Trials and Decisions (part 2)

If the Court please, Gentlemen of the Jury:

This is a case of no ordinary magnitude, although many might regard it as one of very little importance. The question whether my client here has done anything to justify her being consigned to a felon's prison or not, is one that interests her very essentially, and that interests the people also essentially. I claim and shall endeavor to establish before you that when she offered to have her name registered as a voter, and when she offered her vote for Member of Congress, she was as much entitled to vote as any man that voted at that election, according to the Constitution and laws of the Government under which she lives. If I maintain that proposition, as a matter of course she has committed no offense, and is entitled to be discharged at your hands.

But, beyond that, whether she was a legal voter or not, whether she was entitled to a vote or not, if she sincerely believed that she had a right to vote, and offered her ballot in good faith, under that belief, whether right or wrong, by the laws of this country she is guilty of no crime. I apprehend that that proposition, when it is discussed, will be maintained with a clearness and force that shall leave no doubt upon the mind of the Court or upon your minds as the gentlemen of the jury. If I maintain that proposition here, then the further question and the only question which, in my judgment, can come before you to be passed upon by you as a question of fact is whether or not she did vote in good faith, believing that she had a right to vote. The public prosecutor assumes that, however honestly she may have offered her vote, however sincerely she may have believed that she had a right to vote, if she was mistaken in that judgment, her offering her vote and its being received makes a criminal offense—a proposition to me most abhorrent, as I believe it will be equally abhorrent to your judgment.

Before the registration, and before this election, Miss Anthony called upon me for advice upon the question whether, under the XIV. Amendment of the Constitution of the United States, she had a right to vote. I had not examined the question. I told her I would examine it and give her my opinion upon the question of her legal right. She went away and came again after I had made the examination. I advised her that she was as lawful a voter as I am, or as any other man is, and advised her to go and offer her vote. I may have been mistaken in that, and if I was mistaken, I believe she acted in good faith. I believe she acted according to her right as the law and Constitution gave it to her. But whether she did or not, she acted in the most perfect good faith, and if she made a mistake, or if I made one, that is not a reason for committing her to a felon's cell.

For the second time in my life, in my professional practice, I am under the necessity of offering myself as a witness for my client.

Henry R. Selden, a witness sworn in behalf of the defendant, testified as follows: Before the last election, Miss Anthony called upon me for advice, upon the question whether she was or was not a legal voter. I examined the question, and gave her my opinion, unhesitatingly, that the laws and Constitution of the United States authorized her to vote, as well as they authorize any man to vote; and I advised her to have her name placed upon the registry and to vote at the election, if the inspectors should receive her vote. I gave the advice in good faith, believing it to be accurate, and I believe it to be accurate still. [This witness was not cross-examined.]

Judge Selden: I propose to call Miss Anthony as to the fact of her voting—on the question of the intention or belief under which she voted.

Mr. Crowley: She is not competent as a witness in her own behalf. [The Court so held.] Defendant rests.

John E. Pound, a witness sworn in behalf of the United States, testified as follows, examined by Mr. Crowley:

Q. During the months of November and December, 1872, and January, 1873, were you Assistant United States District Attorney for the Northern District of New York? A. Yes, sir.

Q. Do you know the defendant, Susan B. Anthony? A. Yes, sir.

Q. Did you attend an examination before Wm. C. Storrs, a United States Commissioner, in the city of Rochester, when her case was examined? A. I did.

Q. Was she called as a witness in her own behalf upon that examination? A. She was.

Q. Was she sworn? A. She was.

Q. Did she give evidence? A. She did.

Q. Did you keep minutes of evidence on that occasion? A. I did.

Q. (Handing the witness a paper). Please look at the paper now shown you and see if it contains the minutes you kept upon that occasion? A. It does.

Q. Turn to the evidence of Susan B. Anthony? A. I have it.

Q. Did she, upon that occasion, state that she consulted or talked with Judge Henry R. Selden, of Rochester, in relation to her right to vote?

Judge Selden: I object to that upon the ground that it is incompetent, that if they refuse to allow her to be sworn here, they should be excluded from producing any evidence that she gave elsewhere, especially when they want to give the version which the United States officer took of her evidence.

The Court: Go on.

By Mr. Crowley:

Q. State whether she stated on that examination, under oath, that she had talked or consulted with Judge Henry R. Selden in relation to her right to vote? A. She did.

Q. State whether she asked, upon that examination, if the advice given her by Judge Henry R. Selden would or did make any difference in her action in voting, or in substance that? A. She stated on the cross-examination, "I should have made the same endeavor to vote that I did had I not consulted Judge Selden. I didn't consult any one before I registered. I was not influenced by his advice in the matter at all; have been resolved to vote, the first time I was at home thirty days, for a number of years."

Cross-examination by Mr. Van Voorhis:

Q. Mr. Pound, was she asked there if she had any doubt about her right to vote, and did she answer, "Not a particle"? A. She stated, "Had no doubt as to my right to vote," on the direct examination.

Q. There was a stenographic reporter there, was there not? A. A reporter was there taking notes.

Q. Was not this question put to her, "Did you have any doubt yourself of your right to vote?" and did she not answer, "Not a particle"?

The Court: Well, he says so, that she had no doubt of her right to vote.

Judge Selden: I beg leave to state, in regard to my own testimony, Miss Anthony informs me that I was mistaken in the fact that my advice was before her registry. It was my recollection that it was on her way to the registry, but she states to me now that she was registered and came immediately to my office. In that respect I was under a mistake.

Evidence closed.

ARGUMENT OF MR. SELDEN FOR THE DEFENDANT.

The defendant is indicted under the 19th section of the Act of Congress of May 31, 1874 (16 St. at L., 144), for "voting without having a lawful right to vote." The words of the statute, so far as they are material in this ease, are as follows:

If at any election for representative or delegate in the Congress of the United States, any person shall knowingly ... vote without having a lawful right to vote ... every such person shall be deemed guilty of a crime ... and on conviction thereof shall be punished by a fine not exceeding $500, or by imprisonment for a term not exceeding three years, or by both, in the discretion of the court, and shall pay the costs of prosecution.

The only alleged ground of illegality of the defendant's vote is that she is a woman. If the same act had been done by her brother under the same circumstances, the act would have been not only innocent, but honorable and laudable; but having been done by a woman it is said to be a crime. The crime, therefore, consists not in the act done, but in the simple fact that the person doing it was a woman and not a man. I believe this is the first instance in which a woman has been arraigned in a criminal court merely on account of her sex. If the advocates of female suffrage had been allowed to choose the point of attack to be made upon their position, they could not have chosen it more favorably for themselves; and I am disposed to thank those who have been instrumental in this proceeding, for presenting it in the form of a criminal prosecution. Women have the same interest that men have in the establishment and maintenance of good government; they are to the same extent as men bound to obey the laws; they suffer to the same extent by bad laws, and profit to the same extent by good laws; and upon principles of equal justice, as it would seem, should be allowed equally with men, to express their preference in the choice of law-makers and rulers. But however that may be, no greater absurdity, to use no harsher term, could be presented, than that of rewarding men and punishing women, for the same act, without giving to women any voice in the question which should be rewarded, and which punished.

I am aware, however, that we are here to be governed by the Constitution and laws as they are, and that if the defendant has been guilty of violating the law, she must submit to the penalty, however unjust or absurd the law may be. But courts are not required to so interpret laws or constitutions as to produce either absurdity or injustice, so long as they are open to a more reasonable interpretation. This must be my excuse for what I design to say in regard to the propriety of female suffrage, because with that propriety established there is very little difficulty in finding sufficient warrant in the Constitution for its exercise. This case, in its legal aspects, presents three questions, which I purpose to discuss.

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

2. If she was not entitled to vote, but believed that she was, and voted in good faith in that belief, did such voting constitute a crime under the statute before referred to?

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

If the first question be decided in accordance with my views, the other questions become immaterial; if the second be decided adversely to my views, the first and third become immaterial. The first two are questions of law to be decided by the court, the other is a question for the jury.

The Court suggested that the argument should be confined to the legal questions, and the argument on the other question suspended. This suggestion was assented to, and the counsel proceeded.

My first position is that the defendant had the same right to vote as any other citizen who voted at that election. Before proceeding to the discussion of the purely legal question, I desire, as already intimated, to pay some attention to the propriety and justice of the rule which I claim to have been established by the Constitution.

Miss Anthony, and those united with her in demanding the right of suffrage, claim, and with a strong appearance of justice, that upon the principles upon which our Government is founded, and which lie at the basis of all just government, every citizen has a right to take part, upon equal terms with every other citizen, in the formation and administration of government. This claim on the part of the female sex presents a question the magnitude of which is not well appreciated by the writers and speakers who treat it with ridicule. Those engaged in the movement are able, sincere, and earnest women, and they will not be silenced by such ridicule, nor even by the villainous caricatures of Nast. On the contrary, they justly place all those things to the account of the wrongs which they think their sex has suffered. They believe, with an intensity of feeling which men who have not associated with them have not yet learned, that their sex has not had, and has not now, its just and true position in the organization of government and society. They may be wrong in their position, but they will not be content until their arguments are fairly, truthfully, and candidly answered.

In the most celebrated document which has been put forth on this side of the Atlantic, our ancestors declared that "governments derive their just powers from the consent of the governed." Blackstone says:

The lawfulness of punishing such criminals (i.e., persons offending merely against the laws of society) is founded upon this principle; that the law by which they suffer was made by their own consent; it is a part of the original contract into which they entered when first they engaged in society; it was calculated for and has long contributed to their own security.

Quotations, to an unlimited extent, containing similar doctrines from eminent writers, both English and American, on government, from the time of John Locke to the present day, might be made. Without adopting this doctrine which bases the rightfulness of government upon the consent of the governed, I claim that there is implied in it the narrower and unassailable principle that all citizens of a State, who are bound by its laws, are entitled to an equal voice in the making and execution of such laws. The doctrine is well stated by Godwin in his treatise on "Political Justice." He says:

The first and most important principle that can be imagined relative to the form and structure of government, seems to be this: that as government is a transaction in the name and for the benefit of the whole, every member of the community ought to have some share in its administration. Again, Government is a contrivance instituted for the security of individuals; and it seems both reasonable that each man should have a share in providing for his own security, and probable, that partiality and cabal should by this means be most effectually excluded. And again, To give each man a voice in the public concerns comes nearest to that admirable idea of which we should never lose sight, the uncontrolled exercise of private judgment. Each man would thus be inspired with a consciousness of his own importance, and the slavish feelings that shrink up the soul in the presence of an imagined superior would be unknown.

The mastery which this doctrine, whether right or wrong, has acquired over the public mind, has produced as its natural fruit, the extension of the right of suffrage to all the adult male population in nearly all the States of the Union; a result which was well epitomized by President Lincoln, in the expression, "government by the people for the people." This extension of the suffrage is regarded by many as a source of danger to the stability of free government. I believe it furnishes the greatest security for free government, as it deprives the mass of the people of all motive for revolution; and that government so based is most safe, not because the whole people are less liable to make mistakes in government than a select few, but because they have no interest which can lead them to such mistakes, or to prevent their correction when made. On the contrary, the world has never seen an aristocracy, whether composed of few or many, powerful enough to control a government, who did not honestly believe that their interest was identical with the public interest, and who did not act persistently in accordance with such belief; and, unfortunately, an aristocracy of sex has not proved an exception to the rule. The only method yet discovered of overcoming this tendency to the selfish use of power, whether consciously or unconsciously, by those possessing it, is the distribution of the power among all who are its subjects. Short of this the name free government is a misnomer.

This principle, after long strife, not yet entirely ended has been, practically at least, very generally recognized on this side of the Atlantic, as far as relates to men; but when the attempt is made to extend it to women, political philosophers and practical politicians, those "inside of politics," two classes not often found acting in concert, join in denouncing it. It remains to be determined whether the reasons which have produced the extension of the franchise to all adult men, do not equally demand its extension to all adult women. If it be necessary for men that each should have a share in the administration of government for his security, and to exclude partiality, as alleged by Godwin, it would seem to be equally, if not more, necessary for women, on account of their inferior physical power; and if, as is persistently alleged by those who sneer at their claims, they are also inferior in mental power, that fact only gives additional weight to the argument in their behalf, as one of the primary objects of government, as acknowledged on all hands, is the protection of the weak against the power of the strong.

I can discover no ground consistent with the principle on which the franchise has been given to all men, upon which it can be denied to women. The principal argument against such extension, so far as argument upon that side of the question has fallen under my observation, is based upon the position that women are represented in the government by men, and that their rights and interests are better protected through that indirect representation than they would be by giving them a direct voice in the government. The teachings of history in regard to the condition of women under the care of these self-constituted protectors, to which I can only briefly allude, show the value of this argument as applied to past ages; and in demonstration of its value as applied to more recent times, even at the risk of being tedious, I will give some examples from my own professional experience. I do this because nothing adds more to the efficacy of truth than the translation of the abstract into the concrete. Withholding names, I will state the facts with fullness and accuracy.

An educated and refined woman, who had been many years before deserted by her drunken husband, was living in a small village of Western New York, securing, by great economy and intense labor in fine needlework, the means of living, and of supporting her two daughters at an academy, the object of her life being to give them such an education as would enable them to become teachers, and thus secure to them some degree of independence when she could no longer provide for them. The daughters were good scholars and favorites in the school, so long as the mother was able to maintain them there. A young man, the nephew and clerk of a wealthy but miserly merchant, became acquainted with the daughters, and was specially attentive to the older one. The uncle disapproved of the conduct of his nephew, and failing to control it by honorable means, resorted to the circulation of the vilest slanders against mother and daughters. He was a man of wealth and influence. They were almost unknown. The mother had but recently come to the village, her object having been to secure to her daughters the educational advantages which the academy afforded. Poverty, as well as perhaps an excusable if not laudable pride, compelled her to live in obscurity, and consequently the assault upon their characters fell upon her and her daughters with crushing force. Her employment mainly ceased, her daughters were of necessity withdrawn from school, and all were deprived of the means, from their own exertions, of sustaining life. Had they been in fact the harlots which the miserly scoundrel represented them to be, they would not have been so utterly powerless to resist his assault. The mother in her despair naturally sought legal redress. But how was it to be obtained? By the law the wife's rights were merged in those of the husband. She had in law no individual existence, and consequently no action could be brought by her to redress the grievous wrong; indeed, according to the law she had suffered no wrong, but the husband had suffered all, and was entitled to all the redress. Where he was the lady did not know; she had not heard from him for many years. Her counsel, however, ventured to bring an action in her behalf, joining the husband's name with hers, as the law required. When the cause came to trial the defendant made no attempt to sustain the charges which he had made, well knowing that they were as groundless as they were cruel; but he introduced and proved a release of the cause of action, signed by the husband, reciting a consideration of fifty dollars paid to him. The defendant's counsel had some difficulty in proving the execution of the release, and was compelled to introduce as a witness the constable who had been employed to find the vagabond husband and obtain his signature. His testimony disclosed the facts that he found the husband in the forest in one of our north-eastern counties, engaged in making shingles (presumably stealing timber from the public lands and converting it into the means of indulging his habits of drunkenness), and only five dollars of the fifty mentioned in the release had in fact been paid. The Court held, was compelled to hold, that the party injured in view of the law, had received full compensation for the wrong—and the mother and daughters with no means of redress were left to starve. This was the act of the representative of the wife and daughters to whom we are referred, as a better protector of their rights than they themselves could be. It may properly be added, that if the action had proceeded to judgment without interference from the husband, and such amount of damages had been recovered as a jury might have thought it proper to award, the money would have belonged to the husband, and the wife could not lawfully have touched a cent of it. Her attorney might, and doubtless would have paid it to her, but he could only have done so at the peril of being compelled to pay it again to the drunken husband if he had demanded it.

