AN

ACCOUNT OF THE PROCEEDINGS

ON THE

TRIAL OF

SUSAN B. ANTHONY, ON THE

Charge of Illegal Voting, AT THE

PRESIDENTIAL ELECTION IN NOV. , 1872, AND ON THE

TRIAL OF

BEVERLY W. JONES, EDWIN T. MARSHAND WILLIAM B. HALL, THE INSPECTORS OF ELECTION BY WHOM HER VOTE WAS RECEIVED. 

ROCHESTER, N. Y. :DAILY DEMOCRAT AND CHRONICLE BOOK PRINT, 3 WEST MAIN ST. 1874. 

INDEX. 

 PAGE. 

Anthony, S. B. , Indictment, 1 Her speech on receiving her sentence, 82 Her campaign speech, 151

Crowley, Richard, Opening speech in Miss Anthony's case, 5

Gage, Mrs. M. Joslyn, Speech of 179

Hall, Wm. B. , Indictment, 85

Hooker, John, Article on Judge Hunt and the Right of Trial by Jury, 206

Hunt, Judge, Opinion against Miss Anthony, 59 His refusal to submit her case to the jury, 68 His refusal to permit the jury to be polled, 68 His sentence of Miss Anthony, 81 His direction to the jury in the cases of Jones, Hall and Marsh, 144 Trial by jury "_a matter of form_", 145

Jones, Beverly W. , Indictment, 85 Remarks on receiving sentence, 148

Marsh, Edwin T. , Indictment, 85 Remarks on being sentenced, 149

Selden, H. R. , Opening speech in Miss Anthony's case, 12 Argument in her case, 17 Argument on motion for new trial, 68

Van Voorhis, John, Argument of motion to quash the indictmentin the case of Jones, Marsh and Hall, 94 Argument in the case of Jones, Marsh and Hall on the merits, 128 Motion for new trial in the case of Jones, Marsh and Hall, 147

PREFACE. 

At the election of President and Vice President of the United States, and members of Congress, in November, 1872, SUSAN B. ANTHONY, andseveral other women, offered their votes to the inspectors of election, claiming the right to vote, as among the privileges and immunitiessecured to them as citizens by the fourteenth amendment to theConstitution of the United States. The inspectors, JONES, HALL, andMARSH, by a majority, decided in favor of receiving the offered votes, against the dissent of HALL, and they were received and deposited in theballot box. For this act, the women, fourteen in number, were arrestedand held to bail, and indictments were found against them severally, under the 19th Section of the Act of Congress of May 30th, 1870, (16 St. At L. 144. ) charging them with the offense of "knowingly voting withouthaving a lawful right to vote. " The three inspectors were also arrested, but only two of them were held to bail, HALL having been discharged bythe Commissioner on whose warrant they were arrested. All three, howeverwere jointly indicted under the same statute--for having "knowingly andwilfully received the votes of persons not entitled to vote. "

Of the women voters, the case of Miss ANTHONY alone was brought totrial, a _nolle prosequi_ having been entered upon the otherindictments. Upon the trial of Miss ANTHONY before the U. S. CircuitCourt for the Northern District of New York, at Canandaigua, in June, 1873, it was proved that before offering her vote she was advised by hercounsel that she had a right to vote; and that she entertained no doubt, at the time of voting, that she was entitled to vote. It was claimed inher behalf:

I. That she was legally entitled to vote. 

II. That if she was not so entitled, but voted in good faith in thebelief that it was her right, she was guilty of no crime. 

III. That she did vote in such good faith, and with such belief. 

The court held that the defendant had no right to vote--that good faithconstituted no defence--that there was nothing in the case for the juryto decide, and directed them to find a verdict of guilty; refusing tosubmit, at the request of the defendant's counsel, any question to thejury, or to allow the clerk to ask the jurors, severally, whether theyassented to the verdict which the court had directed to be entered. Theverdict of guilty was entered by the clerk, as directed by the court, without any express assent or dissent on the part of the jury. A fine of$100, and costs, was imposed upon the defendant. 

Miss ANTHONY insists that in these proceedings, the fundamentalprinciple of criminal law, that no person can be a criminal unless themind be so--that an honest mistake is not a crime, has been disregarded;that she has been denied her constitutional right of trial by jury, thejury having had no voice in her conviction; that she has been denied herright to have the response of every juror to the question, whether hedid or did not assent to the verdict which the court directed the clerkto enter. 

The trial of the three inspectors followed that of Miss ANTHONY, and allwere convicted, the court holding, as in the case of Miss ANTHONY, thatgood faith on their part in receiving the votes was not a protection;which they think a somewhat severe rule of law, inasmuch as the statuteprovides the same penalty, and in the same sentence, "for knowingly andwilfully receiving the vote of any person not entitled to vote, orrefusing to receive the vote of any person entitled to vote. " Theinspectors claim, that according to this exposition of the law, theywere placed in a position which required them, without any opportunityto investigate or take advice in regard to the right of any voter whoseright was questioned, to decide the question correctly, at the peril ofa term in the state's prison if they made a mistake; and, though thismay be a correct exposition of the law in their case, they would besorry to see it applied to the decisions of any court, not excepting thetribunal by which they were convicted. 

The defendant, HALL, is at a loss to know how he could have avoided thepenalty, inasmuch as he did all that he could in the way of rejectingthe votes, without throttling his co-inspectors, and forcing them todesist from the wrong of receiving them. He is of opinion that by theruling of the Court, he would have been equally guilty, if he had triedhis strength in that direction, and had failed of success. 

To preserve a full record of so important a judicial determination, andto enable the friends of the convicted parties to understand preciselythe degree of criminality which attaches to them in consequence of theseconvictions, the following pamphlet has been prepared--giving a morefull and accurate statement of the proceedings than can elsewhere befound. 

INDICTMENT

AGAINST SUSAN B. ANTHONY. 

DISTRICT COURT OF THE UNITED STATES OF AMERICA, IN AND FOR THE

NORTHERN DISTRICT OF NEW YORK. 

 * * *

At a stated session of the District Court of the United States ofAmerica, held in and for the Northern District of New York, at the CityHall, in the city of Albany, in the said Northern District of New York, on the third Tuesday of January, in the year of our Lord one thousandeight hundred and seventy-three, before the Honorable Nathan K. Hall, Judge of the said Court, assigned to keep the peace of the said UnitedStates of America, in and for the said District, and also to hear anddetermine divers Felonies, Misdemeanors and other offenses against thesaid United States of America, in the said District committed. 

Brace Millerd, James D. Wasson, Peter H. Bradt, James McGinty, Henry A. Davis, Loring W. Osborn, Thomas Whitbeck, John Mullen, Samuel G. Harris, Ralph Davis, Matthew Fanning, Abram Kimmey, Derrick B. Van Schoonhoven, Wilhelmus Van Natten, Adam Winne, James Goold, Samuel S. Fowler, Peter D. R. Johnson, Patrick Carroll, good and lawful men of the said District, then and there sworn andcharged to inquire for the said United States of America, and for thebody of said District, do, upon their oaths, present, that Susan B. Anthony now or late of Rochester, in the county of Monroe, with forceand arms, etc. , to-wit: at and in the first election district of theeighth ward of the city of Rochester, in the county of Monroe, in saidNorthern District of New York, and within the jurisdiction of thisCourt, heretofore, to-wit: on the fifth day of November, in the year ofour Lord one thousand eight hundred and seventy-two, at an election dulyheld at and in the first election district of the said eighth ward ofthe city of Rochester, in said county, and in said Northern District ofNew York, which said election was for Representatives in the Congress ofthe United States, to-wit: a Representative in the Congress of theUnited States for the State of New York at large, and a Representativein the Congress of the United States for the twenty-ninth CongressionalDistrict of the State of New York, said first election district of saideighth ward of said city of Rochester, being then and there a part ofsaid twenty-ninth Congressional District of the State of New York, didknowingly, wrongfully and unlawfully vote for a Representative in theCongress of the United States for the State of New York at large, andfor a Representative in the Congress of the United States for saidtwenty-ninth Congressional District, without having a lawful right tovote in said election district (the said Susan B. Anthony being then andthere a person of the female sex, ) as she, the said Susan B. Anthonythen and there well knew, contrary to the form of the statute of theUnited States of America in such case made and provided, and against thepeace of the United States of America and their dignity. 

Second Count--And the jurors aforesaid upon their oaths aforesaid dofurther present that said Susan B. Anthony, now or late of Rochester, inthe county of Monroe, with force and arms, etc. , to-wit: at and in thefirst election district of the eighth ward of the city of Rochester, inthe county of Monroe, in said Northern District of New York, and withinthe jurisdiction of this Court, heretofore, to-wit: on the fifth day ofNovember, in the year of our Lord one thousand eight hundred andseventy-two, at an election duly held at and in the first electiondistrict of the said eighth ward, of said city of Rochester, in saidcounty, and in said Northern District of New York, which said electionwas for Representatives in the Congress of the United States, to-wit: aRepresentative in the Congress of the United States for the State of NewYork at large, and a Representative in the Congress of the United Statesfor the twenty-ninth Congressional District of the State of New York, said first election district of said eighth ward, of said city ofRochester, being then and there a part of said twenty-ninthCongressional District of the State of New York, did knowingly, wrongfully and unlawfully vote for a candidate for Representative in theCongress of the United States for the State of New York at large, andfor a candidate for Representative in the Congress of the United Statesfor said twenty-ninth Congressional District, without having a lawfulright to vote in said first election district (the said Susan B. Anthonybeing then and there a person of the female sex, ) as she, the saidSusan B. Anthony then and there well knew, contrary to the form of thestatute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity. 

 RICHARD CROWLEY, Attorney of the United States, For the Northern District Of New York. 

(Endorsed. ) Jan. 24, 1873. 

Pleads not guilty. 

 RICHARD CROWLEY, U. S. Attorney. 

UNITED STATESCIRCUIT COURT. 

Northern District of New York. 

THE UNITED STATES OF AMERICA

 _vs. _

SUSAN B. ANTHONY. 

 * * *

HON. WARD HUNT, Presiding. 

 * * *

APPEARANCES. 

For the United States:

 HON. RICHARD CROWLEY. U. S. District Attorney. 

For the Defendant:

 HON. HENRY R. SELDEN. JOHN VAN VOORHIS, ESQ. 

Tried at Canandaigua. Tuesday and Wednesday, June 17th and 18th, 1873, before Hon. Ward Hunt, and a jury. 

Jury impanneled at 2:30 P. M. 

