/
18281.txt
8494 lines (6809 loc) · 417 KB
/
18281.txt
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
288
289
290
291
292
293
294
295
296
297
298
299
300
301
302
303
304
305
306
307
308
309
310
311
312
313
314
315
316
317
318
319
320
321
322
323
324
325
326
327
328
329
330
331
332
333
334
335
336
337
338
339
340
341
342
343
344
345
346
347
348
349
350
351
352
353
354
355
356
357
358
359
360
361
362
363
364
365
366
367
368
369
370
371
372
373
374
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
390
391
392
393
394
395
396
397
398
399
400
401
402
403
404
405
406
407
408
409
410
411
412
413
414
415
416
417
418
419
420
421
422
423
424
425
426
427
428
429
430
431
432
433
434
435
436
437
438
439
440
441
442
443
444
445
446
447
448
449
450
451
452
453
454
455
456
457
458
459
460
461
462
463
464
465
466
467
468
469
470
471
472
473
474
475
476
477
478
479
480
481
482
483
484
485
486
487
488
489
490
491
492
493
494
495
496
497
498
499
500
501
502
503
504
505
506
507
508
509
510
511
512
513
514
515
516
517
518
519
520
521
522
523
524
525
526
527
528
529
530
531
532
533
534
535
536
537
538
539
540
541
542
543
544
545
546
547
548
549
550
551
552
553
554
555
556
557
558
559
560
561
562
563
564
565
566
567
568
569
570
571
572
573
574
575
576
577
578
579
580
581
582
583
584
585
586
587
588
589
590
591
592
593
594
595
596
597
598
599
600
601
602
603
604
605
606
607
608
609
610
611
612
613
614
615
616
617
618
619
620
621
622
623
624
625
626
627
628
629
630
631
632
633
634
635
636
637
638
639
640
641
642
643
644
645
646
647
648
649
650
651
652
653
654
655
656
657
658
659
660
661
662
663
664
665
666
667
668
669
670
671
672
673
674
675
676
677
678
679
680
681
682
683
684
685
686
687
688
689
690
691
692
693
694
695
696
697
698
699
700
701
702
703
704
705
706
707
708
709
710
711
712
713
714
715
716
717
718
719
720
721
722
723
724
725
726
727
728
729
730
731
732
733
734
735
736
737
738
739
740
741
742
743
744
745
746
747
748
749
750
751
752
753
754
755
756
757
758
759
760
761
762
763
764
765
766
767
768
769
770
771
772
773
774
775
776
777
778
779
780
781
782
783
784
785
786
787
788
789
790
791
792
793
794
795
796
797
798
799
800
801
802
803
804
805
806
807
808
809
810
811
812
813
814
815
816
817
818
819
820
821
822
823
824
825
826
827
828
829
830
831
832
833
834
835
836
837
838
839
840
841
842
843
844
845
846
847
848
849
850
851
852
853
854
855
856
857
858
859
860
861
862
863
864
865
866
867
868
869
870
871
872
873
874
875
876
877
878
879
880
881
882
883
884
885
886
887
888
889
890
891
892
893
894
895
896
897
898
899
900
901
902
903
904
905
906
907
908
909
910
911
912
913
914
915
916
917
918
919
920
921
922
923
924
925
926
927
928
929
930
931
932
933
934
935
936
937
938
939
940
941
942
943
944
945
946
947
948
949
950
951
952
953
954
955
956
957
958
959
960
961
962
963
964
965
966
967
968
969
970
971
972
973
974
975
976
977
978
979
980
981
982
983
984
985
986
987
988
989
990
991
992
993
994
995
996
997
998
999
1000
The Project Gutenberg EBook of An Account of the Proceedings on the Trial
of Susan B. Anthony, by Anonymous
This eBook is for the use of anyone anywhere at no cost and with
almost no restrictions whatsoever. You may copy it, give it away or
re-use it under the terms of the Project Gutenberg License included
with this eBook or online at www.gutenberg.org
Title: An Account of the Proceedings on the Trial of Susan B. Anthony
Author: Anonymous
Release Date: April 28, 2006 [EBook #18281]
Language: English
Character set encoding: ASCII
*** START OF THIS PROJECT GUTENBERG EBOOK TRIAL OF SUSAN B. ANTHONY ***
Produced by Marilynda Fraser-Cunliffe, Graeme Mackreth and
the Online Distributed Proofreading Team at
http://www.pgdp.net (This file was made using scans of
public domain works from the University of Michigan Digital
Libraries.)
