the people, but it was +not enough. Our country differs from every other country, in that we +have _two kinds_ of citizenship. First, we have national citizenship, +based upon equal political rights. A person born a citizen of the United +States, is, by the very circumstances of birth, endowed with certain +political rights. In this respect, the circumstances of birth are very +different from those of a person born in Great Britain. A person born in +Great Britain is not endowed with political rights, simply because born +in that country. Political rights in Great Britain are not based upon +personal rights; they are based upon property rights. In England, +persons are not represented; only property is represented. That is the +very great political difference between England and the United States. +In the United States, representation is based upon individual, personal +rights--therefore, every person born in the United States--_every +person_,--not every white person, nor every male person, but every +person is born with _political_ rights. The naturalization of foreigners +also secures to them the exercise of political rights, because it +secures to them citizenship, and they obtain naturalization through +_national_ law. The war brought about a distinct and new recognition of +the rights of national citizenship. States had assumed to be superior to +the nation in this very underlying national basis of voting rights, but +when certain States boldly attempted to thwart national power, and vote +themselves out of the Union,--when by this attempt they virtually said, +there is no nation, a new protection was thrown around individual, +personal, political rights, by a seventeenth step, known to the world by +the Fourteenth Amendment, which defined, (not created) citizenship. "All +persons born or naturalized in the United States, and subject to the +jurisdiction thereof, are citizens of the United States and of the State +wherein they reside," thus recognizing United States citizenship as the +first and superior citizenship. + +Miss Anthony was not only _born_ in the United States, but the United +States also has jurisdiction over her, as is shown by this suit, under +which she was arrested in Rochester, and held there to examination in +the same little room in which fugitive slaves were once examined. From +Rochester she was taken to Albany, from Albany back to Rochester, and +now from Rochester to Canandaigua, where she is soon to be tried. She +has thus been fully acknowledged by the United States as one of its +citizens, and also as a citizen of the State in which she resides. + +In order to become a citizen of a State, and enjoy the privileges and +immunities of States, a citizen of the United States must reside in a +State. Citizenship of the United States secures nothing over the +citizenship of other countries, unless it secures the right of +self-government. State laws may hereafter regulate suffrage, but the +difference between regulating and prohibiting, is as great as the +difference between state and national citizenship. The question of the +war was the question of State rights; it was the negro, _vs._ State +rights, or the power of States over the ballot. The question to-day is, +woman, _vs._ United States rights, or the power of the United over the +ballot. The moral battle now waging will settle the question of the +power of the United States over the rights of citizens. By the civil +war, the United States was proven to be stronger than the States. It was +proven we were a nation in so far that States were but parts of the +whole. The woman question, of which in this pending trial, Miss Anthony +stands as the exponent, is to settle the question of United States power +over the individual political rights of the people; it is a question of +a monarchy or a republic. The United States may usurp power, as did the +States, but it has no rights in a sovereign capacity, not given it by +the Constitution, or in other words, BY THE PEOPLE. By the Preamble we +have discovered _who_ are its people, and for _what purpose_ its +Constitution was instituted. Each and every amendment--the first ten, +the eleventh, twelfth, thirteenth, fourteenth, and fifteenth, are only +parts of the grand whole, and must, each and every one, be examined in +the light of the Preamble. + +Each added amendment makes this change in the status of the People, in +that it gives new guaranties of freedom, and removes all pretense of +right from any existing usurped power. People are slow to comprehend the +change which has been effected by the decision as to State rights. One, +claims that only the negro, or persons of African descent, were affected +by it. Others claim, and among them, some prominent Republicans, that +every civil right is by these amendments, thrown under national control. +Recently, two or three suits have come before the United States on this +apprehension. One of these, known as the Slaughter House Case, came up +from New Orleans in the suit of certain persons against the State of +Louisiana. A permit had been given certain parties to erect sole +buildings for slaughter, and in other ways control that entire business +in the city of New Orleans for a certain number of years. A suit upon it +was appealed to the Supreme Court of the United States, on the ground of +the change in the power of States, by, and through the last three +amendments, and on the supposition that all the civil power of the +States had thus been destroyed. + +The Court decided it had no jurisdiction, though in its decision it +proclaimed the far-reaching character of these amendments. In reference +to the Thirteenth Amendment, the Court used this language: + + "We do not say that no one else but the negro can share in this + protection. Both the language _and spirit_ of these articles are to + have their full and just weight in any question of construction. + Undoubtedly while negro slavery alone was in the minds of the + Congress