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, §205): "There can be no crime unless _a

culpable intent_ accompanies the criminal act." The same author, (1 Cr.

Prac. §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, §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,

§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. §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. §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, §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 ægis--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."