AN
ACCOUNT OF THE PROCEEDINGS
ON THE
TRIAL OF
SUSAN B. ANTHONY,
ON THE
Charge of Illegal Voting,
AT THE
PRESIDENTIAL ELECTION IN NOV., 1872,
AND ON THE
TRIAL OF
BEVERLY W. JONES, EDWIN T. MARSH
AND WILLIAM B. HALL,
THE INSPECTORS OF ELECTION BY WHOM HER VOTE WAS RECEIVED.
ROCHESTER, N.Y.:
DAILY DEMOCRAT AND CHRONICLE BOOK PRINT, 3 WEST MAIN ST.
1874.
INDEX.
PAGE.
Anthony, S.B., Indictment, 1
Her speech on receiving her sentence, 82
Her campaign speech, 151
Crowley, Richard, Opening speech in Miss Anthony's case, 5
Gage, Mrs. M. Joslyn, Speech of 179
Hall, Wm. B., Indictment, 85
Hooker, John, Article on Judge Hunt and the Right of Trial by Jury, 206
Hunt, Judge, Opinion against Miss Anthony, 59
His refusal to submit her case to the jury, 68
His refusal to permit the jury to be polled, 68
His sentence of Miss Anthony, 81
His direction to the jury in the cases of Jones, Hall and Marsh, 144
Trial by jury "_a matter of form_", 145
Jones, Beverly W., Indictment, 85
Remarks on receiving sentence, 148
Marsh, Edwin T., Indictment, 85
Remarks on being sentenced, 149
Selden, H.R., Opening speech in Miss Anthony's case, 12
Argument in her case, 17
Argument on motion for new trial, 68
Van Voorhis, John, Argument of motion to quash the indictment
in the case of Jones, Marsh and Hall, 94
Argument in the case of Jones, Marsh and Hall on the merits, 128
Motion for new trial in the case of Jones, Marsh and Hall, 147
PREFACE.
At the election of President and Vice President of the United States,
and members of Congress, in November, 1872, SUSAN B. ANTHONY, and
several other women, offered their votes to the inspectors of election,
claiming the right to vote, as among the privileges and immunities
secured to them as citizens by the fourteenth amendment to the
Constitution of the United States. The inspectors, JONES, HALL, and
MARSH, by a majority, decided in favor of receiving the offered votes,
against the dissent of HALL, and they were received and deposited in the
ballot box. For this act, the women, fourteen in number, were arrested
and held to bail, and indictments were found against them severally,
under the 19th Section of the Act of Congress of May 30th, 1870, (16 St.
at L. 144.) charging them with the offense of "knowingly voting without
having a lawful right to vote." The three inspectors were also arrested,
but only two of them were held to bail, HALL having been discharged by
the Commissioner on whose warrant they were arrested. All three, however
were jointly indicted under the same statute--for having "knowingly and
wilfully received the votes of persons not entitled to vote."
Of the women voters, the case of Miss ANTHONY alone was brought to
trial, a _nolle prosequi_ having been entered upon the other
indictments. Upon the trial of Miss ANTHONY before the U.S. Circuit
Court for the Northern District of New York, at Canandaigua, in June,
1873, it was proved that before offering her vote she was advised by her
counsel that she had a right to vote; and that she entertained no doubt,
at the time of voting, that she was entitled to vote. It was claimed in
her behalf:
I. That she was legally entitled to vote.
II. That if she was not so entitled, but voted in good faith in the
belief that it was her right, she was guilty of no crime.
III. That she did vote in such good faith, and with such belief.
The court held that the defendant had no right to vote--that good faith
constituted no defence--that there was nothing in the case for the jury
to decide, and directed them to find a verdict of guilty; refusing to
submit, at the request of the defendant's counsel, any question to the
jury, or to allow the clerk to ask the jurors, severally, whether they
assented to the verdict which the court had directed to be entered. The
verdict of guilty was entered by the clerk, as directed by the court,
without any express assent or dissent on the part of the jury. A fine of
$100, and costs, was imposed upon the defendant.
Miss ANTHONY insists that in these proceedings, the fundamental
principle of criminal law, that no person can be a criminal unless the
mind be so--that an honest mistake is not a crime, has been disregarded;
that she has been denied her constitutional right of trial by jury, the
jury having had no voice in her conviction; that she has been denied her
right to have the response of every juror to the question, whether he
did or did not assent to the verdict which the court directed the clerk
to enter.
