but it was too late. Bitterly disappointed, she remonstrated with
Henry Selden, but he quietly replied, "I could not see a lady I
respected in jail." She never forgave him for this, in spite of her
continued appreciation of his keen legal mind, his unfailing kindness,
and his willingness to battle for women.
Within a few days she appeared before the Federal Grand Jury in
Albany and was indicted on the charge that she "did knowingly,
wrongfully and unlawfully vote for a Representative in the Congress of
the United States...."[296] Her trial was set for the term of the
United States District Court, beginning May 13, 1873, in Rochester,
New York.
[Illustration: Judge Henry R. Selden]
During these difficult days in Albany, Susan found comfort and
courage, as in the past, in the friendliness of Lydia Mott's home.
Here she planned the steps by which to win public approval and
financial aid for her test case. She addressed the commission which
was revising New York's constitution on woman's right to vote under
the Fourteenth and Fifteenth Amendments, pointing out that the law
limiting suffrage to males was nullified by this new interpretation.
Eager to spread the truth about her own legal contest, she distributed
printed copies of Judge Selden's argument. Then traveling to New York
and Washington, she personally presented copies to newspaper editors
and Congressmen. To one of these men she wrote, "It is not for
myself--but for all womanhood--yes and all manhood too--that I most
rejoice in the appeal to the legal mind of the Nation. It is no
longer whether women wish to vote, or men are willing, but it is
woman's Constitutional right."[297]
* * * * *
In spite of the fact that Susan was technically in the custody of the
United States Marshal, who objected to her leaving Rochester, she
managed to carry out a full schedule of lectures in Ohio, Indiana, and
Illinois, and also the usual annual Washington and New York woman
suffrage conventions at which she told the story of her voting, her
arrest, and her pending trial, and where she received enthusiastic
support.
Because she wanted the people to understand the legal points on which
she based her right to vote, Susan spoke on "The Equal Right of All
Citizens to the Ballot" in every district in Monroe County. So
thorough and convincing was she that the district attorney asked for a
change of venue, fearing that any Monroe County jury, sitting in
Rochester, would be prejudiced in her favor. When her case was
transferred to the United States Circuit Court in Canandaigua, to be
heard a month later, she immediately descended upon Ontario County
with her speech, "Is It a Crime for a Citizen of the United States to
Vote?" and Matilda Joslyn Gage joined her, speaking on "The United
States on Trial, Not Susan B. Anthony."
On the lecture platform Susan wore a gray silk dress with a soft,
white lace collar. Her hair, now graying, was smoothed back and
twisted neatly into a tight knot. Everything about her indicated
refinement and sincerity, and most of her audiences felt this.
"Our democratic-republican government is based on the idea of the
natural right of every individual member thereof to a voice and vote
in making and executing the laws," she declared as she looked into the
faces of the men and women who had gathered to hear her, farmers,
storekeepers, lawyers, and housewives, rich and poor, a cross section
of America.
Repeating to them salient passages from the Declaration of
Independence and the Preamble to the Constitution, she added, "It was
we, the people, not we, the white male citizens, nor yet we, the male
citizens: but we the whole people, who formed this Union. And we
formed it, not to give the blessings of liberty, but to secure them;
not to the half of ourselves and the half of our posterity, but to the
whole people--women as well as men."[298]
She asked, "Is the right to vote one of the privileges or immunities
of citizens? I think the disfranchised ex-rebels, and the ex-state
prisoners will agree with me that it is not only one of them, but the
one without which all the others are nothing."[299]
Quoting for them the Fifteenth Amendment, she told them it had settled
forever the question of the citizen's right to vote. The Fifteenth
Amendment, she reasoned, applies to women, first because women are
citizens and secondly because of their "previous condition of
servitude." Defining a slave as a person robbed of the proceeds of his
labor and subject to the will of another, she showed how state laws
relating to married women had placed them in the position of slaves.
As she analyzed the Thirteenth, Fourteenth, and Fifteenth Amendments
and cited authorities for her conclusions, she left little doubt in
the minds of those who heard her that women were persons and citizens
whose privileges and immunities could not be abridged.