MR. CROWLEY opened the case as follows:

_May it please the Court and Gentlemen of the Jury_:

On the 5th of November, 1872, there was held in this State, as well asin other States of the Union, a general election for different officers, and among those, for candidates to represent several districts of thisState in the Congress of the United States. The defendant, Miss Susan B. Anthony, at that time resided in the city of Rochester, in the county ofMonroe, Northern District of New York, and upon the 5th day of November, 1872, she voted for a representative in the Congress of the UnitedStates, to represent the 29th Congressional District of this State, andalso for a representative at large for the State of New York, torepresent the State in the Congress of the United States. At that timeshe was a woman. I suppose there will be no question about that. Thequestion in this case, if there be a question of fact about it at all, will, in my judgment, be rather a question of law than one of fact. Isuppose that there will be no question of fact, substantially, in thecase when all of the evidence is out, and it will be for you to decideunder the charge of his honor, the Judge, whether or not the defendantcommitted the offence of voting for a representative in Congress uponthat occasion. We think, on the part of the Government, that there is noquestion about it either one way or the other, neither a question offact, nor a question of law, and that whatever Miss Anthony's intentionsmay have been--whether they were good or otherwise--she did not have aright to vote upon that question, and if she did vote without having alawful right to vote, then there is no question but what she is guiltyof violating a law of the United States in that behalf enacted by theCongress of the United States. 

We don't claim in this case, gentlemen, that Miss Anthony is of thatclass of people who go about "repeating. " We don't claim that she wentfrom place to place for the purpose of offering her vote. But we doclaim that upon the 5th of November, 1872, she voted, and whether shebelieved that she had a right to vote or not, it being a question oflaw, that she is within the Statute. 

Congress in 1870 passed the following statute: (Reads 19th Section ofthe Act of 1870, page 144, 16th statutes at large. )

It is not necessary for me, gentlemen, at this stage of the case, tostate all the facts which will be proven on the part of the Government. I shall leave that to be shown by the evidence and by the witnesses, andif any question of law shall arise his Honor will undoubtedly give youinstructions as he shall deem proper. 

_Conceded_, that on the 5th day of November, 1872, Miss Susan B. Anthonywas a woman. 

BEVERLY W. JONES, a witness, called in behalf of the United States, having been duly sworn, testified as follows:

_Examined_ by Mr. Crowley:

Q. Mr. Jones, where do you reside?

A. 8th ward, Rochester. 

Q. Where were you living on the 5th of November, 1872?

A. Same place. 

Q. Do you know the defendant, Miss Susan B. Anthony?

A. Yes, sir. 

Q. In what capacity were you acting upon that day, if any, in relationto elections?

A. Inspector of election. 

Q. Into how many election districts is the 8th ward divided, if itcontains more than one?

A. Two, sir. 

Q. In what election district were you inspector of elections?

A. The first district. 

Q. Who were inspectors with you?

A. Edwin T. Marsh and William B. Hall. 

Q. Had the Board of Inspectors been regularly organized?

A. Yes, sir. 

Q. Upon the 5th day of November, did the defendant, Susan B. Anthony, vote in the first election district of the 8th ward of the city ofRochester?

A. Yes, sir. 

Q. Did you see her vote?

A. Yes, sir. 

Q. Will you state to the jury what tickets she voted, whether State, Assembly, Congress and Electoral?

Objected to as calling for a conclusion. 

Q. State what tickets she voted, if you know, Mr. Jones?

A. If I recollect right she voted the Electoral ticket, Congressionalticket, State ticket, and Assembly ticket. 

Q. Was there an election for Member of Congress for that district andfor Representative at Large in Congress, for the State of New York, heldon the 5th of November, in the city of Rochester?

A. I think there was; yes, sir. 

Q. In what Congressional District was the city of Rochester at the time?

A. The 29th. 

Q. Did you receive the tickets from Miss Anthony?

A. Yes, sir. 

Q. What did you do with them when you received them?

A. Put them in the separate boxes where they belonged. 

Q. State to the jury whether you had separate boxes for the severaltickets voted in that election district?

A. Yes, sir; we had. 

Q. Was Miss Anthony challenged upon that occasion?

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

Q. She was not challenged on the day she voted?

A. No, sir. 

_Cross-Examination_ by Judge Selden:

Q. Prior to the election, was there a registry of voters in thatdistrict made?

A. Yes, sir. 

Q. Was you one of the officers engaged in making that registry?

A. Yes, sir. 

Q. When the registry was being made did Miss Anthony appear before theBoard of Registry and claim to be registered as a voter?

A. She did. 

Q. Was there any objection made, or any doubt raised as to her right tovote?

A. There was. 

Q. On what ground?

A. On the ground that the Constitution of the State of New York did notallow women to vote. 

Q. What was the defect in her right to vote as a citizen?

A. She was not a male citizen. 

Q. That she was a woman?

A. Yes, sir. 

Q. Did the Board consider that and decide that she was entitled toregister?

Objected to. Objection overruled. 

Q. Did the Board consider the question of her right to registry, anddecide that she was entitled to registry as a voter?

A. Yes, sir. 

Q. And she was registered accordingly?

A. Yes, sir. 

Q. When she offered her vote, was the same objection brought up in theBoard of Inspectors, or question made of her right to vote as a woman?

A. She was challenged previous to election day. 

Q. It was canvassed previous to election day between them?

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

Q. At the time of the registry, when her name was registered, was theSupervisor of Election present at the Board?

A. He was. 

Q. Was he consulted upon the question of whether she was entitled toregistry, or did he express an opinion on the subject to the inspectors?

MR. CROWLEY: I submit that it is of no consequence whether he did ornot. 

JUDGE SELDEN: He was the Government Supervisor under this act ofCongress. 

MR. CROWLEY: The Board of Inspectors, under the State law, constitutethe Board of Registry, and they are the only persons to pass upon thatquestion. 

THE COURT: You may take it. 

A. Yes, sir; there was a United States Supervisor of Elections, two ofthem. 

By JUDGE SELDEN:

Q. Did they advise the registry, or did they not?

A. One of them did. 

Q. And on that advice the registry was made with the judgment of theinspectors. 

A. It had a great deal of weight with the inspectors, I have no doubt. 

_Re-direct Examination by_ MR. CROWLEY:

Q. Was Miss Anthony challenged before the Board of Registry?

A. Not at the time she offered her name. 

Q. Was she challenged at any time?

A. Yes, sir; the second day of the meeting of the Board. 

Q. Was the preliminary and the general oath administered?

A. Yes, sir. 

Q. Won't you state what Miss Anthony said, if she said anything, whenshe came there and offered her name for registration?

A. She stated that she did not claim any rights under the constitutionof the State of New York; she claimed her right under the constitutionof the United States. 

Q. Did she name any particular amendment?

A. Yes, sir; she cited the 14th amendment. 

Q. Under that she claimed her right to vote?

A. Yes, sir. 

Q. Did the other Federal Supervisor who was present, state it as hisopinion that she was entitled to vote under that amendment, or did heprotest, claiming that she did not have the right to vote?

A. One of them said that there was no way for the inspectors to getaround placing the name upon the register; the other one, when she camein, left the room. 

Q. Did this one who said that there was no way to get around placing thename upon the register, state that she had her right to register but didnot have the right to vote?

A. I didn't hear him make any such statement. 

Q. You didn't hear any such statement as that?

A. No, sir. 

Q. Was there a poll list kept of the voters of the first electiondistrict of the 8th ward on the day of election?

A. Yes, sir. 

Q. (Handing witness two books. ) State whether that is the poll list ofvoters kept upon the day of election in the first election district ofthe 8th ward, of the city of Rochester?

A. This is the poll list, and also the register. 

Q. Turn to the name of Susan B. Anthony, if it is upon that poll list?

A. I have it. 

Q. What number is it?

A. Number 22. 

Q. From that poll list what tickets does it purport to show that shevoted upon that occasion?

A. Electoral, State, Congress and Assembly. 

_United States rests. _

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

_If the Court please, Gentlemen of the Jury_:

This is a case of no ordinary magnitude, although many might regard itas one of very little importance. The question whether my client herehas done anything to justify her being consigned to a felon's prison ornot, is one that interests her very essentially, and that interests thepeople also essentially. I claim and shall endeavor to establish beforeyou that when she offered to have her name registered as a voter, andwhen she offered her vote for Member of Congress, she was as muchentitled to vote as any man that voted at that election, according tothe Constitution and laws of the Government under which she lives. If Imaintain that proposition, as a matter of course she has committed nooffence, and is entitled to be discharged at your hands. 

But, beyond that, whether she was a legal voter or not, whether she wasentitled to vote or not, if she sincerely believed that she had a rightto 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 nocrime. I apprehend that that proposition, when it is discussed, will bemaintained with a clearness and force that shall leave no doubt upon themind of the Court or upon your minds as the gentlemen of the jury. If Imaintain that proposition here, then the further question and the onlyquestion which, in my judgment, can come before you to be passed upon byyou 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 haveoffered her vote, however sincerely she may have believed that she had aright to vote, if she was mistaken in that judgment, her offering hervote and its being received makes a criminal offence--a proposition tome most abhorrent, as I believe it will be equally abhorrent to yourjudgment. 

Before the registration, and before this election, Miss Anthony calledupon me for advice upon the question whether, under the 14th Amendmentof the Constitution of the United States, she had a right to vote. I hadnot examined the question. I told her I would examine it and give her myopinion upon the question of her legal right. She went away and cameagain after I had made the examination. I advised her that she was aslawful a voter as I am, or as any other man is, and advised her to goand offer her vote. I may have been mistaken in that, and if I wasmistaken, I believe she acted in good faith. I believe she actedaccording to her right as the law and Constitution gave it to her. Butwhether she did or not, she acted in the most perfect good faith, and ifshe made a mistake, or if I made one, that is not a reason forcommitting her to a felon's cell. 

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

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

Before the last election, Miss Anthony called upon me for advice, uponthe question whether she was or was not a legal voter. I examined thequestion, and gave her my opinion, unhesitatingly, that the laws andConstitution of the United States, authorized her to vote, as well asthey authorize any man to vote; and I advised her to have her nameplaced upon the registry and to vote at the election, if the inspectorsshould receive her vote. I gave the advice in good faith, believing itto 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 hervoting--on the question of the intention or belief under which shevoted. 

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, testifiedas follows:

_Examined by_ MR. CROWLEY. 

Q. During the months of November and December, 1872, and January, 1873, were you Assistant United States Dist. Attorney for the NorthernDistrict 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 StatesCommissioner, 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 youand 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 withJudge 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 beexcluded from producing any evidence that she gave elsewhere, especiallywhen they want to give the version which the United States officer tookof her evidence. 

THE COURT: Go on. 

By MR. CROWLEY:

Q. State whether she stated on that examination, under oath, that shehad talked or consulted with Judge Henry R. Selden in relation to herright to vote?

A. She did. 

Q. State whether she was asked, upon that examination, if the advicegiven her by Judge Henry R. Selden would or did make any difference inher action in voting, or in substance that?