The trial of the three inspectors followed that of Miss ANTHONY, and all
were convicted, the court holding, as in the case of Miss ANTHONY, that
good faith on their part in receiving the votes was not a protection;
which they think a somewhat severe rule of law, inasmuch as the statute
provides the same penalty, and in the same sentence, "for knowingly and
wilfully receiving the vote of any person not entitled to vote, or
refusing to receive the vote of any person entitled to vote." The
inspectors claim, that according to this exposition of the law, they
were placed in a position which required them, without any opportunity
to investigate or take advice in regard to the right of any voter whose
right was questioned, to decide the question correctly, at the peril of
a term in the state's prison if they made a mistake; and, though this
may be a correct exposition of the law in their case, they would be
sorry to see it applied to the decisions of any court, not excepting the
tribunal by which they were convicted.
The defendant, HALL, is at a loss to know how he could have avoided the
penalty, inasmuch as he did all that he could in the way of rejecting
the votes, without throttling his co-inspectors, and forcing them to
desist from the wrong of receiving them. He is of opinion that by the
ruling of the Court, he would have been equally guilty, if he had tried
his strength in that direction, and had failed of success.
To preserve a full record of so important a judicial determination, and
to enable the friends of the convicted parties to understand precisely
the degree of criminality which attaches to them in consequence of these
convictions, the following pamphlet has been prepared--giving a more
full and accurate statement of the proceedings than can elsewhere be
found.
INDICTMENT
AGAINST SUSAN B. ANTHONY.
DISTRICT COURT OF THE UNITED STATES OF AMERICA,
IN AND FOR THE
NORTHERN DISTRICT OF NEW YORK.
* * *
At a stated session of the District Court of the United States of
America, held in and for the Northern District of New York, at the City
Hall, in the city of Albany, in the said Northern District of New York,
on the third Tuesday of January, in the year of our Lord one thousand
eight hundred and seventy-three, before the Honorable Nathan K. Hall,
Judge of the said Court, assigned to keep the peace of the said United
States of America, in and for the said District, and also to hear and
determine divers Felonies, Misdemeanors and other offenses against the
said United States of America, in the said District committed.
Brace Millerd,
James D. Wasson,
Peter H. Bradt,
James McGinty,
Henry A. Davis,
Loring W. Osborn,
Thomas Whitbeck,
John Mullen,
Samuel G. Harris,
Ralph Davis,
Matthew Fanning,
Abram Kimmey,
Derrick B. Van Schoonhoven,
Wilhelmus Van Natten,
Adam Winne,
James Goold,
Samuel S. Fowler,
Peter D.R. Johnson,
Patrick Carroll,
good and lawful men of the said District, then and there sworn and
charged to inquire for the said United States of America, and for the
body of said District, do, upon their oaths, present, that Susan B.
Anthony now or late of Rochester, in the county of Monroe, with force
and arms, etc., to-wit: at and in the first election district of the
eighth ward of the city of Rochester, in the county of Monroe, in said
Northern District of New York, and within the jurisdiction of this
Court, heretofore, to-wit: on the fifth day of November, in the year of
our Lord one thousand eight hundred and seventy-two, at an election duly
held at and in the first election district of the said eighth ward of
the city of Rochester, in said county, and in said Northern District of
New York, which said election was for Representatives in the Congress of
the United States, to-wit: a Representative in the Congress of the
United States for the State of New York at large, and a Representative
in the Congress of the United States for the twenty-ninth Congressional
District of the State of New York, said first election district of said
eighth ward of said city of Rochester, being then and there a part of
said twenty-ninth Congressional District of the State of New York, did
knowingly, wrongfully and unlawfully vote for a Representative in the
Congress of the United States for the State of New York at large, and
for a Representative in the Congress of the United States for said
twenty-ninth Congressional District, without having a lawful right to
vote in said election district (the said Susan B. Anthony being then and
there a person of the female sex,) as she, the said Susan B. Anthony
then and there well knew, contrary to the form of the statute of the
United States of America in such case made and provided, and against the
peace of the United States of America and their dignity.
