If these assertions mean anything, it is that Congress should

pass a law compelling the States to protect women in their equal

political rights, and that the States should enact laws making

it the duty of inspectors of election to receive women's votes on

precisely the same conditions they do those of men.

Judge Stanley Matthews--a substantial Ohio Democrat--in his

preliminary speech at the Cincinnati Convention, said most

emphatically:

The Constitutional Amendments have established the political

equality of all citizens before the law.

President Grant, in his message to Congress March 30, 1870, on

the adoption of the XV. Amendment, said:

A measure which makes at once four millions of people

voters, is indeed a measure of greater importance than any

act of the kind from the foundation of the Government to the

present time.

How could the four million negroes be made voters if the two

million women were not included?

The California State Republican Convention said:

Among the many practical and substantial triumphs of the

principles achieved by the Republican party during the past

twelve years, we may enumerate with pride and pleasure, the

prohibiting of any State from abridging the privileges of

any citizen of the Republic, the declaring the civil and

political equality of every citizen, and the establishing of

all these principles in the Federal Constitution by

amendments thereto, as the permanent law.

Benjamin F. Butler, in a recent letter to me said:

I do not believe anybody in Congress doubts that the

Constitution authorizes the right of women to vote,

precisely as it authorizes trial by jury and many other like

rights guaranteed to citizens. And again, It is not laws we

want; there are plenty of laws--good enough, too.

Administrative ability to enforce law is the great want of

the age, in this country especially. Everybody talks of law,

law. If everybody would insist on the enforcement of law,

the government would stand on a firmer basis, and questions

would settle themselves.

And it is upon this just interpretation of the United States

Constitution that our National Woman Suffrage Association, which

celebrates the twenty-fifth anniversary of the woman's rights

movement, in New York on the 6th of May next, has based all its

arguments and action the past three years. We no longer petition

Legislature or Congress to give us the right to vote. We appeal

to the women everywhere to exercise their too long neglected

"citizen's right to vote." We appeal to the inspectors of

election everywhere to receive the votes of all United States

citizens, as it is their duty to do. We appeal to United States

commissioners and marshals to arrest the inspectors who reject

the names and votes of United States citizens, as it is their

duty to do, and leave those alone who, like our eighth ward

inspectors, perform their duties faithfully and well. We ask the

juries to fail to return verdicts of "guilty" against honest,

law-abiding, tax-paying United States citizens for offering their

votes at our elections; or against intelligent, worthy young men,

inspectors of election, for receiving and counting such citizens'

votes. We ask the judges to render true and unprejudiced opinions

of the law, and wherever there is room for a doubt to give its

benefit on the side of liberty and equality to women, remembering

that

The true rule of interpretation under our National

Constitution, especially since its Amendments, is that

anything for human rights is constitutional, everything

against human rights unconstitutional.

And it is on this line that we propose to fight our battle for

the ballot--peaceably, but nevertheless persistently to complete

triumph, when all United States citizens shall be recognized as

equals before the law.

Miss Anthony's trial opened the morning of the 18th of June. The

lovely village of Canandaigua, with its placid lake reflecting the

soft summer sky, gave no evidence of the great event that was to make

the day and the place memorable in history. All was still, the usual

peaceful atmosphere pervaded that conservative town, and with the

exception of a small group of men and women in earnest conversation at

the hotel, few there were who thought or cared about the great

principles of government involved in the pending trial. When the

tolling of the Court House bell announced that the hour had arrived,

Miss Anthony, her counsel and friends, promptly appeared, and were

soon followed by the District Attorney and Judge, representing the

power of the United States,--Miss Anthony to stand as a criminal

before the bar of her country for having dared to exercise a freeman's

right of self-government, and that country through its Judiciary to

falsify its grand declarations as to the equality of its citizens by a

verdict of guilty because of sex.

On the bench sat Judge Hunt, a small-brained, pale-faced, prim-looking

man, enveloped in a faultless suit of black broadcloth, and a snowy

white neck-tie. This was the first criminal case he had been called on

to try since his appointment, and with remarkable forethought, he had

penned his decision before hearing it. At times by his side sat Judge

Hall, who had declared himself unwilling to try the suit. Within the

bar sat Miss Anthony and counsel, the Hon. Henry R. Selden and Hon.

John Van Voorhis, several of the ladies who had voted,[169] Mrs. Gage,

and the United States District Attorney. Upon the right sat the jury,

while all the remaining space was crowded with curious and anxious

listeners, among whom were many men[170] prominent in public life.

The indictment[171] presented against Miss Anthony will be regarded

by the future historian as a remarkable document to have originated in

a republic against one of its native-born citizens guilty of no crime.

UNITED STATES CIRCUIT COURT. (NORTHERN DISTRICT OF NEW YORK.)

The United States of America _vs._ Susan B. Anthony; Hon. Ward

Hunt, Presiding. Appearances: For the United States: Hon. Richard

Crowley, U. S. District Attorney; For the Defendant: Hon. Henry

R. Selden, John Van Voorhis, Esq.

Tried at Canandaigua, Tuesday and Wednesday, June 17th and 18th,

1873, before Hon. Ward Hunt, and a jury. Jury impaneled at 2:30

P.M.

Mr. Crowley opened the case as follows:

_May it please the Court and Gentlemen of the Jury:_

On the 5th of November, 1872, there was held in this State, as

well as in other States of the Union, a general election for

different officers, and among those, for candidates to represent

several districts of this State in the Congress of the United

States. The defendant, Miss Susan B. Anthony, at that time

resided in the city of Rochester, in the county of Monroe,

Northern District of New York, and upon the 5th day of November,

1872, she voted for a representative in the Congress of the

United States, to represent the 29th Congressional District of

this State, and also for a representative at large for the State

of New York, to represent the State in the Congress of the United

States. At that time she was a woman. I suppose there will be no

question about that. The question in this case, if there be a

question of fact about it at all, will, in my judgment, be

rather a question of law than one of fact. I suppose that there

will be no question of fact, substantially, in the case when all

of the evidence is out, and it will be for you to decide under

the charge for his honor, the Judge, whether or not the defendant

committed the offense of voting for a representative in Congress

upon that occasion. We think, on the part of the Government, that

there is no question about it either one way or the other,

neither a question of fact, nor a question of law, and that

whatever Miss Anthony's intentions may have been--whether they

were good or otherwise--she did not have a right to vote upon

that question, and if she did vote without having a lawful right

to vote, then there is no question but what she is guilty of

violating a law of the United States in that behalf enacted by

the Congress of the United States.