A. She stated on the cross-examination, "I should have made the sameendeavor to vote that I did had I not consulted Judge Selden. I didn'tconsult any one before I registered. I was not influenced by his advicein the matter at all; have been resolved to vote, the first time I wasat home 30 days, for a number of years. "

_Cross-examination by_ MR. VAN VOORHEES:

Q. Mr. Pound, was she asked there if she had any doubt about her rightto vote, and did she answer "Not a particle?"

A. She stated "Had no doubt as to my right to vote, " on the directexamination. 

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 ofyour 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, MissAnthony informs me that I was mistaken in the fact that my advice wasbefore her registry. It was my recollection that it was on her way tothe registry, but she states to me now that she was registered and cameimmediately 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 Congressof May 31, 1870 (16 St. At L. , 144, ), for "voting without having alawful right to vote. "

The words of the Statute, so far as they are material in this case, areas follows:

"If at any election for representative or delegate in the Congress ofthe United States, any person shall knowingly . . . Vote without having alawful right to vote . . . Every such person shall be deemed guilty of acrime, . . . And on conviction thereof shall be punished by a fine notexceeding $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 ofprosecution. "

The only alleged ground of illegality of the defendant's vote is thatshe is a woman. If the same act had been done by her brother under thesame circumstances, the act would have been not only innocent, buthonorable and laudable; but having been done by a woman it is said to bea crime. The crime therefore consists not in the act done, but in thesimple fact that the person doing it was a woman and not a man. Ibelieve this is the first instance in which a woman has been arraignedin a criminal court, merely on account of her sex. 

If the advocates of female suffrage had been allowed to choose the pointof attack to be made upon their position, they could not have chosen itmore favorably for themselves; and I am disposed to thank those who havebeen instrumental in this proceeding, for presenting it in the form of acriminal prosecution. 

Women have the same interest that men have in the establishment andmaintenance of good government; they are to the same extent as menbound to obey the laws; they suffer to the same extent by bad laws, andprofit to the same extent by good laws; and upon principles of equaljustice, as it would seem, should be allowed equally with men, toexpress their preference in the choice of law-makers and rulers. Buthowever that may be, no greater _absurdity_, to use no harsher term, could be presented, than that of rewarding men and punishing women, forthe same act, _without giving to women any voice in the question whichshould be rewarded, and which punished_. 

I am aware, however, that we are here to be governed by the Constitutionand laws as they are, and that if the defendant has been guilty ofviolating the law, she must submit to the penalty, however unjust orabsurd the law may be. But courts are not required to so interpret lawsor constitutions as to produce either absurdity or injustice, so long asthey are open to a more reasonable interpretation. This must be myexcuse for what I design to say in regard to the propriety of femalesuffrage, because with that propriety established there is very littledifficulty in finding sufficient warrant in the constitution for itsexercise. 

This case, in its legal aspects, presents three questions, which Ipurpose to discuss. 

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

2. If she was not entitled to vote, but believed that she was, and votedin good faith in that belief, did such voting constitute a crime underthe 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 otherquestions become immaterial; if the second be decided adversely to myviews, the first and third become immaterial. The two first arequestions of law to be decided by the court, the other is a question forthe jury. 

[The Judge here suggested that the argument should be confined to thelegal questions, and the argument on the other question suspended, untilhis opinion on those questions should be made known. This suggestion wasassented to, and the counsel proceeded. ]

My first position is that the defendant had the same right to vote asany other citizen who voted at that election. 

Before proceeding to the discussion of the purely legal question, Idesire, as already intimated, to pay some attention to the propriety andjustice of the rule which I claim to have been established by theConstitution. 

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

In the most celebrated document which has been put forth on this side ofthe Atlantic, our ancestors declared that "governments derive their justpowers 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 uponthis principle: that the law by which they suffer was made by their ownconsent; it is a part of the original contract into which they enteredwhen first they engaged in society; it was calculated for and has longcontributed to their own security. "

Quotations, to an unlimited extent, containing similar doctrines fromeminent writers, both English and American, on government, from the timeof John Locke to the present day, might be made. Without adopting thisdoctrine which bases the rightfulness of government upon the consent ofthe governed, I claim that there is implied in it the narrower andunassailable principle that all citizens of a State, who are bound byits laws, are entitled to an equal voice in the making and execution ofsuch laws. The doctrine is well stated by Godwin in his treatise onPolitical Justice. He says: "The first and most important principle thatcan be imagined relative to the form and structure of government, seemsto be this: that as government is a transaction in the name and for thebenefit of the whole, every member of the community ought to have someshare in its administration. "

Again, "Government is a contrivance instituted for the security ofindividuals; and it seems both reasonable that each man should have ashare in providing for his own security, and probable, that partialityand cabal should by this means be most effectually excluded. "

And again, "To give each man a voice in the public concerns comesnearest to that admirable idea of which we should never lose sight, theuncontrolled exercise of private judgment. Each man would thus beinspired with a consciousness of his own importance, and the slavishfeelings that shrink up the soul in the presence of an imagined superiorwould be unknown. "

The mastery which this doctrine, whether right or wrong, has acquiredover the public mind, has produced as its natural fruit, the extensionof the right of suffrage to all the adult male population in nearly allthe states of the Union; a result which was well epitomized by PresidentLincoln, in the expression, "government by the people for the people. "

This extension of the suffrage is regarded by many as a source of dangerto the stability of free government. I believe it furnishes the greatestsecurity for free government, as it deprives the mass of the people ofall motive for revolution; and that government so based is most safe, not because the whole people are less liable to make mistakes ingovernment than a select few, but because they have no interest whichcan lead them to such mistakes, or to prevent their correction whenmade. On the contrary, the world has never seen an aristocracy, whethercomposed of few or many, powerful enough to control a government, whodid not honestly believe that their interest was identical with thepublic interest, and who did not act persistently in accordance withsuch belief; and, unfortunately, an aristocracy of sex has not proved anexception to the rule. The only method yet discovered of overcoming thistendency to the selfish use of power, whether consciously orunconsciously, by those possessing it, is the distribution of the poweramong all who are its subjects. Short of this the name free governmentis a misnomer. 

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

I can discover no ground consistent with the principle on which thefranchise has been given to all men, upon which it can be denied towomen. The principal argument against such extension, so far as argumentupon that side of the question has fallen under my observation, is basedupon the position that women are represented in the government by men, and that their rights and interests are better protected through thatindirect representation than they would be by giving them a direct voicein the government. 

The teachings of history in regard to the condition of women under thecare of these self-constituted protectors, to which I can only brieflyallude, show the value of this argument as applied to past ages; and indemonstration of its value as applied to more recent times, even at therisk of being tedious, I will give some examples from my ownprofessional experience. I do this because nothing adds more to theefficacy of truth than the translation of the abstract into theconcrete. Withholding names, I will state the facts with fullness andaccuracy. 

An educated and refined woman, who had been many years before desertedby her drunken husband, was living in a small village of Western NewYork, securing, by great economy and intense labor in fine needle work, 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 wouldenable them to become teachers, and thus secure to them some degree ofindependence when she could no longer provide for them. The daughterswere good scholars, and favorites in the school, so long as the motherwas able to maintain them there. A young man, the nephew and clerk of awealthy but miserly merchant, became acquainted with the daughters, andwas specially attentive to the older one. The uncle disapproved of theconduct of his nephew, and failing to control it by honorable means, resorted to the circulation of the vilest slanders against mother anddaughters. He was a man of wealth and influence. They were almostunknown. The mother had but recently come to the village, her objecthaving been to secure to her daughters the educational advantages whichthe academy afforded. Poverty, as well as perhaps an excusable if notlaudable pride, compelled her to live in obscurity, and consequently theassault upon their characters fell upon her and her daughters withcrushing force. Her employment mainly ceased, her daughters were ofnecessity withdrawn from school, and all were deprived of the means, from their own exertions, of sustaining life. Had they been in fact theharlots which the miserly scoundrel represented them to be, they wouldnot have been so utterly powerless to resist his assault. The mother inher despair naturally sought legal redress. But how was it to beobtained? By the law the wife's rights were merged in those of thehusband. She had in law no individual existence, and consequently noaction could be brought by her to redress the grievous wrong; indeed_according to the law she had suffered no wrong_, but the husband hadsuffered all, and was entitled to all the redress. Where he was the ladydid not know; she had not heard from him for many years. Her counsel, however, ventured to bring an action in her behalf, joining thehusband's name with hers, as the law required. When the cause came totrial the defendant made no attempt to sustain the charges which he hadmade, well knowing that they were as groundless as they were cruel; buthe introduced and proved a release of the cause of action, signed by thehusband, reciting a consideration of fifty dollars paid to him. Thedefendant's counsel had some difficulty in proving the execution of therelease, and was compelled to introduce as a witness, the constable whohad been employed to find the vagabond husband and obtain his signature. His testimony disclosed the facts that he found the husband in theforest in one of our north-eastern counties, engaged in making shingles, (presumably stealing timber from the public lands and converting it intothe means of indulging his habits of drunkenness, ) and only five dollarsof the fifty mentioned in the release had in fact been paid. The Courtheld, was compelled to hold, that the party injured _in view of thelaw_, had received full compensation for the wrong--and the mother anddaughters with no means of redress were left to starve. This was the actof the _representative_ of the wife and daughters to whom we arereferred, as a better protector of their rights than they themselvescould be. 

It may properly be added, that if the action had proceeded to judgmentwithout interference from the husband, and such amount of damages hadbeen recovered as a jury might have thought it proper to award, themoney would have belonged to the husband, and the wife could notlawfully have touched a cent of it. Her attorney might, and doubtlesswould have paid it to her, but he could only have done so at the perilof being compelled to pay it again to the drunken husband if he haddemanded it. 

In another case, two ladies, mother and daughter, some time prior to1860 came from an eastern county of New York to Rochester, where ahabeas corpus was obtained for a child of the daughter, less than twoyears of age. It appeared on the return of the writ, that the mother ofthe child had been previously abandoned by her husband, who had gone toa western state to reside, and his wife had returned with the child toher mother's house, and had resided there after her desertion. Thehusband had recently returned from the west, had succeeded in gettingthe child into his custody, and was stopping over night with it inRochester on the way to his western home. No misconduct on the part ofthe wife was pretended, and none on the part of the husband, exceptingthat he had gone to the west leaving his wife and child behind, no causeappearing, and had returned, and somewhat clandestinely obtainedpossession of the child. The Judge, following Blackstone's views ofhusband's rights, remanded the infant to the custody of the father. Hethought the law required it, and perhaps it did; but if mothers had hada voice, either in making or in administering the law, I think theresult would have been different. The distress of the mother on beingthus separated from her child can be better imagined than described. Theseparation proved a final one, as in less than a year neither father normother had any child on earth to love or care for. Whether the loss tothe little one of a mother's love and watchfulness had any effect uponthe result, cannot, of course, be known. 