In another case, two ladies, mother and daughter, some time prior to 1860 came from an eastern county of New York to Rochester, where a habeas corpus was obtained for a child of the daughter less than two years of age. It appeared on the return of the writ, that the mother of the child had been previously abandoned by her husband, who had gone to a Western State to reside, and his wife had returned with the child to her mother's house, and had resided there after her desertion. The husband had recently returned from the West, had succeeded in getting the child into his custody, and was stopping overnight with it in Rochester on the way to his Western home. No misconduct on the part of the wife was pretended, and none on the part of the husband, excepting that he had gone to the West, leaving his wife and child behind, no cause appearing, and had returned, and somewhat clandestinely obtained possession of the child. The Judge, following Blackstone's views of husbands' rights, remanded the infant to the custody of the father. He thought the law required it, and perhaps it did; but if mothers had had a voice, either in making or administering the law, I think the result would have been different. The distress of the mother on being thus separated from her child can be better imagined than described. The separation proved a final one, as in less than a year neither father nor mother had any child on earth to love or care for. Whether the loss to the little one of a mother's love and watchfulness had any effect upon the result, can not, of course, be known.

The state of the law a short time since, in other respects, in regard to the rights of married women, shows what kind of security had been provided for them by their assumed representatives. Prior to 1848, all the personal property of every woman on marriage became the absolute property of the husband—the use of all her real estate became his during coverture, and on the birth of a living child, it became his during his life. He could squander it in dissipation or bestow it upon harlots, and the wife could not touch or interfere with it. Prior to 1860, the husband could by will take the custody of his infant children away from the surviving mother, and give it to whom he pleased—and he could in like manner dispose of the control of the children's property, after his death, during their minority, without the mother's consent. In most of these respects the state of the law has undergone great changes within the last twenty-five years. The property, real and personal, which a woman possesses before marriage, and such as may be given to her during coverture, remains her own, and is free from the control of her husband. If a married woman is slandered she can prosecute the slanderer in her own name, and recover to her own use damages for the injury. The mother now has an equal claim with the father to the custody of their minor children, and in case of controversy on the subject, courts may award the custody to either in their discretion. The husband can not now by will effectually appoint a guardian for his infant children without the consent of the mother, if living. These are certainly great ameliorations of the law; but how have they been produced? Mainly as the result of the exertions of a few heroic women, one of the foremost of whom is she who stands arraigned as a criminal before this Court to-day. For a thousand years the absurdities and cruelties to which I have alluded have been imbedded in the common law, and in the statute books, and men have not touched them, and would not until the end of time, had they not been goaded to it by the persistent efforts of the noble women to whom I have alluded.

Much has been done, but much more remains to be done by women. If they had possessed the elective franchise, the reforms which have cost them a quarter of a century of labor would have been accomplished in a year. They are still subject to taxation upon their property, without any voice as to the levying or destination of the tax; and are still subject to laws made by men, which subject them to fine and imprisonment for the same acts which men do with honor and reward—and when brought to trial no woman is allowed a place on the bench or in the jury box, or a voice in her behalf at the bar. They are bound to suffer the penalty of such laws, made and administered solely by men, and to be silent under the infliction. Give them the ballot, and, although I do not suppose that any great revolution will be produced, or that all political evils will be removed (I am not a believer in political panaceas), but if I mistake not, valuable reforms will be introduced which are not now thought of. Schools, alms-houses, hospitals, drinking saloons, and those worse dens which are destroying the morals and the constitutions of so many of the young of both sexes, will feel their influence to an extent now little dreamed of. At all events women will not be taxed without an opportunity to be heard, and will not be subject to fine and imprisonment by laws made exclusively by men for doing what it is lawful and honorable for men to do.

It may be said in answer to the argument in favor of female suffrage derived from the cases to which I have referred, that men, not individually, but collectively, are the natural and appropriate representatives of women, and that, notwithstanding cases of individual wrong, the rights of women are, on the whole, best protected by being left to their care. It must be observed, however, that the cases which I have stated, and which are only types of thousands like them, in their cruelty and injustice, are the result of ages of legislation by these assumed protectors of women. The wrongs were less in the men than in the laws which sustained them, and which contained nothing for the protection of the women. But passing this view, let us look at the matter historically and on a broader field.

If Chinese women were allowed an equal share with men in shaping the laws of that great empire, would they subject their female children to torture with bandaged feet, through the whole period of childhood and growth, in order that they might be cripples for the residue of their lives? If Hindoo women could have shaped the laws of India, would widows for ages have been burned on the funeral pyres of their deceased husbands? If Jewish women had had a voice in framing Jewish laws, would the husband, at his own pleasure, have been allowed to "write his wife a bill of divorcement and give it in her hand, and send her out of his house"? Would women in Turkey or Persia have made it a heinous, if not capital, offense for a wife to be seen abroad with her face not covered by an impenetrable veil? Would women in England, however learned, have been for ages subjected to execution for offenses for which men, who could read, were only subjected to burning in the hand and a few months imprisonment?

The principle which governs in these cases, or which has done so hitherto, has been at all times and everywhere the same. Those who succeed in obtaining power, no matter by what means, will, with rare exceptions, use it for their exclusive benefit. Often, perhaps generally, this is done in the honest belief that such use is for the best good of all who are affected by it. A wrong, however, to those upon whom it is inflicted, is none the less a wrong by reason of the good motives of the party by whom it is inflicted.

The condition of subjection in which women have been held is the result of this principle; the result of superior strength, not of superior rights, on the part of men. Superior strength, combined with ignorance and selfishness, but not with malice. It is a relic of the barbarism in the shadow of which nations have grown up. Precisely as nations have receded from barbarism the severity of that subjection has been relaxed. So long as merely physical power governed in the affairs of the world, the wrongs done to women were without the possibility of redress or relief; but since nations have come to be governed by laws, there is room to hope, though the process may still be a slow one, that injustice in all its forms, or at least political injustice, may be extinguished. No injustice can be greater than to deny to any class of citizens not guilty of crime, all share in the political power of a State, that is, all share in the choice of rulers, and in the making and administration of the laws. Persons to which such share is denied, are essentially slaves, because they hold their rights, if they can be said to have any, subject to the will of those who hold the political power. For this reason it has been found necessary to give the ballot to the emancipated slaves. Until this was done their emancipation was far from complete. Without a share in the political powers of the State, no class of citizens has any security for its rights, and the history of nations to which I briefly alluded, shows that women constitute no exception to the universality of this rule.

Great errors, I think, exist in the minds of both the advocates and the opponents of this measure in their anticipation of the immediate effects to be produced by its adoption. On the one hand it is supposed by some that the character of women would be radically changed—that they would be unsexed, as it were, by clothing them with political rights, and that instead of modest, amiable, and graceful beings, we should have bold, noisy, and disgusting political demagogues, or something worse, if anything worse can be imagined. I think those who entertain such opinions are in error. The innate character of women is the result of God's laws, not of man's, nor can the laws of man affect that character beyond a very slight degree. Whatever rights may be given to them, and whatever duties may be charged upon them by human laws, their general character will remain unchanged. Their modesty, their delicacy, and intuitive sense of propriety, will never desert them, into whatever new positions their added rights or duties may carry them.

So far as women, without change of character as women, are qualified to discharge the duties of citizenship, they will discharge them if called upon to do so, and beyond that they will not go. Nature has put barriers in the way of any excessive devotion of women to public affairs, and it is not necessary that nature's work in that respect should be supplemented by additional barriers invented by men. Such offices as women are qualified to fill will be sought by those who do not find other employment, and others they will not seek, or if they do, will seek in vain. To aid in removing as far as possible the disheartening difficulties which women dependent upon their own exertions encounter, it is, I think, desirable that such official positions as they can fill should be thrown open to them, and that they should be given the same power that men have to aid each other by their votes. I would say, remove all legal barriers that stand in the way of their finding employment, official or unofficial, and leave them, as men are left, to depend for success upon their character and their abilities. As long as men are allowed to act as milliners, with what propriety can they exclude women from the post of school commissioners when chosen to such positions by their neighbors?

To deny them such rights, is to leave them in a condition of political servitude as absolute as that of the African slaves before their emancipation. This conclusion is readily to be deduced from the opinion of Chief-Justice Jay in the case of Chisholm's Ex'rs vs. The State of Georgia (2 Dallas, 419-471), although the learned Chief-Justice had of course no idea of any such application as I make of his opinion. The action was assumpsit by a citizen of the State of South Carolina, and the question was, whether the United States Court had jurisdiction, the State of Georgia declining to appear. The Chief-Justice, in the course of his opinion, after alluding to the feudal idea of the character of the sovereign in England, and giving some of the reasons why he was not subject to suit before the courts of the kingdom, says:

The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the prince and the subject. No such ideas obtain here. At the Revolution the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called), and have none to govern but themselves; the citizens of America are equal as fellow-citizens, and as joint tenants in the sovereignty.

Now I beg leave to ask, in case this charge against Miss Anthony can be sustained, what equality and what sovereignty is enjoyed by the half of the citizens of these United States to which she belongs? Do they not, in that event, occupy politically exactly the position which the learned Chief-Justice assigns to the African slaves? Are they not shown to be subjects of the other half, who are the sovereigns? And is not their political subjection as absolute as was that of the African slaves? If that charge has any basis to rest upon, the learned Chief-Justice was wrong. The sovereigns of this country, according to the theory of this prosecution, are not sovereigns without subjects. Though two or three millions of their subjects have lately ceased to be such, and have become freemen, they still hold twenty millions of subjects in absolute political bondage. If it be said that my language is stronger than the facts warrant, I appeal to the record in this case for its justification.

As deductions from what has been said, I respectfully insist, 1st, That upon the principles upon which our government is based, the privileges of the elective franchise can not justly be denied to women. 2d. That women need it for their protection. 3d. That the welfare of both sexes will be promoted by granting it to them.

It would not become me, however clear my own convictions may be on the subject, to assert the right of women, under our Constitution and laws as they now are, to vote at Presidential and Congressional elections, is free from doubt, because very able men have expressed contrary opinions on that question, and, so far as I am informed, there has been no authoritative adjudication upon it; or, at all events, none upon which the public mind has been content to rest as conclusive. I proceed, therefore, to offer such suggestions as occur to me, and to refer to such authorities bearing upon the question, as have fallen under my observation, hoping to satisfy your honor, not only that my client has committed no criminal offense, but that she has done nothing which she had not a legal and Constitutional right to do. It is not claimed that, under our State Constitution and the laws made in pursuance of it, women are authorized to vote at elections, other than those of private corporations, and consequently the right of Miss Anthony to vote at the election in question, can only be established by reference to an authority superior to and sufficient to overcome the provisions of our State Constitution. Such authority can only be found, and I claim that it is found in the Constitution of the United States. For convenience I beg leave to bring together the various provisions of that Constitution which bear more or less directly upon the question:

Article I, Section 2. The House of Representatives shall be composed of members chosen every second year, by the people of the several States; and the electors in each State shall have the qualifications for electors of the most numerous branch of the State Legislature.

Article I, Section 3. The Senate of the United States shall be composed of two senators from each State, chosen by the Legislature thereof for six years; and each senator shall have one vote.

Article II, Section 1. Each State shall appoint in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the State may be entitled in the Congress.

Article IV, Section 2. The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.

Article IV, Section 4. The United States shall guarantee to every State in the Union a republican form of government.

THIRTEENTH AMENDMENT. (DECEMBER 18, 1865.)

1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

2. Congress shall have power to enforce this article by appropriate legislation.

FOURTEENTH AMENDMENT. (JULY 28, 1868.)

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

FIFTEENTH AMENDMENT. (MARCH 30, 1870.)

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

By reference to the provisions of the original Constitution, here recited, it appears that prior to the XIII., if not until the XIV. Amendment, the whole power over the elective franchise, even in the choice of Federal officers, rested with the States. The Constitution contains no definition of the term "citizen," either of the United States, or of the several States, but contents itself with the provision that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." The States were thus left free to place such restrictions and limitations upon the "privileges and immunities" of citizens as they saw fit, so far as is consistent with a republican form of government, subject only to the condition that no State could place restrictions upon the "privileges or immunities" of the citizens of any other State, which would not be applicable to its own citizens under like circumstances. It will be seen, therefore, that the whole subject, as to what should constitute the "privileges and immunities" of the citizen being left to the States, no question, such as we now present, could have arisen under the original Constitution of the United States.

But now, by the XIV. Amendment, the United States have not only declared what constitutes citizenship, both in the United States and in the several States, securing the rights of citizens to "all persons born or naturalized in the United States"; but have absolutely prohibited the States from making or enforcing "any law which shall abridge the privileges or immunities of citizens of the United States." By virtue of this provision, I insist that the act of Miss Anthony in voting was lawful. It has never, since the adoption of the XIV. Amendment, been questioned, and can not be questioned, that women as well as men are included in the terms of its first section, nor that the same "privileges and immunities of citizens" are equally secured to both.

What, then, are the "privileges and immunities of citizens of the United States" which are secured against such abridgment, by this section? I claim that these terms not only include the right of voting for public officers, but that they include that right as pre-eminently the most important of all the privileges and immunities to which the section refers. Among these privileges and immunities may doubtless be classed the right to life and liberty, to the acquisition and enjoyment of property, and to the free pursuit of one's own welfare, so far as such pursuit does not interfere with the rights and welfare of others; but what security has any one for the enjoyment of these rights when denied any voice in the making of the laws, or in the choice of those who make, and those who administer them? The possession of this voice, in the making and administration of the laws—this political right—is what gives security and value to the other rights, which are merely personal, not political. A person deprived of political rights is essentially a slave, because he holds his personal rights subject to the will of those who possess the political power. This principle constitutes the very corner-stone of our Government—indeed, of all republican government. Upon that basis our separation from Great Britain was justified. "Taxation without representation is tyranny." This famous aphorism of James Otis, although sufficient for the occasion when it was put forth, expresses but a fragment of the principle, because government can be oppressive through means of many appliances besides that of taxation. The true principle is, that all government over persons deprived of any voice in such government, is tyranny. That is the principle of the Declaration of Independence. We were slow in allowing its application to the African race, and have been still slower in allowing its application to women; but it has been done by the XIV. Amendment, rightly construed, by a definition of "citizenship," which includes women as well as men, and in the declaration that "the privileges and immunities of citizens shall not be abridged."