We don't claim in this case, gentlemen, that Miss Anthony is of

that class of people who go about "repeating." We don't claim

that she went from place to place for the purpose of offering her

vote. But we do claim that upon the 5th of November, 1872, she

voted, and whether she believed that she had a right to vote or

not, it being a question of law, that she is within the statute.

Congress in 1870 passed the following statute: (Reads 19th

Section of the Act of 1870, page 144, 16th statutes at large.) It

is not necessary for me, gentlemen, at this stage of the case, to

state all the facts which will be proven on the part of the

Government. I shall leave that to be shown by the evidence and by

the witnesses, and if any question of law shall arise his Honor

will undoubtedly give you instructions as he shall deem proper.

Conceded, that on the 5th day of November, 1872, Miss Susan B.

Anthony was a woman.

Beverly W. Jones, a witness, called in behalf of the United

States, testified as follows: Examined by Mr. Crowley:

_Q._ Mr. Jones, where do you reside? _A._ 8th Ward, Rochester.

_Q._ Where were you living on the 5th of November, 1872? _A._

Same place.

_Q._ Do you know the defendant, Miss Susan B. Anthony? _A._ Yes,

sir.

_Q._ In what capacity were you acting upon that day, if any, in

relation to elections? _A._ Inspector of election.

_Q._ Into how many election districts is the 8th Ward divided, if

it contains more than one? _A._ Two, sir.

_Q._ In what election district were you inspector of elections?

_A._ The first district.

_Q._ Who were inspectors with you? _A._ Edwin T. Marsh and

William B. Hall.

_Q._ Had the Board of Inspectors been regularly organized? _A._

Yes, sir.

_Q._ Upon the 5th day of November, did the defendant, Susan B.

Anthony, vote in the first election district of the 8th Ward of

the city of Rochester?

_A._ Yes, sir.

_Q._ Did you see her vote? _A._ Yes, sir.

_Q._ Will you state to the jury what tickets she voted, whether

State, Assembly, Congress and Electoral? Objected to as calling

for a conclusion.

_Q._ State what tickets she voted, if you know, Mr. Jones. _A._

If I recollect right she voted the Electoral ticket,

Congressional ticket, State ticket, and Assembly ticket.

_Q._ Was there an election for member of Congress from that

district and for Representative at large in Congress, for the

State of New York, held on the 5th of November, in the city of

Rochester? _A._ I think there was; yes, sir.

_Q._ In what Congressional District was the city of Rochester at

the time? _A._ The 29th.

_Q._ Did you receive the tickets from Miss Anthony? _A._ Yes,

sir.

_Q._ What did you do with them when you received them? _A._ Put

them in the separate boxes where they belonged.

_Q._ State to the jury whether you had separate boxes for the

several tickets voted in that election district? _A._ Yes, sir;

we had.

_Q._ Was Miss Anthony challenged upon that occasion? _A._ Yes,

sir--no; not on that day she wasn't.

_Q._ She was not challenged on the day she voted? _A._ No, sir.

Cross-examination by Judge Selden:

_Q._ Prior to the election, was there a registry of voters in

that district made? _A._ Yes, sir.

_Q._ Were you one of the officers engaged in making that

registry? _A._ Yes, sir.

_Q._ When the registry was being made did Miss Anthony appear

before the Board of Registry and claim to be registered as a

voter? _A._ She did.

_Q._ Was there any objection made, or any doubt raised as to her

right to vote? _A._ There was.

_Q._ On what ground? _A._ On the ground that the Constitution of

the State of New York did not allow women to vote.

_Q._ What was the defect in her right to vote as a citizen? _A._

She was not a male citizen.

_Q._ That she was a woman? _A._ Yes, sir.

_Q._ Did the Board consider that and decide that she was entitled

to register? Objected to. Objection overruled.

_Q._ Did the Board consider the question of her right to

registry, and decide that she was entitled to registry as a

voter? _A._ Yes, sir.

_Q._ And she was registered accordingly? _A._ Yes, sir.

_Q._ When she offered her vote, was the same objection brought up

in the Board of Inspectors, or question made of her right to vote

as a woman? _A._ She was challenged previous to election day.

_Q._ It was canvassed previous to election day between them? _A._

Yes, sir; she was challenged on the second day of registering

names.

_Q._ At the time of the registry, when her name was registered,

was the Supervisor of Election present at the Board? _A._ He was.

_Q._ Was he consulted upon the question of whether she was

entitled to registry, or did he express an opinion on the subject

to the inspectors?

Mr. CROWLEY.--I submit that it is of no consequence whether he

did or not.

JUDGE SELDEN.--He was the Government Supervisor under this act of

Congress.

Mr. CROWLEY.--The Board of Inspectors, under the State law,

constitute the Board of Registry, and they are the only persons

to pass upon that question.

THE COURT.--You may take it. _A._ Yes, sir; there was a United

States Supervisor of Elections, two of them.

By Judge Selden:

_Q._ Did they advise the registry or did they not? _A._ One of

them did.

_Q._ And on that advice the registry was made with the judgment

of the inspectors? _A._ It had a great deal of weight with the

inspectors, I have no doubt.

Re-direct examination by Mr. CROWLEY:

_Q._ Was Miss Anthony challenged before the Board of Registry?

_A._ Not at the time she offered her name.

_Q._ Was she challenged at any time? _A._ Yes, sir; the second

day of the meeting of the Board.

_Q._ Was the preliminary and the general oath administered? _A._

Yes, sir.

_Q._ Won't you state what Miss Anthony said, if she said

anything, when she came there and offered her name for

registration? _A._ She stated that she did not claim any rights

under the Constitution of the State of New York; she claimed her

right under the Constitution of the United States.

_Q._ Did she name any particular amendment? _A._ Yes, sir; she

cited the XIV. Amendment.