The state of the law a short time since, in other respects, in regard tothe rights of married women, shows what kind of security had beenprovided for them by their assumed representatives. Prior to 1848, allthe personal property of every woman on marriage became the absoluteproperty of the husband--the use of all her real estate became hisduring coverture, and on the birth of a living child, it became hisduring his life. He could squander it in dissipation or bestow it uponharlots, and the wife could not touch or interfere with it. Prior to1860, the husband could by will take the custody of his infant childrenaway from the surviving mother, and give it to whom he pleased--and hecould 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 greatchanges within the last 25 years. The property, real and personal, whicha woman possesses before marriage, and such as may be given to herduring coverture, remains her own, and is free from the control of herhusband. 

If a married woman is slandered she can prosecute in her own name theslanderer, and recover to her own use damages for the injury. 

The mother now has an equal claim with the father to the custody oftheir minor children, and in case of controversy on the subject, courtsmay award the custody to either in their discretion. 

The husband cannot now by will effectually appoint a guardian for hisinfant children without the consent of the mother, if living. 

These are certainly great ameliorations of the law; but how have theybeen produced? Mainly as the result of the exertions of a few heroicwomen, one of the foremost of whom is her who stands arraigned as acriminal before this Court to-day. For a thousand years the absurditiesand cruelties to which I have alluded have been embedded in the commonlaw, and in the statute books, and men have not touched them, and wouldnot until the end of time, had they not been goaded to it by thepersistent efforts of the noble women to whom I have alluded. 

Much has been done, but much more remains to be done by women. If theyhad possessed the elective franchise, the reforms which have cost them aquarter of a century of labor would have been accomplished in a year. They are still subject to taxation upon their property, without anyvoice as to the levying or destination of the tax; and are still subjectto laws _made by men_, which subject them to fine and imprisonment forthe same acts which men do with honor and reward--and when brought totrial no woman is allowed a place on the bench or in the jury box, or avoice in her behalf at the bar. They are bound to suffer the penalty ofsuch laws, made and administered solely by men, and to be silent underthe infliction. Give them the ballot, and, although I do not supposethat any great revolution will be produced, or that all political evilswill be removed, (I am not a believer in political panaceas, ) but if Imistake not, valuable reforms will be introduced which are not nowthought of. Schools, almshouses, hospitals, drinking saloons, and thoseworse dens which are destroying the morals and the constitutions of somany of the young of both sexes, will feel their influence to an extentnow little dreamed of. At all events women will not be taxed without anopportunity to be heard, and will not be subject to fine andimprisonment by laws made exclusively by men for doing what it is lawfuland honorable for men to do. 

It may be said in answer to the argument in favor of female suffragederived from the cases to which I have referred, that men, notindividually, but collectively, are the natural and appropriaterepresentatives of women, and that, notwithstanding cases of individualwrong, the rights of women are, on the whole, best protected by beingleft to their care. It must be observed, however, that the cases which Ihave stated, and which are only types of thousands like them, in theircruelty and injustice, are the result of ages of legislation by theseassumed protectors of women. The wrongs were less in the men than in thelaws which sustained them, and which contained nothing for theprotection of the women. 

But passing this view, let us look at the matter historically and on abroader field. 

If Chinese women were allowed an equal share with men in shaping thelaws of that great empire, would they subject their female children totorture with bandaged feet, through the whole period of childhood andgrowth, in order that they might be cripples for the residue of theirlives?

If Hindoo women could have shaped the laws of India, would widows forages have been burned on the funeral pyres of their deceased husbands?

If Jewish women had had a voice in framing Jewish laws, would thehusband, at his own pleasure, have been allowed to "write his wife abill of divorcement and give it in her hand, and send her out of hishouse?"

Would women in Turkey or Persia have made it a heinous, if not capital, offence for a wife to be seen abroad with her face not covered by animpenetrable veil?

Would women in England, however learned, have been for ages subjected toexecution for offences for which men, who could read, were onlysubjected to burning in the hand and a few months imprisonment?

The principle which governs in these cases, or which has done sohitherto, has been at all times and everywhere the same. Those whosucceed in obtaining power, no matter by what means, will, with rareexceptions, use it for their exclusive benefit. Often, perhapsgenerally, this is done in the honest belief that such use is for thebest good of all who are affected by it. A wrong, however, to those uponwhom it is inflicted, is none the less a wrong by reason of the goodmotives of the party by whom it is inflicted. 

The condition of subjection in which women have been held is the resultof this principle; the result of superior strength, not of superiorrights, on the part of men. Superior strength, combined with ignoranceand selfishness, but not with malice. It is a relic of the barbarism inthe shadow of which nations have grown up. Precisely as nations havereceded 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 orrelief; but since nations have come to be governed by laws, there isroom to hope, though the process may still be a slow one, that injusticein all its forms, or at least political injustice, may be extinguished. No injustice can be greater than to deny to any class of citizens notguilty 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 administrationof the laws. Persons to which such share is denied, are essentiallyslaves, 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 thisreason it has been found necessary to give the ballot to the emancipatedslaves. Until this was done their emancipation was far from complete. Without a share in the political powers of the state, no class ofcitizens has any security for its rights, and the history of nations towhich I briefly alluded, shows that women constitute no exception to theuniversality of this rule. 

Great errors, I think, exist in the minds of both the advocates and theopponents of this measure in their anticipation of the immediateeffects to be produced by its adoption. On the one hand it is supposedby some that the character of women would be radically changed--thatthey would be unsexed, as it were, by clothing them with politicalrights, and that instead of modest, amiable and graceful beings, weshould have bold, noisy and disgusting political demagogues, orsomething worse, if anything worse can be imagined. I think those whoentertain such opinions are in error. The innate character of women isthe result of God's laws, not of man's, nor can the laws of man affectthat character beyond a very slight degree. Whatever rights may be givento them, and whatever duties may be charged upon them by human laws, their general character will remain unchanged. Their modesty, theirdelicacy, and intuitive sense of propriety, will never desert them, intowhatever new positions their added rights or duties may carry them. 

So far as women, without change of character as women, are qualified todischarge the duties of citizenship, they will discharge them if calledupon to do so, and beyond that they will not go. Nature has put barriersin the way of any excessive devotion of women to public affairs, and itis not necessary that nature's work in that respect should besupplemented by additional barriers invented by men. Such offices aswomen are qualified to fill will be sought by those who do not findother employment, and others they will not seek, or if they do, willseek in vain. To aid in removing as far as possible the dishearteningdifficulties which women dependent upon their own exertions encounter, it is, I think, desirable that such official positions as they can fillshould be thrown open to them, and that they should be given the samepower that men have to aid each other by their votes. I would say, remove all legal barriers that stand in the way of their findingemployment, official or unofficial, and leave them as men are left, todepend for success upon their character and their abilities. As long asmen are allowed to act as milliners, with what propriety can theyexclude women from the post of school commissioners when chosen to suchpositions by their neighbors? To deny them such rights, is to leave themin a condition of political servitude as absolute as that of the Africanslaves before their emancipation. This conclusion is readily to bededuced from the opinion of Chief Justice Jay in the case of _Chisholm'sEx'rs vs. The State of Georgia (2 Dallas, 419-471)_, although thelearned Chief Justice had of course no idea of any such application as Imake 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 thefeudal idea of the character of the sovereign in England, and givingsome of the reasons why he was not subject to suit before the courts ofthe kingdom, says:

"The same feudal ideas run through all their jurisprudence, andconstantly remind us of the distinction between the prince and thesubject. No such ideas obtain here. At the revolution the sovereigntydevolved on the people; and they are truly the sovereigns of thecountry, but _they are sovereigns without subjects_ (unless the Africanslaves among us may be so called), and have none to govern butthemselves; the citizens of America _are equal as fellow-citizens, andas joint tenants in the sovereignty_. "

Now I beg leave to ask, in case this charge against Miss Anthony can besustained, what equality and what sovereignty is enjoyed by the half ofthe citizens of these United States to which she belongs? Do they not, in that event, occupy, _politically_, exactly the position which thelearned Chief Justice assigns to the African slaves? Are they not shownto be _subjects_ of the other half, who are the sovereigns? And is nottheir _political subjection_ as absolute as was that of the Africanslaves? If that charge has any basis to rest upon, the learned ChiefJustice was wrong. The sovereigns of this country, according to thetheory of this prosecution, are not sovereigns without subjects. Thoughtwo or three millions of their subjects have lately ceased to be such, and have become freemen, they still hold twenty millions of subjects inabsolute _political_ bondage. 

If it be said that my language is stronger than the facts warrant, Iappeal _to the record in this case_ for its justification. 

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

Having occupied much more time than I intended in showing the justiceand propriety of the claim made by my client to the privileges of avoter, I proceed to the consideration of the present state of the law onthat subject:

It would not become me, however clear my own convictions may be on thesubject, to assert the right of women, under our constitution and lawsas they now are, to vote at presidential and congressional elections, isfree from doubt, because very able men have expressed contrary opinionson that question, and, so far as I am informed, there has been noauthoritative adjudication upon it; or, at all events, none upon whichthe public mind has been content to rest as conclusive. I proceed, therefore, to offer such suggestions as occur to me, and to refer tosuch authorities bearing upon the question, as have fallen under myobservation, hoping to satisfy your honor, not only that my client hascommitted no criminal offense, but that she has done nothing which shehad not a legal and constitutional right to do. 

It is not claimed that, under our State constitution and the laws madein pursuance of it, women are authorized to vote at elections, otherthan those of private corporations, and, consequently, the right of MissAnthony to vote at the election in question, can only be established byreference to an authority superior to and sufficient to overcome theprovisions 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 ofthat constitution which bear more or less directly upon the question:

ARTICLE I, Section 2. "The House of Representatives shall be composed ofmembers chosen every second year, by the people of the several States;and the electors in each State shall have the qualifications forelectors of the most numerous branch of the State legislature. "

The same Article, Section 3, "The Senate of the United States shall becomposed of two senators from each State, chosen by the legislaturethereof for six years; and each senator shall have one vote. "

ARTICLE II, Section 1. "Each State shall appoint in such manner as thelegislature thereof may direct, a number of electors equal to the wholenumber of senators and representatives to which the State may beentitled in the Congress. "

ARTICLE IV, Section 2. "The citizens of each State shall be entitled toall the privileges and immunities of citizens in the several States. "

Same Article, Section 4. "The United States shall guarantee to everyState in the union a republican form of government. "

THIRTEENTH AMENDMENT. 

DECEMBER 18, 1865. 

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

"2. Congress shall have power to enforce this article by appropriatelegislation. "

FOURTEENTH AMENDMENT. 

JULY 28, 1868. 