If there is any privilege of the citizen which is paramount to all others, it is the right of suffrage; and in a constitutional provision, designed to secure the most valuable rights of the citizen, the declaration that the privileges and immunities of the citizen shall not be abridged must, as I conceive, be held to secure that right before all others. It is obvious, when the entire language of the section is examined, not only that this declaration was designed to secure to the citizen this political right, but that such was its principal, if not its sole object, those provisions of the section which follow it being devoted to securing the personal rights of "life, liberty, property, and the equal protection of the laws." The clause on which we rely, to wit: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," might be stricken out of the section, and the residue would secure to the citizen every right which is now secured, excepting the political rights of voting and holding office. If the clause in question does not secure those political rights, it is entirely nugatory, and might as well have been omitted.

If we go to the lexicographers and to the writers upon law, to learn what are the privileges and immunities of the "citizen" in a republican government, we shall find that the leading feature of citizenship is the enjoyment of the right of suffrage. The definition of the term "citizen" by Bouvier is:

One who under the Constitution and laws of the United States, has a right to vote for Representatives in Congress, and other public officers, and who is qualified to fill offices in the gift of the people.

By Worcester:

An inhabitant of a republic who enjoys the rights of a freeman, and has a right to vote for public officers.

By Webster:

In the United States, a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate.

The meaning of the word "citizen" is directly and plainly recognized by the latest Amendment of the Constitution, the XV.:

The right of the citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.

This clause assumes that the right of citizens, as such, to vote, is an existing right. Mr. Richard Grant White, in his late work on "Words and their Uses," says of the word citizen:

A citizen is a person who has certain political rights, and the word is properly used to imply or suggest the possession of these rights.

Mr. Justice Washington, in the case of Corfield vs. Coryell (4 Wash. C. C. Rep. 380), speaking of the "privileges and immunities" of the citizen, as mentioned in Sec. 2, Art. 4, of the Constitution, after enumerating the personal rights mentioned above, and some others, as embraced by those terms, says,

To which may be added the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised.

At that time the States had entire control of the subject, and could abridge this privilege of the citizen at its pleasure; but the judge recognizes the "elective franchise" as among the "privileges and immunities" secured, to a qualified extent, to the citizens of every State by the provisions of the Constitution last referred to. When, therefore, the States were, by the XIV. Amendment, absolutely prohibited from abridging the privileges of the citizen, either by enforcing existing laws, or by the making of new laws, the right of every "citizen" to the full exercise of this privilege, as against State action, was absolutely secured.

Chancellor Kent and Judge Story both refer to the opinion of Mr. Justice Washington, above quoted, with approbation. The Supreme Court of Kentucky, in the case of Amy, a woman of color, vs. Smith (1 Littell's Rep. 326), discussed with great ability the questions as to what constituted citizenship, and what were the "privileges and immunities of citizens" which were secured by Sec. 2, Art. 4, of the Constitution, and they showed, by an unanswerable argument, that the term "citizens," as there used, was confined to those who were entitled to the enjoyment of the elective franchise, and that that was among the highest of the "privileges and immunities" secured to the citizen by that section. The court say that,

To be a citizen it is necessary that he should be entitled to the enjoyment of these privileges and immunities, upon the same terms upon which they are conferred upon other citizens; and unless he is so entitled he can not, in the proper sense of the term, be a citizen.

In the case of Scott vs. Sanford (19 How. 404), Chief-Justice Taney says:

The words "people of the United States," and "citizens," are synonymous terms, and mean the same thing; they describe the political body, who according to our republican institutions, form the sovereignty and hold the power, and conduct the government through their representatives. They are what we familiarly call the sovereign people, and every citizen is one of this people, and a constituent member of this sovereignty.

Mr. Justice Daniel, in the same case (p. 476), says:

Upon the principles of etymology alone, the term citizen, as derived from civitas, conveys the idea of connection or identification with the State or Government, and a participation in its functions. But beyond this, there is not, it is believed, to be found in the theories of writers on government, or in any actual experiment heretofore tried, an exposition of the term citizen, which has not been understood as conferring the actual possession and enjoyment, or the perfect right of acquisition and enjoyment of an entire equality of privileges, civil and political.

Similar references might be made to an indefinite extent, but enough has been said to show that the term citizen, in the language of Justice Daniel, conveys the idea "of identification with the State or Government, and a participation in its functions." Beyond question, therefore, the first section of the XIV. Amendment, by placing the citizenship of women upon a par with that of men, and declaring that the "privileges and immunities" of the citizen shall not be abridged, has secured to women, equally with men, the right of suffrage, unless that conclusion is overthrown by some other provision of the Constitution.

It is not necessary for the purposes of this argument to claim that this Amendment prohibits a State from making or enforcing any law whatever, regulating the elective franchise, or prescribing the conditions upon which it may be exercised. But we do claim that in every republic the right of suffrage, in some form and to some extent, is not only one of the privileges of its citizens, but is the first, most obvious and most important of all the privileges they enjoy; that in this respect all citizens are equal, and that the effect of this Amendment is, to prohibit the States from enforcing any law which denies this right to any of its citizens, or which imposes any restrictions upon it, which are inconsistent with a republican form of government. Within this limit, it is unnecessary for us to deny that the States may still regulate and control the exercise of the right.

The only provisions of the Constitution which it can be contended conflict with the construction which has here been put upon the first section of the XIV. Amendment, are the XV. Amendment, and the second section of the XIV. In regard to the XV. Amendment, I shall only say, that if my interpretation of the XIV. is correct, there was still an object to be accomplished and which was accomplished by the XV. The prohibition of any action abridging the privileges and immunities of citizens, contained in the XIV. Amendment, applies only to the States, and leaves the United States Government free to abridge the political privileges and immunities of citizens of the United States, as such, at its pleasure. By the XV. Amendment both the United States and the State governments are prohibited from exercising this power, "on account of race, color, or previous condition of servitude" of the citizen.

The first remark to be made upon the second section of the XIV. Amendment is, that it does not give, and was not designed to give to the States any power to deny or abridge the right of any citizen to exercise the elective franchise. So far as it touches that subject, it was designed to be restrictive upon the States. It gives to them no power whatever. It takes away no power, and it gives none; but if the States possess the power to deny or abridge the right of citizens to vote, it must be derived from some other provision of the Constitution. I believe none such can be found, which was not necessarily abrogated by the first section of this Amendment. It may be conceded that the persons who prepared this section supposed that, by other parts of the Constitution, or in some other way, the States would still be authorized, notwithstanding the provisions of the first section, to deny to the citizens the privilege of voting, as mentioned in the second section; but their mistake can not be held to add to, or to take from the other provisions of the Constitution. It is very clear that they did not intend, by this section, to give to the States any such power, but, believing that the States possessed it, they designed to hold the prospect of a reduction of their representation in Congress in terrorem over them to prevent them from exercising it. They seem not to have been able to emancipate themselves from the influence of the original Constitution which conceded this power to the States, or to have realized the fact that the first section of the Amendment, when adopted, would wholly deprive the States of that power.

But those who prepare constitutions are never those who adopt them, and consequently the views of those who frame them have little or no bearing upon their interpretation. The question for consideration here is, what the people, who, through their representatives in the legislatures, adopted the Amendments, understood, or must be presumed to have understood, from their language. They must be presumed to have known that the "privileges and immunities" of citizens which were secured to them by the first section beyond the power of abridgment by the States, gave them the right to exercise the elective franchise, and they certainly can not be presumed to have understood that the second section, which was also designed to be restrictive upon the States, would be held to confer by implication a power upon them, which the first section in the most express terms prohibited.

It has been, and may be again asserted, that the position which I have taken in regard to the second section is inadmissible, because it renders the section nugatory. That is, as I hold, an entire mistake. The leading object of the second section was the readjustment of the representation of the States in Congress, rendered necessary by the abolition of chattel slavery [not of political slavery], effected by the XIII. Amendment. This object the section accomplishes, and in this respect it remains wholly untouched, by my construction of it. Neither do I think the position tenable which has been taken by one tribunal, to which the consideration of this subject was presented, that the constitutional provision does not execute itself. The provisions on which we rely were negative merely, and were designed to nullify existing as well as any future State legislation interfering with our rights. This result was accomplished by the constitution itself. Undoubtedly before we could exercise our right, it was necessary that there should be a time and place appointed for holding the election and proper officers to hold it, with suitable arrangements for receiving and counting the votes. All this was properly done by existing laws, and our right being made complete by the Constitution, no further legislation was required in our behalf. When the State officers attempted to interpose between us and the ballot-box the State Constitution or State law, whether ancient or recent, abridging or denying our equal right to vote with other citizens, we had but to refer to the United States Constitution, prohibiting the States from enforcing any such constitutional provision or law, and our rights were complete; we needed neither Congressional nor State legislation in aid of them. The opinion of Mr. Justice Bradley, in a case in the United States Circuit Court in New Orleans (1 Abb. U. S. Rep., 402) would seem to be decisive of this question, although the right involved in that case was not that of the elective franchise. The learned Justice says:

It was very ably contended on the part of the defendants that the XIV. Amendment was intended only to secure to all citizens equal capacities before the law. That was at first our view of it. But it does not so read. The language is: "No State shall abridge the privileges or immunities of citizens of the United States." What are the privileges and immunities of citizens? Are they capacities merely? Are they not also rights?

Senator Carpenter, who took part in the discussion of the XIV. Amendment in the Senate, and aided in its passage, says:

The XIV. Amendment executes itself in every State of the Union.... It is thus the will of the United States in every State, and silences every State Constitution, usage, or law which conflicts with it.... And if this provision does protect the colored citizen, then it protects every citizen, black or white, male or female.... And all the privileges and immunities which I vindicate to a colored citizen, I vindicate to our mothers, our sisters, and our daughters.—Chicago Legal News, vol. IV., No. 15.

It has been said, with how much or how little truth I do not know, that the subject of securing to women the elective franchise was not considered in the preparation or in the adoption of these Amendments. It is wholly immaterial whether that was so or not. It is never possible to arrive at the intention of the people in adopting constitutions, except by referring to the language used. As is said by Mr. Cooley, "the intent is to be found in the instrument itself" (p. 55), and to that I have confined my remarks. It is not a new thing for constitutional and legislative acts to have an effect beyond the anticipation of those who framed them. It is undoubtedly true, that in exacting Magna Charta from King John, the Barons of England provided better securities for the rights of the common people than they were aware of at the time, although the rights of the common people were neither forgotten nor neglected by them. It has also been said, perhaps with some truth, that the framers of the original Constitution of the United States "builded better than they knew;" and it is quite possible that in framing the Amendments under consideration, those engaged in doing it have accomplished a much greater work than they were at the time, aware of. I am quite sure that it will be fortunate for the country, if this great question of female suffrage, than which few greater were ever presented for the consideration of any people, shall be found, almost unexpectedly, to have been put at rest. The opinion of Mr. Justice Bradley, in regard to this Amendment, in the case above referred to, if I understand it, corresponds very nearly with what I have here said. The learned Judge, in one part of his opinion, says:

It is possible that those who framed the article were not themselves aware of the far-reaching character of its terms. They may have had in mind but one particular phase of social and political wrong, which they desired to redress—yet, if the Amendment, as framed and expressed, does, in fact, have a broader meaning, and does extend its protecting shield over those who were never thought of when it was conceived and put in form, and does reach such social evils which were never before prohibited by constitutional amendment, it is to be presumed that the American people, in giving it their imprimatur, understood what they were doing, and meant to decree what has, in fact, been done.... It embraces much more. The "privileges and immunities" secured by the original Constitution were only such as each State gave its own citizens. Each was prohibited from discriminating in favor of its own citizens, and against the citizens of other States. But the XIV. Amendment prohibits any State from abridging the privileges or immunities of the citizens of the United States, whether its own citizens or any others. It not merely requires equality of privileges, but it demands that the privileges and immunities of all citizens shall be absolutely unabridged, unimpaired. (1 Abbott's U. S. Rep., 397).

It will doubtless be urged as an objection to my position (that citizenship carries with it the right to vote) that it would, in that case, follow that infants and lunatics, who, as well as adults and persons of sound mind, are citizens, would also have that right. This objection, which appears to have great weight with certain classes of persons, is entirely without force. It takes no note of the familiar fact, that every legislative provision, whether constitutional or statutory, which confers any discretionary power, is always confined in its operation to persons who are compos mentis. It is wholly unnecessary to except idiots and lunatics out of any such statute. They are excluded from the very nature of the case. The contrary supposition would be simply absurd. And, in respect to every such law, infants, during their minority, are in the same class. But are women, who are not infants, ever included in this category? Does any such principle of exclusion apply to them? Not at all. On the contrary, they stand, in this respect, upon the same footing as men, with the sole exception of the right to vote and the right to hold office. In every other respect, whatever rights and powers are conferred upon persons by law may be exercised by women as well as by men. They may transact any kind of business for themselves, or as agents or trustees for others; may be executors and administrators, with the same powers and responsibilities as men; and it ought not to be a matter of surprise or regret that they are now placed, by the XIV. Amendment, in other respects upon a footing of perfect equality.

Although not directly connected with the argument as to the right secured to women by the Constitution, I deem it not improper to allude briefly to some of the popular objections against the propriety of allowing females the privilege of voting. I do this because I know from past experience that these popular objections, having no logical bearing upon the subject, are yet, practically, among the most potent arguments against the interpretation of the XIV. Amendment, which I consider the only one that its language fairly admits of.

It is said that women do not desire to vote. Certainly many women do not but that furnishes no reason for denying the right to those who do desire to vote. Many men decline to vote. Is that a reason for denying the right to those who would vote? I believe, however, that the public mind is greatly in error in regard to the proportion of female citizens who would vote if their right to do so were recognized. In England there has been to some extent a test of that question, with the following result, as given in the newspapers, the correctness of which, in this respect, I think there is no reason to doubt:

Woman suffrage is, to a certain extent, established in England, with the result as detailed in the London Examiner, that in 66 municipal elections, out of every 1,000 women who enjoy equal rights with men on the register, 516 went to the poll, which is but 48 less than the proportionate number of men. And out of 27,949 women registered, where a contest occurred, 14,416 voted. Of men there were 166,781 on the register, and 90,080 at the poll. The Examiner thereupon draws this conclusion: "Making allowance for the reluctance of old spinsters to change their habits, and the more frequent illness of the sex, it is manifest that women, if they had opportunity, would exercise the franchise as freely as men. There is an end, therefore, of the argument that women would not vote if they had the power."