which proposed the thirteenth article, it forbids any kind + of slavery, now, or hereafter. If Mexican peonage, or the Chinese + cooley labor system shall develop slavery of the Mexican or Chinese + race within our territory, this amendment may be safely trusted to + make it void." + +This is the language used by the Supreme Court of the United States in +reference to this thirteenth amendment; prohibiting any, _all_, and +every kind of slavery, not only now, but in the hereafter, and this, +although the decision, also acknowledges the fact that only African +slavery _was intended_ to be covered by this amendment. + +The Court further said, "And so if _other_ rights are assailed by the +States, _which properly and necessarily fall within the protection of +these articles_, that protection will apply, though the party interested +may not be of African descent." + +What "other rights fall within the protection of these articles?" What +"other rights" do these amendments cover? The fourteenth article, after +declaring who are citizens of the United States, and of States, still +further says, "No State shall make or enforce any law which shall +abridge the privileges or immunities of citizens of the United States, +nor shall any State deprive any person of life, liberty or property, +without due process of law, nor deny to any person within its +jurisdiction, the equal protection of the laws." This comprises the +first section of that amendment. The jurisdiction and protection of the +general government applies to United States citizens. By its prosecution +of Miss Anthony, the general government acknowledges her as a citizen of +the United States, and what is much more, it acknowledges its own +jurisdiction over the ballot--over the chief--chief, did I say,--over +the _only_ political right of its citizens. This prosecution is an +admission of United States jurisdiction, instead of State jurisdiction. +This whole amendment, with the exception of the first clause of the +first section, which simply declares who are citizens of the United +States and States, is directed against the interference of _States_ in +the rights of citizens. But in Miss Anthony's case, the State of New +York has not interfered with her right to vote. She voted under local +laws, and the State said not a word,--has taken no action in the case, +consequently the United States has had no occasion to interfere on that +ground. The question of _State_ rights was not as great a question as +this: What are United States rights? Can the United States, in its +sovereign capacity, overthrow the rights of its own citizens? No, it +cannot; for the Fifteenth Amendment to the Constitution specifically +declares "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." + +This fifteenth Amendment has been seriously misapprehended by many +people, who have understood it to mean that _women_ could be excluded +from voting, simply because they are women. I have shown you that +Statutes and Constitutions are always general in their character; that +from generals we must argue down to particulars, and that if there is +any doubt as to the interpretation of a statute, it must be defined in +the interests of liberty. But as to the interpretation of this statute +there can be no doubt. Had it read, "The right of citizens of the United +States to take out passports, shall not be denied or abridged by the +United States, on account of race, color, or previous condition of +servitude," no person would interpret it to mean that such right to take +out passport could be denied on account of _female_ sex, or on account +of _male_ sex. We will read it now, first in the light of the +Declaration; second, in that of the Preamble to the Constitution, and +the Constitution itself, and its various amendments, to which I have +referred: the first, sixth, ninth and tenth, which would have been +interpreted male, had the Constitution meant men alone, but which have +always been defined to cover, and include woman--to cover and include +the rights of the _whole_ people to freedom of conscience, to freedom of +speech, to the right of a speedy and public trial, &c., &c., and this, +although in the Sixth Amendment, the terms _him_ and _his_ are alone +used. The Courts long ago decided that Statutes were of general bearing, +as is fully true of the Declaration and Constitution, which are supreme +statutes. The Fifteenth Amendment does not specifically exclude right of +male citizens to vote, because they are _male_ citizens, therefore, male +citizens are of necessity included in the right of voting. It does not +specifically exclude female citizens from the right of voting, because +they are female citizens, therefore, female citizens are of necessity +included in the right of voting--a right which the United States cannot +abridge. No male citizen can claim that he, as a male citizen, is +included, save by implication, and save on the general grounds that he +is not specifically excluded, he is necessarily included. Can the +United States, at pleasure, take from its own citizens the right of +voting, or abridge that right? Has it the right to take from citizens of +States the right of voting? Are citizens of States simply protected +against States, and can the United States now, at will, step in and deny +or abridge the right of voting to all its male citizens simply because +they are male? If it has that power over its female citizens, it has the +same power over its male citizens. You cannot fail to see that the +question brought up by Miss Anthony's prosecution and trial _by the +United States_ for the act of voting, has developed the most important +question of United States rights; a larger, most pregnant, more +momentous question by far, than that of _State_ rights. The liberties of +the people are much more closely involved when the United States is the +aggressor, than when the States are aggressors. + +"The Act to Enforce the right of citizens to vote," declares