Section 1. "All persons born or naturalized in the United States, andsubject to the jurisdiction thereof, are citizens of the United Statesand of the State wherein they reside. No State shall make or enforce anylaw which shall abridge the privileges or immunities of citizens of theUnited States; nor shall any State deprive any person of life, libertyor property, without due process of law, nor deny to any person withinits jurisdiction the equal protection of the laws. "

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

 * * * * *

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

FIFTEENTH AMENDMENT. 

Section 1. "The right of citizens of the United States to vote shall notbe denied or abridged by the United States, or by any State, on accountof race, color or previous condition of servitude. "

Section 2. "The Congress shall have power to enforce this article byappropriate legislation. "

By reference to the provisions of the original Constitution, hererecited, it appears that prior to the thirteenth, if not until thefourteenth, amendment, the whole power over the elective franchise, evenin the choice of Federal officers, rested with the States. TheConstitution contains no definition of the term "citizen, " either of theUnited States, or of the several States, but contents itself with theprovision that "the citizens of each State shall be entitled to all theprivileges and immunities of citizens of the several States. " The Stateswere thus left free to place such restrictions and limitations upon the"privileges and immunities" of citizens as they saw fit, so far as isconsistent with a republican form of government, subject only to thecondition that no State could place restrictions upon the "privileges orimmunities" of the citizens of any other State, which would not beapplicable to its own citizens under like circumstances. 

It will be seen, therefore, that the whole subject, as to what shouldconstitute the "privileges and immunities" of the citizen being left tothe States, no question, such as we now present, could have arisen underthe original constitution of the United States. 

But now, by the fourteenth amendment, the United States have not onlydeclared what constitutes citizenship, both in the United States and inthe several States, securing the rights of citizens to "all persons bornor naturalized in the United States;" but have absolutely prohibited theStates from making or enforcing "_any law which shall abridge theprivileges or immunities of citizens of the United States_. "

By virtue of this provision, I insist that the act of Miss Anthony invoting was lawful. 

It has never, since the adoption of the fourteenth amendment, beenquestioned, and cannot be questioned, that women as well as men areincluded 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 UnitedStates" which are secured against such abridgement, by this section? Iclaim that these terms not only include the right of voting for publicofficers, but that they include that right as pre-eminently the mostimportant of all the privileges and immunities to which the sectionrefers. Among these privileges and immunities may doubtless be classedthe right to life and liberty, to the acquisition and enjoyment ofproperty, and to the free pursuit of one's own welfare, so far as suchpursuit does not interfere with the rights and welfare of others; butwhat security has any one for the enjoyment of these rights when deniedany 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 themaking and administration of the laws--this _political_ right--is whatgives security and value to the other rights, which are merely personal, not political. A person deprived of political rights is essentially aslave, because he holds his personal rights subject to the will of thosewho possess the political power. This principle constitutes the verycorner-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 ofJames Otis, although sufficient for the occasion when it was put forth, expresses but a fragment of the principle, because government can beoppressive through means of many appliances besides that of taxation. The true principle is, that all government over persons deprived of anyvoice in such government, is tyranny. That is the principle of thedeclaration of independence. We were slow in allowing its application tothe African race, and have been still slower in allowing its applicationto women; but it has been done by the fourteenth amendment, rightlyconstrued, by a definition of "citizenship, " which includes women aswell as men, and in the declaration that "the privileges and immunitiesof citizens shall not be abridged. " If there is any privilege of thecitizen which is paramount to all others, it is the right of suffrage;and in a constitutional provision, designed to secure the most valuablerights of the citizen, the declaration that the privileges andimmunities of the citizen shall not be abridged, must, as I conceive, beheld to secure that right before all others. It is obvious, when theentire language of the section is examined, not only that thisdeclaration was designed to secure to the citizen this _political_right, but that such was its principal, if not its sole object, thoseprovisions of the section which follow it being devoted to securing the_personal_ rights of "life, liberty, property, and the equal protectionof the laws. " The clause on which we rely, to wit:--"No State shall makeor enforce any law which shall abridge the privileges or immunities ofcitizens of the United States, " might be stricken out of the section, and the residue would secure to the citizen every right which is nowsecured, excepting the political rights of voting and holding office. _If the clause in question does not secure those political rights, it isentirely nugatory, and might as well have been omitted. _

If we go to the lexicographers and to the writers upon law, to learnwhat are the privileges and immunities of the "citizen" in a republicangovernment, we shall find that the leading feature of citizenship is theenjoyment of the right of suffrage. 

The definition of the term "citizen" by _Bouvier_ is: "One who under theconstitution and laws of the United States, has a right to vote forRepresentatives in Congress, and other public officers, and who isqualified to fill offices in the gift of the people. "

By _Worcester_--"An inhabitant of a republic who enjoys the rights of afreeman, 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 thequalifications which enable him to vote for rulers, and to purchase andhold real estate. "

The meaning of the word "citizen" is directly and plainly recognized bythe latest amendment of the constitution (the fifteenth. )

"_The right of the citizens of the United States to vote_ shall not bedenied or abridged by the United States, or by any State, on account ofrace, color, or previous condition of servitude. " This clause assumesthat 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, saysof the word citizen: "A citizen is a person who has certain politicalrights, and the word is properly used only to imply or suggest thepossession 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 thecitizen, as mentioned in Sec. 2, Art. 4, of the constitution, afterenumerating the personal rights mentioned above, and some others, asembraced by those terms, says, "to which may be added the electivefranchise, as regulated and established by the laws or constitution ofthe State in which it is to be exercised. " At that time the States hadentire control of the subject, and could abridge this privilege of thecitizen at its pleasure; but the judge recognizes the "electivefranchise" as among the "privileges and immunities" secured, to aqualified extent, to the citizens of every State by the provisions ofthe constitution last referred to. When, therefore, the States were, bythe fourteenth amendment, absolutely prohibited from abridging theprivileges of the citizen, either by enforcing existing laws, or by themaking of new laws, the right of every "citizen" to the full exercise ofthis privilege, as against State action, was absolutely secured. 

Chancellor Kent and Judge Story both refer to the opinion of Mr. JusticeWashington, 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 thequestions 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 unanswerableargument, that the term "citizens, " as there used, was confined to thosewho were entitled to the enjoyment of the elective franchise, and thatthat was among the highest of the "privileges and immunities" securedto the citizen by that section. The court say that, "to be a citizen itis necessary that he should be entitled to the enjoyment of theseprivileges and immunities, upon the same terms upon which they areconferred upon other citizens; and unless he is so entitled, _he cannot, in the proper sense of the term, be a citizen_. "

In the case of _Scott vs. Sanford (19 How. 404)_, Chief Justice Taneysays: "The words 'people of the United States, ' and 'citizens, ' aresynonymous terms, and mean the same thing; they describe the _politicalbody, who, according to our republican institutions, form thesovereignty and hold the power, and conduct the government through theirrepresentatives_. They are what we familiarly call the sovereign people, and every citizen is one of this people, and a constituent member ofthis sovereignty. "

Mr. Justice Daniel, in the same case, (p. 476), says: "Upon theprinciples of etymology alone, the term citizen, as derived from_civitas_, conveys the idea of connection or identification with thestate or government, and a participation in its functions. But beyondthis, there is not, it is believed, to be found in the theories ofwriters on government, or in any actual experiment heretofore tried, anexposition of the term citizen, which has not been understood asconferring the actual possession and enjoyment, or the perfect right ofacquisition and enjoyment of _an entire equality of privileges, civiland political_. "

Similar references might be made to an indefinite extent, but enough hasbeen said to show that the term citizen, in the language of Mr. JusticeDaniel, conveys the idea "of identification with the state orgovernment, and a participation in its functions. "

Beyond question, therefore, the first section of the fourteenthamendment, by placing the citizenship of women upon a par with that ofmen, and declaring that the "privileges and immunities" of the citizenshall not be abridged, has secured to women, equally with men, the rightof suffrage, unless that conclusion is overthrown by some otherprovision of the constitution. 

It is not necessary for the purposes of this argument to claim that thisamendment prohibits a state from making or enforcing any law whatever, regulating the elective franchise, or prescribing the conditions uponwhich it may be exercised. But we do claim that in every republic theright of suffrage, in some form and to some extent, is not only one ofthe privileges of its citizens, but is the first, most obvious and mostimportant of all the privileges they enjoy; that in this respect _allcitizens are equal_, and that the effect of this amendment is, toprohibit the States from enforcing any law which denies this right toany of its citizens, or which imposes any restrictions upon it, whichare inconsistent with a republican form of government. Within thislimit, it is unnecessary for us to deny that the States may stillregulate and control the exercise of the right. 

The only provisions of the constitution, which it can be contendedconflict with the construction which has here been put upon the firstsection of the fourteenth amendment, are the fifteenth amendment, andthe second section of the fourteenth. 

In regard to the fifteenth amendment, I shall only say, that if myinterpretation of the fourteenth amendment is correct, there was stillan object to be accomplished and which was accomplished by thefifteenth. The prohibition of any action abridging the privileges andimmunities of citizens, contained in the fourteenth amendment, appliesonly to the States, and leaves the United States government free toabridge the political privileges and immunities of citizens of theUnited States, as such, at its pleasure. By the fifteenth amendment boththe United States and the State governments, are prohibited fromexercising this power, "on account of race, color, or previouscondition of servitude" of the citizen. 

The first remark to be made upon the second section of the fourteenthamendment is, that it does not give and was not designed to give to theStates any power to deny or abridge the right of any citizen to exercisethe elective franchise. So far as it touches that subject, it wasdesigned to be restrictive upon the States. It gives to them no powerwhatever. It takes away no power, but it gives none, and if the Statespossess the power to deny or abridge the right of citizens to vote, itmust be derived from some other provision of the constitution. I believenone such can be found, which was not necessarily abrogated by the firstsection 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, theStates would still be authorized, notwithstanding the provisions of thefirst section, to deny to the citizens the privilege of voting, asmentioned in the second section; but their mistake cannot be held to addto, or to take from the other provisions of the constitution. It is veryclear that they did not intend, by this section, _to give_ to the Statesany such power, but, believing that the States possessed it, theydesigned to hold the prospect of a reduction of their representation inCongress _in terrorem_ over them to prevent them from exercising it. They seem not to have been able to emancipate themselves from theinfluence of the original constitution which conceded this power to theStates, or to have realized the fact that the first section of theamendment, when adopted, would wholly deprive the States of that power. 

But those who prepare constitutions are never those who adopt them, andconsequently the views of those who frame them have little or no bearingupon their interpretation. The question for consideration here is, whatthe people, who, through their representatives in the legislatures, adopted the amendments, understood, or must be presumed to haveunderstood, from their language. They must be presumed to have knownthat the "privileges and immunities" of citizens which were secured tothem by the first section beyond the power of abridgment by the States, gave them the right to exercise the elective franchise, and theycertainly cannot be presumed to have understood that the second section, which was also _designed to be restrictive_ upon the States, would beheld to confer by implication a power upon them, which the first sectionin the most express terms prohibited. 

