If she believed she had a right to vote, and voted in reliance

upon that belief, does that relieve her from the penalty? It is

argued that the knowledge referred to in the act relates to her

knowledge of the illegality of the act, and not to the act of

voting; for it is said that she must know that she voted. Two

principles apply here: First, ignorance of the law excuses no

one; second, every person is presumed to understand and to intend

the necessary effects of his own acts. Miss Anthony knew that she

was a woman, and that the Constitution of this State prohibits

her from voting. She intended to violate that provision--intended

to test it, perhaps, but certainly intended to violate it. The

necessary effect of her act was to violate it, and this she is

presumed to have intended. There was no ignorance of any fact,

but all the facts being known, she undertook to settle a

principle in her own person. She takes the risk, and she can not

escape the consequences. It is said, and authorities are cited to

sustain the position, that there can be no crime unless there is

a culpable intent; to render one criminally responsible a vicious

will must be present. A. commits a trespass on the land of B.,

and B., thinking and believing that he has a right to shoot an

intruder on his premises, kills A. on the spot. Does B.'s

misapprehension of his rights justify his act? Would a Judge be

justified in charging the jury that if satisfied that B. supposed

he had a right to shoot A he was justified, and they should find

a verdict of not guilty? No Judge would make such a charge. To

constitute a crime, it is true that there must be a criminal

intent, but it is equally true that knowledge of the facts of the

case is always held to supply this intent. An intentional killing

bears with it evidence of malice in law. Whoever, without

justifiable cause, intentionally kills his neighbor, is guilty of

a crime. The principle is the same in the case before us, and in

all criminal cases. The precise question now before me has been

several times decided, viz: That one illegally voting was bound

and was assumed to know the law, and that a belief that he had a

right to vote gave no defense, if there was no mistake of fact.

(Hamilton against The People, 57th of Barbour, p. 625; State

against Boyet, 10th of Iredell, p. 336; State against Hart, 6th

Jones, 389; McGuire against State, 7 Humphrey, 54; 15th of Iowa

reports, 404.) No system of criminal jurisprudence can be

sustained upon any other principle. Assuming that Miss Anthony

believed she had a right to vote, that fact constitutes no

defense if in truth she had not the right. She voluntarily gave a

vote which was illegal, and thus is subject to the penalty of the

law.

The Judge directed the jury to find a verdict of guilty.

Judge SELDEN: I submit that on the view which your honor has

taken, that the right to vote and the regulation of it is solely

a State matter. That this whole law is out of the jurisdiction of

the United States Courts and of Congress. The whole law upon that

basis, as I understand it, is not within the constitutional power

of the General Government, but is one which applies to the

States. I suppose that it is for the jury to determine whether

the defendant is guilty of a crime or not. And I therefore ask

your honor to submit to the jury these propositions:

First.--If the defendant, at the time of voting, believed that

she had a right to vote and voted in good faith in that belief,

she is not guilty of the offense charged.

Second.--In determining the question whether she did or did not

believe that she had a right to vote, the jury may take into

consideration, as bearing upon that question, the advice which

she received from the counsel to whom she applied.

Third.--That they may also take into consideration, as bearing

upon the same question, the fact that the inspectors considered

the question and came to the conclusion that she had a right to

vote.

Fourth.--That the jury have a right to find a general verdict of

guilty or not guilty as they shall believe that she has or has

not committed the offense described in the statute.

A professional friend sitting by has made this suggestion which I

take leave to avail myself of as bearing upon this question: "The

Court has listened for many hours to an argument in order to

decide whether the defendant has a right to vote. The arguments

show the same question has engaged the best minds of the country

as an open question. Can it be possible that the defendant is to

be convicted for acting upon such advice as she could obtain

while the question is an open and undecided one?"

THE COURT.--You have made a much better argument than that, sir.

JUDGE SELDEN.--As long as it is an open question, I submit that

she has not been guilty of an offense. At all events, it is for

the jury.

THE COURT.--I can not charge these propositions of course. The

question, gentlemen of the jury, in the form it finally takes, is

wholly a question or questions of law, and I have decided as a

question of law, in the first place, that under the XIV.

Amendment, which Miss Anthony claims protects her, she was not

protected in a right to vote. And I have decided also that her

belief and the advice which she took do not protect her in the

act which she committed. If I am right in this, the result must

be a verdict on your part of guilty, and I therefore direct that

you find a verdict of guilty.

JUDGE SELDEN.--That is a direction no Court has power to make in

a criminal case.

THE COURT.--Take the verdict, Mr. Clerk.

THE CLERK.--Gentlemen of the jury, hearken to your verdict as the

Court has recorded it. You say you find the defendant guilty of

the offense whereof she stands indicted, and so say you all?

JUDGE SELDEN.--I don't know whether an exception is available,

but I certainly must except to the refusal of the Court to submit

those propositions, and especially to the direction of the Court

that the jury should find a verdict of guilty. I claim that it is

a power that is not given to any Court in a criminal case. Will

the Clerk poll the jury? THE COURT.--No. Gentlemen of the jury,

you are discharged.

On the next day a motion for a new trial was made and argued by Judge

Selden, as follows:

_May it please the Court:_--The trial of this case commenced with

a question of very great magnitude--whether by the Constitution

of the United States the right of suffrage was secured to female

equally with male citizens. It is likely to close with a question

of much greater magnitude--whether the right of trial by jury is

absolutely secured by the Federal Constitution to persons charged

with crime before the Federal Courts.

I assume, without attempting to produce any authority on the

subject, that this Court has power to grant to the defendant a

new trial in case it should appear that in the haste and in the

lack of opportunity for examination which necessarily attend a

jury trial, any material error should have been committed

prejudicial to the defendant, as otherwise no means whatever are

provided by the law for the correction of such errors.

The defendant was indicted under the nineteenth section of the

act of Congress of May 31, 1870, entitled, "An act to enforce the

right of citizens of the United States to vote in the several

States of this Union, and for other purposes," and was charged

with having knowingly voted, without having a lawful right to

vote, at the Congressional election in the Eighth Ward of the

City of Rochester, in November last; the only ground of

illegality being that the defendant was a woman.

The provisions of the act of Congress, so far as they bear upon

the present case, are as follows:

Section 19. If at any election for representative or

delegate in the Congress of the United States, any person

shall knowingly personate and vote, or attempt to vote, in

the name of any other person, whether living, dead, or

fictitious, or vote more than once at the same election for

any candidate for the same office, or vote at a place where

he may not be lawfully entitled to vote, or vote without

having a lawful right to vote, ... every such person shall

be deemed guilty of a crime, and shall for such crime be

liable to prosecution in any court of the United States, of

competent jurisdiction, and on conviction thereof, shall be

punished by a fine not exceeding $500 or by imprisonment for

a term not exceeding three years, or both, in the discretion

of the Court, and shall pay the costs of prosecution.

It appeared on the trial that before voting the defendant called

upon a respectable lawyer, and asked his opinion whether she had

a right to vote, and he advised her that she had such right, and

the lawyer was examined as a witness in her behalf, and testified

that he gave her such advice, and that he gave it in good faith,

believing that she had such right.

It also appeared that when she offered to vote, the question

whether as a woman she had a right to vote, was raised by the

inspectors, and considered by them in her presence, and they

decided that she had a right to vote, and received her vote

accordingly.

It was also shown on the part of the Government, that on the

examination of the defendant before the commissioner on whose

warrant she was arrested, she stated that she should have voted,

if allowed to vote, without reference to the advice she had

received from the attorney whose opinion she had asked; that she

was not influenced to vote by that opinion; that she had before

determined to offer her vote, and had no doubt about her right to

vote.

At the close of the testimony the defendant's counsel proceeded

to address the jury, and stated that he desired to present for

consideration three propositions, two of law and one of fact:

First.--That the defendant had a lawful right to vote.

Second.--That whether she had a lawful right to vote or not, if

she honestly believed that she had that right and voted in good

faith in that belief, she was guilty of no crime.

Third.--That when she gave her vote she gave it in good faith,

believing that it was her right to do so.

That the first two propositions presented questions for the Court

to decide, and the last for the jury.

When the counsel had proceeded thus far, the Court suggested that

the counsel had better discuss in the first place the questions

of law; which the counsel proceeded to do, and having discussed

the two legal questions at length, asked leave then to say a few

words to the jury on the question of fact. The Court then said to

the counsel that he thought that had better be left until the

views of the Court upon the legal question should be made known.

The District Attorney thereupon addressed the Court at length

upon the legal questions, and at the close of his argument the

Court delivered an opinion adverse to the positions of the

defendant's counsel upon both of the legal questions presented,

holding that the defendant was not entitled to vote; and that if

she voted in good faith in the belief in fact that she had a

right to vote, it would constitute no defense--the grounds of the

decision on the last point being that she was bound to know that

by law she was not a legal voter, and that even if she voted in

good faith in the contrary belief, it constituted no defense to

the crime with which she was charged. The decision of the court

upon these questions was read from a written document.

At the close of the reading, the Court said that the decision of

these questions disposed of the case and left no question of fact

for the jury, and that he should therefore direct the jury to

find a verdict of guilty, and proceeded to say to the jury that

the decision of the Court had disposed of all there was in the

case, and that he directed them to find a verdict of guilty, and

he instructed the clerk to enter a verdict of guilty.

At this point, before any entry had been made by the clerk, the

defendant's counsel asked the Court to submit the case to the

jury, and to give to the jury the following several instructions:

[Here Judge Selden repeated the instructions. See page 665.]

The Court declined to submit the case to the jury upon any

question whatever, and directed them to render a verdict of

guilty against the defendant. The defendant's counsel excepted to

the decision of the Court upon the legal questions--to its

refusal to submit the case to the jury; to its refusal to give

the instructions asked; and to its direction to the jury to find

a verdict of guilty against the defendant--the counsel insisting

that it was a direction which no Court had a right to give in a

criminal case.

The Court then instructed the clerk to take the verdict, and the

clerk said, "Gentlemen of the jury, hearken to the verdict as the

Court hath recorded it. You say you find the defendant guilty of

the offense charged. So say you all." No response whatever was

made by the jury, either by word or sign. They had not consulted

together in their seats or otherwise. None of them had spoken a

word. Nor had they been asked whether they had or had not agreed

upon a verdict. The defendant's counsel then asked that the clerk

be requested to poll the jury. The Court said, "That can not be

allowed. Gentlemen of the jury, you are discharged," and the

jurors left the box. No juror spoke a word during the trial, from

the time they were impaneled to the time of their discharge.

Now I respectfully submit, that in these proceedings the

defendant has been substantially denied her constitutional right

of trial by jury. The jurors composing the panel have been merely

silent spectators of the conviction of the defendant by the

Court. They have had no more share in her trial and conviction

than any other twelve members of the jury summoned to attend this

Court, or any twelve spectators who have sat by during the trial.

If such course is allowable in this case, it must be equally

allowable in all criminal cases, whether the charge be for

treason, murder, or any minor grade of offense which can come

under the jurisdiction of a United States Court; and as I

understand it, if correct, substantially abolishes the right of

trial by jury.

It certainly does so in all those cases where the judge shall be

of the opinion that the facts which he may regard as clearly

proved, lead necessarily to the guilt of the defendant. Of course

by refusing to submit any question to the jury, the judge refuses

to allow counsel to address the jury in the defendant's behalf.

The constitutional provisions which I insist are violated by this

proceeding are the following:

Constitution of the United States, article 3, section 2. The

trial of all crimes, except in cases of impeachment, shall

be by jury.

Amendments to Constitution, article 6. In all criminal

prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and

District wherein the crime shall have been committed, which

district shall have been previously ascertained by law; and

to be informed of the nature and cause of the accusation; to

be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and

to have the assistance of counsel for his defense.