_Q._ Under that she claimed her right to vote? _A._ Yes, sir.

_Q._ Did the other Federal Supervisor who was present, state it

as his opinion that she was entitled to vote under that

amendment, or did he protest, claiming that she did not have the

right to vote? _A._ One of them said that there was no way for

the inspectors to get around placing the name upon the register;

the other one, when she came in, left the room.

_Q._ Did this one who said that there was no way to get around

placing the name upon the register, state that she had her right

to register, but did not have the right to vote? _A._ I didn't

hear him make any such statement.

_Q._ You didn't hear any such statement as that? _A._ No, sir.

_Q._ Was there a poll list kept of the voters of the first

election district of the 8th Ward on the day of election? _A._

Yes, sir.

_Q._ (Handing witness two books.) State whether that is the poll

list of voters kept upon the day of election in the first

election district of the 8th Ward, of the city of Rochester? _A._

This is the poll list, and also the register.

_Q._ Turn to the name of Susan B. Anthony, if it is upon that

poll list. _A._ I have it.

_Q._ What number is it? _A._ Number 22.

_Q._ From that poll list what tickets does it purport to show

that she voted upon that occasion? _A._ Electoral, State,

Congress, and Assembly.

United States rests.

Judge SELDEN opened the case in behalf of the defendant, as follows:

_If the Court please, Gentlemen of the Jury:_

This is a case of no ordinary magnitude, although many might

regard it as one of very little importance. The question whether

my client here has done anything to justify her being consigned

to a felon's prison or not, is one that interests her very

essentially, and that interests the people also essentially. I

claim and shall endeavor to establish before you that when she

offered to have her name registered as a voter, and when she

offered her vote for Member of Congress, she was as much entitled

to vote as any man that voted at that election, according to the

Constitution and laws of the Government under which she lives. If

I maintain that proposition, as a matter of course she has

committed no offense, and is entitled to be discharged at your

hands.

But, beyond that, whether she was a legal voter or not, whether

she was entitled to a vote or not, if she sincerely believed that

she had a right to vote, and offered her ballot in good faith,

under that belief, whether right or wrong, by the laws of this

country she is guilty of no crime. I apprehend that that

proposition, when it is discussed, will be maintained with a

clearness and force that shall leave no doubt upon the mind of

the Court or upon your minds as the gentlemen of the jury. If I

maintain that proposition here, then the further question and the

only question which, in my judgment, can come before you to be

passed upon by you as a question of fact is whether or not she

did vote in good faith, believing that she had a right to vote.

The public prosecutor assumes that, however honestly she may have

offered her vote, however sincerely she may have believed that

she had a right to vote, if she was mistaken in that judgment,

her offering her vote and its being received makes a criminal

offense--a proposition to me most abhorrent, as I believe it will

be equally abhorrent to your judgment.

Before the registration, and before this election, Miss Anthony

called upon me for advice upon the question whether, under the

XIV. Amendment of the Constitution of the United States, she had

a right to vote. I had not examined the question. I told her I

would examine it and give her my opinion upon the question of her

legal right. She went away and came again after I had made the

examination. I advised her that she was as lawful a voter as I

am, or as any other man is, and advised her to go and offer her

vote. I may have been mistaken in that, and if I was mistaken, I

believe she acted in good faith. I believe she acted according to

her right as the law and Constitution gave it to her. But whether

she did or not, she acted in the most perfect good faith, and if

she made a mistake, or if I made one, that is not a reason for

committing her to a felon's cell.

For the second time in my life, in my professional practice, I am

under the necessity of offering myself as a witness for my

client.

HENRY R. SELDEN, a witness sworn in behalf of the defendant,

testified as follows: Before the last election, Miss Anthony

called upon me for advice, upon the question whether she was or

was not a legal voter. I examined the question, and gave her my

opinion, unhesitatingly, that the laws and Constitution of the

United States authorized her to vote, as well as they authorize

any man to vote; and I advised her to have her name placed upon

the registry and to vote at the election, if the inspectors

should receive her vote. I gave the advice in good faith,

believing it to be accurate, and I believe it to be accurate

still. [This witness was not cross-examined.]

Judge SELDEN: I propose to call Miss Anthony as to the fact of

her voting--on the question of the intention or belief under

which she voted.

Mr. CROWLEY: She is not competent as a witness in her own behalf.

[The Court so held.] Defendant rests.

JOHN E. POUND, a witness sworn in behalf of the United States,

testified as follows, examined by Mr. CROWLEY:

_Q._ During the months of November and December, 1872, and

January, 1873, were you Assistant United States District Attorney

for the Northern District of New York? _A._ Yes, sir.

_Q._ Do you know the defendant, Susan B. Anthony? _A._ Yes, sir.

_Q._ Did you attend an examination before Wm. C. Storrs, a United

States Commissioner, in the city of Rochester, when her case was

examined? _A._ I did.

_Q._ Was she called as a witness in her own behalf upon that

examination? _A._ She was.

_Q._ Was she sworn? _A._ She was.

_Q._ Did she give evidence? _A._ She did.

_Q._ Did you keep minutes of evidence on that occasion? _A._ I

did.

_Q._ (Handing the witness a paper). Please look at the paper now

shown you and see if it contains the minutes you kept upon that

occasion? _A._ It does.

_Q._ Turn to the evidence of Susan B. Anthony? _A._ I have it.

_Q._ Did she, upon that occasion, state that she consulted or

talked with Judge Henry R. Selden, of Rochester, in relation to

her right to vote?

Judge SELDEN: I object to that upon the ground that it is

incompetent, that if they refuse to allow her to be sworn here,

they should be excluded from producing any evidence that she gave

elsewhere, especially when they want to give the version which

the United States officer took of her evidence.

THE COURT: Go on.

By Mr. CROWLEY:

_Q._ State whether she stated on that examination, under oath,

that she had talked or consulted with Judge Henry R. Selden in

relation to her right to vote? _A._ She did.