It has been, and may be again asserted, that the position which I havetaken in regard to the second section is inadmissible, because itrenders the section nugatory. That is, as I hold, an entire mistake. Theleading object of the second section was the readjustment of therepresentation of the States in Congress, rendered necessary by theabolition of chattel slavery [_not of political slavery_], effected bythe thirteenth amendment. This object the section accomplishes, and inthis respect it remains wholly untouched, by my construction of it. 

Neither do I think the position tenable which has been taken by onetribunal, to which the consideration of this subject was presented, thatthe constitutional provision does not execute itself. 

The provisions on which we rely were negative merely, and were designedto nullify existing as well as any future State legislation interferingwith our rights. This result was accomplished by the constitutionitself. Undoubtedly before we could exercise our right, it was necessarythat there should be a time and place appointed for holding the electionand proper officers to hold it, with suitable arrangements for receivingand counting the votes. All this was properly done by existinglaws, and our right _being made complete by the Constitution, no furtherlegislation was required in our behalf_. When the State officersattempted to interpose between us and the ballot-box the StateConstitution or State law, whether ancient or recent, abridging ordenying our equal right to vote with other citizens, we had but to referto the United States Constitution, prohibiting the States from enforcingany 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 StatesCircuit Court in New Orleans (_1 Abb. U. S. Rep. 402_) would seem to bedecisive of this question, although the right involved in that case wasnot that of the elective franchise. The learned justice says: "It wasvery ably contended on the part of the defendants that the fourteenthamendment was intended only to secure to all citizens _equal capacitiesbefore the law_. That was at first our view of it. But it does not soread. The language is: 'No State shall abridge the privileges orimmunities of citizens of the United States. ' What are the privilegesand immunities of citizens? Are they capacities merely? Are they notalso rights?"

Senator Carpenter, who took part in the discussion of the fourteenthamendment in the Senate, and aided in its passage, says: "The fourteenthamendment executes itself in _every_ State of the Union. . . . It is thusthe will of the United States in every State, and silences every StateConstitution, usage or law which conflicts with it. . . . And if thisprovision does protect the colored citizen, then it protects everycitizen, black or white, male or female. . . . And all the privileges andimmunities which I vindicate to a colored citizen, I vindicate to ourmothers, 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, thatthe subject of securing to women the elective franchise was notconsidered in the preparation, or in the adoption of these amendments. It is wholly immaterial whether that was so or not. It is never possibleto arrive at the intention of the people in adopting constitutions, except by referring to the language used. As is said by Mr. Cooley, "theintent is to be found in the instrument itself" (p. 55), and to that Ihave confined my remarks. It is not a new thing for constitutional andlegislative acts to have an effect beyond the anticipation of those whoframed them. It is undoubtedly true, that in exacting _Magna Charta_from King John, the Barons of England provided better securities for therights of the common people than they were aware of at the time, although the rights of the common people were neither forgotten norneglected by them. It has also been said, perhaps with some truth, thatthe framers of the original Constitution of the United States "buildedbetter than they knew;" and it is quite possible that in framing theamendments under consideration, those engaged in doing it haveaccomplished a much greater work than they were at the time aware of. Iam quite sure that it will be fortunate for the country, if this greatquestion of female suffrage, than which few greater were ever presentedfor the consideration of any people, shall be found, almostunexpectedly, to have been put at rest. 

The opinion of Mr. Justice Bradley, in regard to this amendment, in thecase before referred to, if I understand it, corresponds very nearlywith what I have here said. The learned judge, in one part of hisopinion, says: "It is possible that those who framed the article werenot themselves aware of the far-reaching character of its terms. Theymay have had in mind but one particular phase of social and politicalwrong, which they desired to redress--yet, if the amendment, as framedand expressed, does, in fact, have a broader meaning, and does extendits protecting shield over those who were never thought of when it wasconceived and put in form, and does reach such social evils which werenever before prohibited by constitutional amendment, it is to bepresumed 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 theoriginal Constitution were only such as each State gave its owncitizens. Each was prohibited from discriminating in favor of its owncitizens, and against the citizens of other States. 

"But the fourteenth amendment prohibits any State from abridging theprivileges or immunities of the citizens of the United States, whetherits own citizens or any others. It not merely requires equality ofprivileges, but it demands that _the privileges and immunities of allcitizens shall be absolutely unabridged, unimpaired_. (_1 Abbott's U. S. Rep. 397. _)

It will doubtless be urged as an objection to my position (thatcitizenship carries with it the right to vote) that it would, in thatcase, follow that infants and lunatics, who, as well as adults andpersons of sound mind, are citizens, would also have that right. Thisobjection, which appears to have great weight with certain classes ofpersons, is entirely without force. It takes no note of the familiarfact, that every legislative provision, whether constitutional orstatutory, which confers any _discretionary_ power, is always confinedin its operation to persons who are _compos mentis_. It is whollyunnecessary to except idiots and lunatics out of any such statute. Theyare excluded from the very nature of the case. The contrary suppositionwould be simply absurd. And, in respect to every such law, infants, during their minority, are in the same class. But are women, _who arenot infants_, ever included in this category? Does any such principleof exclusion apply to them? Not at all. On the contrary, they stand, inthis respect, upon the same footing as men, with the sole exception ofthe right to vote and the right to hold office. In every other respect, whatever rights and powers are conferred upon persons by law may beexercised by women as well as by men. They may transact any kind ofbusiness for themselves, or as agents or trustees for others; may beexecutors or administrators, with the same powers and responsibilitiesas men; and it ought not to be a matter of surprise or regret that theyare now placed, by the fourteenth amendment, in other respects upon afooting of perfect equality. 

Although not directly connected with the argument as to the rightsecured to women by the Constitution, I deem it not improper to alludebriefly to some of the popular objections against the propriety ofallowing females the privilege of voting. I do this because I know frompast experience that these popular objections, having no logical bearingupon the subject, are yet, practically, among the most potent argumentsagainst the interpretation of the fourteenth amendment, which I considerthe only one that its language fairly admits of. 

It is said that women do not desire to vote. Certainly many women donot, but that furnishes no reason for denying the right to those who dodesire to vote. Many men decline to vote. Is that a reason for denyingthe right to those who would vote?

I believe, however, that the public mind is greatly in error in regardto the proportion of female citizens who would vote if their right to doso were recognized. In England there has been to some extent a test ofthat question, with the following result, as given in the newspapers, the correctness of which, in this respect, I think there is no reason todoubt:

"Woman suffrage is, to a certain extent, established in England, withthe result as detailed in the London _Examiner_, that in 66 municipalelections, out of every 1, 000 women who enjoy equal rights with men onthe register, 516 went to the poll, which is but 48 less than theproportionate number of men. And out of 27, 949 women registered, where acontest occurred, 14, 416 voted. Of men there were 166, 781 on theregister, and 90, 080 at the poll. The _Examiner_ thereupon draws thisconclusion: 'Making allowance for the reluctance of old spinsters tochange their habits, and the more frequent illness of the sex, it ismanifest that women, if they had opportunity, would exercise thefranchise as freely as men. There is an end, therefore, of the argumentthat women would not vote if they had the power. '"

Our law books furnish, perhaps, more satisfactory evidence of theearnestness 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 beforethe Court of Common Pleas in England in 1869. It was an appeal from thedecision of the revising barrister, for the borough of Manchester, tothe effect "that Mary Abbott, being a woman, was not entitled to beplaced on the register. " Her right was perfect in all respects exceptingthat of sex. The court, after a very full and able discussion of thesubject, sustained the decision of the revising barrister, denying towomen the right to be placed on the register, and consequently denyingtheir right to vote. The decision rested upon the peculiar phraseologyof several Acts of Parliament, and the point decided has noapplicability here. My object in referring to the case has been to callattention to the fact stated by the reporter, _that appeals of 5, 436other women were consolidated and decided with this_. No better evidencecould be furnished of the extent and earnestness of the claim of womenin 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 givenby women, as mentioned in the newspapers, were given at municipalelections merely, and that the cases decided by the Court of CommonPleas relate to elections for members of Parliament. 

Another objection is, that the right to hold office must attend theright to vote, and that women are not qualified to discharge the dutiesof 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 highoffices? How many of the large class to whom the right of voting issupposed to have been secured by the fifteenth amendment, are qualifiedto hold office?

Whenever the qualifications of persons to discharge the duties ofresponsible offices is made the test of their right to vote, and we areto have a competitive examination on that subject, open to allclaimants, my client will be content to enter the lists, and take herchances among the candidates for such honors. 

But the practice of the world, and our own practice, give the lie tothis objection. Compare the administration of female sovereigns of greatkingdoms, from Semiramis to Victoria, with the average administration ofmale sovereigns, and which will suffer by the comparison? How often havemothers governed large kingdoms, as regents, during the minority oftheir sons, and governed them well? Such offices as the "sovereigns" whorule them in this country have allowed women to hold (they having novoice on the subject), they have discharged the duties of with everincreasing satisfaction to the public; and Congress has lately passedan act, making the official bonds of married women valid, so that theycould be appointed to the office of postmaster. 

The case of _Olive vs. Ingraham (7 Modern Rep. 263)_ was an actionbrought to try the title to an office. On the death of the sexton of theparish of St. Butolph, the place was to be filled by election, thevoters being the housekeepers who "paid Scot and lot" in the parish. Thewidow of the deceased sexton (Sarah Bly) entered the lists againstOlive, the plaintiff in the suit, and received 169 indisputable votes, and 40 votes given by women who were "housekeepers, and paid to churchand poor. " The plaintiff had 174 indisputable votes, and 22 votes givenby such women as voted for Mrs. Bly. Mrs. Bly was declared elected. Theaction was brought to test two questions: 1. Whether women were legalvoters; and 2. Whether a woman was capable of holding the office. Thecase was four times argued in the King's Bench, and all the judgesdelivered opinions, holding that the women were competent voters; thatthe widow was properly elected, and could hold the office. 

In the course of the discussion it was shown that women had held manyoffices, those of constable, church warden, overseer of the poor, keeperof the "gate house" (a public prison), governess of a house ofcorrection, keeper of castles, sheriffs of counties, and high constableof England. 

If women are legally competent to hold minor offices, I would be glad tohave the rule of law, or of propriety, shown which should exclude themfrom higher offices, and which marks the line between those which theymay and those which they may not hold. 

Another objection is that women cannot serve as soldiers. To this Ianswer that capacity for military service has never been made a test ofthe right to vote. If it were, young men from sixteen to twenty-onewould be entitled to vote, and old men from sixty and up-wards wouldnot. If that were the test, some women would present much strongerclaims than many of the male sex. 