that +CITIZENS shall be entitled and allowed to vote at all elections by the +people, in any state, territory, district, county, city, parish, +township, school district, municipality, or other territorial division, +&c. + +This Act was passed _after_ the ratification of the Fifteenth Amendment, +and is designed to be in accordance with the Constitution. It does not +say _black_ citizens shall be entitled and allowed to vote; it does not +say _male_ citizens shall be entitled and allowed to vote--it merely +says CITIZENS. It covers the right of women citizens to vote, and yet +United States officials claim to find in this very act, their authority +for prosecuting Miss Anthony and those fourteen other women citizens of +Rochester for the alleged _crime_ of voting. When Miss Anthony voted, +what did she do? She merely exercised her citizen's right of suffrage--a +right to which she, and all women citizens are entitled by virtue of +their citizenship in the nation--a right to which they are entitled +because individual political rights are the basis of the government. The +United States has no other foundation. If that right is trampled upon, +we have no nation. We may hang together in a sort of anarchical way for +a time, but our dissolution draws near. Can the United States destroy +rights on account of sex? In the original Constitution, before even the +first ten amendments were added, States were forbidden to pass bills of +attainder. By the fourteenth amendment, the right of voting was +forbidden to be abridged, _unless for crime_. Is it a crime to be a +woman? "In the beginning God created man, male and female, created he +them." A bill of attainder inflicts punishment, creates liabilities or +_disabilities_, on account of parentage, _birth_, or descent. Do United +States officials presume to create a disability, or inflict a +punishment, on account of _birth_ as a woman, and this in direct +defiance of the Constitution? When the Constitution of the United States +presents no barrier, no lesser power has such authority. "The +Constitution of the United States, _and the laws made in pursuance +thereof_, shall be the supreme law of the land." + +Says article sixth: "Any law of Congress not made in pursuance of, or in +unison with the Constitution, is an illegal and void law." Coke declared +an Act of Parliament against Magna Charta was null and void. + +But United States officials declare it a crime for a United States +citizen to vote. If it is a crime for a native-born citizen, it ought to +be a still greater crime for a foreign-born citizen. But the fact that +citizenship carries with it the right of voting, is shown in the act of +naturalization. A foreigner, after a certain length of residence in this +country, proceeds to take out papers of citizenship. To become a +citizen, is all that he needs to make of him a voter. At one and the +same time he picks up a ballot, and his naturalization papers. Nothing +more than his becoming a citizen is needed for him to vote--nothing less +will answer. Susan B. Anthony is a native-born citizen. She had to take +out no papers to make her a citizen--she was born in the United +States--she is educated, intelligent, and FREE BORN. Native-born +citizenship is generally conceded to be of more value than that which is +bought. Do you not remember that when Paul was brought up, preparatory +to being scourged, he demanded by what right they scourged him, a Roman +citizen. The chief captain said, "I bought this freedom with a great +price." Paul replied, "I am free born"; then great fear fell upon the +chief captain, and he ordered the bonds removed from Paul. Native-born +Roman citizenship was worth as much as that two thousand years ago. +To-day, the foreign-born American citizen, who has bought his freedom +with a great price, who has left his home and country, and crossed the +sea to a strange land, in order that he may find freedom, is held to be +superior to "free born" American women citizens. + +But Miss Anthony is not battling for herself alone, nor for the woman +alone; she stands to-day, the embodiment of Republican principles. The +question of to-day, is not has woman a right to vote, but has _any_ +American citizen, white or black, native-born, or naturalized, a right +to vote. The prosecution of Miss Anthony by the United States, for the +alleged crime of having cast a vote at the last election, is a positive +declaration of the government of the United States that it is a crime to +vote. Let that decision be affirmed, and we have no republic; the +ballot, the governing power in the hands of every person, is the only +true republic. Each person to help make the laws which govern him or +her, is the only true democracy. Individual responsibility, personal +representation, exact political equality, are the only stable +foundations of a republic, and when the United States makes voting a +crime on the part of any free-born, law-abiding citizen, it strikes a +blow at its own stability; it is undermining the very foundations of the +republic--it is attempting to overthrow its own Constitution. + +Miss Anthony is to-day the representative of liberty; she is to-day +battling for the rights of every man, woman and child in the country; +she is not only upholding the right of every native-born citizen, but of +every naturalized citizen; to-day is at stake in her person, the +new-born hopes of foreign lands, the quickened instincts of liberty, so +well nigh universal. All these are on trial with her; the destinies of +America, the civilization of the world, are in the balance with her as +she stands on her defence. If the women of this country are restricted +in their right of self-government, what better is it for them to have +been born in the United States, than to have been born in Russia, or +France, or England, or many another monarchical country? No better; nor +as well, as in all these countries, women vote upon certain questions. +In