In accordance with these provisions, I insist that in every

criminal case, where the party has pleaded not guilty, whether

upon the trial the guilt of such party appears to the judge to be

clear or not, the response to the question, guilty or not guilty,

must come from the jury, must be their voluntary act, and can not

be imposed upon them by the Court.

No opportunity has been given me to consult precedents on this

subject, but a friend has referred me to an authority strongly

supporting my position, from which I will quote, though I deem a

reference to precedents unnecessary to sustain the plain

declarations of the Constitution: I refer to the case of the

State _vs._ Shule (10 Iredell, 153), the substance of which is

stated in 2 Graham & Waterman on New Trials, page 363. Before

stating that case I quote from the text of G. & W.

The verdict is to be the result of the deliberation of the

jury upon all the evidence in the case. The Court has no

right to anticipate the verdict by an expression of opinion

calculated so to influence the jury as to take from them

their independence of action.

In the State _vs._ Shule two defendants were indicted for an

affray. The jury remaining out a considerable time, at the

request of the prosecuting attorney they were sent for by

the Court. The Court then charged them that although Jones

(the other defendant) had first commenced a battery on

Shule, yet, if the jury believed the evidence, the

defendant, Shule, was also guilty. Thereupon, one of the

jurors remarked that they had agreed to convict Jones, but

were about to acquit Shule. The Court then charged the jury

again, and told them that they could retire if they thought

proper to do so. The jury consulted together a few minutes

in the court room. The prosecuting attorney directed the

clerk to enter a verdict of guilty as to both defendants.

When the clerk had entered the verdict, the jury were asked

to attend to it, as it was about to be read by the clerk.

The clerk then read the verdict in the hearing of the jury.

The jury, upon being requested, if any of them disagreed to

the verdict to make it known by a nod, seemed to express

their unanimous assent; and no juror expressed his dissent.

In reviewing the case the Court say:

The error complained of is, that before the jury had

announced their verdict, and in fact after they had

intimated an intention to acquit the defendant, Shule, the

Court allowed the clerk to be directed to enter a verdict

finding him guilty, and after the verdict was so entered,

allowing the jury to be asked if any of them disagreed to

the verdict which had been recorded by the clerk. No juror

expressed his dissent; but by a nod which appeared to be

made by each juror, expressed their unanimous assent. The

innovation is, that instead of permitting the jury to give

their verdict, the Court allows a verdict to be entered for

them, such as it is to be presumed the Court thinks they

ought to render, and then they are asked if any of them

disagree to it; thus making a verdict for them, unless they

are bold enough to stand out against a plain intimation of

the opinion of the Court.

A _venire de novo_ was ordered. The principal difference between

this case and the one under consideration is, that in the latter

the Court directed the clerk to enter the verdict, and in the

former he was allowed to do so, and in the latter the Court

denied liberty to the jurors to dissent from the verdict, and in

the former the Court allowed such dissent.

With what jealous care the right of trial by jury in criminal

cases has been guarded by every English-speaking people from the

days of King John, indeed from the days of King Alfred, is known

to every lawyer and to every intelligent layman, and it does not

seem to me that such a limitation of that right as is presented

by the proceedings in this case, can be reconciled either with

constitutional provisions, with the practice of courts, with

public sentiment on the subject, or with safety in the

administration of justice. How the question would be regarded by

the highest Court of this State may fairly be gathered from its

decision in the case of Cancemi, 18 N. Y., 128, where, on a trial

for murder, one juror, some time after the trial commenced, being

necessarily withdrawn, a stipulation was entered into, signed by

the District Attorney, and by the defendant and his council, to

the effect that the trial should proceed before the remaining

eleven jurors, and that their verdict should have the same effect

as the verdict of a full panel would have. A verdict of guilty

having been rendered by the eleven jurors, was set aside and a

new trial ordered by the Court of Appeals, on the ground that the

defendant could not, even by his own consent, be lawfully tried

by a less number of jurors than twelve. It would seem to follow

that he could not waive the entire panel, and effectually consent

to be tried by the Court alone, and still less could the Court,

against his protest, assume the duties of the jury, and

effectually pronounce the verdict of guilty or not guilty in

their stead.

It will doubtless be insisted that there was no disputed question

of fact upon which the jury were required to pass. In regard to

that, I insist that however clear and conclusive the proof of the

facts might appear to be, the response to the question, guilty or

not guilty, must under the Constitution come from the jury and

could not be supplied by the judgment of the court, unless,

indeed, the jury should see fit to render a special verdict,

which they always may, but can never be required to do. It was

the province of the court to instruct the jury as to the law, and

to point out to them how clearly the law, on its view of the

established facts, made out the offense; but it has no authority

to instruct them positively on any question of fact, or to order

them to find any particular verdict. That must be their

spontaneous work.

But there was a question of fact, which constituted the very

essence of the offense, and one on which the jury were not only

entitled to exercise, but were in duty bound to exercise, their

independent judgment. That question of fact was, whether the

defendant, at the time when she voted, knew that she had not a

right to vote. The statute makes this knowledge the very gist of

the offense, without the existence of which, in the mind of the

voter at the time of voting, there is no crime. There is none by

the statute and none in morals. The existence of this knowledge,

in the mind of the voter at the time of voting, is under the

statute, necessarily a fact and nothing but a fact, and one which

the jury was bound to find as a fact, before they could, without

violating the statute, find the defendant guilty. The ruling

which took that question away from the jury, on the ground that

it was a question of law and not of fact, and which declared that

as a question of law, the knowledge existed, was, I respectfully

submit, a most palpable error, both in law and justice. It was an

error in law, because its effect was to deny any force whatever

to the most important word which the statute uses in defining the

offense--the word "knowingly." It was also unjust, because it

makes the law declare a known falsehood as a truth, and then by

force of that judicial falsehood condemns the defendant to such

punishment as she could only lawfully be subject to, if the

falsehood were a truth.

I admit that it is an established legal maxim that every person

(judicial officers excepted) is bound, and must be presumed, to

know the law. The soundness of this maxim, in all the cases to

which it can properly be applied, I have no desire to question;

but it has no applicability whatever to this case. It applies in

every case where a party does an act which the law pronounces

criminal, whether the party knows or does not know that the law

has made the act a crime. That maxim would have applied to this

case, if the defendant had voted, knowing that she had no legal

right to vote; without knowing that the law had made the act of

knowingly voting without a right, a crime. In that case she would

have done the act which the law made a crime, and could not have

shielded herself from the penalty by pleading ignorance of the

law. But in the present case the defendant has not done the act

which the law pronounces a crime. The law has not made the act of

voting without a lawful right to vote, a crime, where it is done

by mistake, and in the belief by the party voting that he has the

lawful right to vote. The crime consists in voting "knowingly,"

without lawful right. Unless the knowledge exists in fact, the

very gist of the offense is wanting. To hold that the law

presumes conclusively that such knowledge exists in all cases

where the legal right is wanting, and to reject all evidence to

the contrary, or to deny to such evidence any effect, as has been

done on this trial, is to strike the word "knowingly" out of the

statute--and to condemn the defendant on the legal fiction that

she was acting in bad faith, it being all the while conceded that

she was in fact acting in good faith. I admit that there are

precedents to sustain such ruling, but they can not be reconciled

with the fundamental principles of criminal law, nor with the

most ordinary rules of justice. Such a ruling can not but shock

the moral sense of all right-minded, unprejudiced men.

No doubt the assumption by the defendant of a belief of her right

to vote might be made use of by her as a mere cover to secure the

privilege of giving a known illegal vote, and of course that

false assumption would constitute no defense to the charge of

illegal voting. If the defendant had dressed herself in male

attire, and had voted as John Anthony, instead of Susan, she

would not be able to protect herself against a charge of voting

with a knowledge that she had no right to vote, by asserting her

belief that she had a right to vote as a woman. The artifice

would no doubt effectually overthrow the assertion of good faith.

No such question, however, is made here. The decision of which I

complain concedes that the defendant voted in good faith, in the

most implicit belief that she had a right to vote, and condemns

her on the strength of the legal fiction, conceded to be in fact

a mere fiction, that she knew the contrary. But if the facts

admitted of a doubt of the defendant's good faith, that was a

question for the jury, and it was clear error for the court to

assume the decision of it.

Again. The denial of the right to poll the jury was most clearly

an error. Under the provisions of the Constitution which have

been cited, the defendant could only be convicted on the verdict

of a jury. The case of Cancemi shows that such jury must consist

of twelve men; and it will not be claimed that anything less than

the unanimous voice of the jury can be received as their verdict.

How then could the defendant be lawfully deprived of the right to

ask every juror if the verdict had his assent? I believe this is

a right which was never before denied to a party against whom a

verdict was rendered in any case, either civil or criminal. The

following cases show, and many others might be cited to the same

effect, that the right to poll the jury is an absolute right in

all cases, civil and criminal. (The People _vs._ Perkins, 1

Wend., 91; Jackson _vs._ Hawks, 2 Wend., 619; Fox _vs._ Smith, 3

Cowen, 23.)

The ground on which the right of the defendant to vote has been

denied, is, as I understood the decision of the Court,

That the rights of the citizens of the State as such were

not under consideration in the XIV. Amendment; that they

stand as they did before that Amendment.... The right of

voting or the privilege of voting is a right or privilege

arising under the Constitution of the State, and not of the

United States. If the right belongs to any particular

person, it is because such person is entitled to it as a

citizen of the State where he offers to exercise it, and not

because of citizenship of the United States.... The

regulation of the suffrage is conceded to the States as a

State right.

If this position be correct, which I am not now disposed to

question, I respectfully insist that the Congress of the United

States had no power to pass the act in question; that by doing so

it has attempted to usurp the rights of States, and that all

proceedings under the act are void.

I claim therefore that the defendant is entitled to a new trial.

First--Because she has been denied her right of trial by jury.

Second--Because she has been denied the right to ask the jury

severally whether they assented to the verdict which the Court

had recorded for them.

Third--Because the Court erroneously held, that the defendant had

not a lawful right to vote.

Fourth--Because the Court erroneously held, that if the

defendant, when she voted, did so in good faith, believing that

she had a right to vote, that fact constituted no defense.

Fifth--Because the Court erroneously held that the question,

whether the defendant at the time of voting knew that she had not

a right to vote, was a question of law to be decided by the

Court, and not a question of fact to be decided by the jury.

Sixth--Because the Court erred in holding that it was a

presumption of law that the defendant knew that she was not a

legal voter, although in fact she had not that knowledge.

Seventh--Because Congress had no Constitutional right to pass the

act under which the defendant was indicted, and the act and all

proceedings under it are void.

Sir, so far as my information in regard to legal proceedings

extends, this is the only court in any country where trial by

jury exists, in which the decisions that are made in the haste

and sometimes confusion of such trials, are not subject to review

before any other tribunal. I believe that to the decisions of

this court, in criminal cases, no review is allowed, except in

the same court in the informal way in which I now ask your honor

to review the decisions made on this trial. This is therefore the

court of last resort, and I hope your honor will give to these,

as they appear to me, grave questions, such careful and

deliberate consideration as is due to them from such final

tribunal.

If a new trial shall be denied to the defendant, it will be no

consolation to her to be dismissed with a slight penalty, leaving

the stigma resting upon her name, of conviction for an offense of

which she claims to be, and I believe is, an innocent as the

purest of the millions of male voters who voted at the same

election, are innocent of crime in so voting. If she is in fact

guilty of the crime with which she stands charged, and of which

she has been convicted by the court, she deserves the utmost

penalty which the court under the law has power to impose; if she

is not guilty she should be acquitted, and not declared upon the

records of this high court guilty of a crime she never committed.