Another objection is that engaging in political controversies is notconsistent with the feminine character. Upon that subject, womenthemselves are the best judges, and if political duties should be foundinconsistent with female delicacy, we may rest assured that women willeither effect a change in the character of political contests, ordecline to engage in them. This subject may be safely left to theirsense of delicacy and propriety. 

If any difficulty on this account should occur, it may not be impossibleto receive the votes of women at their places of residence. This methodof voting was practiced in ancient Rome under the republic; and it willbe remembered that when the votes of the soldiers who were fighting ourbattles in the Southern States were needed to sustain their friends athome, no difficulty was found in the way of taking their votes at theirrespective camps. 

I humbly submit to your honor, therefore, that on the constitutionalgrounds to which I have referred, Miss Anthony had a lawful right tovote; that her vote was properly received and counted; that the firstsection of the fourteenth amendment secured to her that right, and didnot need the aid of any further legislation. 

But conceding that I may be in error in supposing that Miss Anthony hada right to vote, she has been guilty of no crime, if she voted in goodfaith believing that she had such right. 

This proposition appears to me so obvious, that were it not for theseverity to my client of the consequences which may follow a conviction, I should not deem it necessary to discuss it. 

To make out the offence, it is incumbent on the prosecution to showaffirmatively, not only that the defendant knowingly voted, but that sheso 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 beabsurd. We cannot conceive of a case where a party could vote withoutknowledge of the fact of voting, and to apply the term "knowingly" tothe more act of voting, would make nonsense of the statute. This wordwas inserted as defining the essence of the offence, and it limits thecriminality to cases where the voting is not only without right, butwhere it is done wilfully, with a _knowledge that it is without right_. Short of that there is no offence within the statute. This would be soupon well established principles, even if the word "knowingly" had beenomitted, but that word was inserted to prevent the possibility of doubton the subject, and to furnish security against the inability of stupidor prejudiced judges or jurors, to distinguish between wilful wrong andinnocent mistake. If the statute had been merely, that "if at anyelection for representative in Congress any person shall vote withouthaving a lawful right to vote, such person shall be deemed guilty of acrime, " there could have been justly no conviction under it, withoutproof that the party voted _knowing_ that he had not a right to vote. Ifhe voted innocently supposing he had the right to vote, but had not, itwould not be an offence within the statute. An innocent mistake is not acrime, and no amount of judicial decisions can make it such. 

Mr. Bishop says, (1 Cr. Law, §205): "There can be no crime unless _aculpable intent_ accompanies the criminal act. " The same author, (1 Cr. Prac. §521), repeated in other words, the same idea: "In order torender a party criminally responsible, _a vicious will_ must concur witha wrongful act. "

I quote from a more distinguished author: "_Felony is always accompaniedwith an evil intention, and therefore shall not be imputed to a meremistake, or misanimadversion_, as where persons break open a door, inorder to execute a warrant, which will not justify such proceeding:_Affectio enim tua nomen imponit operi tuo: item crimen non contrahiturnisi nocendi, voluntas intercedat_, " which, as I understand, may read:"For your volition puts the name upon your act; and _a crime is notcommitted unless the will of the offender takes part in it_. "

 1 Hawk. P. C. , p. 99, Ch. 85, §3. 

This quotation by Hawkins is, I believe, from Bracton, which carries theprinciple back to a very early period in the existence of the commonlaw. It is a principle, however, which underlies all law, and must havebeen recognized at all times, wherever criminal law has beenadministered, with even the slightest reference to the principles ofcommon morality and justice. 

I quote again on this subject from Mr. Bishop: "The doctrine of _theintent_ as it prevails in the criminal law, is necessarily _one of thefoundation principles of public justice_. There is only one criterion bywhich the guilt of man is to be tested. It is whether the mind iscriminal. Criminal law relates only to crime. And neither inphilosophical speculation, nor in religious or moral sentiment, wouldany people in any age allow that a man should be deemed guilty unlesshis mind was so. It is, therefore, a principle of our legal system, asprobably it is of every other, that _the essence of an offence is thewrongful intent without which it cannot exist_. " (_1 Bishop's Crim. Law, §287. _)

Again, the same author, writing on the subject of _knowledge_, asnecessary to establish the intent, says: "It is absolutely necessary toconstitute guilt, as in indictments for uttering forged tokens, or otherattempts to defraud, or for receiving stolen goods, and offences of asimilar description. " (_1 Crim. Prac. §504. _)

In regard to the offence of obtaining property by false pretenses, theauthor says: "The indictment must allege that the defendant knew thepretenses to be false. _This is necessary upon the general principles ofthe law_, in order to show an offence, even though the statute does notcontain the word 'knowingly. '" (_2 Id. §172. _)

As to a _presumed knowledge_ of the law, where the fact involves aquestion of law, the same author says: "The general doctrine laid downin the foregoing sections, " (i. E. That every man is presumed to know thelaw, and that ignorance of the law does not excuse, ) "is plain in itselfand plain in its application. Still there are cases, the precise natureand extent of which are not so obvious, wherein ignorance of the lawconstitutes, in a sort of indirect way, not in itself a defence, but afoundation on which another defence rests. Thus, if the guilt orinnocence of a prisoner, depends on the fact to be found by the jury, ofhis having been or not, when he did the act, in some precise mentalcondition, _which mental condition is the gist of the offence_, the juryin determining this question of mental condition, _may_ take intoconsideration his ignorance or misinformation in a matter of law. Forexample, to constitute larceny, there must be an intent to steal, whichinvolves the knowledge that the property taken does not belong to thetaker; yet, if all the facts concerning the title are known to theaccused, and so the question is one merely of law whether the propertyis his or not, still he may show, and the showing _will be a defence_ tohim against the criminal proceeding, that he _honestly believed it histhrough a misapprehension of the law_. "

 (1 Cr. Law, §297. )

The conclusions of the writer here, are correct, but in a part of thestatement the learned author has thrown some obscurity over his ownprinciples. The doctrines elsewhere enunciated by him, show with greatclearness, that in such cases _the state of the mind constitutes theessence of the offence_, and if the state of the mind which the lawcondemns does not exist, in connection with the act, there is nooffence. It is immaterial whether its non-existence be owing toignorance of law or ignorance of fact, in either case the fact which thelaw condemns, the criminal intent, is wanting. It is not, therefore, inan "indirect way, " that ignorance of the law in such cases constitutes adefence, but in the most direct way possible. It is not a fact whichjurors "may take into consideration, " or not, at their pleasure, butwhich they must take into consideration, because, in case the ignoranceexists, no matter from what cause, _the offence which the statutedescribes is not committed_. In such case, ignorance of the law is notinterposed as a shield to one committing a criminal act, but merely toshow, as it does show, that no criminal act has been committed. 

I quote from Sir Mathew Hale on the subject. Speaking of larceny, thelearned author says: "As it is _cepit_ and _asportavit_, so it must be_felonice_, or _animo furandi_, otherwise it is not felony, for _it isthe mind_ that makes the taking of another's goods to be a felony, or abare trespass only; but because the intention and mind are secret, theintention must be judged of by the circumstances of the fact, and thesecircumstances are various, and may sometimes deceive, yet regularly andordinarily 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 bea trick to colour a felony, and the ordinary discovery of a feloniousintent is, if the party doth it secretly, or being charged with thegoods denies it. "

 (1 Hales P. C. 509. )

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

[The following cases and authorities were referred to and commented uponby the counsel, as sustaining his positions: _U. S. Vs. Conover, 3McLean's Rep. 573; The State vs. McDonald, 4 Harrington, 555; The Statevs. 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'sCase, 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 cannot bereconciled with the position which I have endeavoured to maintain, and Iam sorry to say that one of them is found in the reports of this State. As the other cases are referred to in that, and the principle, if theycan be said to stand on any principle, is in all of them the same, itwill only be incumbent on me to notice that one. That case is not onlyirreconcilable with the numerous authorities and the fundamentalprinciples of criminal law to which I have referred, but the enormity ofits injustice is sufficient alone to condemn it. I refer to the case of_Hamilton vs. The People_, (_57 Barb. 725_). In that case Hamilton hadbeen convicted of a misdemeanor, in having voted at a general election, after having been previously convicted of a felony and sentenced to twoyears imprisonment in the state prison, and not having been pardoned;the conviction having by law deprived him of citizenship and right tovote, unless pardoned and restored to citizenship. The case came upbefore the General Term of the Supreme Court, on writ of error. Itappeared that on the trial evidence was offered, that before theprisoner was discharged from the state prison, he and his father appliedto 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 hisdischarge from prison, a pardon would not be necessary, and that hewould be entitled to all the rights of a citizen on his coming of age. They also applied to two respectable counsellors of the Supreme Court, and they confirmed the Governor's opinion. All this evidence wasrejected. It appeared that the prisoner was seventeen years old whenconvicted of the felony, and was nineteen when discharged from prison. The rejection of the evidence was approved by the Supreme Court on theground that the prisoner was bound to know the law, and was presumed todo so, and his conviction was accordingly confirmed. 

Here a young man, innocent so far as his conduct in this case wasinvolved, was condemned, for acting in good faith upon the advice, (mistaken advice it may be conceded, ) of one governor and two lawyers towhom he applied for information as to his rights; and this condemnationhas proceeded upon the assumed ground, conceded to be false in fact, that he knew the advice given to him was wrong. On this judicial fictionthe young man, in the name of justice, is sent to prison, punished for amere mistake, and a mistake made in pursuance of such advice. It cannotbe, consistently with the radical principles of criminal law to which Ihave referred, and the numerous authorities which I have quoted, thatthis man was guilty of a crime, that his _mistake_ was a crime, and Ithink the judges who pronounced his condemnation, upon their ownprinciples, better than their victim, deserved the punishment which theyinflicted. 

The condemnation of Miss Anthony, her good faith being conceded, woulddo 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 beenadvised, as was clearly the fact, that the question as to her rightcould not be brought before the courts for trial, without her voting oroffering to vote, and if either was criminal, the one was as much so asthe other. Therefore she stands, now arraigned as a criminal, for takingthe only steps by which it was possible to bring the greatconstitutional question as to her right, before the tribunals of thecountry for adjudication. If for thus acting, in the most perfect goodfaith, with motives as pure and impulses as noble as any which can findplace in your honor's breast in the administration of justice, she is bythe laws of her country to be condemned as a criminal, she must abidethe consequences. Her condemnation, however, under such circumstances, would only add another most weighty reason to those which I have alreadyadvanced, to show that women need the aid of the ballot for theirprotection. 

Upon the remaining question, of the good faith of the defendant, it isnot necessary for me to speak. That she acted in the most perfect goodfaith stands conceded. 