Our law books furnish, perhaps, more satisfactory evidence of the earnestness with which women in England are claiming the right to vote, under the reform act of 1867, aided by Lord Brougham's act of 1850. The case of Chorlton, appellant, vs. Lings, respondent, came before the Court of Common Pleas in England in 1869. It was an appeal from the decision of the revising barrister, for the borough of Manchester, to the effect "that Mary Abbott, being a woman, was not entitled to be placed on the register." Her right was perfect in all respects excepting that of sex. The court, after a very full and able discussion of the subject, sustained the decision of the revising barrister, denying to women the right to be placed on the register, and consequently denying their right to vote. The decision rested upon the peculiar phraseology of several Acts of Parliament, and the point decided has no applicability here. My object in referring to the case has been to call attention to the fact stated by the reporter, that appeals of 5,436 other women were consolidated and decided with this. No better evidence could be furnished of the extent and earnestness of the claim of women in England to exercise the elective franchise.—Law Rep. Com. Pleas, 4-374. I infer, without being able to say how the fact is, that the votes given by women, as mentioned in the newspapers, were given at municipal elections merely, and that the cases decided by the Court of Common Pleas relate to elections for members of Parliament.

Another objection is, that the right to hold office must attend the right to vote, and that women are not qualified to discharge the duties of responsible offices. I beg leave to answer this objection by asking one or more questions. How many of the male bipeds who do our voting are qualified to hold high offices? How many of the large class to whom the right of voting is supposed to have been secured by the XV. Amendment, are qualified to hold office? Whenever the qualifications of persons to discharge the duties of responsible offices is made the test of their right to vote, and we are to have a competitive examination on that subject, open to all claimants, my client will be content to enter the lists, and take her chances among the candidates for such honors.

But the practice of the world, and our own practice, give the lie to this objection. Compare the administration of female sovereigns of great kingdoms, from Semiramis to Victoria, with the average administration of male sovereigns, and which will suffer by the comparison? How often have mothers governed large kingdoms, as regents, during the minority of their sons, and governed them well? Such offices as the "sovereigns" who rule them in this country have allowed women to hold (they having no voice on the subject), they have discharged the duties of with ever-increasing satisfaction to the public; and Congress has lately passed an act, making the official bonds of married women valid, so that they could be appointed to the office of postmaster.

The case of Olive vs. Ingraham (7 Modern Rep. 263) was an action brought to try the title to an office. On the death of the sexton of the parish of St. Butolph, the place was to be filled by election, the voters being the housekeepers who "paid Scot and lot" in the parish. The widow of the deceased sexton (Sarah Bly) entered the lists against Olive, the plaintiff in the suit, and received 169 indisputable votes, and 40 votes given by women who were "housekeepers, and paid to church and poor." The plaintiff had 174 indisputable votes, and 22 votes given by such women as voted for Mrs. Bly. Mrs. Bly was declared elected. The action was brought to test two questions: 1. Whether women were legal voters; and 2. Whether a woman was capable of holding the office. The case was four times argued in the King's Bench, and all the Judges delivered opinions, holding that the women were competent voters; that the widow was properly elected, and could hold the office. In the course of the discussion it was shown that women had held many offices, those of constable, church warden, overseer of the poor, keeper of the "gate house" (a public prison), governess of a house of correction, keeper of castles, sheriffs of counties, and high constable of England. If women are legally competent to hold minor offices, I would be glad to have the rule of law, or of propriety, shown which should exclude them from higher offices, and which marks the line between those which they may and those which they may not hold.

Another objection is that women can not serve as soldiers. To this I answer that capacity for military service has never been made a test of the right to vote. If it were, young men from sixteen to twenty-one would be entitled to vote, and old men from sixty and upward would not. If that were the test, some women would present much stronger claims than many of the male sex.

Another objection is that engaging in political controversies is not consistent with the feminine character. Upon that subject, women themselves are the best judges, and if political duties should be found inconsistent with female delicacy, we may rest assured that women will either effect a change in the character of political contests, or decline to engage in them. This subject may be safely left to their sense of delicacy and propriety. If any difficulty on this account should occur, it may not be impossible to receive the votes of women at their places of residence. This method of voting was practiced in ancient Rome under the republic; and it will be remembered that when the votes of the soldiers who were fighting our battles in the Southern States were needed to sustain their friends at home, no difficulty was found in the way of taking their votes at their respective camps.

I humbly submit to your honor, therefore, that on the Constitutional grounds to which I have referred, Miss Anthony had a lawful right to vote; that her vote was properly received and counted; that the first section of the XIV. Amendment secured to her that right, and did not need the aid of any further legislation. But conceding that I may be in error in supposing that Miss Anthony had a right to vote, she has been guilty of no crime, if she voted in good faith believing that she had such right. This proposition appears to me so obvious, that were it not for the severity to my client of the consequences which may follow a conviction, I should not deem it necessary to discuss it.

To make out the offense, it is incumbent on the prosecution to show affirmatively, not only that the defendant knowingly voted, but that she so voted knowing that she had no right to vote. That is, the term "knowingly" applies, not to the fact of voting, but to the fact of want of right. Any other interpretation of the language would be absurd. We can not conceive of a case where a party could vote without knowledge of the fact of voting, and to apply the term "knowingly" to the mere act of voting, would make nonsense of the statute. This word was inserted as defining the essence of the offense, and it limits the criminality to cases where the voting is not only without right, but where it is done willfully, with a knowledge that it is without right. Short of that there is no offense within the statute. This would be so upon well-established principles, even if the word "knowingly" had been omitted, but that word was inserted to prevent the possibility of doubt on the subject, and to furnish security against the inability of stupid or prejudiced judges or jurors, to distinguish between willful wrong and innocent mistake. If the statute had been merely that "if at any election for representative in Congress any person shall vote without having a lawful right to vote, such person shall be deemed guilty of a crime," there could have been justly no conviction under it without proof that the party voted knowing that he had not a right to vote. If he voted innocently supposing he had the right to vote, but had not, it would not be an offense within the statute. An innocent mistake is not a crime, and no amount of judicial decisions can make it such. Mr. Bishop says, (I Cr. Law, § 205),

There can be no crime unless a culpable intent accompanies the criminal act. The same author (1 Cr. Prac. § 521), repeated in other words, the same idea: In order to render a party criminally responsible, a vicious will must concur with a wrongful act.

I quote from a more distinguished author:

Felony is always accompanied with an evil intention, and therefore shall not be imputed to a mere mistake or misanimadversion, as where persons break open a door, in order to execute a warrant, which will not justify such proceeding: Affectio enim tua nomen imponit operi tuo: item crimen non contrahitur nisi nocendi, voluntas intercedat, which, as I understand, may read: For your violation puts the name upon your act; and a crime is not committed unless the will of the offender takes part in it. (1 Hawk. P. C., p. 99, Ch. 25, § 3.)

This quotation by Hawkins is, I believe, from Bracton, which carries the principle back to a very early period in the existence of the common law. It is a principle, however, which underlies all law, and must have been recognized at all times, wherever criminal law has been administered, with even the slightest reference to the principles of common morality and justice. I quote again on this subject from Mr. Bishop:

The doctrine of the intent as it prevails in the criminal law, is necessarily one of the foundation principles of public justice. There is only one criterion by which the guilt of man is to be tested. It is whether the mind is criminal. Criminal law relates only to crime. And neither in philosophical speculation, nor in religious or moral sentiment, would any people in any age allow that a man should be deemed guilty unless his mind was so. It is, therefore, a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent without which it can not exist. (1 Bishop's Crim. Law, § 287.)

Again, the same author, writing on the subject of knowledge, as necessary to establish the intent, says:

It is absolutely necessary to constitute guilt, as in indictments for uttering forged tokens, or other attempts to defraud, or for receiving stolen goods, and offenses of a similar description. (1 Crim. Prac. § 504.)

In regard to the offense of obtaining property by false pretenses, the author says:

The indictment must allege that the defendant knew the pretenses to be false. This is necessary upon the general principles of the law, in order to show an offense, even though the statute does not contain the word "knowingly." (2 Id. § 172.)

As to a presumed knowledge of the law, where the fact involves a question of law, the same author says:

The general doctrine laid down in the foregoing sections (i.e., that every man is presumed to know the law, and that ignorance of the law does not excuse), is plain in itself and plain in its application. Still, there are cases, the precise nature and extent of which are not so obvious, wherein ignorance of the law constitutes, in a sort of indirect way, not in itself a defense, but a foundation on which another defense rests. Thus, if the guilt or innocence of a prisoner depends on the fact to be found by the jury, of his having been or not, when he did the act, in some precise mental condition, which mental condition is the gist of the offense, the jury in determining this question of mental condition, may take into consideration his ignorance or misinformation in a matter of law. For example, to constitute larceny, there must be an intent to steal, which involves the knowledge that the property taken does not belong to the taker; yet, if all the facts concerning the title are known to the accused, and so the question is one merely of law whether the property is his or not; still he may show, and the showing will be a defense to him against the criminal proceeding, that he honestly believed it his through a misapprehension of the law.

The conclusions of the writer here are correct, but in a part of the statement the learned author has thrown some obscurity over his own principles. The doctrines elsewhere enunciated by him, show with great clearness, that in such cases the state of the mind constitutes the essence of the offense, and if the state of the mind which the law condemns does not exist, in connection with the act, there is no offense. It is immaterial whether its non-existence be owing to ignorance of law or ignorance of fact, in either case the fact which the law condemns, the criminal intent, is wanting. It is not, therefore, in an "indirect way," that ignorance of the law in such cases constitutes a defense, but in the most direct way possible. It is not a fact which jurors "may take into consideration" or not, at their pleasure, but which they must take into consideration, because, in case the ignorance exists, no matter from what cause, the offense which the statute describes is not committed. In such case, ignorance of the law is not interposed as a shield to one committing a criminal act, but merely to show, as it does show, that no criminal act has been committed. I quote from Sir Matthew Hale on the subject. Speaking of larceny, the learned author says:

As it is cepit and asportavit, so it must be felonice, or animo furandi, otherwise it is not felony, for it is the mind that makes the taking of another's goods to be a felony, or a bare trespass only; but because the intention and mind are secret, the intention must be judged of by the circumstances of the fact, and these circumstances are various, and may sometimes deceive, yet regularly and ordinarily these circumstances following direct in the case. If A., thinking he hath a title to the house of B., seizeth it as his own ... this regularly makes no felony, but a trespass only; but yet this may be a trick to color a felony, and the ordinary discovery of a felonious intent is, if the party doth it secretly or being charged with the goods denies it. (1 Hale's P. C, 509.)

I concede, that if Miss Anthony voted, knowing that as a woman she had no right to vote, she may properly be convicted, and that if she had dressed herself in men's apparel, and assumed a man's name, or resorted to any other artifice to deceive the board of inspectors, the jury might properly regard her claim of right to be merely colorable, and might, in their judgment, pronounce her guilty of the offense charged, in case the constitution has not secured to her the right she claimed. All I claim is, that if she voted in perfect good faith, believing that it was her right, she has committed no crime. An innocent mistake, whether of law or fact, though a wrongful act may be done in pursuance of it, can not constitute a crime.

[The following cases and authorities were referred to and commented upon by the counsel, as sustaining his positions: U. S. vs. Conover, 3 McLean's Rep., 573; The State vs. McDonald, 4 Harrington, 555; The State vs. Homes, 17 Mo., 379; Rex vs. Hall, 3 C. & P., 409 (S. C. 14 Eng., C. L.); The Queen vs. Reed, 1 C. &. M., 306 (S. C. 41 Eng., C. L.); Lancaster's Case, 3 Leon, 208; Starkie on Ev., Part IV., Vol. 2, p. 828, 3d Am. Ed.]

The counsel then said, there are some cases which I concede can not be reconciled with the position which I have endeavored to maintain, and I am sorry to say that one of them is found in the reports of this State. As the cases are referred to in that, and the principle, if they can be said to stand on any principle, is in all of them the same, it will only be incumbent on me to notice that one. That case is not only irreconcilable with the numerous authorities and the fundamental principles of criminal law to which I have referred, but the enormity of its injustice is sufficient alone to condemn it. I refer to the case of Hamilton vs. The People (57 Barb., 725). In that case Hamilton had been convicted of a misdemeanor, in having voted at a general election, after having been previously convicted of a felony, and sentenced to two years imprisonment in the State prison, and not having been pardoned; the conviction having by law deprived him of citizenship and right to vote, unless pardoned and restored to citizenship. The case came up before the General Term of the Supreme Court, on writ of error. It appeared that on the trial evidence was offered, that before the prisoner was discharged from the State prison, he and his father applied to the Governor for a pardon, and that the Governor replied in writing, that on the ground of the prisoner's being a minor at the time of his discharge from prison, a pardon would not be necessary, and that he would be entitled to all the rights of a citizen on his coming of age. They also applied to two respectable counselors of the Supreme Court, and they confirmed the Governor's opinion. All this evidence was rejected. It appeared that the prisoner was seventeen years old when convicted of the felony, and was nineteen when discharged from prison. The rejection of the evidence was approved by the Supreme Court on the ground that the prisoner was bound to know the law, and was presumed to do so, and his conviction was accordingly confirmed.

Here a young man, innocent so far as his conduct in this case was involved, was condemned for acting in good faith upon the advice (mistaken advice it may be conceded), of one governor and two lawyers to whom he applied for information as to his rights; and this condemnation has proceeded upon the assumed ground, conceded to be false in fact, that he knew the advice given to him was wrong. On this judicial fiction the young man, in the name of justice, is sent to prison, punished for a mere mistake, and a mistake made in pursuance of such advice. It can not be, consistently with the radical principles of criminal law to which I have referred, and the numerous authorities which I have quoted, that this man was guilty of a crime, that his mistake was a crime, and I think the judges who pronounced his condemnation, upon their own principles, better than their victim, deserved the punishment which they inflicted. The condemnation of Miss Anthony, her good faith being conceded, would do no less violence to any fair administration of justice.

One other matter will close what I have to say. Miss Anthony believed, and was advised that she had a right to vote. She may also have been advised, as was clearly the fact, that the question as to her right could not be brought before the courts for trial, without her voting or offering to vote, and if either was criminal, the one was as much so as the other. Therefore she stands now arraigned as a criminal, for taking the only step by which it was possible to bring the great constitutional question as to her right, before the tribunals of the country for adjudication. If for thus acting, in the most perfect good faith, with motives as pure and impulses as noble as any which can find place in your honor's breast in the administration of justice, she is by the laws of her country to be condemned a a criminal. Her condemnation, however, under such circumstances, would only add another most weighty reason to those which I have already advanced, to show that women need the aid of the ballot for their protection.