On this note she concluded: "We ask the juries to fail to return
verdicts of 'guilty' against honest, law-abiding, tax-paying United
States citizens for offering their votes at our elections ... We ask
the judges to render true and unprejudiced opinions of the law, and
wherever there is room for doubt to give its benefit on the side of
liberty and equal rights to women, remembering that 'the true rule of
interpretation under our national constitution, especially since its
amendments, is that anything for human rights is constitutional,
everything against human rights unconstitutional.' And it is on this
line that we propose to fight our battle for the ballot--all
peaceably, but nevertheless persistently through to complete triumph,
when all United States citizens shall be recognized as equals before
the law."
* * * * *
Speaking twenty-one nights in succession was arduous. "So few see or
feel any special importance in the impending trial," she jotted down
in her diary. In towns, such as Geneva, where she had old friends,
like Elizabeth Smith Miller, she was assured of a friendly welcome and
a good audience.[300]
[Illustration: "The Woman Who Dared"]
As the collections, taken up after her lectures, were too small to pay
her expenses, her financial problems weighed heavily. The notes she
had signed for _The Revolution_ were in the main still unpaid, and
one of her creditors was growing impatient. She had recently paid her
counsel, Judge Selden, $200 and John Van Voorhis, $75, leaving only
$3.45 in her defense fund, but as usual a few of her loyal friends
came to her aid, and both Judge Selden and John Van Voorhis, deeply
interested in her courageous fight, gave most of their time without
charge.[301]
If this campaign was a problem financially, it was a success in the
matter of nation-wide publicity. The New York _Herald_ exulted in
hostile gibes at women suffrage and published fictitious interviews,
ridiculing Susan as a homely aggressive old maid, but the New York
_Evening Post_ prophesied that the court decision would likely be in
her favor. The Rochester _Express_ championed her warmly: "All
Rochester will assert--at least all of it worth heeding--that Miss
Anthony holds here the position of a refined and estimable woman,
thoroughly respected and beloved by the large circle of staunch
friends who swear by her common sense and loyalty, if not by her
peculiar views." In fact the consensus of opinion in Rochester was
much like that of the woman who remarked, "No, I am not converted to
what these women advocate. I am too cowardly for that; but I am
converted to Susan B. Anthony."[302]
This, however, was far from the attitude of Lucy Stone's _Woman's
Journal_, which had ignored Susan's voting in November 1872 because it
was out of sympathy with this militant move and with her
interpretation of the Fourteenth and Fifteenth Amendments. Later, as
her case progressed in the courts, the _Journal_ did give it brief
notice as a news item, but in 1873 when it listed as a mark of honor
the women who had worked wisely for the cause, Susan B. Anthony's name
was not among them, and this did not pass unnoticed by Susan; nor did
the fact that she was snubbed by the Congress of Women, meeting in New
York and sponsored by Mary A. Livermore, Julia Ward Howe, and Maria
Mitchell. This drawing away of women hurt her far more than newspaper
gibes. In fact she was sadly disappointed in women's response to the
herculean effort she was making for them.
Even more disconcerting was the adverse decision of the Supreme Court
on the Myra Bradwell case, which at once shattered the confidence of
most of her legal advisors. The court held that Illinois had violated
no provision of the federal Constitution in refusing to allow Myra
Bradwell to practice law because she was a woman and declared that the
right to practice law in state courts is not a privilege or an
immunity of a citizen of the United States, nor is the power of a
state to prescribe qualifications for admission to the bar affected by
the Fourteenth Amendment. Chief Justice Salmon P. Chase, filing a
dissenting opinion, lived up to Susan's faith in him, but Benjamin
Butler wrote her, "I do not believe anybody in Congress doubts that
the Constitution authorizes the right of women to vote, precisely as
it authorizes trial by jury and many other like rights guaranteed to
citizens. But the difficulty is, the courts long since decided that
the constitutional provisions do not act upon the citizens, except as
guarantees, ex proprio vigore, and in order to give force to them
there must be legislation.... Therefore, the point is for the friends
of woman suffrage to get congressional legislation."[303]
Susan, however, never wavered in her conviction that she as a citizen
had a constitutional right to vote and that it was her duty to test
this right in the courts.