Russia, about one-half of the property of the country is in the hands +of women, and they vote upon its disposition and control. In France and +Sweden, women vote at municipal elections, and in England, every woman +householder or rate-payer, votes for city officers, for poor wardens and +school commissioners, thus expressing her views as to the education of +her children, which is a power not possessed by a single woman of this +State of New York, whose boast has been that it leads the legislation of +the world in regard to women. Property-holding women in England, vote +equally with property-holding men, for every office except +Parliamentary, and even that is near at hand, a petition for it of +180,000 names going up last year. England, though a monarchy, is +consistent with herself. As the foundation of English representation is +property, not persons, property is allowed its representation, whether +it is held by man or by woman. + +"Are ye not of more value than many sparrows?" said one of old. Is it +less pertinent for us to ask if personal representation is not more +sacred than property representation? "Where governments lead, there are +no revolutions," said the eloquent Castelar. But revolution is imminent +in a government like ours, instituted by the people, for the people, in +its charters recognizing the most sacred rights of the people, but +which, in a sovereign capacity, through its officials, tramples upon the +most sacredly secured and guaranteed rights of the people. + +The question brought up by this trial is not a woman's rights question, +but a citizen's rights question. It is not denied that women are +citizens,--it is not denied that Susan B. Anthony was born in the United +States, and is therefore a citizen of the United States, and of the +State wherein she resides, which is this State of New York. It cannot be +denied that she is a person,--one of the people,--there is not a word in +the Constitution of the United States which militates against the +recognition of woman as a person, as one of the people, as a citizen. +The whole question, then, to-day, turns on the power of the United +States over the political rights of citizens--the whole question then, +to-day, turns on the supreme authority of the National Constitution. + +The Constitution recognizes native-born women as citizens, both of the +United States, and of the States in which they reside, and the +Enforcement Act of 1870, in unison with our national fundamental +principles, is entitled "An Act _to enforce the right of citizens of the +United States to vote_ in the several States of the Union." Out of those +three words, "for other purposes," or any provisions of this act +included in them, cannot be found authority for restraining any citizen +not "guilty of participating in the rebellion, or other crime," from +voting, and we brand this prosecution of Miss Anthony by United States +officials, under claim of provisions in this act, as _an illegal +prosecution_--_an infamous prosecution_, in direct defiance of national +law--dangerous in its principles, tending to subvert a republican form +of government, and a direct step, whether so designed or not, to the +establishment of a monarchy in this country. Where the right of one +individual is attacked, the rights of all are menaced. A blow against +one citizen, is a blow against every citizen. + +The government has shown itself very weak in prosecuting Miss Anthony. +No astute lawyer could be found on a side so pregnant of flaws as this +one, were not the plaintiff in the case, the sovereign United States. +The very fact of the prosecution is at one and the same time weakness on +the part of the government, and an act of unauthorized authority. It is +weakness, because by it, the United States comes onto the ground of the +defendant, and, at once admits voting is an United States right, because +United States rights _are citizens' rights_. By this prosecution, the +United States clearly admits that protection of the ballot is an United +States duty, instead of a State duty. It is an United States duty +instead of a State duty, because voting is an United States right +instead of a State right. This prosecution is an open admission by the +United States, that voting is a _Constitutional right_. + +But the prosecution is also an admission of unauthorized authority in +that by it, the United States _discriminates between citizens_. If there +is one point of our government more strongly fortified than another, it +is that the government is of the people. The Preamble of the +Constitution, heretofore quoted, _means all the people_, if language has +a meaning. _All_ the people are citizens, if the fourteenth amendment +has any signification at all. + +If any minds are so obtuse as not to see that the ballot is an United +States right,--if any person before me still claims suffrage as a state +right alone, such person certainly cannot fail to see that under his +views the United States has been guilty of a high-handed outrage upon +Miss Anthony and the fourteen other women whom this great +government,--this _big United States_ has prosecuted. Under this view of +the right of suffrage such person cannot fail to see there has been +unauthorized interference by the United States, with the duties and +rights of the State of New York. And while Uncle Sam was thus busy last +winter over the prosecution of women citizens of the State of New York, +the State itself submitted in its Legislature, a resolution looking +towards the recognition by the State of the right of tax-paying women to +the ballot. Thus at one and the same time was seen the anomaly of a +prosecution by the United States of women of the State of New York for +an act that New York herself was resolving it right to perform, and +which if the ballot is not a constitutional right, the United States has +no power over at all. + +Look at this prosecution as you will, it presents a fine dilemma to +solve; it presents to