Second Count--And the jurors aforesaid upon their oaths aforesaid do
further present that said Susan B. Anthony, now or late of Rochester, in
the county of Monroe, with force and arms, etc., to-wit: at and in the
first election district of the eighth ward of the city of Rochester, in
the county of Monroe, in said Northern District of New York, and within
the jurisdiction of this Court, heretofore, to-wit: on the fifth day of
November, in the year of our Lord one thousand eight hundred and
seventy-two, at an election duly held at and in the first election
district of the said eighth ward, of said city of Rochester, in said
county, and in said Northern District of New York, which said election
was for Representatives in the Congress of the United States, to-wit: a
Representative in the Congress of the United States for the State of New
York at large, and a Representative in the Congress of the United States
for the twenty-ninth Congressional District of the State of New York,
said first election district of said eighth ward, of said city of
Rochester, being then and there a part of said twenty-ninth
Congressional District of the State of New York, did knowingly,
wrongfully and unlawfully vote for a candidate for Representative in the
Congress of the United States for the State of New York at large, and
for a candidate for Representative in the Congress of the United States
for said twenty-ninth Congressional District, without having a lawful
right to vote in said first election district (the said Susan B. Anthony
being then and there a person of the female sex,) as she, the said
Susan B. Anthony then and there well knew, contrary to the form of the
statute of the United States of America in such case made and provided,
and against the peace of the United States of America and their dignity.
RICHARD CROWLEY,
Attorney of the United States,
For the Northern District Of New York.
(Endorsed.) Jan. 24, 1873.
Pleads not guilty.
RICHARD CROWLEY,
U.S. Attorney.
UNITED STATES
CIRCUIT COURT.
Northern District of New York.
THE UNITED STATES OF AMERICA
_vs._
SUSAN B. ANTHONY.
* * *
HON. WARD HUNT, Presiding.
* * *
APPEARANCES.
For the United States:
HON. RICHARD CROWLEY.
U.S. District Attorney.
For the Defendant:
HON. HENRY R. SELDEN.
JOHN VAN VOORHIS, ESQ.
Tried at Canandaigua. Tuesday and Wednesday, June 17th and 18th, 1873,
before Hon. Ward Hunt, and a jury.
Jury impanneled at 2:30 P.M.
MR. CROWLEY opened the case as follows:
_May it please the Court and Gentlemen of the Jury_:
On the 5th of November, 1872, there was held in this State, as well as
in other States of the Union, a general election for different officers,
and among those, for candidates to represent several districts of this
State in the Congress of the United States. The defendant, Miss Susan B.
Anthony, at that time resided in the city of Rochester, in the county of
Monroe, Northern District of New York, and upon the 5th day of November,
1872, she voted for a representative in the Congress of the United
States, to represent the 29th Congressional District of this State, and
also for a representative at large for the State of New York, to
represent the State in the Congress of the United States. At that time
she was a woman. I suppose there will be no question about that. The
question in this case, if there be a question of fact about it at all,
will, in my judgment, be rather a question of law than one of fact. I
suppose that there will be no question of fact, substantially, in the
case when all of the evidence is out, and it will be for you to decide
under the charge of his honor, the Judge, whether or not the defendant
committed the offence of voting for a representative in Congress upon
that occasion. We think, on the part of the Government, that there is no
question about it either one way or the other, neither a question of
fact, nor a question of law, and that whatever Miss Anthony's intentions
may have been--whether they were good or otherwise--she did not have a
right to vote upon that question, and if she did vote without having a
lawful right to vote, then there is no question but what she is guilty
of violating a law of the United States in that behalf enacted by the
Congress of the United States.
We don't claim in this case, gentlemen, that Miss Anthony is of that
class of people who go about "repeating." We don't claim that she went
from place to place for the purpose of offering her vote. But we do
claim that upon the 5th of November, 1872, she voted, and whether she
believed that she had a right to vote or not, it being a question of
law, that she is within the Statute.
Congress in 1870 passed the following statute: (Reads 19th Section of
the Act of 1870, page 144, 16th statutes at large.)
It is not necessary for me, gentlemen, at this stage of the case, to
state all the facts which will be proven on the part of the Government.
I shall leave that to be shown by the evidence and by the witnesses, and
if any question of law shall arise his Honor will undoubtedly give you
instructions as he shall deem proper.
_Conceded_, that on the 5th day of November, 1872, Miss Susan B. Anthony
was a woman.
BEVERLY W. JONES, a witness, called in behalf of the United States,
having been duly sworn, testified as follows:
_Examined_ by Mr. Crowley:
Q. Mr. Jones, where do you reside?
A. 8th ward, Rochester.
Q. Where were you living on the 5th of November, 1872?
A. Same place.
Q. Do you know the defendant, Miss Susan B. Anthony?
A. Yes, sir.
Q. In what capacity were you acting upon that day, if any, in relation
to elections?
A. Inspector of election.
Q. Into how many election districts is the 8th ward divided, if it
contains more than one?