Upon the remaining question, of the good faith of the defendant, it is not necessary for me to speak. That she acted in the most perfect good faith stands conceded.

Thanking your honor for the great patience with which you have listened to my too extended remarks, I submit the legal questions which the case involves for your honor's consideration.

District Attorney Crowley followed Judge Selden with an argument two hours in length. He stated that, in his view, the case simply presented questions of law, and that his argument, therefore, would be addressed strictly to the court, leaving the court to give such instructions to the jury upon the facts as he might deem proper. He contended that the right to vote was not included in "privileges and immunities," and was only given by State laws and State constitutions. He concluded his argument by saying that an honest mistake of the facts may sometimes excuse, but a mistake of the law never. The Court addressed the jury as follows:

Gentlemen of the Jury: I have given this case such consideration as I have been able to, and, that there might be no misapprehension about my views, I have made a brief statement in writing.

The defendant is indicted under the act of Congress of 1870, for having voted for Representatives in Congress in November, 1872. Among other things, that Act makes it an offense for any person knowingly to vote for such Representatives without having a right to vote. It is charged that the defendant thus voted, she not having a right to vote because she is a woman. The defendant insists that she has a right to vote; that the provision of the Constitution of this State limiting the right to vote to persons of the male sex is in violation of the XIV. Amendment of the Constitution of the United States, and is void.

The XIII., XIV., and XV. Amendments were designed mainly for the protection of the newly emancipated negroes, but full effect must nevertheless be given to the language employed. The XIII. Amendment provided that neither slavery nor involuntary servitude should longer exist in the United States. If honestly received and fairly applied, this provision would have been enough to guard the rights of the colored race. In some States it was attempted to be evaded by enactments cruel and oppressive in their nature; as that colored persons were forbidden to appear in the towns except in a menial capacity; that they should reside on and cultivate the soil without being allowed to own it; that they were not permitted to give testimony in cases where a white man was a party. They were excluded from performing particular kinds of business, profitable and reputable, and they were denied the right of suffrage. To meet the difficulties arising from this state of things, the XIV. and XV. Amendments were enacted.

The XIV. Amendment created and defined citizenship of the United States. It had long been contended, and had been held by many learned authorities, and had never been judicially decided to the contrary, that there was no such thing as a citizen of the United States, except as that condition arose from citizenship of some State. No mode existed, it was said, of obtaining a citizenship of the United States except by first becoming a citizen of some State. This question is now at rest. The XIV. Amendment defines and declares who shall be citizens of the United States, to wit: "All persons born or naturalized in the United States and subject to the jurisdiction thereof." The latter qualification was intended to exclude the children of foreign representatives and the like. With this qualification every person born in the United States or naturalized is declared to be a citizen of the United States, and of the State wherein he resides.

After creating and defining citizenship of the United States, the Amendment provides that no State shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the United States. This clause is intended to be a protection, not to all our rights, but to our rights as citizens of the United States only; that is, the rights existing or belonging to that condition or capacity. (The words "or citizen of a State," used in the previous paragraph, are carefully omitted here.) In article 4, paragraph 2, of the Constitution of the United States it had been already provided in this language, viz: "The citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States." The rights of citizens of the States and of citizens of the United States are each guarded by these different provisions. That these rights were separate and distinct, was held in the Slaughter-house Cases recently decided by the United States Supreme Court at Washington.

The rights of citizens of the State, as such, are not under consideration in the XIV. Amendment. They stand as they did before the adoption of the XIV. Amendment, and are fully guaranteed by other provisions. The rights of citizens of the States have been the subject of judicial decision on more than one occasion. (Corfield agt. Coryell, 4 Wash. C. C. R., 371. Ward agt. Maryland, 12 Wall., 430. Paul agt. Virginia, 8 Wall., 140.) These are the fundamental privileges and immunities belonging of right to the citizens of all free governments, such as the right of life and liberty; the right to acquire and possess property, to transact business, to pursue happiness in his own manner, subject to such restraint as the Government may adjudge to be necessary for the general good. In Cromwell agt. Nevada, 6 Wallace, 36, is found a statement of some of the rights of a citizen of the United States, viz:

To come to the seat of the Government to assert any claim he may have upon the Government, to transact any business he may have with it; to seek its protection; to share its offices; to engage in administering its functions. He has the right of free access to its seaports through which all operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.

Another privilege of a citizen of the United States, says Miller, Justice, in the "Slaughter-house" cases, is to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. The right to assemble and petition for a redress of grievances, the privilege of the writ of habeas corpus, he says, are rights of the citizen guaranteed by the Federal Constitution.

The right of voting, or the privilege of voting, is a right or privilege arising under the Constitution of the State, and not of the United States. The qualifications are different in the different States. Citizenship, age, sex, residence, are variously required in the different States, or may be so. If the right belongs to any particular person, it is because such person is entitled to it by the laws of the State where he offers to exercise it, and not because of citizenship of the United States. If the State of New York should provide that no person should vote until he had reached the age of thirty-one years, or after he had reached the age of fifty, or that no person having gray hair, or who had not the use of all his limbs, should be entitled to vote, I do not see how it could be held to be a violation of any right derived or held under the Constitution of the United States. We might say that such regulations were unjust, tyrannical, unfit for the regulation of an intelligent State; but if rights of a citizen are thereby violated, they are of that fundamental class derived from his position as a citizen of the State, and not those limited rights belonging to him as a citizen of the United States, and such was the decision in Corfield agt. Coryell, supra.

The United States rights appertaining to this subject are those first under article 1, paragraph 2, of the United States Constitution, which provides that electors of Representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the State Legislature, and second, under the XV. Amendment, which provides that the right of a citizen of the United States to vote shall not be denied or abridged by the United States or by any State, on account of race, color, or previous condition of servitude. If the Legislature of the State of New York should require a higher qualification in a voter for a representative in Congress than is required for a voter for a member of Assembly, this would, I conceive, be a violation of a right belonging to one as a citizen of the United States. That right is in relation to a federal subject or interest, and is guaranteed by the Federal Constitution. The inability of a State to abridge the right of voting on account of race, color, or previous condition of servitude, arises from a federal guaranty. Its violation would be the denial of a federal right—that is, a right belonging to the claimant as a citizen of the United States.

This right, however, exists by virtue of the XV. Amendment. If the XV. Amendment had contained the word "sex," the argument of the defendant would have been potent. She would have said, an attempt by a State to deny the right to vote because one is of a particular sex, is expressly prohibited by that Amendment. The Amendment, however, does not contain that word. It is limited to race, color, or previous condition of servitude. The Legislature of the State of New York has seen fit to say, that the franchise of voting shall be limited to the male sex. In saying this there is, in my judgment, no violation of the letter or of the spirit of the XIV. or of the XV. Amendment.

This view is assumed in the second section of the XIV. Amendment, which enacts that if the right to vote for Federal officers is denied by any State to any of the male inhabitants of such State, except for crime, the basis of representation of such State shall be reduced in proportion specified. Not only does this section assume that the right of male inhabitants to vote was the especial object of its protection, but it assumes and admits the right of a State, notwithstanding the existence of that clause under which the defendant claims to the contrary, to deny to classes or portions of the male inhabitants the right to vote which is allowed to other male inhabitants. The regulation of the suffrage is thereby conceded to the States as a State's right.

The case of Myra Bradwell, decided at a recent term of the Supreme Court of the United States, sustains both the positions above put forth, viz: First, that the rights referred to in the XIV. Amendment are those belonging to a person as a citizen of the United States and not as a citizen of a State; and second, that a right of the character here involved is not one connected with citizenship of the United States. Mrs. Bradwell made application to be admitted to practice as an attorney and counselor-at-law in the Courts of Illinois. Her application was denied, and upon appeal to the Supreme Court of the United States, it was there held that to give jurisdiction under the XIV. Amendment, the claim must be of a right pertaining to citizenship of the United States, and that the claim made by her did not come within that class of cases. Mr. Justice Bradley and Mr. Justice Field held that a woman was not entitled to a license to practice law. It does not appear that the other Judges passed upon that question. The XIV. Amendment gives no right to a woman to vote, and the voting by Miss Anthony was in violation of the law.

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. 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?" 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 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.

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.

Susan B. Anthony.

Dated January 12, 1874.

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.

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.

House of Representatives, Washington, Feb. 22, 1874.

My Dear Miss Anthony:—In regard to the Inspectors of Election, I would not, if I were they, pay, but allow any process to be served; and I have no doubt the President will remit the fine if they are pressed too far.

Benjamin F. Butler.

I am yours truly,

On Miss Anthony's return home, February 26, 1874, she found the three Inspectors lodged in jail. She at once called on Judge Selden, and after consultation with him as to what could be done for their protection, telegrams were sent to influential friends in Washington, to which the following reply was received:

Washington, D. C., March 2, 1874—12 noon.

To Miss Susan B. Anthony:—I laid the case of the Inspectors before the President to-day. He kindly orders their pardon. Papers are being prepared.

A. A. Sargent.

An Associated Press dispatch, dated Washington, March 2, 1874, said:

At the written request of Senator Sargent, the President to-day directed the Attorney-General to prepare the necessary papers to remit the fine and imprisonment of Hall, Marsh, and others, the Rochester Election Inspectors, who were tried and convicted in June, 1873, of registering Susan B. Anthony and other women, and receiving their votes.

The Rochester Evening Express of Feb. 26, 1874, said:

Tyranny in Rochester.—The arrest and imprisonment in our city jail of the Election Inspectors who received the votes of Susan B. Anthony and other ladies, at the polls of the Eighth Ward, some months ago, is a petty but malicious act of tyranny, of which the officers who are responsible for it will yet be ashamed. It should be known to the public that these young men received Miss Anthony's vote by the advice of the best legal talent that could be procured. The ladies themselves took oath that they were citizens of the United States and entitled to vote.... The Court, however, fined these inspectors $25 and costs, for an offense which at the worst is merely technical, and now, nearly nine months after conviction, in default of payment, they are seized and shut up in jail, away from their families and their business, and subjected to all the inconvenience to say nothing of the odium of such an incarceration. This is an outrage which ought not to be tolerated in this country, and we shall be disappointed if public sentiment does not yet rebuke, in thunder-tones, the authorities who have perpetrated it. Miss Anthony is willing to fight her own battles and take the consequences, but she naturally feels indignant that others should suffer in this matter through no fault of their own....

The Rochester Democrat and Chronicle of March 26th, said:

An Outrage.—.... We regard this action on the part of District Attorney Crowley as an outrage, in that these young men, who, at the worst, are but accessories in the violation of law, are made to feel its terrors, while the chief criminal is allowed to defy the law with impunity. No effort has been made to satisfy the judgment of the court against Miss Anthony. She contemns the law which adjudged her guilty, and its duly appointed administrators are either too timid or too negligent of duty to endeavor to enforce it.... It is doubtful whether they had the right to refuse those votes. In any event their offense is venial as compared with hers. It does not look well for the District Attorney thus to proceed against the lesser offenders, while the chief offender snaps her fingers at the law, and dares its ministers to make her a martyr.... We write in no spirit of vindictiveness, nor even in one of antagonism toward Miss Anthony; but in the name of justice we are called upon to protest against the unseemly proceeding which persecutes those excellent young men and hesitates to attack this woman, who stands as a representative of what she regards a great reform, and in its advocacy shrinks not from any of the terrors the law may have in store for her. Mr. District Attorney, it is your duty to arrest Miss Anthony; to cross swords with an antagonist worthy of your steel. Your present action looks ignoble, and is unworthy of you or of the office you fill.

More than a week elapsed before the arrival of President Grant's pardon papers, and during that time hundreds of the people of Rochester visited the "boys" in jail, and the best of dinners were furnished them daily by the fourteen women voters of the Eighth Ward.

VIRGINIA L. MINOR'S PETITION

in the circuit court of st. louis county, december term, 1872.

St. Louis County, ss.: Virginia L. Minor and Francis Minor, her husband, Plaintiffs, vs. Reese Happersett, Defendant.

The plaintiff, Virginia L. Minor (with whom is joined her husband, Francis Minor, as required by the law of Missouri), states, that under the Constitution and law of Missouri, all persons wishing to vote at any election, must previously have been registered in the manner pointed out by law, this being a condition precedent to the exercise of the elective franchise.

That on the fifteenth day of October, 1872 (one of the days fixed by law for the registration of voters), and long prior thereto, she was a native-born, free white citizen of the United States, and of the State of Missouri, and on the day last mentioned she was over the age of twenty-one years.

That on said day, the plaintiff was a resident of the thirteenth election district of the city and county of St. Louis, in the State of Missouri, and had been so residing in said county and election district, for the entire period of twelve months and more, immediately preceding said fifteenth day of October, 1872, and for more than twenty years had been and is a tax-paying, law-abiding citizen of the county and State aforesaid.

That on said last mentioned day, the defendant, having been duly and legally appointed Registrar for said election district, and having accepted the said office of Registrar and entered upon the discharge of the duties thereof at the office of registration, to wit: No. 2004 Market Street, in said city and county of St. Louis, it became and was then and there his duty to register all citizens, resident in said district as aforesaid, entitled to the elective franchise, who might apply to him for that purpose.

The plaintiff further states, that wishing to exercise her privilege as a citizen of the United States, and vote for Electors for President and Vice-President of the United States, and for a Representative in Congress, and for other officers, at the General Election held in November, 1872: While said defendant was so acting as Registrar, on said 15th day of October, 1872, she appeared before him, at his office aforesaid, and then and there offered to take and subscribe the oath to support the Constitution of the United States and of the State of Missouri, as required by the registration law of said State, approved March 10, 1871, and respectfully applied to him to be registered as a lawful voter, which said defendant then and there refused to do.

The plaintiff further states, that the defendant, well knowing that she, as a citizen of the United States and of the State of Missouri, resident as aforesaid, was then and there entitled to all the privileges and immunities of citizenship, chief among which is the elective franchise, and as such, was entitled to be registered, in order to exercise said privilege: yet, unlawfully intending, contriving, and designing to deprive the plaintiff of said franchise or privilege, then and there knowingly, willfully, maliciously, and corruptly refused to place her name upon the list of registered voters, whereby she was deprived of her right to vote.

Defendant stated to plaintiff, that she was not entitled to be registered, or to vote, because she was not a "male" citizen, but a woman! That by the Constitution of Missouri, Art. II., Sec. 18, and by the aforesaid registration law of said State, approved March 10, 1871, it is provided and declared, that only "male citizens" of the United States, etc., are entitled or permitted to vote.

But the plaintiff protests against such decision, and she declares and maintains that said provisions of the Constitution and registration law of Missouri aforesaid, are in conflict with, and repugnant to the Constitution of the United States, which is paramount to State authority; and that they are especially in conflict with the following articles and clauses of said Constitution of the United States, to wit:

Art. I. Sec. 9.—Which declares that no Bill of Attainder shall be passed.