FOOTNOTES:
[288] Ray Strachey, _Struggle_ (New York, 1930), pp. 113-116.
[289] The U.S. Supreme Court upheld the decision of a lower court that
without specific legislation by Congress, the 14th Amendment could not
overrule the law of the District of Columbia which limited suffrage to
male citizens over 21. _History of Woman Suffrage_, II, pp. 587-601.
[290] Harper, _Anthony_, I, p. 423.
[291] Nov. 5, 1872, Ida Husted Harper Collection, Henry E. Huntington
Library. Miss Anthony had assured the election inspectors that she
would pay the cost of any suit which might be brought against them for
accepting women's votes.
[292] Harper, _Anthony_, I, p. 426. The Anthony home was then numbered
7 Madison Street.
[293] _An Account of the Proceedings of the Trial of Susan B. Anthony
on the Charge of Illegal Voting_ (Rochester, New York, 1874), p. 16.
[294] Harper, _Anthony_, I, p. 428.
[295] _Ibid._, p. 433.
[296] _Trial_, pp. 2-3.
[297] N.d., Susan B. Anthony Papers, New York Public Library.
[298] _Trial_, pp. 151, 153. Judge Story, _Commentaries on the
Constitution of the United States_, Sec. 456: "The importance of
examining the preamble for the purpose of expounding the language of a
statute has long been felt and universally conceded in all juridical
discussion." _History of Woman Suffrage_, II, p. 477.
[299] Harper, _Anthony_, II, pp. 978, 986-987.
[300] Ms., Diary, May 10, June 7, 1873.
[301] Suffrage clubs in New York, Buffalo, Chicago, and Milwaukee sent
$50 and $100 contributions. Susan's cousin, Anson Lapham, cancelled
notes for $4000 which she had signed while struggling to finance _The
Revolution_. The women of Rochester rallied behind her, forming a
Taxpayers' Association to protest taxation without representation.
[302] Harper, _Anthony_, II, pp. 994-995.
[303] _Ibid._, I, p. 429.
"IS IT A CRIME FOR A CITIZEN ... TO VOTE?"
Charged with the crime of voting illegally, Susan was brought to trial
on June 17, 1873, in the peaceful village of Canandaigua, New York.
Simply dressed and wearing her new bonnet faced with blue silk and
draped with a dotted veil,[304] she stoically climbed the court-house
steps, feeling as if on her shoulders she carried the political
destiny of American women. With her were her counsel, Henry R. Selden
and John Van Voorhis, her sister, Hannah Mosher, most of the women who
had voted with her in Rochester, and Matilda Joslyn Gage, whose
interest in this case was akin to her own.
In the courtroom on the second floor, seated behind the bar, Susan
watched the curious crowd gather and fill every available seat. She
wondered, as she calmly surveyed the all-male jury, whether they could
possibly understand the humiliation of a woman who had been arrested
for exercising the rights of a citizen. The judge, Ward Hunt, did not
promise well, for he had only recently been appointed to the bench
through the influence of his friend and townsman, Roscoe Conkling, the
undisputed leader of the Republican party in New York and a bitter
opponent of woman suffrage. She tried to fathom this small,
white-haired, colorless judge upon whose fairness so much depended.
Prim and stolid, he sat before her, faultlessly dressed in a suit of
black broadcloth, his neck wound with an immaculate white neckcloth.
He ruled against her at once, refusing to let her testify on her own
behalf.
She was completely satisfied, however, as she listened to Henry
Selden's presentation of her case. Tall and commanding, he stood
before the court with nobility and kindness in his face and eyes,
bringing to mind a handsome cultured Lincoln. So logical, so just was
his reasoning, so impressive were his citations of the law that it
seemed to her they must convince the jury and even the expressionless
judge on the bench.