the country, as never before, the most important +and vital question of United States rights; it presents the most +important and vital question of unconstitutional power which has grown +to such dimensions in the hands of United States officials; and it must +bring to people's cognizance the very slight thread by which hangs the +security of any citizen's right to the ballot. + +Governments try themselves. No government has been stable in the past; +all have fallen because all have been one-sided; all have permitted the +degradation of woman. Babylon fell; her religion defiled woman; the +hand-writing appeared upon the wall, and in a single night she was +overthrown. Neither was Rome immortal; her laws were class laws; the +rights of humanity were not respected; she underwent many changes, and +that vast empire which once ruled the world lives now only in name. +Egypt held the wisdom of the world, and as to a certain extent she +recognized the equality of woman, her empire endured for ages; at last, +she too fell, for her civilization was still an unequal one. + +Special laws, or laws specially defined for one particular body of +people, on account of race, color, sex, or occupation, is class +legislation, and bears the seeds of death within itself. It was the +boast of our forefathers, that the rights for which they contended were +the rights of human nature. Shall the women of this country forever +have cause to say that the declaration and the constitution are +specially defined,--are organs of special law? + +Where the legislative and executive function of the law are in the hands +of a single class, special law, or special renderings of law are the +unvarying results. If the constitution of the United States is defined +and ruled by United States officials to discriminate between classes of +citizens, then the constitution is by them made to be nothing less than +an organ of special law, and is held not to sustain the rights of the +people. While the class which has usurped the legislative, the executive +and the judicial functions of the government, defines political rights +to belong to male citizens alone, the women of the United States are +under special law; and while thus debarred from exercising their natural +right of self-government, they are subjects, not citizens. It matters +not if women never voted since the framing of the government, until now, +this right has merely been retained by them; it has been held in +abeyance, to be exercised by them whenever they chose. The principles +advocated by the women to-day are the principles which brought on the +revolutionary war, and Miss Anthony and other women associated with her +are exponents of the very principles which caused the colonies to rebel +against the mother country. + +The eyes of all nations are upon us; their hopes of liberty are directed +towards us; the United States is now on trial by the light of its own +underlying principle. Its assertion of human right to self-government +lies a hundred years back of it. The chartered confirmation and renewal +of this assertion has come up to our very day, and though all the world +looked on and wondered to see us crush the rebellion of '61, it is at +this hour,--at this soon coming trial of Miss Anthony at Canandaigua, +before the Supreme Court of the Northern District of New York,--it is at +this trial that republican institutions will have their grand test, and +as the decision is rendered for, or against the political rights of +citizenship, so will the people of the United States find themselves +free or slaves, and so will the United States have tried itself, and +paved its way for a speedy fall, or for a long and glorious +continuance. + +Miss Anthony is to-day the representative of liberty. In all ages of the +world, and during all times, there have been epochs in which some one +person took upon their own shoulders the hopes and the sorrows of the +world, and in their own person, through many struggles bore them onward. +Suddenly or gradually, as the case might be, men found the rugged path +made smooth and the way opened for the world's rapid advance. Such an +epoch exists now, and such a person is Susan B. Anthony. + +To you, men of Ontario county, has come an important hour. The fates +have brought about that you, of all the men in this great land, have the +responsibility of this trial. To you, freedom has come looking for +fuller acknowledgement, for a wider area in which to work and grow. Your +decision will not be for Susan B. Anthony alone; it will be for +yourselves and for your children's children to the latest generations. +You are not asked to decide a question under favor, but according to the +foundation principles of this republic. You will be called upon to +decide a question according to our great charters of liberty--the +Declaration of Independence and the Constitution of the United States. +You are to decide, not only on a question of natural right, but of +absolute law, of the supreme law of the land. You are not to decide +according to prejudice, but according to the constitution. If your +decision is favorable to the defendant, you will sustain the +constitution; if adverse, if you are blinded by prejudice; you will not +decide against women alone, but against the United States as well. No +more momentous hour has arisen in the interest of freedom, for the +underlying principles of the republic, its warp and woof alike, is the +exact and permanent political equality of every citizen of the nation, +whether that citizen is native born or naturalized, white or black, man +or woman. And may God help you. + + + + +JUDGE HUNT, + +AND + +The Right of Trial by Jury. + +By JOHN HOOKER, Hartford, Conn. + + * * * + +The following article was intended for publication in a magazine, but +the writer kindly contributed it for publication in this pamphlet. + + * * * + +In the recent trial of Susan B. Anthony for voting, (illegally, as was +claimed, on the ground