_Q._ State whether she asked, upon that examination, if the

advice given her by Judge Henry R. Selden would or did make any

difference in her action in voting, or in substance that? _A._

She stated on the cross-examination, "I should have made the same

endeavor to vote that I did had I not consulted Judge Selden. I

didn't consult any one before I registered. I was not influenced

by his advice in the matter at all; have been resolved to vote,

the first time I was at home thirty days, for a number of years."

_Cross-examination by_ Mr. Van VOORHIS:

_Q._ Mr. Pound, was she asked there if she had any doubt about

her right to vote, and did she answer, "Not a particle"? _A._ She

stated, "Had no doubt as to my right to vote," on the direct

examination.

_Q._ There was a stenographic reporter there, was there not? _A._

A reporter was there taking notes.

_Q._ Was not this question put to her, "Did you have any doubt

yourself of your right to vote?" and did she not answer, "Not a

particle"?

THE COURT: Well, he says so, that she had no doubt of her right

to vote.

Judge SELDEN: I beg leave to state, in regard to my own

testimony, Miss Anthony informs me that I was mistaken in the

fact that my advice was before her registry. It was my

recollection that it was on her way to the registry, but she

states to me now that she was registered and came immediately to

my office. In that respect I was under a mistake.

_Evidence closed._

ARGUMENT OF MR. SELDEN FOR THE DEFENDANT.

The defendant is indicted under the 19th section of the Act of

Congress of May 31, 1874 (16 St. at L., 144), for "voting without

having a lawful right to vote." The words of the statute, so far

as they are material in this ease, are as follows:

If at any election for representative or delegate in the

Congress of the United States, any person shall knowingly

... vote without having a lawful right to vote ... every

such person shall be deemed guilty of a crime ... and on

conviction thereof shall be punished by a fine not exceeding

$500, or by imprisonment for a term not exceeding three

years, or by both, in the discretion of the court, and shall

pay the costs of prosecution.

The only alleged ground of illegality of the defendant's vote is

that she is a woman. If the same act had been done by her brother

under the same circumstances, the act would have been not only

innocent, but honorable and laudable; but having been done by a

woman it is said to be a crime. The crime, therefore, consists

not in the act done, but in the simple fact that the person doing

it was a woman and not a man. I believe this is the first

instance in which a woman has been arraigned in a criminal court

merely on account of her sex. If the advocates of female suffrage

had been allowed to choose the point of attack to be made upon

their position, they could not have chosen it more favorably for

themselves; and I am disposed to thank those who have been

instrumental in this proceeding, for presenting it in the form

of a criminal prosecution. Women have the same interest that men

have in the establishment and maintenance of good government;

they are to the same extent as men bound to obey the laws; they

suffer to the same extent by bad laws, and profit to the same

extent by good laws; and upon principles of equal justice, as it

would seem, should be allowed equally with men, to express their

preference in the choice of law-makers and rulers. But however

that may be, no greater absurdity, to use no harsher term, could

be presented, than that of rewarding men and punishing women, for

the same act, without giving to women any voice in the question

which should be rewarded, and which punished.

I am aware, however, that we are here to be governed by the

Constitution and laws as they are, and that if the defendant has

been guilty of violating the law, she must submit to the penalty,

however unjust or absurd the law may be. But courts are not

required to so interpret laws or constitutions as to produce

either absurdity or injustice, so long as they are open to a more

reasonable interpretation. This must be my excuse for what I

design to say in regard to the propriety of female suffrage,

because with that propriety established there is very little

difficulty in finding sufficient warrant in the Constitution for

its exercise. This case, in its legal aspects, presents three

questions, which I purpose to discuss.

1. Was the defendant legally entitled to vote at the election in

question?

2. If she was not entitled to vote, but believed that she was,

and voted in good faith in that belief, did such voting

constitute a crime under the statute before referred to?

3. Did the defendant vote in good faith in that belief?

If the first question be decided in accordance with my views, the

other questions become immaterial; if the second be decided

adversely to my views, the first and third become immaterial. The

first two are questions of law to be decided by the court, the

other is a question for the jury.

The Court suggested that the argument should be confined to

the legal questions, and the argument on the other question

suspended. This suggestion was assented to, and the counsel

proceeded.

My first position is that the defendant had the same right to

vote as any other citizen who voted at that election. Before

proceeding to the discussion of the purely legal question, I

desire, as already intimated, to pay some attention to the

propriety and justice of the rule which I claim to have been

established by the Constitution.

Miss Anthony, and those united with her in demanding the right of

suffrage, claim, and with a strong appearance of justice, that

upon the principles upon which our Government is founded, and

which lie at the basis of all just government, every citizen has

a right to take part, upon equal terms with every other citizen,

in the formation and administration of government. This claim on

the part of the female sex presents a question the magnitude of

which is not well appreciated by the writers and speakers who

treat it with ridicule. Those engaged in the movement are able,

sincere, and earnest women, and they will not be silenced by such

ridicule, nor even by the villainous caricatures of Nast. On the

contrary, they justly place all those things to the account of

the wrongs which they think their sex has suffered. They believe,

with an intensity of feeling which men who have not associated

with them have not yet learned, that their sex has not had, and

has not now, its just and true position in the organization of

government and society. They may be wrong in their position, but

they will not be content until their arguments are fairly,

truthfully, and candidly answered.

In the most celebrated document which has been put forth on this

side of the Atlantic, our ancestors declared that "governments

derive their just powers from the consent of the governed."

Blackstone says:

The lawfulness of punishing such criminals (_i.e._, persons

offending merely against the laws of society) is founded

upon this principle; that the law by which they suffer was

made by their own consent; it is a part of the original

contract into which they entered when first they engaged in

society; it was calculated for and has long contributed to

their own security.

Quotations, to an unlimited extent, containing similar doctrines

from eminent writers, both English and American, on government,

from the time of John Locke to the present day, might be made.