Art. I. Sec. 10.—No State shall pass any Bill of Attainder, or grant any title of nobility.

Art. IV. Sec. 2.—The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

Art. IV. Sec. 4.—The United States shall guarantee to every State a republican form of government.

Art. VI.—This Constitution and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, anything in the Constitutions or laws of any State to the contrary notwithstanding.

AMENDMENTS.

Art. V.—No person shall be ... deprived of life, liberty, or property without due process of law.

Art. IX.—The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

Art. XIV. Sec. 1.—All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws.

The plaintiff states, that by reason of the wrongful act of the defendant as aforesaid, she has been damaged in the sum of ten thousand dollars, for which she prays judgment.

John M. Krum,
Francis Minor,
John B. Henderson, } Att'ys for Plffs.

Demurrer. In the Circuit Court of St. Louis County: Virginia L. Minor and Francis Minor, her husband, Plaintiffs, vs. Reese Happersett.

The defendant, Reese Happersett, demurs to the petition of plaintiffs, and for cause of demurrer defendant states that said petition does not state facts sufficient to constitute a cause of action, for the following reasons:

1. Because said Virginia L. Minor, plaintiff, had no right to vote at the general election held in November, 1872, in said petition referred to.

2. Because said Virginia L. Minor had no right to be registered for voting by said defendant, at the time and in the manner in said petition alleged.

3. Because it was the duty of the defendant to refuse to place said Virginia L. Minor's name upon the list of registered voters in said petition referred to.

All of which appears by said petition.

Smith P. Galt, Atty for Deft.

The defense, in substance, being based upon the Constitution of Missouri, which provides (Art. II., Sec. 18) that "every male citizen of the United States, etc., ... shall be entitled to vote"; and also upon the registration law of said State, approved March 10, 1871, which is as follows:

An act to provide for a uniform registration of voters, the appointment of judges of elections, and repealing all former acts relating thereto.

Be it enacted by the General Assembly of the State of Missouri, as follows:

Section 1.—Every male citizen of the United States, and every person of foreign birth who may have declared his intention to become a citizen of the United States, according to law, not less than one year nor more than five years before he offers to vote, who is over the age of twenty-one years, who has resided in this State one year next preceding his registration as a voter, and during the last sixty days of that period shall have resided in the county, city, or town where he seeks registration as a voter, who is not convicted of bribery, perjury, or other infamous crime, nor directly or indirectly interested in any bet or wager depending upon the result of the election for which such registration is made, nor serving at the time of such registration in the regular army or navy of the United States, shall be entitled to vote at such elections for all officers, State, county, or municipal, made elective by the people, or any other election held in pursuance of the laws of this State; but he shall not vote elsewhere than in the election district where his name is registered, except as provided in the twenty-first section of the second article of the Constitution.

Sec. 2.—The several clerks of the County Courts in this State shall provide a suitable registration book for each election district in their several counties, which shall have written or printed therein the following oath: "We the undersigned, do solemnly swear or affirm that we will support the Constitution of the United States and of the State of Missouri."

Sec. 3.—On or before the 9th day of March, 1871, the several County Courts in this State shall appoint some competent person to act as Registrar in each election district in their respective counties, who shall have the qualifications of an elector in his election district, and who shall hold his office until the general election in 1872, and until his successor is elected and qualified. Said Registrar shall have authority to administer all oaths which may be necessary in the registration of voters.

Sec. 4.—Any person having the qualification of a voter as prescribed in the first section of this act, and who shall take and subscribe the oath required of voters by the second section of this act, and who applies for registration at the time and in the manner prescribed by law, and any naturalized citizen who shall subscribe to a written statement, under oath, before the Registrar, that he is naturalized according to the laws of the United States and of this State, and has resided in this State, according to the first section of this act, and that his naturalization papers or evidence of his citizenship have been lost or destroyed, or that the same are not accessible to him, and shall state where he was naturalized, shall be accepted by the registering officer, and duly registered as a qualified voter.

It is claimed, therefore, that the defendant was justified in refusing to register the plaintiff on account of her sex. The plaintiff, however, denies the validity of this clause of the Missouri Constitution, and the registration act based thereon, and contends that they are in violation of, and repugnant to, the Constitution of the United States, and particularly to those articles and clauses thereof which she has specified in her petition.

It is admitted, by the pleadings, that the plaintiff is a native-born, free white citizen of the United States and of the State of Missouri; that the defendant is a Registrar, qualified and acting as such; that the plaintiff, in proper time and in proper form made application to him to be registered, and that the defendant refused to register the plaintiff solely for the reason that she is a female (and that she possesses the qualifications of an elector, in all respects, except as to the matter of sex, as before stated).

The question is thus broadly presented of a conflict between the Constitution of the State of Missouri and that of the United States, as contemplated by the twenty-fifth section of the judiciary act of 1789, and the supplemental act of February 5, 1867.

Assignment of Errors.—And now comes Virginia L. Minor, the plaintiff in error in the above entitled cause, by her attorneys, John B. Henderson, John M. Krum, and Francis Minor, and says that in the records and proceedings in the above entitled cause, in said Supreme Court of the State of Missouri, there is manifest error in this, to wit:

1st. Because the said Supreme Court erred in affirming the judgment of the St. Louis Circuit Court—thereby, in effect, sustaining the demurrer filed in said Circuit Court by the defendant to the petition of the plaintiff.

2d. Because the said Supreme Court erred in its judgment affirming the judgment of the St. Louis Circuit Court—thereby, in effect, declaring that the plaintiff in error was not entitled to vote at the election mentioned in the record.

3. Because the said Supreme Court of Missouri erred in affirming the judgment of the St. Louis Circuit Court—thereby, in effect, declaring that the Constitution and laws of Missouri, before recited, do not conflict with the Constitution of the United States.

Statement.—This was an action, brought by the plaintiff, against the defendant, a registering officer, for refusing to register her as a lawful voter.

The defendant demurred to the petition, the defense, in substance, being based upon the Constitution of Missouri, which provides (Art 2, Sec. 18) that "every male citizen of the United States, etc., ... shall be entitled to vote";—and also upon the registration law of said State, approved March 10, 1871, to the same effect; and it was claimed, therefore, that the defendant was justified in refusing to register the plaintiff on account of her sex.

The plaintiff, however, denied the validity of this clause of the Missouri Constitution, and the registration act based thereon, and contended that they are in violation of, and repugnant to, the Constitution of the United States, and particularly to those articles and clauses thereof which she had specified in her petition.

It was admitted, by the pleadings, that the plaintiff was a native-born, free, white citizen of the United States, and of the State of Missouri; that the defendant was a Registrar, qualified and acting as such; that the plaintiff, in proper time, and in proper form, made application to him to be registered, and that the defendant refused to register the plaintiff solely for the reason that she was a female (and that she possessed the qualifications of an elector, in all respects, except as to the matter of sex, as before stated). The question was thus broadly presented of a conflict between the Constitution of the State of Missouri and that of the United States, as contemplated by the 25th section of the Judiciary act of 1789, and 5th February, 1867.

Argument and Brief.—We think the chief difficulty in this case is one of fact rather than of law. The practice is against the plaintiff. The States, with one exception, which we shall notice hereafter more in detail, have uniformly claimed and exercised the right to act, as to the matter of suffrage, just as they pleased—to limit or extend it, as they saw proper. And this is the popular idea on the subject. Men accept it as a matter of fact, and take for granted it must be right. So in the days of African slavery, thousands believed it to be right—even a Divine institution. But this belief has passed away; and, in like manner, this doctrine of the right of the States to exercise unlimited and absolute control over the elective franchise of citizens of the United States, must and will give way to a truer and better understanding of the subject. The plaintiff's case is simply one of the means by which this end will ultimately be reached.

We claim, and presume it will not be disputed, that the elective franchise is a privilege of citizenship within the meaning of the Constitution of the United States. In order to get a clearer idea of the true meaning of this term citizenship, it may be well to recur for a moment to its first introduction and use in American law.

Before the colonists asserted their independence they were politically bound to the sovereign of Great Britain, by what is termed in English law, "allegiance"; and those from whom this allegiance was due were termed "subjects." But when these "bands," as they are termed in the Declaration of Independence, were dissolved, the political relation became changed, and we no longer hear in the United States the term "subject" and "allegiance," except the latter, which is used to express the paramount duty of our citizens to our own government. The term citizen was substituted for that of "subject." But this was not a mere change of name; the men who framed the Constitution of the United States had all been "subjects" of the English king, and they well knew the radical change wrought by the revolution.

In the new political sovereignty thus created, the feudal idea of dependence gave way to that of independence, and the people became their own sovereigns or rulers in the government of their own creation. Of this body politic, represented by the Constitution of the United States, all persons born or naturalized therein and subject to the jurisdiction thereof, are members; without distinction as to political rights or privileges, except that the head or chief of the new government must be native-born—and this exception the more strongly proves the rule. It is to this Constitution, therefore, we must look for the limitations, if any, that may be placed upon the political rights of the people or citizens of the United States. A limitation not found there, or authorized by that instrument, can not be legally exercised by any lesser or inferior jurisdiction.

But the subject of suffrage (or the qualifications of electors, as the Constitution terms it) is simply remitted to the States by the Constitution, to be regulated by them; not to limit or restrict the right of suffrage, but to carry the same fully into effect. It is impossible to believe that anything more than this was intended. In the first place, it would be inconsistent and at variance with the idea of the supremacy of the Federal government; and, next, if the absolute, ultimate, and unconditional control of the matter had been intended to be given to the States, it would have been so expressed. It would not have been left to doubt or implication. In so important a matter as suffrage, the chief of all political rights or privileges, by which, indeed, life, liberty, and all others are guarded and maintained, and without which they would be held completely at the mercy of others; we repeat, it is impossible to conceive that this was intended to be left wholly and entirely at the discretion of the States.

A right so important must not be the subject of implication. Some positive warrant or authority must be shown for it, and in the case at bar we challenge its production. There is another view of the subject that is important to be considered. There can be no division of citizenship, either of its rights or its duties. There can be no half-way citizenship. Woman, as a citizen of the United States, is entitled to all the benefits of that position, and liable to all its obligations, or to none. Only citizens are permitted to pre-empt land, obtain passports, etc., all of which woman can do; and, on the other hand, she is taxed (without her "consent") in further recognition of her citizenship; and yet, as to this chief privilege of all, she is forbidden to exercise it. We call upon the State to show its warrant for so doing—for inflicting upon the plaintiff and the class to which she belongs, the bar of perpetual disfranchisement, where no crime or offense is alleged or pretended, and without "due process of law."

We charge it as a "bill of attainder" of the most odious and oppressive character. The State can no more deprive a citizen of the United States of one privilege than of another, except by the "law of the land." There is no security for freedom if this be denied. To use the language of Mr. Madison, such a course "violates the vital principle of free government, that those who are to be bound by laws, ought to have a voice in making them." (Madison Papers, vol. 3—appendix, p. 12.)

It is sometimes said this is one of the "reserved rights" of the States. But this can not be, for the simple reason that, as to the "privileges and immunities" of federal citizenship, they had no existence prior to the adoption of the Federal Constitution; how then could they be reserved?

As Mr. Justice Story says: "The States can exercise no powers whatsoever, which exclusively spring out of the existence of the National Government, which the Constitution does not delegate to them.... No State can say that it has reserved what it never possessed." (Commentaries, §§ 624-627.)

We say, then, that the States may regulate, but they have no right to prohibit the franchise to citizens of the United States. They may prescribe the qualifications of the electors. They may require that they shall be of a certain age, be of sane mind, be free from crime, etc., because these are conditions for the good of the whole, and to which all citizens, sooner or later, may attain. But to single out a class of citizens and say to them, "Notwithstanding you possess all these qualifications, you shall never vote, or take part in your government," what is it but a bill of attainder?

To show that the mere regulation of this matter of suffrage was left to the States for the purpose we have indicated, and not to their absolute and ultimate control, we will now quote the language of one of the framers of the Constitution, to whom, indeed, has been applied the epithet of "Father of the Constitution"—James Madison; and this, too, in reply to questions by Mr. Monroe, who sought an explanation on these very points. We quote from the debates in the Virginia convention upon the adoption of the Federal Constitution:

Mr. Monroe wished that the honorable gentleman who had been in the Federal Convention would give information respecting the clause concerning elections. He wished to know why Congress had an ultimate control over the time, place, and manner of elections of Representatives, and the time and manner of that of Senators, and also why there was an exception as to the place of electing Senators.

Mr. Madison: Mr. Chairman, the reason of the exception was, that if Congress could fix the place of choosing the Senators, it might compel the State Legislatures to elect them in a different place from that of their usual sessions, which would produce some inconvenience, and was not necessary for the object of regulating the elections. But it was necessary to give the General Government a control over the time and manner of choosing the Senators, to prevent its own dissolution.

With respect to the other point, it was thought that the regulation of time, place, and manner of electing the Representatives should be uniform throughout the continent. Some States might regulate the elections on the principles of equality, and others might regulate them otherwise. This diversity would be obviously unjust. Elections are regulated now unequally in some States, particularly South Carolina, with respect to Charleston, which is represented by thirty members.

Should the people of any State by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the General Government.

It was found impossible to fix the time, place, and manner of the election of Representatives in the Constitution. It was found necessary to leave the regulation of these, in the first place, to the State Government, as being best acquainted with the situation of the people, subject to the control of the General Government, in order to enable it to produce uniformity, and prevent its own dissolution. And, considering the State Governments and General Government as distinct bodies, acting in different and independent capacities for the people, it was thought the particular regulations should be submitted to the former and the general regulations to the latter. Were they exclusively under the control of the State Governments, the General Government might easily be dissolved. But if they be regulated properly by the State Legislature, the Congressional control will very properly never be exercised. The power appears to me satisfactory, and as unlikely to be abused as any part of the Constitution. (Elliot's Debates, vol. 2, pages 276-7.)

It seems to us that nothing can be clearer or plainer than this, coming to us, as it does, with all the weight and authority of Mr. Madison himself. But it may be asked: If this be so, why was not the question sooner raised? We answer, at that very time, and for nearly twenty years afterward, women did vote, unquestioned and undisputed, in one of the States (New Jersey). The men who framed the Constitution were then living—some of them in this very State; yet we hear no mention of its being unconstitutional, no objection made to it whatever.

It is true that subsequently this provision was omitted (about 1807) in the revisal of the State Constitution (as we think, very unjustly), but the fact remains of the unquestioned exercise of this privilege by women at the very time the Federal Constitution was adopted, and for years afterward. This fact is worth a thousand theories. Again, we think that one of the causes of the popular error on this subject arises from forgetting or overlooking the dual nature of our citizenship.