The Court, after listening to an argument from the District Attorney,

denied the motion for a new trial.

The COURT: The prisoner will stand up. Has the prisoner anything

to say why sentence shall not be pronounced?

Miss ANTHONY: Yes, your honor, I have many things to say; for in

your ordered verdict of guilty, you have trampled underfoot every

vital principle of our government. My natural rights, my civil

rights, my political rights, are all alike ignored. Robbed of the

fundamental privilege of citizenship, I am degraded from the

status of a citizen to that of a subject; and not only myself

individually, but all of my sex, are, by your honor's verdict,

doomed to political subjection under this so-called Republican

government.

Judge HUNT: The Court can not listen to a rehearsal of arguments

the prisoner's counsel has already consumed three hours in

presenting.

Miss ANTHONY: May it please your honor, I am not arguing the

question, but simply stating the reasons why sentence can not, in

justice, be pronounced against me. Your denial of my citizen's

right to vote is the denial of my right of consent as one of the

governed, the denial of my right of representation as one of the

taxed, the denial of my right to a trial by a jury of my peers as

an offender against law, therefore, the denial of my sacred

rights to life, liberty, property, and--

Judge HUNT: The Court can not allow the prisoner to go on.

Miss ANTHONY: But your honor will not deny me this one and only

poor privilege of protest against this high-handed outrage upon

my citizen's rights. May it please the Court to remember that

since the day of my arrest last November, this is the first time

that either myself or any person of my disfranchised class has

been allowed a word of defense before judge or jury--

Judge HUNT: The prisoner must sit down; the Court can not allow

it.

Miss ANTHONY: All my prosecutors, from the 8th Ward corner

grocery politician, who entered the complaint, to the United

States Marshal, Commissioner, District Attorney, District Judge,

your honor on the bench, not one is my peer, but each and all are

my political sovereigns; and had your honor submitted my case to

the jury, as was clearly your duty, even then I should have had

just cause of protest, for not one of those men was my peer; but,

native or foreign, white or black, rich or poor, educated or

ignorant, awake or asleep, sober or drunk, each and every man of

them was my political superior; hence, in no sense, my peer.

Even, under such circumstances, a commoner of England, tried

before a jury of lords, would have far less cause to complain

than should I, a woman, tried before a jury of men. Even my

counsel, the Hon. Henry R. Selden, who has argued my cause so

ably, so earnestly, so unanswerably before your honor, is my

political sovereign. Precisely as no disfranchised person is

entitled to sit upon a jury, and no woman is entitled to the

franchise, so, none but a regularly admitted lawyer is allowed to

practice in the courts, and no woman can gain admission to the

bar--hence, jury, judge, counsel, must all be of the superior

class.

Judge HUNT: The Court must insist--the prisoner has been tried

according to the established forms of law.

Miss ANTHONY: Yes, your honor, but by forms of law all made by

men, interpreted by men, administered by men, in favor of men,

and against women; and hence, your honor's ordered verdict of

guilty, against a United States citizen for the exercise of "that

citizen's right to vote," simply because that citizen was a woman

and not a man. But, yesterday, the same man-made forms of law

declared it a crime punishable with $1,000 fine and six months'

imprisonment, for you, or me, or any of us, to give a cup of cold

water, a crust of bread, or a night's shelter to a panting

fugitive as he was tracking his way to Canada. And every man or

woman in whose veins coursed a drop of human sympathy violated

that wicked law, reckless of consequences, and was justified in

so doing. As then the slaves who got their freedom must take it

over, or under, or through the unjust forms of law, precisely so

now must women, to get their right to a voice in this Government,

take it; and I have taken mine, and mean to take it at every

possible opportunity.

Judge HUNT: The Court orders the prisoner to sit down. It will

not allow another word.

Miss ANTHONY: When I was brought before your honor for trial, I

hoped for a broad and liberal interpretation of the Constitution

and its recent amendments, that should declare all United States

citizens under its protecting ægis--that should declare equality

of rights the national guarantee to all persons born or

naturalized in the United States. But failing to get this

justice--failing, even, to get a trial by a jury _not_ of my

peers--I ask not leniency at your hands--but rather the full

rigors of the law.

Judge HUNT: The Court must insist-- (Here the prisoner sat

down.)

Judge HUNT: The prisoner will stand up. (Here Miss Anthony arose

again.) The sentence of the Court is that you pay a fine of one

hundred dollars and the costs of the prosecution.

Miss ANTHONY: May it please your honor, I shall never pay a

dollar of your unjust penalty. All the stock in trade I possess

is a $10,000 debt, incurred by publishing my paper--_The

Revolution_--four years ago, the sole object of which was to

educate all women to do precisely as I have done, rebel against

your man-made, unjust, unconstitutional forms of law, that tax,

fine, imprison, and hang women, while they deny them the right of

representation in the Government; and I shall work on with might

and main to pay every dollar of that honest debt, but not a penny

shall go to this unjust claim. And I shall earnestly and

persistently continue to urge all women to the practical

recognition of the old revolutionary maxim, that "Resistance to

tyranny is obedience to God."

Judge HUNT: Madam, the Court will not order you committed until

the fine is paid.

Immediately after the verdict, Miss Anthony, her counsel, her friends,

and the jury, passed out together talking over the case. Said Judge

Selden: "The war has abolished something besides slavery, it has

abolished jury trial. The decision of Justice Hunt was most

iniquitous. He had as much right to order me hung to the nearest tree,

as to take the case from the jury and render the decision he did," and

he bowed his head with shame at this prostitution of legal power.

The jury with freedom now to use their tongues, when too late, also

canvassed the trial and the injury done. "The verdict of guilty would

not have been mine, could I have spoken," said one, "nor should I have

been alone. There were others who thought as I did, but we could not

speak."

The decision of Judge Hunt was severely criticised.[172] Even among

those who believed women had no right to vote, and who did not

hesitate to say that Miss Anthony's punishment was inadequate, there

was a wide questioning as to his legal right to take the case from the

jury and enter the verdict of guilty, without permitting them in any

way to indicate their opinion. It was deemed a tyrannical and arrogant

assumption on the part of Judge Hunt, and one which endangered the

rights of the whole people. It was pertinently asked, "If this may be

done in one instance, why not in all?" and "If the courts may thus

arbitrarily direct what verdicts shall be rendered, what becomes of

the right to trial by an impartial jury, which the Constitution

guarantees to all persons alike, whether male or female?" These

questions were of the gravest importance, and the more so because

from this court there was no appeal. To deprive Miss Anthony of the

benefit of jury trial seemed, however, in unison with every step taken

in the cases of women under the XIV. Amendment.

The design of the Government was evidently to crush at once, and

arbitrarily, all efforts of women for equality of rights with men. The

principles of law and justice involved did not, however, apply to

women alone, but to all persons alike. Where the rights of the most

insignificant or humble are outraged those of all are endangered. The

decisions in these cases are the more remarkable since they were based

on the most ultra State Rights doctrine, and yet were rendered in

every instance by members of the Republican party which held its

position by reason of its recent success against the extreme demands

of State sovereignty. The right of women to vote under national

protection was but the logical result of the political guarantees of

the war, and Republican leaders should have been anxious to clinch

their war record by legislative and judicial decisions.

But a more thorough recognition of the State Rights theory never was

presented than in the proceedings of this Judge of the Supreme Court

in his verdict against Miss Anthony, nor a more absolute exhibition of

National power in State affairs than his decision in the case of the

Inspectors, who were State officers, working under State authority and

State laws, and not under authority derived from the Constitution of

the United States, but who were tried by an United States judge, and

punished for what was held as a crime against the State of New York--a

monstrous usurpation of National authority! Each of these trials was,

in its way, an example of authority overriding law, and an evidence of

the danger to the liberties of the people from a practically

irresponsible judiciary. Men need to feel their indebtedness and their

responsibility to those who place them in position; first, in order to

preserve them from despotism; and, second, that they may be removed

when infirmity demands the substitution of a competent person in their

place.

Although for a period little has been said in regard to the

usurpations of the judiciary, a time will come in the history of the

country when the course of Justice Hunt will be recalled as a

dangerous precedent.

It was more than a year after Miss Anthony's trial was completed

before her case received notice in the chief legal journal of the

State of New York. At that time, in an article entitled, "Can a Judge

Direct a Verdict of Guilty?"[173] Judge Hunt's course in refusing to

poll the jury was reviewed and condemned as contrary to justice and

law. To Mrs. Gage's review of this article, the _Law Journal_ said,

"If Mrs. Gage and Miss Anthony are not pleased with our laws, they had

better emigrate." This would make real, in case of woman, Edward

Everett Hale's story of the "Man Without a Country." Women are, by

this advice, assumed to have no country; to be living in the United

States upon sufferance, a species of useful aliens, which possesses no

rights that man is bound to respect, which are not to be permitted to

vote, nor even to protest when the dearest rights are trampled upon.

While admitting that Justice Hunt usurped power in taking the case

from the jury, the Albany _Law Journal_ expressed a desire that it

should have gone to the jury, not on the ground of legal right, but on

the ground that the jury would have brought in a verdict of guilty.

But had the case been allowed to go to the jury, no verdict of guilty

would have been rendered. The _jury_ did not believe the defendant

guilty, but they were not permitted to give their opinion. Their

opinions counted for nothing; they were wronged as well as Miss

Anthony.

It was said of the infamous Lord Jeffries, that when pre-determined

upon a conviction he always wore a red cap. In such cases juries were

useless appendages to his court. Justice Hunt, through this trial,

wore an invisible red cap which only came into view at its close.

The effect of Miss Anthony's prosecution, conviction, and sentence,

was in many ways advantageous to the cause of freedom. Her trial

served to awaken thought, promote discussion, and compel an

investigation of the principles of government. The argument of Judge

Selden, clearly proving woman's constitutional right to vote,

published[174] in all the leading papers, arrested the attention of

legal minds as no popular discussions had done.

Thus the question of the abstract rights of each individual, their

civil and political rights under State and National Constitutions,

were widely discussed. And when the verdict, contrary to law, was

rendered by the Judge, and the jury dismissed without having been

permitted to utter a word, the whole question of woman's rights and

wrongs was brought into new prominence through this infringement of

the sacred right of jury trial.

A _nolle prosequi_ was entered for the women who voted with Miss

Anthony. Immediately after the decision in her case, the trial of the

Inspectors took place before the same court. This was in reality a

continuation of the same question--a citizen's right to vote--and like

that of Miss Anthony's was a legal farce, the decision in this case

evidently having also been pre-determined. The indictment stated that:

Beverly W. Jones, Edwin T. Marsh, and William B. Hall, Inspectors

of Election in and for said first election district of said

eight ward of said city of Rochester, etc., did then and there

knowingly and willfully register as a voter of said District, one

Susan B. Anthony, she, said Susan B. Anthony, then and there not

being entitled to be registered as a voter of said District in

that she, said Susan B. Anthony was then and there a person of

the female sex, contrary to the form of the statute of the United

States of America in such case made and provided, and against the

peace of the United States of America and their dignity.

Although the above indictment may have been legal in form, it clearly

proved the inadequacy of man alone to frame just laws, holding, as it

did, Susan B. Anthony to be "then and there a person of the female

sex, contrary to the form of the statutes of the United States of

America," etc.

Witnesses were first called on behalf of the United States; during

whose examination it was again conceded that the women named in the

indictment were women on the 5th day of November, 1872, thus again

clearly showing the animus of these trials to be against sex--making

sex a crime in the eye of United States laws. While the right to

testify in her own behalf was denied to Miss Anthony it was granted to

the Inspectors of election.

Beverly W. Jones, and each of the other defendants, was duly sworn as

a witness in his own behalf, and Susan B. Anthony was called as a

witness in behalf of the defendants.