A. Two, sir.
Q. In what election district were you inspector of elections?
A. The first district.
Q. Who were inspectors with you?
A. Edwin T. Marsh and William B. Hall.
Q. Had the Board of Inspectors been regularly organized?
A. Yes, sir.
Q. Upon the 5th day of November, did the defendant, Susan B. Anthony,
vote in the first election district of the 8th ward of the city of
Rochester?
A. Yes, sir.
Q. Did you see her vote?
A. Yes, sir.
Q. Will you state to the jury what tickets she voted, whether State,
Assembly, Congress and Electoral?
Objected to as calling for a conclusion.
Q. State what tickets she voted, if you know, Mr. Jones?
A. If I recollect right she voted the Electoral ticket, Congressional
ticket, State ticket, and Assembly ticket.
Q. Was there an election for Member of Congress for that district and
for Representative at Large in Congress, for the State of New York, held
on the 5th of November, in the city of Rochester?
A. I think there was; yes, sir.
Q. In what Congressional District was the city of Rochester at the time?
A. The 29th.
Q. Did you receive the tickets from Miss Anthony?
A. Yes, sir.
Q. What did you do with them when you received them?
A. Put them in the separate boxes where they belonged.
Q. State to the jury whether you had separate boxes for the several
tickets voted in that election district?
A. Yes, sir; we had.
Q. Was Miss Anthony challenged upon that occasion?
A. Yes, sir--no; not on that day she wasn't.
Q. She was not challenged on the day she voted?
A. No, sir.
_Cross-Examination_ by Judge Selden:
Q. Prior to the election, was there a registry of voters in that
district made?
A. Yes, sir.
Q. Was you one of the officers engaged in making that registry?
A. Yes, sir.
Q. When the registry was being made did Miss Anthony appear before the
Board of Registry and claim to be registered as a voter?
A. She did.
Q. Was there any objection made, or any doubt raised as to her right to
vote?
A. There was.
Q. On what ground?
A. On the ground that the Constitution of the State of New York did not
allow women to vote.
Q. What was the defect in her right to vote as a citizen?
A. She was not a male citizen.
Q. That she was a woman?
A. Yes, sir.
Q. Did the Board consider that and decide that she was entitled to
register?
Objected to. Objection overruled.
Q. Did the Board consider the question of her right to registry, and
decide that she was entitled to registry as a voter?
A. Yes, sir.
Q. And she was registered accordingly?
A. Yes, sir.
Q. When she offered her vote, was the same objection brought up in the
Board of Inspectors, or question made of her right to vote as a woman?
A. She was challenged previous to election day.
Q. It was canvassed previous to election day between them?
A. Yes, sir; she was challenged on the second day of registering names.
Q. At the time of the registry, when her name was registered, was the
Supervisor of Election present at the Board?
A. He was.
Q. Was he consulted upon the question of whether she was entitled to
registry, or did he express an opinion on the subject to the inspectors?
MR. CROWLEY: I submit that it is of no consequence whether he did or
not.
JUDGE SELDEN: He was the Government Supervisor under this act of
Congress.
MR. CROWLEY: The Board of Inspectors, under the State law, constitute
the Board of Registry, and they are the only persons to pass upon that
question.
THE COURT: You may take it.
A. Yes, sir; there was a United States Supervisor of Elections, two of
them.
By JUDGE SELDEN:
Q. Did they advise the registry, or did they not?
A. One of them did.
Q. And on that advice the registry was made with the judgment of the
inspectors.
A. It had a great deal of weight with the inspectors, I have no doubt.
_Re-direct Examination by_ MR. CROWLEY:
Q. Was Miss Anthony challenged before the Board of Registry?
A. Not at the time she offered her name.
Q. Was she challenged at any time?
A. Yes, sir; the second day of the meeting of the Board.
Q. Was the preliminary and the general oath administered?
A. Yes, sir.
Q. Won't you state what Miss Anthony said, if she said anything, when
she came there and offered her name for registration?
A. She stated that she did not claim any rights under the constitution
of the State of New York; she claimed her right under the constitution
of the United States.
Q. Did she name any particular amendment?
A. Yes, sir; she cited the 14th amendment.
Q. Under that she claimed her right to vote?
A. Yes, sir.
Q. Did the other Federal Supervisor who was present, state it as his
opinion that she was entitled to vote under that amendment, or did he
protest, claiming that she did not have the right to vote?
A. One of them said that there was no way for the inspectors to get
around placing the name upon the register; the other one, when she came
in, left the room.