Without adopting this doctrine which bases the rightfulness of

government upon the consent of the governed, I claim that there

is implied in it the narrower and unassailable principle that all

citizens of a State, who are bound by its laws, are entitled to

an equal voice in the making and execution of such laws. The

doctrine is well stated by Godwin in his treatise on "Political

Justice." He says:

The first and most important principle that can be imagined

relative to the form and structure of government, seems to

be this: that as government is a transaction in the name and

for the benefit of the whole, every member of the community

ought to have some share in its administration. Again,

Government is a contrivance instituted for the security of

individuals; and it seems both reasonable that each man

should have a share in providing for his own security, and

probable, that partiality and cabal should by this means be

most effectually excluded. And again, To give each man a

voice in the public concerns comes nearest to that admirable

idea of which we should never lose sight, the uncontrolled

exercise of private judgment. Each man would thus be

inspired with a consciousness of his own importance, and the

slavish feelings that shrink up the soul in the presence of

an imagined superior would be unknown.

The mastery which this doctrine, whether right or wrong, has

acquired over the public mind, has produced as its natural fruit,

the extension of the right of suffrage to all the adult male

population in nearly all the States of the Union; a result which

was well epitomized by President Lincoln, in the expression,

"government by the people for the people." This extension of the

suffrage is regarded by many as a source of danger to the

stability of free government. I believe it furnishes the greatest

security for free government, as it deprives the mass of the

people of all motive for revolution; and that government so based

is most safe, not because the whole people are less liable to

make mistakes in government than a select few, but because they

have no interest which can lead them to such mistakes, or to

prevent their correction when made. On the contrary, the world

has never seen an aristocracy, whether composed of few or many,

powerful enough to control a government, who did not honestly

believe that their interest was identical with the public

interest, and who did not act persistently in accordance with

such belief; and, unfortunately, an aristocracy of sex has not

proved an exception to the rule. The only method yet discovered

of overcoming this tendency to the selfish use of power, whether

consciously or unconsciously, by those possessing it, is the

distribution of the power among all who are its subjects. Short

of this the name free government is a misnomer.

This principle, after long strife, not yet entirely ended has

been, practically at least, very generally recognized on this

side of the Atlantic, as far as relates to men; but when the

attempt is made to extend it to women, political philosophers and

practical politicians, those "inside of politics," two classes

not often found acting in concert, join in denouncing it. It

remains to be determined whether the reasons which have produced

the extension of the franchise to all adult men, do not equally

demand its extension to all adult women. If it be necessary for

men that each should have a share in the administration of

government for his security, and to exclude partiality, as

alleged by Godwin, it would seem to be equally, if not more,

necessary for women, on account of their inferior physical power;

and if, as is persistently alleged by those who sneer at their

claims, they are also inferior in mental power, that fact only

gives additional weight to the argument in their behalf, as one

of the primary objects of government, as acknowledged on all

hands, is the protection of the weak against the power of the

strong.

I can discover no ground consistent with the principle on which

the franchise has been given to all men, upon which it can be

denied to women. The principal argument against such extension,

so far as argument upon that side of the question has fallen

under my observation, is based upon the position that women are

represented in the government by men, and that their rights and

interests are better protected through that indirect

representation than they would be by giving them a direct voice

in the government. The teachings of history in regard to the

condition of women under the care of these self-constituted

protectors, to which I can only briefly allude, show the value of

this argument as applied to past ages; and in demonstration of

its value as applied to more recent times, even at the risk of

being tedious, I will give some examples from my own professional

experience. I do this because nothing adds more to the efficacy

of truth than the translation of the abstract into the concrete.

Withholding names, I will state the facts with fullness and

accuracy.

An educated and refined woman, who had been many years

before deserted by her drunken husband, was living in a

small village of Western New York, securing, by great

economy and intense labor in fine needlework, the means of

living, and of supporting her two daughters at an academy,

the object of her life being to give them such an education

as would enable them to become teachers, and thus secure to

them some degree of independence when she could no longer

provide for them. The daughters were good scholars and

favorites in the school, so long as the mother was able to

maintain them there. A young man, the nephew and clerk of a

wealthy but miserly merchant, became acquainted with the

daughters, and was specially attentive to the older one. The

uncle disapproved of the conduct of his nephew, and failing

to control it by honorable means, resorted to the

circulation of the vilest slanders against mother and

daughters. He was a man of wealth and influence. They were

almost unknown. The mother had but recently come to the

village, her object having been to secure to her daughters

the educational advantages which the academy afforded.

Poverty, as well as perhaps an excusable if not laudable

pride, compelled her to live in obscurity, and consequently

the assault upon their characters fell upon her and her

daughters with crushing force. Her employment mainly ceased,

her daughters were of necessity withdrawn from school, and

all were deprived of the means, from their own exertions, of

sustaining life. Had they been in fact the harlots which the

miserly scoundrel represented them to be, they would not

have been so utterly powerless to resist his assault. The

mother in her despair naturally sought legal redress. But

how was it to be obtained? By the law the wife's rights were

merged in those of the husband. She had in law no individual

existence, and consequently no action could be brought by

her to redress the grievous wrong; indeed, _according to the

law she had suffered no wrong_, but the husband had suffered

all, and was entitled to all the redress. Where he was the

lady did not know; she had not heard from him for many

years. Her counsel, however, ventured to bring an action in

her behalf, joining the husband's name with hers, as the law

required. When the cause came to trial the defendant made no

attempt to sustain the charges which he had made, well

knowing that they were as groundless as they were cruel; but

he introduced and proved a release of the cause of action,

signed by the husband, reciting a consideration of fifty

dollars paid to him. The defendant's counsel had some

difficulty in proving the execution of the release, and was

compelled to introduce as a witness the constable who had

been employed to find the vagabond husband and obtain his

signature. His testimony disclosed the facts that he found

the husband in the forest in one of our north-eastern

counties, engaged in making shingles (presumably stealing

timber from the public lands and converting it into the

means of indulging his habits of drunkenness), and only five

dollars of the fifty mentioned in the release had in fact

been paid. The Court held, was compelled to hold, that the

party injured _in view of the law_, had received full

compensation for the wrong--and the mother and daughters

with no means of redress were left to starve. This was the

act of the _representative_ of the wife and daughters to

whom we are referred, as a better protector of their rights

than they themselves could be. It may properly be added,

that if the action had proceeded to judgment without

interference from the husband, and such amount of damages

had been recovered as a jury might have thought it proper to

award, the money would have belonged to the husband, and the

wife could not lawfully have touched a cent of it. Her

attorney might, and doubtless would have paid it to her, but

he could only have done so at the peril of being compelled

to pay it again to the drunken husband if he had demanded

it.