Miss ANTHONY: I would like to know if the testimony of a person

who has been convicted of a crime can be taken?

The COURT: They call you as a witness, madam.

The witness, having been duly affirmed, testified as follows:

_Examined by_ Mr. VAN VOORHIS:

_Q._ Miss Anthony, I want you to state what occurred at the Board

of Registry, when your name was registered? _A._ That would be

very tedious, for it was full an hour.

_Q._ State generally what was done, or what occupied that hour's

time?

Objected to.

_Q._ Well, was the question of your right to be registered a

subject of discussion there? _A._ It was.

_Q._ By and between whom? _A._ Between the supervisors, the

inspectors, and myself.

_Q._ State, if you please, what occurred when you presented

yourself at the polls on election day? _A._ Mr. Hall decidedly

objected--

Mr. CROWLEY: I submit to the Court that unless the counsel

expects to change the version given by the other witnesses, it is

not necessary to take up time.

The COURT: As a matter of discretion, I don't see how it will be

any benefit. It was fully related by the others, and doubtless

correctly.

Mr. CROWLEY: It is not disputed.

The WITNESS: I would like to say, if I might be allowed by the

Court, that the general impression that I swore I was a male

citizen, is an erroneous one.

Mr. VAN VOORHIS: You took the two oaths there, did you? _A._ Yes,

sir.

The COURT: You presented yourself as a female, claiming that you

had a right to vote? _A._ I presented myself not as a female at

all, sir; I presented myself as a citizen of the United States. I

was called to the United States ballot-box by the XIV. Amendment,

not as a female, but as a citizen, and I went there.

Miss Anthony's emphatic reply and intimation that, although a

condemned criminal for having voted, she still believed in her

citizenship as securing that right to her, closed the lips of the

Court, and she was summarily dismissed from the witness-box, and the

case rested.

Mr. Van Voorhis addressed the Court at some length, submitting that

there was no ground whatever to charge these defendants (the

Inspectors) with any criminal offense,

1. Because the women who voted were legal voters. 2. Because they

were challenged and took the oaths which the statute requires of

Electors, and the Inspectors had no right, after such oath, to

reject their votes. 3. Because no malice is shown. Whether the

women were entitled to have their names registered and to vote,

or not, the defendants believed they had such right, and acted in

good faith, according to their best judgment, in allowing the

registry of their names--and in receiving their votes--and

whether they decided right or wrong in point of law, they are not

guilty of any criminal offense.

These points were amplified by the counsel at some length, who closed

by saying, "The defendants should be discharged by the Court." Mr.

Crowley then rose to make his argument, when the Court said:

The COURT: I don't think it is necessary for you to spend time in

argument, Mr. Crowley. I think upon the last authority cited by

the counsel there is no defense in this case. It is entirely

clear that where there is a distinct judicial act, the party

performing the judicial act is not responsible, civilly or

criminally, unless corruption is proven, and in many cases when

corruption is not proven. But where the act is not judicial in

its character--where there is no discretion--then there is no

legal protection. That is the law as laid down in the authority

last quoted, and the authority quoted by Judge Selden in his

opinion. It is undoubtedly good law. They hold expressly in that

case that the inspectors are administrative officers, and not

judicial officers.

Now, this is the point in the case, in my view of it: If there

was any case in which a female was entitled to vote, then it

would be a subject of examination. If a female over the age of

twenty-one was entitled to vote, then it would be within the

judicial authority of the inspectors to examine and determine

whether in the given case the female came within that provision.

If a married woman was entitled to vote, or if a married woman

was not entitled to vote, and a single woman was entitled to

vote, I think the inspectors would have a right in a case before

them, to judge upon the evidence whether the person before them

was married or single. If they decided erroneously, their

judicial character would protect them. But under the law of this

State, as it stands, under no circumstances is a woman entitled

to vote. When Miss Anthony, Mrs. Leyden, and the other ladies

came there and presented themselves for registry, and presented

themselves to offer their votes, when it appeared that they were

women--that they were of the female sex--the power and authority

of the inspectors was at an end. When they act upon a subject

upon which they have no discretion, I think there is no judicial

authority. There is a large range of discretion in regard to the

votes offered by the male sex. If a man offers his vote, there is

a question whether he is a minor--whether he is twenty-one years

of age. The subject is within their jurisdiction. If they decide

correctly, it is well; if they decide erroneously, they act

judicially, and are not liable. If the question is whether the

person presenting his vote is a foreigner or naturalized, or

whether he has been a resident of the State or district for a

sufficient length of time, the subject is all within their

jurisdiction, and they have a right to decide, and are protected

if they decide wrong.

But upon the view which has been taken of this question of the

right of females to vote, by the United States Court at

Washington, and by the adjudication which was made this morning,

upon this subject there is no discretion, and therefore I must

hold that it affords no protection. In that view of the case, is

there anything to go to the jury?

Mr. VAN VOORHIS: Yes, your honor. The COURT: What?

Mr. VAN VOORHIS: The jury must pass upon the whole case, and

particularly as to whether any ballots were received for

representative in Congress, or candidates for representative in

Congress, and whether the defendants acted willfully and

maliciously.

The COURT: It is too plain to argue that. Mr. VAN VOORHIS: There

is nothing but circumstantial evidence.

The COURT: Your own witness testified to it. Mr. VAN VOORHIS: But

"knowingly," your honor, implies knowing that it is a vote for

representative in Congress.

The COURT: That comes within the decision of the question of law.

I don't see that there is anything to go to the jury. Mr. VAN

VOORHIS: I can not take your honor's view of the case, but of

course must submit to it. We ask to go to the jury upon this

whole case, and claim that in this case, as in all criminal

cases, the right of trial by jury is made inviolate by the

Constitution--that the Court has no power to take it from the

jury. The COURT: I am going to submit it to the jury.

_Gentlemen of the Jury:_ This case is now before you upon the

evidence as it stands, and I shall leave the case with you to

decide. Mr. VAN VOORHIS: I claim the right to address the jury.

The COURT: I don't think there is anything upon which you can

legitimately address the jury. _Gentlemen_, the defendants are

charged with knowingly, willfully, and wrongfully receiving the

votes of the ladies whose names are mentioned, in November last,

in the city of Rochester. They are charged in the same indictment

with willfully and improperly registering those ladies. I decided

in the case this morning, which many of you heard, probably, that

under the law as it stands the ladies who offered their votes had

no right to vote whatever. I repeat that decision, and I charge

you that they had no right to offer their votes. They having no

right to offer their votes, the inspectors of election ought not

to receive them. The additional question exists in this case

whether the fact that they acted as inspectors will relieve them

from the charge in this case. You have heard the views which I

have given upon that. I think they are administrative officers. I

charge you that they are administrative and ministerial officers

in this respect, and that they are not judicial officers whose

action protects them, and that therefore they are liable in this

case. But, instead of doing as I did in the case this

morning--directing a verdict--I submit the case to you with these

instructions, and you can decide it here, or you may go out.

Mr. VAN VOORHIS: I ask your honor to instruct the jury that if

they find these inspectors acted honestly, in accordance with

their best judgment, they should be acquitted. The COURT: I have

expressly ruled to the contrary of that, gentlemen; that that

makes no difference.

Mr. VAN VOORHIS: And that in this country--under the laws of this

country--The COURT: That is enough--you need not argue it, Mr.

Van Voorhis.

Mr. VAN VOORHIS: Then. I ask your honor to charge the jury that

they must find the fact that these inspectors received the votes

of these persons knowingly, and that such votes were votes for

some person for member of Congress, there being in the case no

evidence that any man was voted for, for member of Congress, and

there being no evidence except that secret ballots were received;

that the jury have a right to find for the defendants, if they

choose. The COURT: I charge the jury that there is sufficient

evidence to sustain the indictment upon this point.

Mr. VAN VOORHIS: I ask your honor also to charge the jury that

there is sufficient evidence to sustain a verdict of not guilty.

The COURT: I can not charge that.

Mr. VAN VOORHIS: Then why should it go to the jury? The COURT: As

a matter of form.

Mr. VAN VOORHIS: If the jury should find a verdict of not guilty,

could your honor set it aside? The COURT: I will debate that with

you when the occasion arises. Gentlemen, you may deliberate here,

or retire, as you choose.

The jury retired for consultation, and the Court took a recess. The

Court re-convened at 7 o'clock, when the clerk called the jury and

asked them if they had agreed upon their verdict. The foreman replied

in the negative.

The COURT: Is there anything upon which I can give you any advice

gentlemen, or any information? A JUROR: We stand eleven for

conviction, and one opposed.

The COURT: If that gentleman desires to ask any questions in

respect to the questions of law, or the facts in the case, I will

give him any information he desires. [No response from the jury.]

It is quite proper, if any gentleman has doubts about anything,

either as to the law or the facts, that he should state it to the

Court. Counsel are both present, and I can give such information

as is correct. A JUROR: I don't wish to ask any questions.

The COURT: Then you may retire again, gentlemen. The Court will

adjourn until to-morrow morning.

The jury retired, and after an absence of about ten minutes returned

into court. The clerk called the names of the jury.

The CLERK: Gentlemen, have you agreed upon your verdict? The

FOREMAN: We have.

The CLERK: How say you, do you find the prisoners at the bar

guilty of the offense whereof they stand indicted, or not guilty?

The FOREMAN: Guilty.

The CLERK: Hearken to your verdict as it stands recorded by the

court. You say you find the prisoners at the bar guilty of the

offense whereof they stand indicted, and so say you all. Mr. VAN

VOORHIS: I ask that the jury be polled. The clerk polled the

jury, each juror answering in the affirmative to the question,

"Is this your verdict."

On the next day, June 19, 1873, the counsel for the defendants, Mr.

John Van Voorhis, made a motion to the court for a new trial in behalf

of Beverley W. Jones, Edwin T. Marsh, and William B. Hall. The

following are the grounds of the motion:

1. The indictment contains no sufficient statement of any crime

under the Acts of Congress, upon which it is framed. 2. The court

has no jurisdiction of the subject matter of the offense. 3. It

was an error, for which a new trial should be granted, to refuse

the defendants the fundamental right to address the jury through

their counsel. This is a right guaranteed by the United States

Constitution. (See Article VI. of the amendments to the U.S.

Constitution. 1 Graham and Waterman on New Trials, pages 682,

683, and 684.) 4. The defendants were substantially deprived of

the right of jury trial. The instructions of the court to the

jury were imperative. They were equivalent to a direction to find

a verdict of guilty. It was said by the court in the hearing of

the jury, that the case was submitted to the jury "as a matter of

form." The jury was not at liberty to exercise its own judgment

upon the evidence, and without committing a gross discourtesy to

the court, could render no verdict except that of guilty. 5.

Admitting that the defendants acted without malice, or any

corrupt motive, and in accordance with their best judgments, and

in perfect good faith, it was error to charge that that was no

defense. 6. The defendants are admitted to have acted in

accordance with their duty as defined by the laws of New York (1

R. S. Edmonds' Ed., pp. 126-127, sections 13, 14, 15, 16, 17, 18

and 19) as construed by the Court of Appeals. (People _vs._

Pease, 27 N. Y. 45.)

They are administrative officers and bound to regard only the

evidence which the statute prescribes. They are not clothed with

the power to reject the vote of a person who has furnished the

evidence which the law requires of a right to vote, on what they

or either of them might know, as to the truth or falsity of such

evidences. They have no discretion, and must perform their duty,

as it is defined by the laws of New York and the decisions of her

courts. 7. The defendant, William B. Hall, has been tried and

convicted in his absence from the court. This is an error fatal

to the conviction in his case.