We are citizens of a State, as well as of the United States. This is alluded to in several of the early cases, and its importance is clearly pointed out. We quote, first, from Talbut vs. Jansen, 3 Dallas, Sup. Ct. Rep., 153 (1795), in which Mr. Justice Patterson says: "The act of the Legislature of Virginia does not apply. Ballard was a citizen of Virginia, and also of the United States. If the Legislature of Virginia pass an act specifying the causes of expatriation and prescribing the manner in which it is to be effected by the citizens of that State, what can be its operation on the citizens of the United States?"

If the act of Virginia affects Ballard's citizenship so far as respects that State, can it touch his citizenship so far as regards the United States? Allegiance to a particular State is one thing; allegiance to the United States is another. Will it be said that the renunciation of allegiance to the former implies or draws after it a renunciation of allegiance to the latter? The sovereignties are different; the allegiance is different; the right, too, may be different. Our situation being new, unavoidably creates new and intricate questions. We have sovereignties moving within a sovereignty.

Judge Cabell, also of the Supreme Court of Appeals of Virginia, alludes to it briefly in the case of Murray vs. McCarty, 2 Munford, 398. He says: "But although the Constitution of the United States has wisely given to the citizens of each State the privileges of a citizen of any other State, yet it clearly recognizes the distinction between the character of a citizen of the United States and a citizen of any individual State, and also of citizens of different States," etc. Or, if a still further and later authority be desired, we have it in the language of Chief-Justice Taney, who says, in the Dred Scott case:

In discussing this question we must not confound the rights of citizenship, which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States.... But if he rank as a citizen of the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another State, the Constitution clothes him as to the rights of person, with all the privileges and immunities which belong to citizens of the State. And if persons of the African race are citizens of a State, and of the United States, they would be entitled to all of these privileges and immunities in every State, and the State could not restrict them; for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and enforce them, the Constitution and laws of the State to the contrary notwithstanding. And if the States could limit or restrict them, or place the party in an inferior grade, this clause of the Constitution would be unmeaning, and could have no operation, and would give no rights to the citizen when in another State. He would have none but what the State itself chose to allow him. This is evidently not the construction or meaning of the clause in question. It guarantees rights to the citizen, and the State can not withhold them. (Dred Scott vs. Sanford, 19 Howard's Rep., pp. 405 and 422.)

Now, substitute in the above, for "persons of the African race," women, who are "citizens of the State and of the United States," and you have the key to the whole position. We will now consider the clauses of the Constitution before recited, somewhat in detail:

As to "bills of attainder," "due process of law," etc. "No State shall pass any bill of attainder," etc. A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the text-book, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise, and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense. These bills are generally directed against the individuals by name, but they may be directed against a whole class.

The theory upon which our political institutions rest, is, that all men have certain inalienable rights—that among these are life, liberty, and the pursuit of happiness; and that, in the pursuit of happiness, all avocations, all honors, all positions are alike open to every one, and that, in the protection of these rights, all are equal before the law. Any deprivation or suspension of any of these rights, for past conduct, is punishment, and can be in no otherwise defined.

Punishment not being therefore restricted, as contended by counsel, to the deprivation of life, liberty, or property, but also embracing deprivation or suspension of political or civil rights, and the disabilities prescribed by the provisions of the Missouri Constitution being in effect punishment, we proceed to consider whether there is any inhibition in the Constitution of the United States against their enforcement.—(Cummings vs. The State of Missouri, 4 Wallace, 351-323, and ex parte Garland—same volume.)

We are aware that the Supreme Court of Missouri, in the case of Blair vs. Ridgley, hold a different view, but we submit that the cases differ in a most material point, to wit: In the Blair case he was merely required to take the oath taken by all voters; and, by refusing to do so, he virtually disfranchised himself. In this case, however, the disfranchisement of the plaintiff is arbitrary and insurmountable; and we further submit, that the arguments in this case present it in a different, and, we think, a broader view than was taken in the Blair case. But to show that we are not unsupported by authority in this matter, we will now quote from a New York case, very similar to the Blair case, where the elector was required, but refused to take the oath, etc.

Miller, J.: This case involves the constitutional validity of that portion of the act to provide for a convention to revise and amend the Constitution of this State, which excludes from the privilege of voting all who refuse to take the test oath prescribed by the act in question.

I think that the oath in question was unconstitutional and invalid, for the reasons which I will proceed to state. The first subdivision of the tenth section of the first article of the Constitution of the United States provides, that "no State shall pass any bill of attainder, ex post facto law, or laws impairing the obligations of contracts, or grant any title of nobility." The provision of the act which is to be considered declares, that no person shall vote at the election for delegates to said convention who will not, if duly challenged, take and subscribe an oath that he has not done certain acts mentioned therein, and inflicts the penalty of political disfranchisement without any preliminary examination or trial, for a refusal to take said oath.

By this enactment the citizen is deprived, upon declining to conform to its mandate, of a right guaranteed to him by the Constitution and laws of the land, and one of the most inestimable and invaluable privileges of a free government. There can be no doubt, I think, that to deprive a citizen of the privileges of exercising the elective franchise, for any conduct of which he has previously been guilty, is to inflict a punishment for the act done.

It imposes upon him a severe penalty, which interferes with his privileges as a citizen, affects his respectability and standing in the community, degrades him in the estimation of his fellow-men, and reduces him below the level of those who constitute the great body of the people of which the Government is composed. It moreover inflicts a penalty which, by the laws of this State, is a part of the punishment inflicted for a felony, and which follows conviction for such a crime. It is one of the peculiar characteristics of our free institutions, that every citizen is permitted to enjoy certain rights and privileges, which place him upon an equality with his neighbors. Any law which takes away or abridges these rights, or suspends their exercise, is not only an infringement upon their enjoyment, but an actual punishment. That such is the practical effect of the test oath required by the act in question, can admit of no doubt, in my judgment. It arbitrarily and summarily, and without any of the forms of law, punishes for an offense created by the law itself. In the formation of our National Constitution, its framers designed to prevent and guard against the exercise of the power of the Legislature, by usurping judicial functions, and for the punishment of alleged offenses in advance of trial, for offenses unknown to the law, and by bill of attainder and ex post facto enactments, etc.—(Green vs. Shumway, 36 Howard's Practice Rep., pp. 7, 8.)

On the same subject, we will next quote from a decision by the Supreme Court of Nevada:

Lewis, C. J.—The form of the law by which an individual is deprived of a constitutional right is immaterial. The test of its constitutionality is, whether it operates to deprive any person of a right guaranteed or given to him by the Constitution. If it does, it is a nullity, whatever may be its form. Surely a law which deprives a person of a right, by requiring him to take an oath which he can not take, is no less objectionable than one depriving him of such right in direct terms.

To make the enjoyment of a right depend upon an impossible condition, or upon the doing of that which can not legally be done, is equivalent to an absolute denial of the right under any condition. The effect, and not the language of the law, in such case, must determine its constitutionality. It would not be doubted for a moment that a law expressly denying the elective franchise to any person upon whom the Constitution confers it would be unconstitutional. Why, then, is a law less objectionable which, although not expressly and directly, yet no less certainly denies the right, etc.—(Davies vs. McKeeby, 5 Nevada Rep. 7,371.)

We quote next from a Tennessee case:

The elective franchise is a right which the law protects and enforces as jealously as it does property in chattels or lands. It matters not by what name it is designated—the right to vote, the elective franchise, or the privilege of the elective franchise—the person who, under the Constitution and laws of the State is entitled to it, has a property in it, which the law maintains and vindicates as vigorously as it does any right of any kind which men may have and enjoy.

The rules of law which guard against deprivation or injury, the rights of persons in corporeal properties, are alike and equally applicable to the elective franchise, and alike and equally guard persons invested with it against deprivation of or injury to it. Persons invested with it can not be deprived of it otherwise than by "due process of law." See

The State vs. Staten, 6 Caldwell's Rep., p. 243. See also Rison vs. Farr, 25 Ark. Rep., p. 173; Winehamer vs. People, 13 N. Y., 378; State vs. Symonds, 57 Maine, 150, 511; Huber vs. Riley, 53 Penn., 112; Cooley's Constitutional Limitations.

We conclude this list of references with Mr. Webster's celebrated definition in the Dartmouth College case (4 Wheaton, 581):

By the law of the land is most clearly intended the general law; a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeiture, in all possible forms, would be the law of the land.

Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the Legislature. There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form—an idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare the law, or to administer the justice of the country.

That the elective franchise is a privilege of citizenship, we have the authority of Judge Washington, for he says:

What are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What those fundamental principles are, it would perhaps be more tedious than difficult to enumerate.

They may, however, be all comprehended under the following general heads: Protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may justly prescribe for the general good of the whole; the right of a citizen of one State to pass through, or to reside in any other State for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of every kind in the courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or imposition than are paid by the citizens of the other State, may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added, the elective franchise, as regulated and established by the laws or Constitution of the State in which it is to be exercised (Corfield vs. Corryell, 4 Wash. C.C., 380). Cited and approved in Dunham vs. Lamphere, 3 Gray, 276 (Mass.); Bennett vs. Boggs, Baldwin Rep., 72.

A proper construction of Art. 1, Sec. 2, of the Constitution of the United States will further demonstrate the proposition we are endeavoring to uphold. That section is as follows:

Article 1, Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications for electors of the most numerous branch of the State Legislature.

This section consists of two clauses, but in neither is there a word as to the sex of the elector. He, or she, must be one of the people, or "citizens," as they are designated in the Constitution, that is all.—(Story's Comms. § 579.)

The "people" are to elect. This clause fixes the class of voters; the other clause is in subordination to that, and merely provides, that as touching qualifications, there shall be one and the same standard for the Federal and for the State elector. Both are mentioned and neither is or can be excluded by the other.

The right to vote is very different from the qualification necessary in a voter. A person may have the right to vote, and yet not possess the necessary qualifications for exercising it. In this case, the right to vote is derived from the Federal Constitution, which designates the class of persons who may exercise it, and provides that the Federal elector shall conform to the regulations of the State, so far as time, place, and manner of exercising it are concerned. But it is clear that under this authority the State has no right to lay down an arbitrary and impossible rule. As before stated by the Chief-Justice of Nevada: "To make the enjoyment of a right depend upon an impossible condition, is equivalent to an absolute denial of it under any condition."

In conclusion, we will consider, as briefly as possible, the points made by the Supreme Court of Missouri. We quote from the opinion:

The question presented then is, whether there is a conflict between the Constitution of the United States and the Constitution and laws of the State of Missouri on this subject. That the different States of the Union had a right, previous to the adoption of what is known as the XIV. Amendment to the Constitution of the United States, to limit the right to vote at election by their constitutions and laws to the male sex, I think can not at this day be questioned.

Undoubtedly the practice in the different States, as we have before said, is against the claim made by the plaintiff, although, as we shall show, in the early days of the Republic this practice was by no means universal. But when the Court states that the right of the States to do this can not be questioned, it assumes the very point in controversy, and it fails to notice the distinction between "the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union." (Chief-Justice Taney in Scott vs. Sandford, 19 Howard, 405.)

"The difference," says Judge Cooley (Story on Constitution, section 1937), "is in a high degree important." And while it may be true that the voter himself rarely, if ever, thinks of any difference between his vote for State and for Federal officers, yet, in law, there is a wide distinction.

In the one case he exercises the franchise under one jurisdiction or sovereignty, and in the other under a totally different one. In voting for Federal officers he exercises the freeman's right to take part in the government of his own creation, and he does this in contemplation of law, in his character or capacity of a citizen of the United States, and his right so to vote legally depends upon such status or character. Clearly, then, the right of a citizen of the United States to vote for Federal officers can only be exercised under the authority or sovereignty of the United States, not under some other authority or sovereignty, and consequently the citizen of the United States could not justly have been deprived of such right by the State, even before the adoption of the XIV. Amendment.

But whatever doubt there may have been as to this, we hold that the adoption of the XIV. Amendment put an end to it and placed the matter beyond controversy. The history of that Amendment shows that it was designed as a limitation on the powers of the States, in many important particulars, and its language is clear and unmistakable. "No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States." Of course all the citizens of the United States are by this protected in the enjoyment of their privileges and immunities. Among the privileges, that of voting is the highest and greatest. To an American citizen there can be none greater or more highly to be prized; and the preservation of this privilege to the citizens of the United States respectively is, by this Amendment, placed under the immediate supervision and care of the Government of the United States, who are thus charged with its fulfillment and guaranty.

By ratifying this Amendment the several States have relinquished and quit-claimed, so to speak, to the United States, all claim or right, on their part, to "make or enforce any law which shall abridge the privileges and immunities of citizens of the United States." The State of Missouri, therefore, is estopped from longer claiming this right to limit the franchise to "males," as a State prerogative; and the Supreme Court of Missouri should have so declared, and its failure to do so is error; because, by retaining that word in the State Constitution and laws, not this plaintiff only, but large numbers of other citizens of the United States are "abridged" in the exercise of their "privileges and immunities as citizens of the United States," by being deprived of their right or privilege to vote for United States officers, as claimed by the plaintiff in her petition. Not only this, but we say further, that the ratification of this amendment was, in intendment of law, a solemn agreement, on the part of the States, that all existing legislation inconsistent therewith should be repealed, or considered as repealed, and that none of like character should take place in the future. The State of Missouri has acted upon this idea in part, and its subsequent legislation, on the subject of the ballot, has been as follows: The ratification of the XV. Amendment (which we do not consider as having any direct bearing on the point now being considered, inasmuch as this Amendment is merely prohibitory—not conferring any right, but treating the ballot in the hands of the negro as an existing fact, and forbidding his deprivation thereof). Next, amending the State Constitution and registration law, by simply omitting the word "white" from the clause "white male citizens."

This constitutes the entire legislation of the State of Missouri on this subject since the adoption of the XIV. Amendment, and this omission of the word "white" was designed to make the State Constitution conform to the Amendment, so far as the negro was concerned, leaving the women citizens of the United States still under the ban of "involuntary servitude," in plain violation of the Amendment.

So that, while the negro votes to-day in Missouri, there is not a syllable of affirmative legislation by the State conferring the right upon him. Whence, then, does he derive it? There is but one reply. The XIV. Amendment conferred upon the negro race in this country citizenship of the United States, and the ballot followed as an incident to that condition. Or, to use the more forcible language of this Court, in the Slaughter-house cases (16 Wall., 71), "the negro having, by the XIV. Amendment, been declared a citizen of the United States, is thus made a voter in every State of the Union." If this be true of the negro citizen of the United States, it is equally true of the woman citizen. And we invoke the interposition of of this Court to effect, by its decree, that which the Supreme Court of Missouri should have done, and declare that this objectionable word must be omitted, or considered as omitted from the Constitution and registration law of said State.

It can not be pretended that the Constitution of the United States makes, or permits to be made, any distinction between its citizens in their rights and privileges; that the negro has a right which is denied to the woman. The discrimination, therefore, made and continued by the State of Missouri, of which we complain, is an unjustifiable act of arbitrary power, not of right, and can be designated by no other term.