Pointing out that the only alleged ground of the illegality of Miss
Anthony's vote was that she was a woman, Henry Selden declared, "If
the same act had been done by her brother under the same
circumstances, the act would have been not only innocent and laudable,
but honorable; but having been done by a woman it is said to be a
crime.... I believe this is the first instance in which a woman has
been arraigned in a criminal court, merely on account of her
sex."[305] He claimed that Miss Anthony had voted in good faith,
believing that the United States Constitution gave her the right to
vote, and he clearly outlined her interpretation of the Fourteenth and
Fifteenth Amendments, declaring that she stood arraigned as a criminal
simply because she took the only step possible to bring this great
constitutional question before the courts.
After he had finished, Susan followed closely for two long hours the
arguments of the district attorney, Richard Crowley, who contended
that whatever her intentions may have been, good or bad, she had by
her voting violated a law of the United States and was therefore
guilty of crime.
At the close of the district attorney's argument, Judge Hunt without
leaving the bench drew out a written document, and to her surprise,
read from it as he addressed the jury. "The right of voting or the
privilege of voting," he declared, "is a right or privilege arising
under the constitution of the State, not of the United States.[306]
"The Legislature of the State of New York," he continued, "has seen
fit to say, that the franchise of voting shall be limited to the male
sex.... If the Fifteenth Amendment had contained the word 'sex,' the
argument of the defendant would have been potent.... The Fourteenth
Amendment gives no right to a woman to vote, and the voting of Miss
Anthony was in violation of the law....
"There was no ignorance of any fact," he added, "but all the facts
being known, she undertook to settle a principle in her own person....
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...."
Then hesitating a moment, he concluded, "Upon this evidence I suppose
there is no question for the jury and that the jury should be directed
to find a verdict of guilty."
Immediately Henry Selden was on his feet, addressing the judge,
requesting that the jury determine whether or not the defendant was
guilty of crime.
Judge Hunt, however, refused and firmly announced, "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 Fourteenth Amendment which Miss
Anthony claims protects her, she was not protected in a right to vote.
"And I have decided also," he continued, "that her belief and the
advice which she took does not protect her in the act which she
committed. If I am right in this, the result must be a verdict on your
part of guilty, and therefore I direct that you find a verdict of
guilty."
Again Henry Selden was on his feet. "That is a direction," he
declared, "that no court has power to make in a criminal case."
The courtroom was tense. Susan, watching the jury and wondering if
they would meekly submit to his will, heard the judge tersely order,
"Take the verdict, Mr. Clerk."
"Gentlemen of the jury," intoned the clerk, "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."
Claiming exception to the direction of the Court that the jury find a
verdict of guilty in this a criminal case. Henry Selden asked that the
jury be polled.
To this, Judge Hunt abruptly replied, "No. Gentlemen of the jury, you
are discharged."
* * * * *
That night Susan recorded her estimate of Judge Hunt's verdict in her
diary in one terse sentence, "The greatest outrage History ever
witnessed."[307]
The New York _Sun_, the Rochester _Democrat and Chronicle_, and the
Canandaigua _Times_ were indignant over Judge Hunt's failure to poll
the jury. "Judge Hunt," commented the _Sun_, "allowed the jury to be
impanelled and sworn, and to hear the evidence; but when the case had
reached the point of rendering the verdict, he directed a verdict of
guilty. He thus denied a trial by jury to an accused party in his
court; and either through malice, which we do not believe, or through
ignorance, which in such a flagrant degree is equally culpable in a
judge, he violated one of the most important provisions of the
Constitution of the United States.... The privilege of polling the
jury has been held to be an absolute right in this State and it is a
substantial right ..."[308]
Claiming that the defendant had been denied her right of trial by
jury. Henry Selden the next day moved for a new trial. Judge Hunt
denied the motion, and, ordering the defendant to stand up, asked her,
"Has the prisoner anything to say why sentence shall not be
pronounced."[309]
"Yes, your honor," Susan replied, "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, my judicial rights, are all alike ignored...."