In another case, two ladies, mother and daughter, some time

prior to 1860 came from an eastern county of New York to

Rochester, where a habeas corpus was obtained for a child of

the daughter less than two years of age. It appeared on the

return of the writ, that the mother of the child had been

previously abandoned by her husband, who had gone to a

Western State to reside, and his wife had returned with the

child to her mother's house, and had resided there after her

desertion. The husband had recently returned from the West,

had succeeded in getting the child into his custody, and was

stopping overnight with it in Rochester on the way to his

Western home. No misconduct on the part of the wife was

pretended, and none on the part of the husband, excepting

that he had gone to the West, leaving his wife and child

behind, no cause appearing, and had returned, and somewhat

clandestinely obtained possession of the child. The Judge,

following Blackstone's views of husbands' rights, remanded

the infant to the custody of the father. He thought the law

required it, and perhaps it did; but if mothers had had a

voice, either in making or administering the law, I think

the result would have been different. The distress of the

mother on being thus separated from her child can be better

imagined than described. The separation proved a final one,

as in less than a year neither father nor mother had any

child on earth to love or care for. Whether the loss to the

little one of a mother's love and watchfulness had any

effect upon the result, can not, of course, be known.

The state of the law a short time since, in other respects, in

regard to the rights of married women, shows what kind of

security had been provided for them by their assumed

representatives. Prior to 1848, all the personal property of

every woman on marriage became the absolute property of the

husband--the use of all her real estate became his during

coverture, and on the birth of a living child, it became his

during his life. He could squander it in dissipation or bestow it

upon harlots, and the wife could not touch or interfere with it.

Prior to 1860, the husband could by will take the custody of his

infant children away from the surviving mother, and give it to

whom he pleased--and he could in like manner dispose of the

control of the children's property, after his death, during their

minority, without the mother's consent. In most of these respects

the state of the law has undergone great changes within the last

twenty-five years. The property, real and personal, which a woman

possesses before marriage, and such as may be given to her during

coverture, remains her own, and is free from the control of her

husband. If a married woman is slandered she can prosecute the

slanderer in her own name, and recover to her own use damages for

the injury. The mother now has an equal claim with the father to

the custody of their minor children, and in case of controversy

on the subject, courts may award the custody to either in their

discretion. The husband can not now by will effectually appoint a

guardian for his infant children without the consent of the

mother, if living. These are certainly great ameliorations of the

law; but how have they been produced? Mainly as the result of the

exertions of a few heroic women, one of the foremost of whom is

she who stands arraigned as a criminal before this Court to-day.

For a thousand years the absurdities and cruelties to which I

have alluded have been imbedded in the common law, and in the

statute books, and men have not touched them, and would not until

the end of time, had they not been goaded to it by the persistent

efforts of the noble women to whom I have alluded.

Much has been done, but much more remains to be done by women. If

they had possessed the elective franchise, the reforms which have

cost them a quarter of a century of labor would have been

accomplished in a year. They are still subject to taxation upon

their property, without any voice as to the levying or

destination of the tax; and are still subject to laws made by

men, which subject them to fine and imprisonment for the same

acts which men do with honor and reward--and when brought to

trial no woman is allowed a place on the bench or in the jury

box, or a voice in her behalf at the bar. They are bound to

suffer the penalty of such laws, made and administered solely by

men, and to be silent under the infliction. Give them the ballot,

and, although I do not suppose that any great revolution will be

produced, or that all political evils will be removed (I am not a

believer in political panaceas), but if I mistake not, valuable

reforms will be introduced which are not now thought of. Schools,

alms-houses, hospitals, drinking saloons, and those worse dens

which are destroying the morals and the constitutions of so many

of the young of both sexes, will feel their influence to an

extent now little dreamed of. At all events women will not be

taxed without an opportunity to be heard, and will not be subject

to fine and imprisonment by laws made exclusively by men for

doing what it is lawful and honorable for men to do.

It may be said in answer to the argument in favor of female

suffrage derived from the cases to which I have referred, that

men, not individually, but collectively, are the natural and

appropriate representatives of women, and that, notwithstanding

cases of individual wrong, the rights of women are, on the whole,

best protected by being left to their care. It must be observed,

however, that the cases which I have stated, and which are only

types of thousands like them, in their cruelty and injustice, are

the result of ages of legislation by these assumed protectors of

women. The wrongs were less in the men than in the laws which

sustained them, and which contained nothing for the protection of

the women. But passing this view, let us look at the matter

historically and on a broader field.

If Chinese women were allowed an equal share with men in shaping

the laws of that great empire, would they subject their female

children to torture with bandaged feet, through the whole period

of childhood and growth, in order that they might be cripples for

the residue of their lives? If Hindoo women could have shaped the

laws of India, would widows for ages have been burned on the

funeral pyres of their deceased husbands? If Jewish women had had

a voice in framing Jewish laws, would the husband, at his own

pleasure, have been allowed to "write his wife a bill of

divorcement and give it in her hand, and send her out of his

house"? Would women in Turkey or Persia have made it a heinous,

if not capital, offense for a wife to be seen abroad with her

face not covered by an impenetrable veil? Would women in England,

however learned, have been for ages subjected to execution for

offenses for which men, who could read, were only subjected to

burning in the hand and a few months imprisonment?

The principle which governs in these cases, or which has done so

hitherto, has been at all times and everywhere the same. Those

who succeed in obtaining power, no matter by what means, will,

with rare exceptions, use it for their exclusive benefit. Often,

perhaps generally, this is done in the honest belief that such

use is for the best good of all who are affected by it. A wrong,

however, to those upon whom it is inflicted, is none the less a

wrong by reason of the good motives of the party by whom it is

inflicted.