The court denied the motion; then asked the defendants if they had

anything to say why sentence should not be pronounced, in response to

which they replied as follows:

BEVERLY W. JONES said: Your honor has pronounced me guilty of

crime; the jury had but little to do with it. In the performance

of my duties as an inspector of election, which position I have

held for the last four years, I acted conscientiously, faithfully

and according to the best of my judgment and ability. I did not

believe that I had the right to reject the ballot of a citizen

who offered to vote, and who took the preliminary and general

oaths; and answered all questions prescribed by law. The

instructions furnished me by the State authorities declared that

I had no such right. As far as the registry of the names is

concerned, they would never have been placed upon the registry if

it had not been for Daniel Warner, the Democratic federal

supervisor of elections, appointed by this court, who not only

advised the registry, but addressed us, saying, "Young men, do

you know the penalty of the law if you refuse to register these

names?" And after discharging my duties faithfully and honestly

and to the best of my ability, if it is to vindicate the law that

I am to be imprisoned, I willingly submit to the penalty.

EDWIN T. MARSH said: In October last, just previous to the time

fixed for the sitting of the Board of Registrars in the first

district of the eighth ward of Rochester, a vacancy occurred. I

was solicited to act, and consenting, I was duly appointed by the

common council. I had never given the matter a thought until

called to the position, and as a consequence knew nothing of the

law. On the morning of the first day of the last session of the

board, Miss Anthony and other women presented themselves and

claimed the right to be registered. So far as I knew, the

question of woman suffrage had never come up in that shape

before. We were in a position where we could take no middle

course. Decide which way me might, we were liable to prosecution.

We devoted all the time to acquiring information on the subject

that our duties as Registrars would allow. We were expected, it

seems, to make an infallible decision, inside of two days, of a

question in regard to which some of the best minds of the country

are divided. The influences by which we were surrounded, were

nearly all in unison with the course we took. I believed then,

and believe now, that we acted lawfully.

I faithfully discharged the duties of my office according to the

best of my ability, in strict compliance with the oath

administered to me. I consider the argument of our counsel

unanswered and unanswerable. The verdict is not the verdict of

the jury. I am not guilty of the charge.

The Court then sentenced the defendants to pay a fine of $25 each, and

the costs of the prosecution.[175]

The following petition was presented in the Senate by Mr. Sargent, the

present (1882) United States Minister to Germany, and in the House by

Mr. Loughridge, of Iowa:

Forty-third Congress, First Session, Senate, Mis. Doc. No. 39. A

petition of Susan B. Anthony praying for the remission of a fine

imposed upon her by the United States Court for the Northern

District of New York, for illegal voting. January 22, 1874.

Referred to the Committee on the Judiciary and ordered to be

printed.

_To the Congress of the United States:_

The petition of Susan B. Anthony, of the city of Rochester, in

the county of Monroe, and State of New York, respectfully

represents: That, prior to the late presidential election, your

petitioner applied to the Board of Registry in the Eighth Ward of

the city of Rochester, in which city she had resided for more

than twenty-five years, to have her name placed upon the register

of voters; and the Board of Registry, after consideration of the

subject, decided that your petitioner was entitled to have her

name placed upon the register, and placed it there accordingly.

On the day of election your petitioner, in common with hundreds

of other American citizens, her neighbors, whose names had also

been registered as voters, offered to the inspectors of election

her ballots for electors of President and Vice-President, and for

members of Congress, which were received and deposited in the

ballot-box by the inspectors. For this act of your petitioner an

indictment was found against her by the grand jury, at the

sitting of the District Court of the United States for the

Northern District of New York, at Albany, charging your

petitioner, under the nineteenth section of the act of Congress

of May 31, 1870, entitled "An act to enforce the rights of

citizens of the United States to vote in the several States of

this Union, and for other purposes," with having "knowingly voted

without having a lawful right to vote."

To that indictment your petitioner pleaded not guilty, and the

trial of the issue thus joined took place at the Circuit Court in

Canandaigua, in the county of Ontario, before the Honorable Ward

Hunt, one of the Justices of the Supreme Court of the United

States, on the 18th day of June last. Upon that trial the facts

of voting by your petitioner, and that she was a woman, were not

denied; nor was it claimed on the part of the Government than

your petitioner lacked any of the qualifications of a voter,

unless disqualified by reason of her sex. It was shown on behalf

of your petitioner, on the trial, that before voting she called

upon a respectable lawyer and asked his opinion whether she had a

right to vote, and he advised her that she had such right, and

the lawyer was examined as a witness in her behalf, and testified

that he gave her such advice, and that he gave it in good faith,

believing that she had such right. It also appeared that when

she offered to vote, the question whether, as a woman, she had a

right to vote, was raised by the inspectors, and considered by

them in her presence, and they decided that she had a right to

vote, and received her vote accordingly.

It was shown on the part of the Government that, on the

examination of your petitioner before the commissioner on whose

warrant she was arrested, your petitioner stated that she should

have voted if allowed to vote, without reference to the advice of

the attorney whose opinion she asked; that she was not induced to

vote by that opinion; that she had before determined to offer her

vote, and had no doubt about her right to vote. At the close of

the testimony, your petitioner's counsel proceeded to address the

jury, and stated that he desired to present for consideration

three propositions, two of law, and one of fact: 1. That your

petitioner had a lawful right to vote. 2. That whether she had a

right to vote or not, if she honestly believed that she had that

right, and voted in good faith in that belief, she was guilty of

no crime. 3. That when your petitioner gave her vote she gave it

in good faith, believing that it was her right to do so.

That the two first propositions presented questions for the court

to decide, and the last question for the jury. When your

petitioner's counsel had proceeded thus far, the judge suggested

that the counsel had better discuss, in the first place, the

questions of law, which the counsel proceeded to do; and, having

discussed the two legal questions at length, asked then to say a

few words to the jury on the question of fact. The judge then

said to the counsel that he thought that had better be left until

the views of the court upon the legal questions should be made

known.

The district attorney thereupon addressed the court at length

upon the legal questions, and at the close of his argument the

judge delivered an opinion adverse to the positions of your

petitioner's counsel upon both of the legal questions presented,

holding that your petitioner was not entitled to vote; and that

if she voted in good faith in the belief in fact that she had a

right to vote, it would constitute no defense; the ground of the

decision on the last point being that your petitioner was bound

to know that by the law she was not a legal voter, and that even

if she voted in good faith in the contrary belief, it constituted

no defense to the crime with which she was charged.

The decision of the judge upon those questions was read from a

written document, and at the close of the reading the judge said

that the decision of those questions disposed of the case and

left no question of fact for the jury, and that he should

therefore direct the jury to find a verdict of guilty. The judge

then said to the jury that the decision of the court had disposed

of all there was in the case, and that he directed them to find a

verdict of guilty; and he instructed the clerk to enter such a

verdict.

At this time, before any entry had been made by the clerk, your

petitioner's counsel asked the judge to submit the case to the

jury, and to give to the jury the following several instructions.

[See page 680.]

The judge declined to submit the case to the jury upon any

question whatever, and directed them to render a verdict of

guilty against your petitioner. Your petitioner's counsel

excepted to the decision of the judge upon the legal questions,

and to his direction to the jury to find a verdict of guilty,

insisting that it was a direction which no court had a right to

give in any criminal case.

The judge then instructed the clerk to take the verdict, and the

clerk said, "Gentlemen of the jury, hearken to your verdict as

the court hath recorded it. You say you find the defendant guilty

of the offense charged; so say you all." No response whatever was

made by the jury, either by word or sign. They had not consulted

together in their seats or otherwise. Neither of them had spoken

a word, nor had they been asked whether they had or had not

agreed upon a verdict. Your petitioner's counsel then asked that

the clerk be requested to poll the jury. The judge said, "That

can not be allowed. Gentlemen of the jury, you are discharged;"

and the jurors left the box. No juror spoke a word during the

trial, from the time when they were empaneled to the time of

their discharge. After denying a motion for a new trial, the

judge proceeded upon the conviction thus obtained to pass

sentence upon your petitioner, imposing upon her a fine of $100

and the costs of the prosecution.

Your petitioner respectfully submits that, in these proceedings,

she has been denied the rights guaranteed by the Constitution to

all persons accused of crime, the right of trial by jury, and the

right to have the assistance of counsel for their defense. It is

a mockery to call her trial a trial by jury; and unless the

assistance of counsel may be limited to the argument of legal

questions, without the privilege of saying a word to the jury

upon the question of the guilt or innocence in fact of the party

charged, or the privilege of ascertaining from the jury whether

they do or do not agree to the verdict pronounced by the court in

their name, she has been denied the assistance of counsel for her

defense.

Your petitioner also respectfully insists that the decision of

the judge that good faith on the part of your petitioner in

offering her vote did not constitute a defense, was not only a

violation of the deepest and most sacred principle of the

criminal law, that no one can be guilty of crime unless a

criminal intent exists; but was also a palpable violation of the

statute under which the conviction was had; not on the ground

that good faith could, in this, or in any case, justify a

criminal act, but on the ground that bad faith in voting was an

indispensable ingredient in the offense with which your

petitioner was charged. Any other interpretation strikes the word

"knowingly" out of the statute, the word which alone describes

the essence of the offense. The statute means, as your petitioner

is advised, and humbly submits, a knowledge in fact, not a

knowledge falsely imputed by law to a party not possessing it in

fact, as the judge in this case has held. Crimes can not, either

in law or in morals, be established by judicial falsehood. If

there be any crime in the case, your petitioner humbly insists it

is to be found in such an adjudication.

To the decision of the judge upon the question of the right of

your petitioner to vote, she makes no complaint. It was a

question properly belonging to the court to decide, was fully and

fairly submitted to the judge, and of his decision, whether right

or wrong, your petitioner is well aware she can not here

complain. But in regard to her conviction of crime, which she

insists, for the reasons above given, was in violation of the

principles of the common law, of common morality, of the statute

under which she was charged, and of the Constitution--a crime of

which she was as innocent as the judge by whom she was

convicted--she respectfully asks, inasmuch as the law has

provided no means of reviewing the decisions of the judge, or of

correcting his errors, that the fine imposed upon your petitioner

be remitted, as an expression of the sense of this high tribunal

that her conviction was unjust.

Dated January 12, 1874. SUSAN B. ANTHONY.

In the Senate of the United States, June 20, 1874, Mr. Edmunds

submitted the following report:

_The Committee on the Judiciary, to whom was referred the bill_

(S. 391) _to enable Susan B. Anthony to pay a fine imposed upon

her by the District Court for the Northern District of New York,

and a petition praying for the remission of said fine, report:_

That they are not satisfied that the action of the Court was such

as represented in the petition, and that, if it were so, the

Senate could not legally take any action in the premises, and

move that the Committee be discharged from the further

consideration of the petition, and that the bill be postponed

indefinitely.

Mr. Carpenter asked, and obtained, leave of the Senate to present the

following as the views of the minority:

_The Committee on the Judiciary, to whom was referred the

memorial of_ SUSAN B. ANTHONY, _praying to be relieved from a

certain judgment, rendered against her by the Circuit Court of

the United States for the Northern District of New York:_

* * * * *

The majority of the Committee have determined that inasmuch as

the relief prayed for by the memorial can not be granted, the

Committee will ask to be discharged from its further

consideration, and will not express any opinion as to the

correctness or incorrectness of the course pursued on the trial

of Miss Anthony.