We proceed with our quotation from the opinion:

In this changed state of affairs, it was thought by those who originated and adopted this Amendment, that it was absolutely necessary that these emancipated people should have the elective franchise, in order to enable them to protect themselves against unfriendly legislation, in which they could take no part; that unless these people had the right to vote, and thus protect themselves against oppression, their freedom from slavery would be a mockery, and their condition but little improved. It was to remedy this that the XIV. Amendment to the Constitution was adopted. It was to compel the former slave States to give these freedmen the right of suffrage, and to give them all of the rights of other citizens of the respective States, and thus make them equal with other citizens before the law.

It would be impossible for us to give any better reason for woman's need of the ballot than the court has here given for that of the negro, except that woman's condition is even more helpless than his—"unless these people had the right to vote, and thus protect themselves against oppression, their freedom from slavery would be a mockery." How an American judge, with the claim of an American citizen before him, for the protection, which, as he truly says, this ballot alone can give, could see its lawfulness and justice in the one case, and not in the other, passes our comprehension.

We again quote from the opinion:

It was only intended to give the freedmen the same rights that were secured to all other classes of citizens in the State, and that if the other male inhabitants of the State over the age of twenty-one years enjoyed the right of suffrage, so should the males among the freedmen over the age of twenty-one years enjoy the same right; it was not intended that females, or persons under the age of twenty-one years, should have the right of suffrage conferred on them.

In reply to this, we might content ourselves with saying that it is mere assertion, and can hardly be dignified as argument; but we answer, that if the XIV. Amendment does not secure the ballot to woman, neither does it to the negro; for it does not in terms confer the ballot upon any one. As we have already shown, it is the altered condition of citizenship that secures to the negro this right; but this plaintiff might well reply, I was born to that condition, and yet am denied its privileges.

We quote again, and finally, from the opinion:

This is not only shown by the history of the times when the Amendment was adopted, and the circumstances which produced it, but by reference to the second section of said Amendment, it will be seen that the right to restrict the right of suffrage to the male inhabitants by a State is clearly recognized. If "the right to vote, etc., is denied to any of the male inhabitants of such State, being twenty-one years of age," etc., is the language used. This clearly recognizes the right, and seems to anticipate the exercise of the right on the part of the States, to restrict the right of suffrage to the male inhabitants.

We doubt if an instance can be found of a more complete misconception of the meaning and intention of the law. So far from its being a recognition of the right of the States to restrict the right to suffrage of males, it has an exactly opposite meaning. It was intended as a punishment on the States if they did this thing. It is no more a justification or authorization of the act than is the law punishing larceny an authority for stealing! Its object was to punish the States as such, which, but for this provision, could not have been done by diminishing their representation accordingly; and it was designed as a still further security for the rights of the colored population. But, even if it could be held to recognize a right on the part of the State to disfranchise any one, it would only extend to "males," not to females. They, as "citizens of the United States," are embraced in, and protected by, the broad language of the Amendment; a right that is fundamental, can not be taken away by implication. But more than this, the XIV. Amendment was an addition to the organic law of a great nation, intended to enlarge the area of human freedom, and secure more firmly individual rights. It is absurd to impute to the law-makers a design at the same time to restrict those rights.

Although the point is not alluded to by the Supreme Court of Missouri, yet, as we desire to meet every possible objection, we think this a proper place to notice an argument sometimes put forward, based upon the XV. Amendment. It is of the nature of what is termed in law a negative pregnant, or, the familiar maxim of "the expression of one thing is the exclusion of another." As this Amendment says, that the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude, it is claimed by some that it may be abridged on other grounds. But, aside from the well-known history of this Amendment, as shown by the debates in Congress, of which this court will take notice when necessary, and which show that the sole object and purpose of this Amendment was to still further protect the negro race, the IX. Amendment to the Constitution effectually puts an end to the application of this principle by declaring that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. And Mr. Justice Story, in his Commentary says, § 1905:

This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmative in particular cases implies a negative in all others; and, e converso, that a negative in particular cases implies an affirmative in all others. The maxim, rightly understood, is perfectly sound and safe; but it has often been forced from its natural meaning into the support of the most dangerous political heresies. The Amendment was undoubtedly suggested by the reasoning of the Federalist on the subject of a general bill of rights and trial by jury. Federalist No. 83-84.

We ask the court to consider what it is to be disfranchised; not this plaintiff only, but an entire class of people, utterly deprived of all voice in the government under which they live! We say it is to her, and to them, a Despotism, and not a Republic. What matters it that the tyranny be of many instead of one? Society shudders at the thought of putting a fraudulent ballot into the ballot-box! What is the difference between putting a fraudulent ballot in, and keeping a lawful ballot out? Her disfranchised condition is a badge of servitude. [Mr. Justice Bradley in the Grant parish case.] Take one illustration, evidenced by a recent decision of the Supreme Court of Missouri, in Clark vs. The National Bank of the State of Missouri, 47 Mo. Rep., 1. We use our own words, but we state it correctly; that a married woman can not, by the law of Missouri, own a dollar's worth of personal property, except by the consent of another! it makes no difference that that other is her husband. This, it is true, is a State law, a matter exclusively of State legislation; but we mention it to show how utterly helpless and powerless her condition is without the ballot.

Either we must give up the principles announced in the Declaration of Independence, that governments derive their just powers from the consent of the governed; and are formed by the people to protect their rights, not to withhold them; or we must acknowledge the truth contended for by the plaintiff, that citizenship carries with it every incident to every citizen alike. It can not be disputed, that upon this principle of absolute political equality, our Government is founded. So thought the Hon. Luther Martin, of Maryland, one of the most distinguished lawyers of his day, and a member of the convention that framed our Constitution. We quote his own words. (Elliott's Debates, Vol. 4.)

This, sir, is the substance of the arguments, if arguments they may be called, which were used in favor of inequality of suffrage. Those who advocated the equality of suffrage, took the matter up on the original principles of government; they urged that all men considered in a state of nature, before any government is formed, are equally free and independent, no one having any right or authority to exercise power over another, and this, without any regard to difference in personal strength, understanding, or wealth. That when such individuals enter into government, they have each a right to an equal voice in its first formation, and afterward have each a right to an equal vote in every matter which relates to their government; that if it could be done conveniently, they have a right to exercise it in person; when it can not be done in person but for convenience, representatives are appointed to act for them; every person has a right to an equal vote in choosing that representative who is entrusted to do for the whole, that which the whole, if they could assemble, might do in person, and in the transacting of which each would have an equal voice. That if we were to admit, because a man was more wise, more strong, or more wealthy, he should be entitled to more votes than another, it would be inconsistent with the freedom and liberty of that other, and would reduce him to slavery. Suppose, for instance, ten individuals in a state of nature about to enter into government, nine of whom are equally wise, equally strong, and equally wealthy, the tenth is ten times as wise, ten times as strong, or ten times as rich; if for this reason he is to have ten votes for each vote of either of the others, the nine might as well have no vote at all; since, though the whole nine might assent to a measure, yet the vote of the tenth would countervail and set aside all their votes.

If this tenth approved of what they wished to adopt, it would be well, but if he disapproved, he could prevent it, and in the same manner he could carry into execution any measure he wished, contrary to the opinion of all the others, he having ten votes, and the others all together but nine. It is evident that on these principles the nine would have no will or discretion of their own, but must be totally dependent on the will and discretion of the tenth; to him they would be as absolutely slaves as any negro is to his master; if he did not attempt to carry into execution any measure injurious to the other nine, it could only be said that they had a good master; they would not be the less slaves, because they would be totally dependent on the will of another, and not on their own will. They might not feel their chains, but they would notwithstanding wear them, and whenever their master pleased he might draw them so tight as to gall them to the bone. Hence it was urged the inequality of representation, or giving to one man more votes than another on account of his wealth, etc., was altogether inconsistent with the principles of liberty, and in the same proportion as it should be adopted in favor of one or more, in that proportion are the others enslaved.

These are the words, not lightly uttered, nor to be by us lightly considered, of one of the framers of the Constitution; and in complete accord with this principle of entire equality of individual right, see how those men who had fought through the War of Independence did their work. Upon what broad and comprehensive foundations it is laid. Examine the Constitution, the work of their hands. Do we find any recognition of inequality of rights? Not a syllable. On the contrary, every safeguard is thrown around them; "no State shall pass any bill of attainder," or "grant any title of nobility." So, too, when it comes to the practical recognition of these rights at the ballot-box, all are included. "The House of Representatives shall be composed of members chosen every second year by the people of the several States," not by a part—not by the "males"—but simply by "the people of the several States." The same "people" who ordain and establish that Constitution as the supreme law of the land, they are to do the voting, they are to elect. There is not one word as to sex. The elector, male or female, must be one of the people or citizens, that is all. But when these electors come to exercise this right or privilege, then the matter of qualification arises, the age of the elector, the time, place, and manner of the exercise of the right, are to be considered, and the convention, instead of laying down a uniform rule or standard for all the States, which would have produced change and confusion, thought it best to leave this feature of it as it already stood in the several States. But the right itself is secured to the people of the United States, and in its very nature can not be derived from any other authority.

We deem it proper, in this connection, to refer to the well-known fact that women voted in one of the States (New Jersey) down to the year 1807, when they were unjustly deprived of the right, by an act of the Legislature of that State. We say unjustly, because no Legislature can deprive a citizen of a constitutional right, and the matter has slumbered ever since. The Constitution of New Jersey, adopted in 1776, used the term "inhabitants" in describing electors, and under this Constitution women were recognized as voters, as well as men. In conformity with this constitutional provision the statute law was so worded as to read "he or she," in speaking of electors thus affording a contemporaneous and legislative attestation of the truth of our statement. This law of 1776 could not, of course, be the source of authority to any one for voting under a sovereignty not then in existence, not created until 1789, thirteen years afterward. Therefore, when the elector, male or female, in New Jersey, voted for Federal officers in 1789, it was done by virtue of his or her status of citizenship, under the new and paramount sovereignty, and not under the law of 1776; and so it has continued ever since, the elector voting for United States officers by virtue of his citizenship of the United States, and for State officers as a citizen of the State. We believe, then, we are justified in the statement that white women in New Jersey voted, under State authority, for the members of the Constitutional Convention of 1787. That they next voted, under like authority, for the ratification of the newly framed Constitution of the United States; and then, that Constitution having been adopted, as newly-created citizens of the newly-created sovereignty, the white women of New Jersey voted at the five succeeding Presidential elections—for Washington, for Adams, and for Jefferson. The contest in 1800 was bitter beyond all precedent, and we are told that all the women of the State entitled to vote did so. We refer to the Constitution and laws of New Jersey; to a work entitled The Historical Magazine, published in Boston in 1857, Vol. I., p. 361; to the National Intelligencer, Washington, October 3, 1857; to Notes and Queries, Vol. VIII., p. 171, August, 1853.

But apart from these considerations, which we deem amply sufficient to sustain our position, an examination into the nature and character of the right itself will further show that it is one of which the citizen can not justly be deprived, save for cause.

The first amendment to the Constitution declares that Congress shall make no law abridging freedom of speech or of the press, thus incorporating into the organic law of this country absolute freedom of thought or opinion. We presume it will not be doubted that the States are equally bound with Congress by this prohibition, not only because, as Chief-Justice Taney says, "the Constitution of the United States, and every article and clause in it, is a part of the law of every State in the Union, and is the paramount law" (Prigg vs. The Comm., 16 Peters R., 628), but because, in the very nature of things, freedom of speech or of thought can not be divided. It is a personal attribute, and once secured is forever secured. To vote is but one form or method of expressing this freedom of speech. Speech is a declaration of thought. A vote is the expression of the will, preference, or choice. Suffrage is one definition of the word, while the verb is defined, to choose by suffrage, to elect, to express or signify the mind, will, or preference, either viva voce, or by ballot. We claim then that the right to vote, or express one's wish at the polls, is embraced in the spirit, if not the letter, of the First Amendment, and every citizen is entitled to the protection it affords. It is the merest mockery to say to this plaintiff, you may write, print, publish, or speak your thoughts upon every occasion, except at the polls. There your lips shall be sealed. It is impossible that this can be American law!

Again, it is the opinion of some that suffrage is somehow lodged in the government, whence it is dispensed, or conferred upon the citizen, thus completely reversing the actual fact. Suffrage is never conferred by government upon the citizen. He holds it by a higher title. In this country government is the source of power, not of rights. These are vested in the individual—are personal and inalienable. Society can only acquire the authority to regulate these rights, or declare them forfeited, for cause. The time, place, and manner of their exercise are under governmental control, but their origin and source are in the individual himself.

I shall, therefore, says a writer on government, assume it as an incontrovertible position, as a first principle, that the right of private opinion, which is, in fact, no other than the right of private judgment upon any subject presented to the mind, is a sacred right, with which society can, on no pretense, authoritatively interfere, without a violation of the first principles of the law of nature. (Chipman on Government, chap. 5.)

Other liberties, says Erskine, are held under governments, but the liberty of opinion keeps governments themselves in due subjection to their duties. (Speech in defense of Thomas Paine.)

But this clause of the Missouri law further violates the XIII. Amendment, which declares that neither slavery nor involuntary servitude shall exist in the United States, except for crime, etc. This Amendment is a copy of the 6th clause of the famous Ordinance of 1787, which secured freedom for the Northwest Territory, and has now become the organic law for the entire Union. This Ordinance was drawn by the Hon. Nathan Dane, of Massachusetts.

We say that this Missouri law violates this amendment, inasmuch as it places the plaintiff in a disfranchised condition, which is none other than a condition of servitude—of "involuntary servitude," because, although a citizen in the fullest acceptation of the term—a member of this body politic—one of the "people"—she has never consented to this law; has never been permitted to express either consent or dissent, nor given any opportunity to express her opinion thereon, in the manner pointed out by law, while at the same time she is taxed, and her property taken to pay the very men who sat in judgment upon and condemned her!

Finally—Such is the nature of this privilege—so individual—so purely personal is its character, that its indefinite extension detracts not in the slightest degree from those who already enjoy it, and by an affirmation of the plaintiff's claim all womanhood would be elevated into that condition of self-respect that perfect freedom alone can give.

Resume—(Minor vs. Happersett, 21 Wallace Rep., p. 164.)

1st. As a citizen of the United States, the plaintiff is entitled to any and all the "privileges and immunities" that belong to such position however defined; and as are held, exercised, and enjoyed by other citizens of the United States.

2d. The elective franchise is a "privilege" of citizenship, in the highest sense of the word. It is the privilege preservative of all rights and privileges; and especially of the right of the citizen to participate in his or her government.

3d. The denial or abridgment of this privilege, if it exist at all, must be sought only in the fundamental charter of government—the Constitution of the United States. If not found there, no inferior power or jurisdiction can legally claim the right to exercise it.