The condition of subjection in which women have been held is the

result of this principle; the result of superior strength, not of

superior rights, on the part of men. Superior strength, combined

with ignorance and selfishness, but not with malice. It is a

relic of the barbarism in the shadow of which nations have grown

up. Precisely as nations have receded from barbarism the severity

of that subjection has been relaxed. So long as merely physical

power governed in the affairs of the world, the wrongs done to

women were without the possibility of redress or relief; but

since nations have come to be governed by laws, there is room to

hope, though the process may still be a slow one, that injustice

in all its forms, or at least political injustice, may be

extinguished. No injustice can be greater than to deny to any

class of citizens not guilty of crime, all share in the political

power of a State, that is, all share in the choice of rulers, and

in the making and administration of the laws. Persons to which

such share is denied, are essentially slaves, because they hold

their rights, if they can be said to have any, subject to the

will of those who hold the political power. For this reason it

has been found necessary to give the ballot to the emancipated

slaves. Until this was done their emancipation was far from

complete. Without a share in the political powers of the State,

no class of citizens has any security for its rights, and the

history of nations to which I briefly alluded, shows that women

constitute no exception to the universality of this rule.

Great errors, I think, exist in the minds of both the advocates

and the opponents of this measure in their anticipation of the

immediate effects to be produced by its adoption. On the one hand

it is supposed by some that the character of women would be

radically changed--that they would be unsexed, as it were, by

clothing them with political rights, and that instead of modest,

amiable, and graceful beings, we should have bold, noisy, and

disgusting political demagogues, or something worse, if anything

worse can be imagined. I think those who entertain such opinions

are in error. The innate character of women is the result of

God's laws, not of man's, nor can the laws of man affect that

character beyond a very slight degree. Whatever rights may be

given to them, and whatever duties may be charged upon them by

human laws, their general character will remain unchanged. Their

modesty, their delicacy, and intuitive sense of propriety, will

never desert them, into whatever new positions their added rights

or duties may carry them.

So far as women, without change of character as women, are

qualified to discharge the duties of citizenship, they will

discharge them if called upon to do so, and beyond that they will

not go. Nature has put barriers in the way of any excessive

devotion of women to public affairs, and it is not necessary that

nature's work in that respect should be supplemented by

additional barriers invented by men. Such offices as women are

qualified to fill will be sought by those who do not find other

employment, and others they will not seek, or if they do, will

seek in vain. To aid in removing as far as possible the

disheartening difficulties which women dependent upon their own

exertions encounter, it is, I think, desirable that such official

positions as they can fill should be thrown open to them, and

that they should be given the same power that men have to aid

each other by their votes. I would say, remove all legal barriers

that stand in the way of their finding employment, official or

unofficial, and leave them, as men are left, to depend for

success upon their character and their abilities. As long as men

are allowed to act as milliners, with what propriety can they

exclude women from the post of school commissioners when chosen

to such positions by their neighbors?

To deny them such rights, is to leave them in a condition of

political servitude as absolute as that of the African slaves

before their emancipation. This conclusion is readily to be

deduced from the opinion of Chief-Justice Jay in the case of

Chisholm's Ex'rs _vs._ The State of Georgia (2 Dallas, 419-471),

although the learned Chief-Justice had of course no idea of any

such application as I make of his opinion. The action was

assumpsit by a citizen of the State of South Carolina, and the

question was, whether the United States Court had jurisdiction,

the State of Georgia declining to appear. The Chief-Justice, in

the course of his opinion, after alluding to the feudal idea of

the character of the sovereign in England, and giving some of the

reasons why he was not subject to suit before the courts of the

kingdom, says:

The same feudal ideas run through all their jurisprudence,

and constantly remind us of the distinction between the

prince and the subject. No such ideas obtain here. At the

Revolution the sovereignty devolved on the people; and they

are truly the sovereigns of the country, but they are

sovereigns without subjects (unless the African slaves among

us may be so called), and have none to govern but

themselves; the citizens of America are equal as

fellow-citizens, and as joint tenants in the sovereignty.

Now I beg leave to ask, in case this charge against Miss Anthony

can be sustained, what equality and what sovereignty is enjoyed

by the half of the citizens of these United States to which she

belongs? Do they not, in that event, occupy politically exactly

the position which the learned Chief-Justice assigns to the

African slaves? Are they not shown to be subjects of the other

half, who are the sovereigns? And is not their political

subjection as absolute as was that of the African slaves? If that

charge has any basis to rest upon, the learned Chief-Justice was

wrong. The sovereigns of this country, according to the theory of

this prosecution, are not sovereigns without subjects. Though two

or three millions of their subjects have lately ceased to be

such, and have become freemen, they still hold twenty millions of

subjects in absolute political bondage. If it be said that my

language is stronger than the facts warrant, I appeal to the

record in this case for its justification.

As deductions from what has been said, I respectfully insist,

1st, That upon the principles upon which our government is based,

the privileges of the elective franchise can not justly be denied

to women. 2d. That women need it for their protection. 3d. That

the welfare of both sexes will be promoted by granting it to

them.

It would not become me, however clear my own convictions may be

on the subject, to assert the right of women, under our

Constitution and laws as they now are, to vote at Presidential

and Congressional elections, is free from doubt, because very

able men have expressed contrary opinions on that question, and,

so far as I am informed, there has been no authoritative

adjudication upon it; or, at all events, none upon which the

public mind has been content to rest as conclusive. I proceed,

therefore, to offer such suggestions as occur to me, and to refer

to such authorities bearing upon the question, as have fallen

under my observation, hoping to satisfy your honor, not only that

my client has committed no criminal offense, but that she has

done nothing which she had not a legal and Constitutional right

to do. It is not claimed that, under our State Constitution and

the laws made in pursuance of it, women are authorized to vote at

elections, other than those of private corporations, and

consequently the right of Miss Anthony to vote at the election in

question, can only be established by reference to an authority

superior to and sufficient to overcome the provisions of our

State Constitution. Such authority can only be found, and I claim

that it is found in the Constitution of the United States. For

convenience I beg leave to bring together the various provisions

of that Constitution which bear more or less directly upon the

question:

ARTICLE I, Section 2. The House of Representatives shall be

composed of members chosen every second year, by the people

of the several States; and the electors in each State shall

have the qualifications for electors of the most numerous

branch of the State Legislature.

ARTICLE I, Section 3. The Senate of the United States shall

be composed of two senators from each State, chosen by the

Legislature thereof for six years; and each senator shall

have one vote.