The House of Lords in England or the Senate of the United States

may engage in any investigation looking to legislation, although,

as an incident to, or a result of, such investigation, it may

appear that some officer who is impeachable has been guilty of

conduct for which he might be impeached. Then, surely, in a case

like this, where there is neither suggestion nor suspicion of

corrupt conduct on the part of the estimable judge before whom

the trial was conducted, it can not be improper for a committee

of the Senate to inquire whether, in the trial of a citizen for

alleged violation of the laws of the United States, a precedent

dangerous to the liberties of every citizen has been set. Indeed,

the injurious effect of every judicial departure from sound

principle is in proportion to the eminence and purity of the

judge by whom it is committed. The outrages perpetrated by

Scroggs and Jeffreys in the administration of criminal justice

were grievous upon the individuals unjustly or illegally

convicted, but do no harm as precedents. A vicious precedent, set

by an infamous judge, is harmless; while a similar violation of

the law by a pure and upright magistrate is attended by

far-reaching and detrimental consequences.

It is fashionable, we know, just now to heap contumely upon women

who demand to be allowed to enjoy their civil political rights.

Ridicule is the chief weapon employed against them, and is freely

applied to all who advocate their cause. Gentlemen who would

blush to be thought negligent in the offices of frivolous

gallantry lack the manhood to accord to women their substantial

rights. And, strange to say, ladies dwelling in luxurious ease

join with the fops of society to cast contempt upon the earnest

aspirations of woman for the possession of her just rights. We

have acted upon the doctrines of the Declaration of Independence,

so far as to make all men equal before the law; but women, our

mothers, our wives, our sisters, and our daughters, we condemn to

inequality--many to servitude. But the cry of women, who, in

poverty and want, are driven from the employments of honest

industry to indulgence in vice and to the haunts of shame, is

rising on every hand, and appeals to the heart with as much power

as the wailings of a slave beneath the lash of his master.

The wrongs of Martin Koszta in a foreign land touched the heart

of the nation. But the denial of her rights to Miss Susan B.

Anthony in a court of the Union is thought to be unworthy the

attention of the American Senate. To those who are indifferent

whether a woman be deprived of or be permitted to enjoy even the

rights which are secured to her by the Constitution, it may be

suggested that a bad precedent set in the trial of a woman who

has presumed to express her choice as to those who should make

laws for her, laws by which her rights are to be affected and her

property be taxed, may stand in the way of some man's rights

hereafter. It may yet happen, in the revolutions of time, that

some one of the majority of your committee may be subjected to an

unjust and false accusation, which must be submitted to the

judgment of twelve men in the jury-box or of one man on the

bench; twelve men fresh from the people and warmed with the

instinctive sympathies of humanity, or one man, separated from

the people by his station and by the habits of a life passed in

seclusion and study. A jury-trial must be the same whether a man

or woman be arraigned. And the subject under consideration is

important even to men who are regardless of the rights of women.

I shall, therefore, proceed to inquire, as I think the committee

ought to have done, whether the memorialist has been deprived, as

she alleges, of the right of trial by jury secured to her by the

Constitution of the United States. The memorialist claims that

the court erred in its ruling, and in taking the case from the

jury and directing a verdict against her; and also in refusing to

have the jury polled in regard to their verdict; and she prays

that her fine may be remitted by act of Congress.

The first question is, whether in a criminal trial, plea not

guilty, the jury have a right to render a general verdict

involving questions of law as well as fact, under instructions by

the court upon matters of law; or whether, when the testimony is

not conflicting, the court may take the case from the jury and

direct a verdict of guilty to be entered.

It is the practice in civil causes for the court, if there is no

conflict in the evidence, to direct a verdict for the plaintiff

or for the defendant, because in such case the court may set

aside a verdict and grant a new trial in favor of plaintiff or

defendant. It would, therefore, be a barren form to require the

jury to deliberate and find a verdict in a case where if the

verdict was not one way, the court would set it aside and order a

new trial, and so on, until a verdict should be found that was

satisfactory to the court. So in practice it is usual for the

court to direct the jury to acquit the prisoner in a criminal

case; because, if the jury find against the prisoner, the court

may set the verdict aside and order a new trial, and continue to

do so until a verdict of acquittal shall be rendered; though it

is doubtful whether, even in a civil cause, the court could

refuse to let the jury be polled, or could enter a verdict for

the jury to which they did not agree. The court could direct the

jury what to do, and set aside the verdict if they did otherwise;

but it is not admitted that, even in a civil cause, the court

could enter a verdict against the wishes of the jury.

But at the common law and in the Federal courts it is certain

that where the jury render a verdict of acquittal, even against

the evidence and the instructions of the court on propositions of

law, the court can not set aside the verdict and order another

trial. From this it follows that the court can not take from the

jury this power of acquittal in a criminal case, by directing and

compelling a verdict against the prisoner, and refusing to have

the jury polled. But the importance of this question requires its

examination not only in the light of reason, but of authority.

The Constitution of the United States provides:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and a public trial by an impartial jury of

the State and district wherein the crime shall have been

committed, etc.

The Constitution does not define or regulate the trial by jury,

but secures it as it was then known to the common law. This is a

proposition so well settled by judicial determination that I

shall spend no time upon it beyond citing the following

authorities: Norval _vs._ Rice, 2 Wis., 22; May _vs._ R. R. Co.,

3 Wis., 219; Byers & Davis _vs._ Com., 42 Penn. St., 89; United

States _vs._ Lorenzo Dow, Taney Decis., 35; Lamb _et al._ _vs._

Lane, 4 Ohio Stat., 167.

Therefore, if it can be shown that, at the time the Constitution

was adopted, it was well settled that the jury in a criminal

cause might find a general verdict, including both law and fact,

then this right is secured to juries in the Federal courts by the

Constitution itself; and not even an act of Congress could take

it away. What the law was at that time, is mere matter of

historical inquiry, wholly different from another question, which

is so often mistaken for it, whether juries ought to possess the

right.

What, then, was the law upon this subject when the Constitution

was adopted? Mr. Hargrave, in one of his annotations upon Lord

Coke's first Institute, declares that, inasmuch as the jury may,

as often as they think fit, find a general verdict, it was

unquestionable that they might so far decide upon the law as well

as fact, such a verdict necessarily involving both.

In this opinion, says Mr. Hargrave, I have the authority of

Littleton himself, who writes, "that if the inquest will

take upon them the knowledge of the law upon the matter,

they may give their verdict generally."

In People _vs._ Croswell, 3 Johnson's Cases, 336, Chief-Justice

Kent reviewed all the preceding authorities with great care, and

discussed the philosophy of the doctrine under consideration,

with the ability which characterizes his most celebrated

opinions; and his decision in this case stands to this day as one

of the landmarks upon this subject. After reciting the

authorities, he says:

To meet and resist directly this stream of authority is

impossible. But while the power of the jury is admitted, it

is denied that they can rightfully or lawfully exercise it

without compromitting their consciences, and that they are

bound implicitly in all cases to receive the law from the

court. The law must, however, have intended, in granting

this power to a jury, to grant them a lawful and rightful

power, or it would have provided a remedy against the undue

exercise of it. The true criterion of a legal power is its

capacity to produce a definitive effect, liable to neither

censure nor review. And the verdict of not guilty in a

criminal case is, in every respect, absolute and final. The

jury are not liable to punishment, nor the verdict to

control. No attaint lies, nor can a new trial be awarded.

The exercise of this power in the jury has been sanctioned

and upheld in constant activity from the earliest ages. It

was made a question by Bracton (fol. 119, a. b.), who was to

sit in judgment and decide upon points of law on appeals in

capital cases. It could not be the king, he says, for then

he would be both prosecutor and judge; nor his justices, for

they represented him. He thinks, therefore, the _curia_ and

_pares_ were to be judges in all cases of life and limb, or

disherison of heir, where the crown was the prosecutor. And,

indeed, it is probable that in the earliest stages of the

English juridical history the jury, instead of deciding

causes under the direction of the judge, decided all causes

without the assistance of the judge. (Barrington on the

Statutes, 18, 26, 311.)

He then proceeds to review the trial of Lilburn for high treason

in 1549; Bushell's case, Vaughan, 135, and Sir T. Jones, 113;

Algernon Sidney's case, 3 State Trials, 817; Tuchin's case, 5

State Trials, 542, and other cases. Again, he says:

To deny to the jury the right of judging of the intent and

tendency of the act, is to take away the substance, and with

it the value and security of this mode of trial. It is to

transfer the exclusive cognizance of crimes from the jury to

the court, and to give the judge the absolute control of the

press. There is nothing peculiar in the law of libels to

withdraw it from the jurisdiction of the jury. The twelve

judges in their opinion in the House of Lords (April, 1792),

admitted that the general criminal law of England was the

law of libel. And by the general criminal law of England,

the office of the jury is judicial. "They only are the

judges," as Lord Somers observes (Essay on the Power and

Duty of Grand Juries, p. 7), "from whose sentence the

indicted are to expect life or death. Upon their integrity

and understanding the lives of all that are brought into

judgment do ultimately depend. From their verdict there lies

no appeal. They resolve both law and fact, and this has

always been their practice."

And, after referring to the case of Franklin, and other cases

holding a contrary doctrine, he denounces them as innovations,

and adding that the subject underwent a patient investigation and

severe scrutiny upon principle and precedent in Parliament, says:

And a bill declaratory of the right of the jury to give a

general verdict upon the whole matter put in issue, without

being required or directed to find the defendant guilty

merely on the proof of publication and the truth of the

innuendoes, was at length agreed to, and passed with

uncommon unanimity. It is entitled "An act to remove doubts

respecting the functions of juries in cases of libel"; and,

although I admit that a declaratory statute is not to be

received as conclusive evidence of the common law, yet it

must be considered as a very respectable authority in the

case, and especially as the circumstances attending the

passage of this bill reflect the highest honor on the

moderation, the good sense, and the free and independent

spirit of the British Parliament.

And again he says: The result, from this view, is, to my

mind, a firm conviction that this court is not bound by the

decisions of Lord Raymond and his successors. By withdrawing

from the jury the consideration of the essence of the

charge, they render their function nugatory and

contemptible. Those opinions are repugnant to the more

ancient authorities which had given to the jury the power,

and with it the right, to judge of the law and the fact,

when they were blended by the issue, and which rendered

their decisions, in criminal cases, final and conclusive.

The English bar steadily resisted those decisions as

usurpations on the rights of the jury. Some of the judges

treated the doctrine as erroneous, and the Parliament at

last declared it an innovation by restoring the trial by

jury, in cases of libel, to that ancient vigor and

independence by which it had grown so precious to the nation

as the guardian of liberty and life, against the power of

the court, the vindictive persecution of the prosecutor, and

the oppression of the government.

This celebrated opinion may safely be relied upon as a correct

statement of the law as it stood when it was delivered in 1804.

But still more conclusive authority remains to be considered. The

sedition act of 1798, after defining what should be a criminal

libel, and declaring that the defendant might give the truth of

the matter in evidence, provides as follows:

And the jury who shall try the cause shall have a right to

determine the law and the fact, under the direction of the

court, as in other cases. (1 Stat. at L., 507.)

The language of this act, "as in other cases," recognizes the

right here contended for. In the celebrated Callender trial, in

1800, which was a prosecution under this statute, Mr. Justice

Chase, whose general bearing was so unfriendly to the defendant

as to secure his impeachment by the House of Representatives,

admitted this right of the jury. He said:

We all know that juries have the right to decide the law as

well as the fact. (Wharton's State Trials, 710.) And again

he says:

I admit that the jury are to compare the statute with the

facts proved, and then to decide whether the acts done are

prohibited by the law, and whether they amount to the

offense described in the indictment. (_Ib._, p. 713.)

Though, with seeming want of logic, he held that the jury could

not decide whether the statute was constitutional or not. But the

full admission that the jury were judges of the law as well as

the fact, shows the general understanding upon this subject,

though the judge may have erred in applying the principle in the

case before him. In Fries's case, who was tried for treason,

1799-1800, the jury were instructed by Judge Peters as follows:

It is the duty of the court to declare the law; though both

facts and law, which, I fear, are too plain to admit a

reasonable doubt, are subject to your consideration.