that as a woman she had no right to vote--a point +which we do not propose to consider,) the course of Judge Hunt, in +taking the case from the jury, and ordering a verdict of guilty to be +entered up, was so remarkable, so contrary to all rules of law, and so +subversive of the system of jury trials in criminal cases, that it +should not be allowed to pass without an emphatic protest on the part of +every public journal that values our liberties. + +Let us first of all see precisely what were the facts. Miss Anthony was +charged with having knowingly voted, without lawful right to vote, at +the Congressional election in the eighth ward of the City of Rochester, +in the State of New York, in November, 1872. The Act of Congress under +which the prosecution was brought provides that, "If, at any election +for representative or delegate in the Congress of the United States, any +person shall knowingly personate and vote, or attempt to vote, in the +name of any other person, whether living, dead or fictitious, or vote +more than once at the same election for any candidate for the same +office, or vote at a place where he may not be lawfully entitled to +vote, or vote without having a lawful right to vote, every such person +shall be deemed guilty of a crime," &c. + +The trial took place at Canandaigua, in the State of New York, in the +Circuit Court of the United States, before Judge Hunt, of the Supreme +Court of the United States. + +The defendant pleaded not guilty--thus putting the Government upon the +proof of their entire case, admitting, however, that she was a woman, +but admitting nothing more. + +The only evidence that she voted at all, and that, if at all, she voted +for a representative in Congress, offered on the part of the government, +was, that she handed four bits of paper, folded in the form of ballots, +to the inspectors, to be placed in the voting boxes. There was nothing +on the outside of these papers to indicate what they were, and the +contents were not known to the witnesses nor to the inspectors. There +were six ballot boxes, and each elector had the right to cast six +ballots. + +This evidence would undoubtedly warrant the conclusion that Miss Anthony +voted for a Congressional representative, the fact probably appearing, +although the papers before the writer do not show it, that one of the +supposed ballots was placed by her direction in the box for votes for +Members of Congress. The facts are thus minutely stated, not at all for +the purpose of questioning their sufficiency, but to show how entirely +it was a question of fact, and therefore a question for the jury. + +Upon this evidence Judge Hunt directed the clerk to enter up a verdict +of guilty. The counsel for the defendant interposed, but without effect, +the judge closing the discussion by saying, "Take the verdict, Mr. +Clerk." The clerk then said, "Gentlemen of the jury, hearken to your +verdict, as the Court has recorded it. You say you find the defendant +guilty of the offence whereof she stands indicted, and so say you all." +To this the jury made no response, and were immediately after dismissed. + +It is stated in one of the public papers, by a person present at the +trial, that immediately after the dismissal of the jury, one of the +jurors said to him that that was not his verdict, nor that of the rest, +and that if he could have spoken he should have answered "Not guilty," +and that other jurors would have sustained him in it. The writer has no +authority for this statement, beyond the letter mentioned. The juror, of +course, had a right, when the verdict was read by the clerk, to declare +that it was not his verdict, but it is not strange, perhaps, that an +ordinary juror, with no time to consider, or to consult with his +fellows, and probably ignorant of his rights, and in awe of the Court, +should have failed to assert himself at such a moment. + +Probably the assumption by the judge that Miss Anthony in fact voted, +did her no real injustice, as it was a notorious fact that she did vote, +and claimed the right to do so. But all this made it no less an +usurpation for the judge to take the case from the jury, and order a +verdict of guilty to be entered up without consulting them. + +There was, however, a real injustice done her by the course of the +judge, inasmuch as the mere fact of her voting, and voting unlawfully, +was not enough for her conviction. It is a perfectly settled rule of law +that there must exist an intention to do an illegal act, to make an act +a crime. It is, of course, not necessary that a person perpetrating a +crime should have an actual knowledge of a certain law which forbids the +act, but he must have a criminal intent. Thus, if one is charged with +theft, and admits the taking of the property, which is clearly proved to +have belonged to another, it is yet a good defence that he really +believed that he had a right to take it, or that he took it by mistake. +Just so in a case where, as sometimes occurs, the laws regulating the +right to vote in a State are of doubtful meaning, and a voter is +uncertain whether he has a right to vote in one town or another, and, +upon taking advice from good counsel, honestly makes up his mind that he +has a right to vote in the town of A. In this belief he applies to the +registrars of that town, who upon the statement of the facts, are of the +opinion that he has a right to vote there, and place his name upon the +list, and on election day he votes there without objection. Now, if he +should be prosecuted for illegal voting, it would not be enough that he +acknowledged the fact of voting, and that the judge was of the opinion +that his view of the law was wrong. There would remain another and most +vital question in the case, and that is, did he intend to vote +unlawfully? Now, precisely the wrong that would be done to the voter in +the case we are supposing, by the judge ordering a verdict of guilty to +be entered up, was done by that