ARTICLE II, Section 1. Each State shall appoint in such

manner as the Legislature thereof may direct, a number of

electors equal to the whole number of senators and

representatives to which the State may be entitled in the

Congress.

ARTICLE IV, Section 2. The citizens of each State shall be

entitled to all the privileges and immunities of citizens in

the several States.

ARTICLE IV, Section 4. The United States shall guarantee to

every State in the Union a republican form of government.

THIRTEENTH AMENDMENT. (DECEMBER 18, 1865.)

1. Neither slavery nor involuntary servitude, except as a

punishment for crime, whereof the party shall have been duly

convicted, shall exist within the United States, or any

place subject to their jurisdiction.

2. Congress shall have power to enforce this article by

appropriate legislation.

FOURTEENTH AMENDMENT. (JULY 28, 1868.)

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty or property, without due process of law, nor

deny to any person within its jurisdiction the equal

protection of the laws.

Section 2. Representatives shall be apportioned among the

several States according to their respective numbers,

counting the whole number of persons in each State,

excluding Indians not taxed. But when the right to vote at

any election for the choice of electors for President and

Vice-President of the United States, Representatives in

Congress, the Executive and Judicial officers of a State, or

the members of the Legislature thereof, is denied to any of

the male inhabitants of such State, being twenty-one years

of age, and citizens of the United States, or in any way

abridged, except for participation in rebellion or other

crime, the basis of representation therein shall be reduced

in the proportion which the number of such male citizens

shall bear to the whole number of male citizens twenty-one

years of age in such State.

* * * * *

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

FIFTEENTH AMENDMENT. (MARCH 30, 1870.)

Section 1. The right of citizens of the United States to

vote shall not be denied or abridged by the United States,

or by any State, on account of race, color or previous

condition of servitude.

Section 2. The Congress shall have power to enforce this

article by appropriate legislation.

By reference to the provisions of the original Constitution, here

recited, it appears that prior to the XIII., if not until the

XIV. 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 XIV. 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 XIV. Amendment, been questioned, and can not

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 abridgment, 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 XIV. 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 XV.:

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 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 XIV.

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 can not, 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 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

XIV. 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 XIV. Amendment, are the XV. Amendment, and

the second section of the XIV. In regard to the XV. Amendment, I

shall only say, that if my interpretation of the XIV. is correct,

there was still an object to be accomplished and which was

accomplished by the XV. The prohibition of any action abridging

the privileges and immunities of citizens, contained in the XIV.

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 XV. 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 XIV.

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, and

it gives none; but 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 can not 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 can not 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 XIII. 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 XIV. 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 XIV.

Amendment in the Senate, and aided in its passage, says:

The XIV. 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 above 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 XIV. 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 and 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 XIV.

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 XIV. 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 XV. 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 can not 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 upward 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 XIV. 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 offense, 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 can not conceive of a case where a

party could vote without knowledge of the fact of voting, and to

apply the term "knowingly" to the mere act of voting, would make

nonsense of the statute. This word was inserted as defining the

essence of the offense, and it limits the criminality to cases

where the voting is not only without right, but where it is done

willfully, with a knowledge that it is without right. Short of

that there is no offense 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 willful 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 offense within the

statute. An innocent mistake is not a crime, and no amount of

judicial decisions can make it such. Mr. Bishop says, (I 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 violation 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. 25, § 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 offense is the

wrongful intent without which it can not 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 offenses of a

similar description. (1 Crim. Prac. § 504.)

In regard to the offense 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 offense, 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 defense, but a foundation on

which another defense 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 offense, 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 defense to him against

the criminal proceeding, that he honestly believed it his

through a misapprehension of the law.

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 offense, and if the state of

the mind which the law condemns does not exist, in connection

with the act, there is no offense. 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 defense,

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 offense 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 Matthew 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 color 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 Hale's 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 offense 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, can

not 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 can

not be reconciled with the position which I have endeavored to

maintain, and I am sorry to say that one of them is found in the

reports of this State. As the 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 counselors 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 can not 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 step 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 a a criminal.

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.

District Attorney Crowley followed Judge Selden with an argument two

hours in length. He stated that, in his view, the case simply

presented questions of law, and that his argument, therefore, would be

addressed strictly to the court, leaving the court to give such

instructions to the jury upon the facts as he might deem proper. He

contended that the right to vote was not included in "privileges and

immunities," and was only given by State laws and State constitutions.

He concluded his argument by saying that an honest mistake of the

facts may sometimes excuse, but a mistake of the law never. 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 offense 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 XIV. Amendment of the

Constitution of the United States, and is void.

The XIII., XIV., and XV. Amendments were designed mainly for the

protection of the newly emancipated negroes, but full effect must

nevertheless be given to the language employed. The XIII.

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 XIV. and XV. Amendments were enacted.

The XIV. 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 XIV. Amendment defines

and declares who shall be citizens of the United States, to wit:

"All persons born or naturalized in the United States and subject

to the jurisdiction thereof." The latter qualification was

intended to exclude the children of foreign representatives and

the like. With this qualification every person born in the United

States or naturalized is declared to be a citizen of the United

States, and of the State wherein he resides.

After creating and defining citizenship of the United States, the

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 XIV. Amendment. They stand as they did

before the adoption of the XIV. 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 thirty-one years, or after

he had reached the age of fifty, or that no person having gray

hair, or who had not the use of all his limbs, should be entitled

to vote, I do not see how it could be held to be a violation of

any right derived or held under the Constitution of the United

States. We might say that such regulations were unjust,

tyrannical, unfit for the regulation of an intelligent State; but

if rights of a citizen are thereby violated, they are of that

fundamental class derived from his position as a citizen of the

State, and not those limited rights belonging to him as a citizen

of the United States, and such was the decision in Corfield

_agt._ Coryell, _supra_.

The United States rights appertaining to this subject are those

first under article 1, 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 XV. 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 XV. Amendment. If

the XV. 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 XIV. or of the XV. Amendment.

This view is assumed in the second section of the XIV. 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

XIV. 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

counselor-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

XIV. 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 XIV. Amendment gives no right to a woman

to vote, and the voting by Miss Anthony was in violation of the

law.