(Wharton's State Trials, 587.)

And, in the second trial of Fries, Judge Chase instructed the

jury as follows:

It is the duty of the court in this case, and in all

criminal cases, to state to the jury their opinion of the

law arising on the facts; but the jury are to decide in the

present, and in all criminal cases, both the law and the

facts, on their consideration of the whole case. (2 Chase's

Trial, Appendix 1.)

In the answer of Judge Chase to articles of impeachment against

him, he says:

He well knows that it is the right of juries, in criminal

cases, to give a general verdict of acquittal, which can not

be set aside on account of its being contrary to law, and

that hence results the power of juries to decide on the law

as well as on the facts in all criminal cases. This power he

holds to be a sacred part of our legal privileges, which he

has never attempted, and never will attempt to abridge or

obstruct. (1 Chase's Trial, pp. 5, 34, 35.)

In Georgia _vs._ Brailsford, 3 Dallas, 4, in 1794, Chief-Justice

Jay charged the jury as follows:

It may not be amiss here, gentlemen, to remind you of the

good old rule, that on questions of fact it is the province

of the jury, on questions of law it is the province of the

court, to decide. But it must be observed that by the same

law which recognizes this reasonable distribution of

jurisdiction, you have, nevertheless, a right to take upon

yourselves to judge of both, and to determine the law as

well as the fact in controversy. On this, and on every other

occasion, however, we have no doubt you will pay that

respect which is due to the opinion of the court; for as, on

the one hand, it is presumed that juries are the best judges

of facts, it is, on the other hand, presumable that the

court are the best judges of law. But still both objects are

lawfully within your power of decision.

This charge was delivered in a jury trial, at the bar of the

Supreme Court, and expressed the unanimous opinion of the judges

of that court, and that, too, in a civil cause. The decision in

Georgia _vs._ Brailsford has never been expressly overruled by

that court; although the practice in civil causes is for the

court to direct a verdict where there is no conflict in regard to

the testimony. In Beavans _vs._ The United States, 13 Wall, 56,

which was an action _ex contractu_, on a receiver's bond, the

court says:

The objection that the jury was instructed to find for the

plaintiffs the amount claimed by the papers given in

evidence (viz, the official settlements), with interest

thereon, is entirely without merit. There was no evidence to

impeach the accounts stated, or to show set-off, release, or

payment. The instruction was, therefore, in accordance with

the legal effect of the evidence, and there were no disputed

facts upon which the jury could pass.

An act of Congress declares that the papers of official

settlement shall be _prima facie_ evidence of the condition of

the accounts. No testimony was offered in this case to impeach

that statement. There was, therefore, no fact in issue; and the

instruction of the court to find a verdict for the plaintiff was,

in substance, ruling upon matters of law only. And the Supreme

Court, in their opinion, recognize, and merely recognize, the

practice which now obtains universally in the trial of civil

causes. And, although it is inconsistent with Georgia _vs._

Brailsford, and substantially overrules it, it does not impair

the value of the decision in that case, as showing the

understanding of the profession and the courts about the time of

the adoption of the Constitution.

In United States _vs._ Wilson (1 Bald., 108), the jury were

instructed as follows:

We have thus stated to you the law of this case under the

solemn duties and obligations imposed on us, under the clear

conviction that in doing so we have presented to you the

true test by which you will apply the evidence to the case;

but you will distinctly understand that you are the judges

both of the law and the fact in a criminal case, and are not

bound by the opinion of the court. You may judge for

yourselves; and if you should feel it your duty to differ

from us, you must find your verdict accordingly. At the same

time, it is our duty to say that it is in perfect accordance

with the spirit of our legal institutions that the courts

should decide questions of law, and the juries of facts. The

nature of the tribunals naturally leads to this division of

powers; and it is better, for the sake of public justice,

that it should be so. When the law is settled by a court

there is more certainty than when done by a jury. It will be

better known and more respected in public opinion. But if

you are prepared to say that the law is different from what

you have heard from us, you are in the exercise of a

constitutional right to do so.

In United States _vs._ Porter (1 Bald., 108), the doctrine was

stated more guardedly, as follows:

In repeating what was said on a former occasion to another

jury, that you have the power to decide on the law as well

as the facts of this case, and are not bound to find

according to our opinion of the law, we feel ourselves

constrained to make some explanations not then deemed

necessary, but now called for from the course of the

defense.

You may find a general verdict of guilty or not guilty as

you think proper, or may find the facts specially, and leave

the guilt or innocence of the prisoner to the judgment of

the court. If your verdict acquits the prisoner, we can not

grant a new trial, however much we may differ with you as to

the law which governs the case; and, in this respect, a jury

are the judges of law if they choose to become so.

In Farmer's trial before the Supreme Court of the State of New

Hampshire in 1821, the Chief-Justice, speaking for the whole

court, told the jury that they were the judges both of the law

and the fact; that

It was the duty of the court to give them proper

instructions and to aid them in forming a correct opinion as

to the law applicable to the case. But if, contrary to his

intentions, any expression should escape him which might

seem to indicate any opinion as to the facts, they must

disregard it; their verdict ought to be according to their

own opinion as to the prisoner's guilt or innocence. (See

Farmer's Trial, p. 68.)

In the trial of William S. Smith for misdemeanor, in the Circuit

Court of the United States for the State of New York, in July,

1806, the jury were instructed as follows:

You have heard much said upon the right of a jury to judge

of the law as well as the fact. Be assured that on this

occasion there is not the least desire to abridge those

rights. I am an advocate for the independence of the jury.

It is the basis of civil liberty; and in this country, I

trust, will ever be a sacred bulwark against oppression and

encroachment upon political freedom. The law is now settled

that this right appertains to a jury in all criminal cases.

On the trial of John Hodges for high treason, before the Circuit

Court of the United States for the District of Maryland, in 1815,

the Court charged the jury as follows:

The court said they were bound to declare the law whenever

they were called upon, in civil or criminal cases. In the

latter, however, it was also their duty to inform the jury

that they were not obliged to take their direction as to the

law. (Hodge's Trial, p. 20.)

The elementary writers declare the same principle. Blackstone, 4

Comm., 361, says:

And such public or open verdict may be either general

(guilty or not guilty) or special, setting forth all the

circumstances of the case, and praying the judgment of the

court, whether, for instance, on the facts stated, it be

murder, manslaughter, or no crime at all. This is where they

doubt the matter of the law, and therefore choose to leave

it to the determination of the court; though they have an

unquestionable right of determining upon all the

circumstances and finding a general verdict, if they think

proper so to hazard a breach of their oaths; and, if their

verdict be notoriously wrong, they may be punished and the

verdict set aside by attaint at the suit of the King, but

not at the suit of the prisoner. But the practice heretofore

in use of fining, imprisoning, or otherwise punishing

jurors, merely at the discretion of the court, for finding

their verdict contrary to the direction of the Judge, was

arbitrary, unconstitutional, and illegal, and is treated as

such by Sir Thomas Smith two hundred years ago, who

accounted "such doings to be very violent, tyrannical, and

contrary to the liberty and custom of the realm of England."

For, as Sir Matthew Hale well observes, it would be a most

unhappy case for the Judge himself if the prisoner's fate

depended upon his directions; unhappy also for the prisoner,

for, if the Judge's opinion must rule the verdict, the trial

by jury would be useless. Yet, in many instances where

contrary to evidence the jury have found the prisoner

guilty, their verdict hath been mercifully set aside and a

new trial granted by the court of King's Bench; for in such

case, as hath been said, it can not be set right by attaint.

But there hath been yet no instance of granting a new trial

where the prisoner was acquitted upon the first.

In Wilson's Lectures, Vol. II., p. 72, the same doctrine is

declared and illustrated; and he says:

The jury must do their duty and their whole duty. They must

decide the law as well as the fact. This doctrine is

peculiarly applicable to criminal cases, and from them,

indeed, derives its peculiar importance.

In Forsyth's Jury Trials, after an examination of the subject, it

is said, p. 265:

It can not therefore be denied that, in all criminal cases,

the jury do virtually possess the power of deciding

questions of law as well as of fact.

The authorities quoted from conclusively show that at the time

the Constitution was adopted, and for nearly a quarter of a

century afterward, juries were understood and declared to possess

the right to pass upon questions of law as well as fact in all

criminal cases; and this is all that need be shown to bring this

right within the protection of the Constitution.

The first case it is believed in which the contrary doctrine

received favor in any American court was in the case of the

United States _vs._ Battiste, 2 Sum., 240, decided in 1835. Mr.

Justice Story, in that case, said:

My opinion is that the jury are no more judges of the law in

a criminal case upon the plea of not guilty than they are in

every civil case tried upon the general issue. In each of

these cases their verdict, when general, is necessarily

compounded of law and of fact, and includes both. In each

they must necessarily determine the law as well as the fact.

In each they have the physical power to disregard the law as

laid down to them by the court. But I deny that in any case,

civil or criminal, they have the moral right to decide the

law according to their own notions or pleasure.

In Commonwealth _vs._ Porter, 10 Met., decided in 1845, the

Supreme Court of Massachusetts followed the decision in

Battiste's case, and held that the jury are under a moral

obligation to decide the case as instructed by the court, and the

court sum up the subject as follows:

On the whole subject, the views of the court may be

summarily expressed in the following propositions: That in

all criminal cases it is competent for the jury, if they see

fit, to decide upon all questions of fact embraced in the

issue, and to refer the law arising thereon to the court in

the form of a special verdict. But it is optional with the

jury thus to return a special verdict or not, and it is

within their legitimate province and power to return a

general verdict if they see fit. In thus rendering a general

verdict, the jury must necessarily pass upon the whole

issue, compounded of the law and of the fact, and they may

thus incidentally pass on questions of law.

The opinion in this case was delivered by Chief-Justice Shaw, and

is rather a discussion of what is a convenient distribution of

powers between the court and jury than an examination into the

actual state of the law; and he neither cites nor refers to a

single authority from the beginning to the end of the opinion.

Again, the conclusions arrived at by the opinion admit the power

of the jury to decide questions of law; and that, in cases where

the jury acquit the defendant, there is no power to reverse or

even to review the finding of the jury. And this opinion holds

that the defendant, in all criminal cases, is entitled to address

the jury upon the questions of law as well as of fact involved in

the case. To maintain that the defendant has the right to address

the jury upon matters which the jury have no right to determine,

and yet that the jury possess the power--the ultimate and final

power--to decide matters of law, and are nevertheless under moral

obligation never to exercise the power, are palpable

inconsistencies.

The Supreme Court of Vermont in State _vs._ Croteau, 23 Ver., 14,

in a very able opinion, review these two cases and other

subsequent decisions which follow their doctrine, and, after an

able and critical examination of all the English and American

cases, repudiate this new doctrine, and declare that in criminal

prosecutions it is the ancient, common-law right of the jury in

favor of the prisoner to determine the whole matter in issue--the

law as well as the fact.

There are some American cases holding a contrary doctrine, but

the current of American as well as of English authorities is

overwhelmingly in favor of the proposition that juries in

criminal causes are judges of the law as well as of the

facts.[176]

In late years there has been considerable discussion, and some

contrariety of judicial opinion, in regard to the moral right of

juries to find a general verdict of not guilty against the

instructions of the court on matters of law. This subject,

however, need not be further discussed, because it is believed

that no reported case can be found denying to juries the power of

determining the law as well as the fact in all criminal cases.