course in Miss Anthony's case. She +thoroughly believed that she had a right to vote. In addition to this +she had consulted one of the ablest lawyers in Western New York, who +gave it as his opinion that she had a right to vote, and who testified +on the trial that he had given her that advice. The Act of Congress upon +which the prosecution was founded uses the term "knowingly,"--"shall +knowingly vote or attempt to vote in the name of any other person, or +more than once at the same election for any candidate for the same +office, or vote at a place where he may not be lawfully entitled to +vote, or without having a lawful right to vote." Here most manifestly +the term "knowingly" does not apply to the mere _act_ of voting. It is +hardly possible that a man should vote, and not know the fact that he +is voting. The statute will bear no possible construction but that which +makes the term "knowingly" apply to the _illegality_ of the act. Thus, +"shall knowingly vote without having a lawful right to vote," can only +mean, shall vote knowing that there is no lawful right to vote. This +being so, there was manifestly a most vital question beyond that of the +fact of voting, and of the conclusion of the judge that the voting was +illegal, viz., did Miss Anthony vote, knowing that she had no right to +vote. + +Now, many people will say that Miss Anthony ought to have known that she +had no right to vote, and will perhaps regard it as an audacious attempt +for mere effect, to assert a right that she might think she ought to +have, but could not really have believed that she had. But whatever +degree of credit her claim to have acted honestly in the matter is +entitled to, whether to much, or little, or none, it was entirely a +question for the jury, and they alone could pass upon it. The judge had +no right even to express an opinion on the subject to the jury, much +less to instruct them upon it, and least of all to order a verdict of +guilty without consulting them. + +There seems to have been an impression, as the writer infers from +various notices of the matter in the public papers, that the case had +resolved itself into a pure question of law. Thus, a legal correspondent +of one of our leading religious papers, in defending the course of Judge +Hunt, says: "There was nothing before the Court but a pure question of +law. Miss Anthony violated the law of the State intentionally and +deliberately, as she openly avowed, and when brought to trial her only +defence was that the law was unconstitutional. Here was nothing whatever +to go to the jury." And again he says: "In jury trials all questions of +law are decided by the judge." This writer is referred to only as +expressing what are supposed to be the views of many others. + +To show, however, how entirely incorrect is this assumption of fact, I +insert here the written points submitted by Miss Anthony's counsel to +the Court, for its instruction to the jury. + +First--That if the defendant, at the time of voting, believed that she +had a right to vote, and voted in good faith in that belief, she is not +guilty of the offence charged. + +Second--In determining the question whether she did or did not believe +that she had a right to vote, the jury may take into consideration, as +bearing upon that question, the advice which she received from the +counsel to whom she applied. + +Third--That they may also take into consideration, as bearing upon the +same question, the fact that the inspectors considered the question, and +came to the conclusion that she had a right to vote. + +Fourth--That the jury have a right to find a general verdict of guilty +or not guilty, as they shall believe that she has or has not been guilty +of the offense prescribed in the statute. + +This certainly makes it clear that the question was not "a pure question +of law," and that there was "something to go to the jury." And this +would be so, even if, as that writer erroneously supposes, Miss Anthony +had openly avowed before the Court that she voted. + +But even if this point be wholly laid out of the case, and it had been +conceded that Miss Anthony had knowingly violated the law, if she should +be proved to have voted at all, so that the only questions before the +Court were, first--whether she had voted as charged, and +secondly--whether the law forbade her voting; and if in this state of +the case a hundred witnesses had been brought by the government, to +testify that she had "openly avowed" in their presence that she had +voted, so that practically the question of her having voted was proved +beyond all possible question, still, the judge would have no right to +order a verdict of guilty. The proof that she voted would still be +_evidence_, and _mere evidence_, and a judge has no power whatever to +deal with evidence. He can deal only with the law of the case, and the +jury alone can deal with the facts. + +But we will go further than this. We will suppose that in New York, as +in some of the States, a defendant in a criminal case is allowed to +testify, and that Miss Anthony had gone upon the stand as a witness, and +had stated distinctly and unequivocally that she did in fact vote as +charged. We must not forget that, if this had actually occurred, she +would at the same time have stated that she voted in the full belief +that she had a right to vote, and that she was advised by eminent +counsel that she had such right; a state of the case which we have +before referred to as presenting a vital question of fact for the jury, +and which excludes the possibility of the case being legally dealt with +by the judge alone; but this point we are laying out of the case in the +view we are now taking of it. We will suppose that Miss Anthony not only +testified that she voted in fact, but also that she had no belief that +she had any right to vote; making a case where, if the Court should +hold as matter of law that she had no right to vote, there would seem to +be no possible