Q. Did this one who said that there was no way to get around placing the
name upon the register, state that she had her right to register but did
not have the right to vote?
A. I didn't hear him make any such statement.
Q. You didn't hear any such statement as that?
A. No, sir.
Q. Was there a poll list kept of the voters of the first election
district of the 8th ward on the day of election?
A. Yes, sir.
Q. (Handing witness two books.) State whether that is the poll list of
voters kept upon the day of election in the first election district of
the 8th ward, of the city of Rochester?
A. This is the poll list, and also the register.
Q. Turn to the name of Susan B. Anthony, if it is upon that poll list?
A. I have it.
Q. What number is it?
A. Number 22.
Q. From that poll list what tickets does it purport to show that she
voted upon that occasion?
A. Electoral, State, Congress and Assembly.
_United States rests._
JUDGE SELDEN opened the case in behalf of the defendant, as follows:
_If the Court please, Gentlemen of the Jury_:
This is a case of no ordinary magnitude, although many might regard it
as one of very little importance. The question whether my client here
has done anything to justify her being consigned to a felon's prison or
not, is one that interests her very essentially, and that interests the
people also essentially. I claim and shall endeavor to establish before
you that when she offered to have her name registered as a voter, and
when she offered her vote for Member of Congress, she was as much
entitled to vote as any man that voted at that election, according to
the Constitution and laws of the Government under which she lives. If I
maintain that proposition, as a matter of course she has committed no
offence, and is entitled to be discharged at your hands.
But, beyond that, whether she was a legal voter or not, whether she was
entitled to vote or not, if she sincerely believed that she had a right
to vote, and offered her ballot in good faith, under that belief,
whether right or wrong, by the laws of this country she is guilty of no
crime. I apprehend that that proposition, when it is discussed, will be
maintained with a clearness and force that shall leave no doubt upon the
mind of the Court or upon your minds as the gentlemen of the jury. If I
maintain that proposition here, then the further question and the only
question which, in my judgment, can come before you to be passed upon by
you as a question of fact is whether or not she did vote in good faith,
believing that she had a right to vote.
The public prosecutor assumes that, however honestly she may have
offered her vote, however sincerely she may have believed that she had a
right to vote, if she was mistaken in that judgment, her offering her
vote and its being received makes a criminal offence--a proposition to
me most abhorrent, as I believe it will be equally abhorrent to your
judgment.
Before the registration, and before this election, Miss Anthony called
upon me for advice upon the question whether, under the 14th Amendment
of the Constitution of the United States, she had a right to vote. I had
not examined the question. I told her I would examine it and give her my
opinion upon the question of her legal right. She went away and came
again after I had made the examination. I advised her that she was as
lawful a voter as I am, or as any other man is, and advised her to go
and offer her vote. I may have been mistaken in that, and if I was
mistaken, I believe she acted in good faith. I believe she acted
according to her right as the law and Constitution gave it to her. But
whether she did or not, she acted in the most perfect good faith, and if
she made a mistake, or if I made one, that is not a reason for
committing her to a felon's cell.
For the second time in my life, in my professional practice, I am under
the necessity of offering myself as a witness for my client.
HENRY R. SELDEN, a witness sworn in behalf of the defendant, testified
as follows:
Before the last election, Miss Anthony called upon me for advice, upon
the question whether she was or was not a legal voter. I examined the
question, and gave her my opinion, unhesitatingly, that the laws and
Constitution of the United States, authorized her to vote, as well as
they authorize any man to vote; and I advised her to have her name
placed upon the registry and to vote at the election, if the inspectors
should receive her vote. I gave the advice in good faith, believing it
to be accurate, and I believe it to be accurate still.
[This witness was not cross-examined.]
JUDGE SELDEN: I propose to call Miss Anthony as to the fact of her
voting--on the question of the intention or belief under which she
voted.
MR. CROWLEY: She is not competent as a witness in her own behalf.
[The Court so held.]
_Defendant rests._
JOHN E. POUND, a witness sworn in behalf of the United States, testified
as follows:
_Examined by_ MR. CROWLEY.
Q. During the months of November and December, 1872, and January, 1873,
were you Assistant United States Dist. Attorney for the Northern
District of New York?
A. Yes, sir.
Q. Do you know the defendant, Susan B. Anthony?
A. Yes, sir.
Q. Did you attend an examination before Wm. C. Storrs, a United States
Commissioner, in the city of Rochester, when her case was examined?