The utmost extent to which any case goes is, that the jury, in

deciding upon the law, are morally bound to adopt the opinion

expressed by the court; but every case admits their power to do

otherwise if they see fit. But admitting the existence of the

distinction between the legal power and the moral right of

juries, still the decision of the court on the trial of Miss

Anthony was erroneous, because the court did not instruct the

jury in regard to the law, and then leave the jury to perform

their duty in the premises. On the contrary, the court took the

case from the jury altogether and directed their verdict; thus

denying to the jury not only the moral right, but even the power

of rendering a verdict of not guilty; and refused the request of

counsel to have the jury polled in regard to their verdict. No

precedent has been shown for this proceeding, and it is believed

none exists. It is altogether a departure from, and a most

dangerous innovation upon, the well-settled method of jury-trial

in criminal cases. Such a doctrine renders the trial by jury a

farce. The memorialist had no jury-trial within the meaning of

the Constitution, and her conviction was therefore erroneous.

But it may be said that the ruling of the court was correct in

point of law, and, had the court submitted the case to the jury,

it would have been the duty of the jury to find the memorialist

guilty; therefore she is not aggrieved by the judgment which the

court pronounced. Should this reasoning be adopted, it would

follow that the memorialist had been tried by the court and by

Congress; but it would still be true that she had been denied

trial by a jury which the Constitution secures to her.

It is not safe thus to trifle with the rights of citizens. The

trial by jury--the judgment of one's peers--is the shield of real

innocence imperiled by legal presumptions. A Judge would charge a

jury that a child who had stolen bread to escape starvation had

committed the crime of larceny, but all the Judges in Christendom

could not induce a jury to convict in such a case. It is the

humane policy of our law, that, before any citizen shall suffer

punishment, he shall be condemned by the verdict of his peers,

who may be expected to judge as they would be judged. To sustain

the judgment in this case, is to strike a fatal blow at this

sacred right.

But the question remains, What relief can be granted? I concur

with the majority of the Committee that Congress can not remit

the judgment; that would be to exercise the pardoning power.

Congress can not grant a new trial; that would be an exercise of

judicial power. There is no Court of the Government which has

jurisdiction to review the case. In Commonwealth _vs._ Austin, 5

Gray, 226, Chief-Justice Shaw says:

Now, when a new statute is passed, and a question of law is

raised by counsel, it must first come before the court,

charged by law with the conduct and superintendence of a

jury trial; and, in any well-ordered system of

jurisprudence, provision is made that it be re-examinable by

the court of last resort. When this question is definitively

adjudged by the tribunal of last resort--the principles on

which it is adjudged being immutable, and the rule of law

adjudged in any one case being equally applicable to every

other case presenting the same facts--the decision is

necessarily conclusive of the law. I do not say how and

after what consideration it maybe considered as definitively

decided. In the first instance it may be misunderstood or

feebly presented. It may have been misapprehended by the

judges, and not considered in all its bearings, or they may

have wanted time and means for a careful and thorough

investigation, and may therefore consent and desire to

reconsider it one or more times. But I only say that, when

thus definitively adjudged, the decision must be deemed

conclusive and stand as a rule of law.

Unfortunately the United States has no "well-ordered system of

jurisprudence." A citizen may be tried, condemned, and put to

death by the erroneous judgment of a single inferior judge, and

no court can grant him relief or a new trial. If a citizen have a

cause involving the title to his farm, if it exceed two thousand

dollars in value, he may bring his cause to the Supreme Court;

but if it involves his liberty or his life, he can not. While we

permit this blemish to exist on our judicial system, it behooves

us to watch carefully the judgments inferior courts may render;

and it is doubly important that we should see to it that twelve

jurors shall concur with the Judge before a citizen shall be

hanged, incarcerated, or otherwise punished.

I concur with the majority of the Committee that Congress can not

grant the precise relief prayed for in the memorial; but I deem

it to be the duty of Congress to declare its disapproval of the

doctrine asserted and the course pursued in the trial of Miss

Anthony; and all the more for the reason that no judicial court

has jurisdiction to review the proceedings therein.

I need not disclaim all purpose to question the motives of the

learned Judge before whom this trial was conducted. The best of

judges may commit the gravest of errors amid the hurry and

confusion of a _nisiprius_ term; and the wrong Miss Anthony has

suffered ought to be charged to the vicious system which denies

to those convicted of offenses against the laws of the United

States a hearing before the court of last resort--a defect it is

equally within the power and the duty of Congress speedily to

remedy.

MATT H. CARPENTER.

Mr. Tremaine, from the House Judiciary Committee, reported adversely

on the prayer of Miss Anthony's Petition, and Benjamin F. Butler

favorably.

Forty-third Congress, 1st Session, House of Representatives,

Report No. 608, Susan B. Anthony, May 25, 1874, recommitted to

the Committee on the Judiciary and ordered to be printed.

Mr. B. F. BUTLER, from the Committee on the Judiciary, submitted

the following Report to accompany bill H. R. 3492:

_The Committee on the Judiciary, to whom was referred the

memorial of Susan B. Anthony, of the city of Rochester, in the

State of New York, praying that a fine alleged to have been

unjustly imposed on the petitioner by a judgment of the Circuit

Court of the United States for the Northern District of New York,

may be remitted, having considered the prayer of the petitioner

and the statement of facts set forth in the memorial,

respectfully beg leave to report_:

* * * * *

Are these positions of the petitioner well founded? By necessary

division there arise two questions: First, has Congress any

power, or is there any precedent for entertaining such petition

for such purpose? And, secondly, are the acts and order of the

judge in accordance with the law of the land, and not in

derogation of the right of the citizen to trial by jury at common

law as guaranteed by the Constitution, as known and practiced in

the courts of the United States? If the first should be answered

in the negative, of course the committee and the House would be

spared the discussion of the second.

It seems to your committee that there are two very noted and

historical cases which may form the precedents for this

application, and favorable action thereon by Congress--in the

proceeding concerning the fines imposed by the courts on Matthew

Lyon and General Jackson.

Lyon was fined by a United States judge for a seditious libel. He

petitioned for a remission of fine upon the ground that the law

was unconstitutional under which he was convicted. That petition

was very fully considered, and, in 1820, a report was presented

to the Senate by Mr. Barbour, of Virginia, which, after

elaborating the considerations, concludes thus:

In this case, therefore, the committee think the Government

is under a moral obligation to indemnify the petitioner.

In this claim of Lyon, after remaining before Congress until

1840, a bill, upon a favorable report of the Committee on the

Judiciary, was passed by the House, restoring the fine with

interest, by a vote of 124 to 15. This case, however, is subject

to the criticism, that in it Congress undertook to do justice to

a citizen suffering from an unconstitutional law which it had

enacted, and thereby distinguishes it from the present

application: but the case of General Jackson, so familiar to all

that its facts need not be recited, covers that point. There was

the remitting of a fine imposed by a judge in excess of his

authority in acting without warrant of law.

Assuming, therefore, that this application is properly before us,

we come to the second question of whether, by the proceedings in

court, the legal rights of the petitioner have been infringed,

from which she has suffered. It would not seem to be germane to

this question to inquire whether or not the petitioner had the

legal right to vote, because that was a question of law fully

within the competency of the judge to decide, and his decision

did not necessarily work a hardship to the defendant, even if

mistaken in judgment. Or, in other words, it was a rightful

execution of a power intrusted to him by law, from which there

was no appeal to this or any other jurisdiction.

We come, therefore, to the great question in this case: whether

the judge erred in withdrawing the case from the jury. Upon this

question it would seem that the judge himself vacillated in the

trial, because he permitted evidence to be gone into on both

sides as a question of fact, tending to show whether the

petitioner did or did not vote, knowing that she had no right so

to do; but afterward withdrew the consideration of that evidence,

upon the fact of intention or guilty knowledge, wholly from the

jury, and ordered a verdict to be entered up upon his own

decision, without allowing the question either to be argued or

submitted to the jury, or the jury to pass upon it.

There certainly can be no graver question affecting the rights of

citizens than this. The whole theory of trial by jury at common

law consists in the fundamental maxim that before any conviction

can be had for a crime it must be passed upon by twelve good and

lawful men, the peers of the accused; and the very oath

prescribed to jurors by the common law most distinctly guaranteed

this right to the accused: "You shall well and truly try and true

deliverance make, between the King and the prisoner at the bar,

according to your evidence;" while at the common law the oath

prescribed in civil cases gave a right to a judge to direct the

jury in the matter of law, and to direct the verdict one way or

the other, as he saw fit, the oath being substantially as

follows: "You shall well and truly try the issue between party

and party according to the law and the evidence given you."

Whatever changes may have been made in the practice of the States

since the time of the earlier amendments to the Constitution,

certain it is that at that time, after a jury had been impaneled,

there was no way that the accused could be put in jeopardy of

life or limb without his cause being submitted to twelve men, and

their unanimous verdict passing upon the fact of his guilt or

innocence. And this right your committee deem is not one lightly

to be sacrificed. Burke once said that the whole English

Constitution and machinery of government--not quoting words--were

only to put into a jury-box twelve honest men. What advantage

could it be to an accused to put twelve honest men into the

jury-box, if the judge, without asking for their opinion, or

without their intervention, can order a verdict of guilty to be

entered up against the accused?

Nothing, therefore, can be of more consequence to the citizen in

troublous times to protect him against the exercise of usurped or

other power for oppression, than the intervention of the judgment

of his peers upon the question whether he has been guilty of a

crime, or alleged offense against the Government. And in the

judgment of your committee, we can not too scrupulously guard, in

the interest of the liberty of the citizen, this great and almost

invaluable right. The friends of liberty under the common-law

system have stood for it and stood by it, strenuously and

assiduously, as the palladium of their liberties and the

impenetrable shield of the people from oppression. By the order

of the judge the defendant was deprived of this right, and if, in

this case of minor consequence so far as regards the punishment

inflicted, this can be done, so in the trial for murder or

treason a judge may order a verdict of the jury without allowing

them to pass upon the fact. It has been sometimes said "Can this

be done?" We are clearly of the opinion that it can not and ought

not to be done. It is sometimes said as a triumphant argument in

favor of the exercise of this power, "Has not the judge the power

to order a verdict of acquittal?" The answer to that, as a matter

of law, is "No; he can only direct the jury that upon the facts

and matter of law he believes the case can not be maintained, but

that it is for the jury to say whether they will follow that

direction;" and his remedy is to set aside that verdict, and that

power has always been exercised at common law in favor of the

prisoner, but he can not set aside the verdict of not guilty.

Sometimes, in the darker hours of English jurisprudence, the

judges fined the jury when they were not the obedient instruments

of their will but persisted in finding the defendants in state

prosecutions not guilty when the judge thought they ought to have

been found guilty; but neither Jeffreys nor Scroggs ever dared to

set aside a verdict of not guilty.

Your committee have been led by the great consequence of this

precedent more carefully and at length to give an examination to

this question to which its importance would not otherwise have

entitled it. But your committee do not find it necessary to

impute any intent of wrong to the learned judge who tried this

case; but the effect of his error was to deprive this petitioner

of a great and beneficent right, guaranteed to her as strongly as

any other by the Constitution of her country, to have the

question of her guilt passed upon by her peers, which error has

had the same effect upon her rights as an intentional assumption

of power would have had, and may have hereafter, in bad times,

wherein corrupt judges, wielding instruments of power, shield

themselves by precedents set by good judges in good times.

Therefore, because the fine has been imposed by a court of the

United States for an offense triable by jury, without the same

being submitted to the jury, and because the court assumed to

itself the right to enter a verdict without submitting the case

to the jury, and in order that the judgment of the House of

Representatives, if it concur with the judgment of the committee,

may, in the most signal and impressive form, mark its

determination to sustain in its integrity the common-law right of

trial by jury, your committee recommend that the prayer of the

petitioner be granted, and to this end report the following bill,

with the recommendation that it do pass.

The Inspectors were counseled to refuse to pay their fines, and take

the consequences.