verdict for the jury to bring in but that of "guilty." + +Even in this case, which would seem to resolve itself as much as +possible into a mere question of law, there is yet no power whatever on +the part of the judge to order a verdict of guilty, but it rests +entirely in the judgment and conscience of the jury what verdict they +will bring in. They may act unwisely and unconscientiously, perhaps by +mere favoritism, or a weak sympathy, or prejudice, or on any other +indefensible ground; but yet they have entire _power_ over the matter. +It is for them finally to say what their verdict shall be, and the judge +has no power beyond that of instruction upon the law involved in the +case. + +The proposition laid down by the writer before referred to, that "in +jury trials all questions of law are decided by the judge," is not +unqualifiedly true. It is so in civil causes, but in criminal causes it +has been holden by many of our best courts that the jury are judges of +the law as well as of the facts. Pages could be filled with authorities +in support of this proposition. The courts do hold, however, that the +judges are to _instruct_ the jury as to the law, and that it is their +duty to take the law as thus laid down. But it has never been held that +if the jury assume the responsibility of holding a prisoner not guilty +in the face of a charge from the judge that required a verdict of +guilty, where the question was wholly one of law, they had not full +power to do it. + +The question is one ordinarily of little practical importance, but it +here helps to make clear the very point we are discussing. Here the +judge laid down the law, correctly, we will suppose, certainly in terms +that left the jury no doubt as to what he meant; and here, by all the +authorities, the jury ought, as a matter of proper deference in one +view, or of absolute duty in the other, to have adopted the view of the +law given them by the judge. But it was in either case the _jury only_ +who could apply the law to the case. The judge could _instruct_, but the +jury only could _apply the instruction_. That is, the instruction of the +judge, no matter how authoritative we may regard it, could find its way +to the defendant _only through the verdict of the jury_. + +It is only where the confession of facts is _matter of record_, (that +is, where the plea filed or recorded in the case _admits_ them), that +the judge can enter up a judgment without the finding of a jury. Thus, +if the defendant pleads "guilty," there is no need of a jury finding him +so. If, however, he pleads "not guilty," then, no matter how +overwhelming is the testimony against him on the trial, no matter if a +hundred witnesses prove his admission of all the facts, the whole is not +legally decisive like a plea of guilty; but the question still remains a +question of fact, and the jury alone can determine what the verdict +shall be. In other words, it is no less a question of fact for the +reason that the evidence is all one way and overwhelming, or that the +defendant has in his testimony admitted all the facts against himself. + +The writer has intended this article for general rather than +professional readers, and has therefore not encumbered it with +authorities; but he has stated only rules and principles that are well +established and familiar to all persons practising in our courts of law. + +This case illustrates an important defect in the law with regard to the +revision of verdicts and judgments in the United States Circuit Court. +In almost all other courts, an application for a new trial on the ground +of erroneous rulings by the judge, is made to a higher and independent +tribunal. In this court, however, an application for a new trial is +addressed to and decided by the same judge who tried the case, and whose +erroneous rulings are complained of. Such a motion was made and argued +by Miss Anthony's counsel before Judge Hunt, who refused to grant a new +trial. Thus it was Judge Hunt alone who was to decide whether Judge Hunt +was wrong. It is manifest that the opportunity for securing justice even +before the most honest of judges, would be somewhat less than before an +entirely distinct tribunal, as the judge would be prejudiced in favor of +his own opinion, and the best and most learned of judges are human and +fallible; while if a judge is disposed to be unfair, it is perfectly +easy for him to suppress all attempts of a party injured by his decision +to set it aside. + +The only remedy for a party thus wronged is by an appeal to the public. +Such an appeal, as a friend of justice and of the law, without regard to +Miss Anthony's case in any other aspect, the writer makes in this +article. The public, thus the only appellate tribunal, should willingly +listen to such a case, and pass its own supreme and decisive judgment +upon it. + +The writer cannot but regard Judge Hunt's course as not only irregular +as a matter of law, but a very dangerous encroachment on the right of +every person accused to be tried by a jury. It is by yielding to such +encroachments that liberties are lost. + + + + + +End of the Project Gutenberg EBook of An Account of the Proceedings on the +Trial of Susan B. Anthony, by Anonymous + +*** END OF THIS PROJECT GUTENBERG EBOOK TRIAL OF SUSAN B. ANTHONY *** + +***** This file should be named 18281.txt or 18281.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/1/8/2/8/18281/ + +Produced by Marilynda Fraser-Cunliffe, Graeme Mackreth and +the Online Distributed Proofreading Team at +http://www.pgdp.net (This file was made using scans of +public domain works from the University of Michigan Digital +Libraries.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. Special rules, +set forth in the General Terms of Use part of this license, apply to +copying and distributing Project Gutenberg-tm electronic works to +protect the PROJECT GUTENBERG-tm concept and trademark. 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