Section 1. "The right of citizens of the United States to vote shall not

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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."

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. · 第 1 / 4 章