A. I did
Q. Was she called as a witness in her own behalf upon that examination?
A. She was.
Q. Was she sworn?
A. She was.
Q. Did she give evidence?
A. She did.
Q. Did you keep minutes of evidence on that occasion?
A. I did.
Q. (Handing the witness a paper.) Please look at the paper now shown you
and see if it contains the minutes you kept upon that occasion?
A. It does.
Q. Turn to the evidence of Susan B. Anthony!
A. I have it.
Q. Did she, upon that occasion, state that she consulted or talked with
Judge Henry R. Selden, of Rochester, in relation to her right to vote?
JUDGE SELDEN: I object to that upon the ground that it is incompetent,
that if they refuse to allow her to be sworn here, they should be
excluded from producing any evidence that she gave elsewhere, especially
when they want to give the version which the United States officer took
of her evidence.
THE COURT: Go on.
By MR. CROWLEY:
Q. State whether she stated on that examination, under oath, that she
had talked or consulted with Judge Henry R. Selden in relation to her
right to vote?
A. She did.
Q. State whether she was asked, upon that examination, if the advice
given her by Judge Henry R. Selden would or did make any difference in
her action in voting, or in substance that?
A. She stated on the cross-examination, "I should have made the same
endeavor to vote that I did had I not consulted Judge Selden. I didn't
consult any one before I registered. I was not influenced by his advice
in the matter at all; have been resolved to vote, the first time I was
at home 30 days, for a number of years."
_Cross-examination by_ MR. VAN VOORHEES:
Q. Mr. Pound, was she asked there if she had any doubt about her right
to vote, and did she answer "Not a particle?"
A. She stated "Had no doubt as to my right to vote," on the direct
examination.
Q. There was a stenographic reporter there, was there not?
A. A reporter was there taking notes.
Q. Was not this question put to her "Did you have any doubt yourself of
your right to vote?" and did she not answer "Not a particle?"
THE COURT: Well, he says so, that she had no doubt of her right to vote.
JUDGE SELDEN: I beg leave to state, in regard to my own testimony, Miss
Anthony informs me that I was mistaken in the fact that my advice was
before her registry. It was my recollection that it was on her way to
the registry, but she states to me now that she was registered and came
immediately to my office. In that respect I was under a mistake.
_Evidence closed._
ARGUMENT OF MR. SELDEN FOR THE DEFENDANT.
The defendant is indicted under the 19th section of the Act of Congress
of May 31, 1870 (16 St. at L., 144,), for "voting without having a
lawful right to vote."
The words of the Statute, so far as they are material in this case, are
as follows:
"If at any election for representative or delegate in the Congress of
the United States, any person shall knowingly ... vote without having a
lawful right to vote ... every such person shall be deemed guilty of a
crime, ... and on conviction thereof shall be punished by a fine not
exceeding $500, or by imprisonment for a term not exceeding three years,
or by both, in the discretion of the court, and shall pay the costs of
prosecution."
The only alleged ground of illegality of the defendant's vote is that
she is a woman. If the same act had been done by her brother under the
same circumstances, the act would have been not only innocent, but
honorable and laudable; but having been done by a woman it is said to be
a crime. The crime therefore consists not in the act done, but in the
simple fact that the person doing it was a woman and not a man. I
believe this is the first instance in which a woman has been arraigned
in a criminal court, merely on account of her sex.
If the advocates of female suffrage had been allowed to choose the point
of attack to be made upon their position, they could not have chosen it
more favorably for themselves; and I am disposed to thank those who have
been instrumental in this proceeding, for presenting it in the form of a
criminal prosecution.
Women have the same interest that men have in the establishment and
maintenance of good government; they are to the same extent as men
bound to obey the laws; they suffer to the same extent by bad laws, and
profit to the same extent by good laws; and upon principles of equal
justice, as it would seem, should be allowed equally with men, to
express their preference in the choice of law-makers and rulers. But
however that may be, no greater _absurdity_, to use no harsher term,
could be presented, than that of rewarding men and punishing women, for
the same act, _without giving to women any voice in the question which
should be rewarded, and which punished_.
I am aware, however, that we are here to be governed by the Constitution
and laws as they are, and that if the defendant has been guilty of
violating the law, she must submit to the penalty, however unjust or
absurd the law may be. But courts are not required to so interpret laws
or constitutions as to produce either absurdity or injustice, so long as
they are open to a more reasonable interpretation. This must be my
excuse for what I design to say in regard to the propriety of female
suffrage, because with that propriety established there is very little
difficulty in finding sufficient warrant in the constitution for its
exercise.
This case, in its legal aspects, presents three questions, which I
purpose to discuss.