Impatiently Judge Hunt protested that he could not listen to a
rehearsal of arguments which her counsel had already presented.
"May it please your honor," she persisted, "I am not arguing the
question but simply stating the reasons why sentence cannot in justice
be pronounced against me. Your denial of my citizen's right to vote is
the denial of my right of consent as one of the governed, the denial
of my right of representation as one of the taxed, the denial of my
right to a trial by a jury of my peers ..."
"The Court cannot allow the prisoner to go on," interrupted Judge
Hunt; but Susan, ignoring his command to sit down, protested that her
prosecutors and the members of the jury were all her political
sovereigns.
Again Judge Hunt tried to stop her, but she was not to be put off. She
was pleading for all women and her voice rang out to every corner of
the courtroom.
"The Court must insist," declared Judge Hunt, "the prisoner has been
tried according to established forms of law."
"Yes, your honor," admitted Susan, "but by forms of law all made by
men, interpreted by men, administered by men, in favor of men, and
against women...."
"The Court orders the prisoner to sit down," shouted Judge Hunt. "It
will not allow another word."
Unheeding, Susan continued, "When I was brought before your honor for
trial, I hoped for a broad and liberal interpretation of the
Constitution and its recent amendments, that should declare all United
States citizens under its protecting aegis--that should declare
equality of rights the national guarantee to all persons born or
naturalized in the United States. But failing to get this
justice--failing, even, to get a trial by a jury _not_ of my peers--I
ask not leniency at your hands--but rather the full rigors of the
law."
Once more Judge Hunt tried to stop her, and acquiescing at last, she
sat down, only to be ordered by him to stand up as he pronounced her
sentence, a fine of $100 and the costs of prosecution.
"May it please your honor," she protested, "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_ ... 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.... 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.'"
Pouring cold water on this blaze of oratory. Judge Hunt tersely
remarked that the Court would not require her imprisonment pending the
payment of her fine.
This shrewd move, obviously planned in advance, made it impossible to
carry the case to the United States Supreme Court by writ of habeas
corpus.
* * * * *
That same afternoon, Susan was on hand for the trial of the three
election inspectors. This time Judge Hunt submitted the case to the
jury but with explicit instructions that the defendants were guilty.
The jury returned a verdict of guilty, and the inspectors, denied a
new trial, were each fined $25 and costs. Two of them, Edwin F. Marsh
and William B. Hall, refused to pay their fines and were sent to jail.
Susan appealed on their behalf to Senator Sargent in Washington, who
eventually secured a pardon for them from President Grant. He also
presented a petition to the Senate, in January 1874, to remit Susan's
fine, as did William Loughridge of Iowa to the House, but the
judiciary committees reported adversely.
Because neither of these cases had been decided on the basis of
national citizenship and the right of a citizen to vote, Susan was
heartsick. To have them relegated to the category of election fraud
was as if her high purpose had been trailed in the dust. Wishing to
spread reliable information about her trial and the legal questions
involved, she had 3,000 copies of the court proceedings printed for
distribution.[310]
It was hard for her to concede that justice for women could not be
secured in the courts, but there seemed to be no way in the face of
the cold letter of the law to take her case to the Supreme Court of
the United States. This would have been possible on writ of habeas
corpus had Judge Hunt sentenced her to prison for failure to pay her
fine, but this he carefully avoided.
Even that intrepid fighter, John Van Voorhis, could find no loophole,
and another of her loyal friends in the legal profession, Albert G.
Riddle, wrote her, "There is not, I think, the slightest hope from the
courts and just as little from the politicians. They will never take
up this cause, never! Individuals will, parties never--till the thing
is done.... The trouble is that man can govern alone, and that, though
woman has the right, man wants to do it, and if she wait for him to
ask her, she will never vote.... Either man must be made to see and
feel ... the need of woman's help in the great field of human
government, and so demand it; or woman must arise and come forward as
she never has, and take her place."[311]