1. Was the defendant legally entitled to vote at the election in
question?
2. If she was not entitled to vote, but believed that she was, and voted
in good faith in that belief, did such voting constitute a crime under
the statute before referred to?
3. Did the defendant vote in good faith in that belief?
If the first question be decided in accordance with my views, the other
questions become immaterial; if the second be decided adversely to my
views, the first and third become immaterial. The two first are
questions of law to be decided by the court, the other is a question for
the jury.
[The Judge here suggested that the argument should be confined to the
legal questions, and the argument on the other question suspended, until
his opinion on those questions should be made known. This suggestion was
assented to, and the counsel proceeded.]
My first position is that the defendant had the same right to vote as
any other citizen who voted at that election.
Before proceeding to the discussion of the purely legal question, I
desire, as already intimated, to pay some attention to the propriety and
justice of the rule which I claim to have been established by the
Constitution.
Miss Anthony, and those united with her in demanding the right of
suffrage, claim, and with a strong appearance of justice, that upon the
principles upon which our government is founded, and which lie at the
basis of all just government, every citizen has a right to take part,
upon equal terms with every other citizen, in the formation and
administration of government. This claim on the part of the female sex
presents a question the magnitude of which is not well appreciated by
the writers and speakers who treat it with ridicule. Those engaged in
the movement are able, sincere and earnest women, and they will not be
silenced by such ridicule, nor even by the villainous caricatures of
Nast. On the contrary, they justly place all those things to the account
of the wrongs which they think their sex has suffered. They believe,
with an intensity of feeling which men who have not associated with them
have not yet learned, that their sex has not had, and has not now, its
just and true position in the organization of government and society.
They may be wrong in their position, but they will not be content until
their arguments are fairly, truthfully and candidly answered.
In the most celebrated document which has been put forth on this side of
the Atlantic, our ancestors declared that "governments derive their just
powers from the consent of the governed."
Blackstone says, "The lawfulness of punishing such criminals (i.e.,
persons offending merely against the laws of society) is founded upon
this principle: that the law by which they suffer was made by their own
consent; it is a part of the original contract into which they entered
when first they engaged in society; it was calculated for and has long
contributed to their own security."
Quotations, to an unlimited extent, containing similar doctrines from
eminent writers, both English and American, on government, from the time
of John Locke to the present day, might be made. Without adopting this
doctrine which bases the rightfulness of government upon the consent of
the governed, I claim that there is implied in it the narrower and
unassailable principle that all citizens of a State, who are bound by
its laws, are entitled to an equal voice in the making and execution of
such laws. The doctrine is well stated by Godwin in his treatise on
Political Justice. He says: "The first and most important principle that
can be imagined relative to the form and structure of government, seems
to be this: that as government is a transaction in the name and for the
benefit of the whole, every member of the community ought to have some
share in its administration."
Again, "Government is a contrivance instituted for the security of
individuals; and it seems both reasonable that each man should have a
share in providing for his own security, and probable, that partiality
and cabal should by this means be most effectually excluded."
And again, "To give each man a voice in the public concerns comes
nearest to that admirable idea of which we should never lose sight, the
uncontrolled exercise of private judgment. Each man would thus be
inspired with a consciousness of his own importance, and the slavish
feelings that shrink up the soul in the presence of an imagined superior
would be unknown."
The mastery which this doctrine, whether right or wrong, has acquired
over the public mind, has produced as its natural fruit, the extension
of the right of suffrage to all the adult male population in nearly all
the states of the Union; a result which was well epitomized by President
Lincoln, in the expression, "government by the people for the people."
This extension of the suffrage is regarded by many as a source of danger
to the stability of free government. I believe it furnishes the greatest
security for free government, as it deprives the mass of the people of
all motive for revolution; and that government so based is most safe,
not because the whole people are less liable to make mistakes in
government than a select few, but because they have no interest which
can lead them to such mistakes, or to prevent their correction when
made. On the contrary, the world has never seen an aristocracy, whether
composed of few or many, powerful enough to control a government, who
did not honestly believe that their interest was identical with the
public interest, and who did not act persistently in accordance with
such belief; and, unfortunately, an aristocracy of sex has not proved an
exception to the rule. The only method yet discovered of overcoming this
tendency to the selfish use of power, whether consciously or
unconsciously, by those possessing it, is the distribution of the power
among all who are its subjects. Short of this the name free government
is a misnomer.
This principle, after long strife, not yet entirely ended has been,
practically at least, very generally recognized on this side of the