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

 * * *

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 abrief statement in writing. 

The defendant is indicted under the act of Congress of 1870, for havingvoted for Representatives in Congress in November, 1872. Among otherthings, that Act makes it an offence for any person knowingly to votefor such Representatives without having a right to vote. It is chargedthat the defendant thus voted, she not having a right to vote becauseshe is a woman. The defendant insists that she has a right to vote; thatthe provision of the Constitution of this State limiting the right tovote to persons of the male sex is in violation of the 14th Amendment ofthe Constitution of the United States, and is void. The 13th, 14th and15th Amendments were designed mainly for the protection of the newlyemancipated negroes, but full effect must nevertheless be given to thelanguage employed. The 13th Amendment provided that neither slavery norinvoluntary servitude should longer exist in the United States. Ifhonestly received and fairly applied, this provision would have beenenough to guard the rights of the colored race. In some States it wasattempted to be evaded by enactments cruel and oppressive in theirnature, as that colored persons were forbidden to appear in the townsexcept in a menial capacity; that they should reside on and cultivatethe soil without being allowed to own it; that they were not permittedto give testimony in cases where a white man was a party. They wereexcluded from performing particular kinds of business, profitable andreputable, and they were denied the right of suffrage. To meet thedifficulties arising from this state of things, the 14th and 15thAmendments were enacted. 

The 14th Amendment created and defined citizenship of the United States. It had long been contended, and had been held by many learnedauthorities, and had never been judicially decided to the contrary, thatthere was no such thing as a citizen of the United States, except asthat condition arose from citizenship of some State. No mode existed, itwas said, of obtaining a citizenship of the United States except byfirst becoming a citizen of some State. This question is now at rest. The 14th Amendment defines and declares who should be citizens of theUnited States, to wit: "All persons born or naturalized in the UnitedStates and subject to the jurisdiction thereof. " The latterqualification was intended to exclude the children of foreignrepresentatives and the like. With this qualification every person bornin the United States or naturalized is declared to be a citizen of theUnited States, and of the State wherein he resides. After creating anddefining citizenship of the United States, the Amendment provides thatno State shall make or enforce any law which shall abridge theprivileges or immunities of a citizen of the United States. This clauseis intended to be a protection, not to all our rights, but to our rightsas citizens of the United States only; that is, the rights existing orbelonging to that condition or capacity. The words "or citizen of aState, " used in the previous paragraph are carefully omitted here. Inarticle 4, paragraph 2, of the Constitution of the United States it hadbeen already provided in this language, viz: "the citizens of each Stateshall be entitled to all the privileges and immunities of the citizensin the several States. " The rights of citizens of the States and ofcitizens of the United States are each guarded by these differentprovisions. That these rights were separate and distinct, was held inthe Slaughter House Cases recently decided by the United States SupremeCourt at Washington. The rights of citizens of the State, as such, arenot under consideration in the 14th Amendment. They stand as they didbefore the adoption of the 14th Amendment, and are fully guaranteed byother provisions. The rights of citizens of the States have been thesubject of judicial decision on more than one occasion. _Corfield agt. Coryell, 4 Wash. ; C. C. R. , 371. Ward agt. Maryland; 12 Wall. , 430. Paulagt. Virginia, 8 Wall. , 140. _

These are the fundamental privileges and immunities belonging of rightto the citizens of all free governments, such as the right of life andliberty; the right to acquire and possess property, to transactbusiness, to pursue happiness in his own manner, subject to suchrestraint as the Government may adjudge to be necessary for the generalgood. In _Cromwell agt. Nevada, 6 Wallace, 36_, is found a statement ofsome of the rights of a citizen of the United States, viz: "To come tothe seat of the Government to assert any claim he may have upon theGovernment, to transact any business he may have with it; to seek itsprotection; to share its offices; to engage in administering itsfunctions. He has the right of free access to its seaports through whichall operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States. " Anotherprivilege of a citizen of the United States, says Miller, Justice, inthe "Slaughter House" cases, is to demand the care and protection of theFederal Government over his life, liberty and property when on the highseas or within the jurisdiction of a foreign government. The right toassemble and petition for a redress of grievances, the privilege of thewrit of _habeas corpus_, he says, are rights of the citizen guaranteedby the Federal Constitution. 

The right of voting, or the privilege of voting, is a right or privilegearising under the Constitution of the State, and not of the UnitedStates. The qualifications are different in the different States. Citizenship, age, sex, residence, are variously required in thedifferent States, or may be so. If the right belongs to any particularperson, it is because such person is entitled to it by the laws of theState where he offers to exercise it, and not because of citizenship ofthe United States. If the State of New York should provide that noperson should vote until he had reached the age of 31 years, or after hehad reached the age of 50, or that no person having gray hair, or whohad not the use of all his limbs, should be entitled to vote, I do notsee how it could be held to be a violation of any right derived or heldunder the Constitution of the United States. We might say that suchregulations were unjust, tyrannical, unfit for the regulation of anintelligent State; but if rights of a citizen are thereby violated, theyare of that fundamental class derived from his position as a citizen ofthe State, and not those limited rights belonging to him as a citizen ofthe United States, and such was the decision in _Corfield agt. Coryell_. (Supra. ) The United States rights appertaining to this subject are thosefirst under article I, paragraph 2, of the United States Constitution, which provides that electors of Representatives in Congress shall havethe qualifications requisite for electors of the most numerous branch ofthe State Legislature, and second, under the 15th Amendment, whichprovides that the right of a citizen of the United States to vote shallnot be denied or abridged by the United States, or by any State, onaccount of race, color, or previous condition of servitude. If theLegislature of the State of New York should require a higherqualification in a voter for a representative in Congress than isrequired 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 UnitedStates. That right is in relation to a Federal subject or interest, andis guaranteed by the Federal Constitution. The inability of a State toabridge the right of voting on account of race, color, or previouscondition of servitude, arises from a Federal guaranty. Its violationwould be the denial of a Federal right--that is a right belonging to theclaimant as a citizen of the United States. 

This right, however, exists by virtue of the 15th Amendment. If the 15thAmendment had contained the word "sex, " the argument of the defendantwould have been potent. She would have said, an attempt by a State todeny the right to vote because one is of a particular sex, is expresslyprohibited by that Amendment. The amendment, however, does not containthat word. It is limited to race, color, or previous condition ofservitude. 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 sayingthis, there is, in my judgment, no violation of the letter or of thespirit of the 14th or of the 15th Amendment. This view is assumed in thesecond section of the 14th Amendment, which enacts that if the right tovote for Federal officers is denied by any state to any of the maleinhabitants of such State, except for crime, the basis of representationof such State shall be reduced in proportion specified. Not only doesthis section assume that the right of male inhabitants to vote was theespecial object of its protection, but it assumes and admits the rightof a State, notwithstanding the existence of that clause under which thedefendant claims to the contrary, to deny to classes or portions of themale inhabitants the right to vote which is allowed to other maleinhabitants. The regulation of the suffrage is thereby conceded to theStates as a State's right. The case of Myra Bradwell, decided at arecent term of the Supreme Court of the United States, sustains both thepositions above put forth, viz: First, that the rights referred to inthe 14th Amendment are those belonging to a person as a citizen of theUnited States and not as a citizen of a State, and second, that a rightof the character here involved is not one connected with citizenship ofthe United States. Mrs. Bradwell made application to be admitted topractice as an attorney and counsellor at law, in the Courts ofIllinois. Her application was denied, and upon appeal to the SupremeCourt of the United States, it was there held that to give jurisdictionunder the 14th Amendment, the claim must be of a right pertaining tocitizenship of the United States, and that the claim made by her didnot come within that class of cases. Mr. Justice Bradley and Mr. Justice Field held that a woman was not entitled to a license topractice law. It does not appear that the other Judges passed upon thatquestion. 

The 14th Amendment gives no right to a woman to vote, and the voting byMiss Anthony was in violation of the law. 

If she believed she had a right to vote, and voted in reliance upon thatbelief, does that relieve her from the penalty? It is argued that theknowledge referred to in the act relates to her knowledge of theillegality of the act, and not to the act of voting; for it is said thatshe must know that she voted. Two principles apply here: First, ignorance of the law excuses no one; second, every person is presumed tounderstand and to intend the necessary effects of his own acts. MissAnthony knew that she was a woman, and that the constitution of thisState prohibits her from voting. She intended to violate thatprovision--intended to test it, perhaps, but certainly intended toviolate it. The necessary effect of her act was to violate it, and thisshe is presumed to have intended. There was no ignorance of any fact, but all the facts being known, she undertook to settle a principle inher own person. She takes the risk, and she cannot escape theconsequences. It is said, and authorities are cited to sustain theposition, that there can be no crime unless there is a culpable intent;to render one criminally responsible a vicious will must be present. Acommits a trespass on the land of B, and B, thinking and believing thathe has a right to shoot an intruder on his premises, kills A on thespot. Does B's misapprehension of his rights justify his act? Would aJudge be justified in charging the jury that if satisfied that Bsupposed he had a right to shoot A he was justified, and they shouldfind a verdict of not guilty? No Judge would make such a charge. Toconstitute 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 alwaysheld to supply this intent. An intentional killing bears with itevidence of malice in law. Whoever, without justifiable cause, intentionally kills his neighbor, is guilty of a crime. The principle isthe same in the case before us, and in all criminal cases. The precisequestion now before me has been several times decided, viz. : that oneillegally voting was bound and was assumed to know the law, and that abelief that he had a right to vote gave no defense, if there was nomistake of fact. (Hamilton against The People, 57th of Barbour, p. 625;State against Boyet, 10th of Iredell, p. 336; State against Hart, 6thJones, 389; McGuire against State, 7 Humphrey, 54; 15th of Iowa reports, 404. ) No system of criminal jurisprudence can be sustained upon anyother principle. Assuming that Miss Anthony believed she had a right tovote, that fact constitutes no defense if in truth she had not theright. She voluntarily gave a vote which was illegal, and thus issubject to the penalty of the law. 

Upon this evidence I suppose there is no question for the jury and thatthe jury should be directed to find a verdict of guilty. 

JUDGE SELDEN: I submit that on the view which your Honor has taken, thatthe 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 StatesCourts and of Congress. The whole law upon that basis, as I understandit, is not within the constitutional power of the general Government, but is one which applies to the States. I suppose that it is for thejury to determine whether the defendant is guilty of a crime or not. AndI therefore ask your Honor to submit to the jury these propositions:

First--If the defendant, at the time of voting, believed that she had aright to vote and voted in good faith in that belief, she is not guiltyof the offense charged. 

Second--In determining the question whether she did or did not believethat she had a right to vote, the jury may take into consideration, asbearing upon that question, the advice which she received from thecounsel to whom she applied. 

Third--That they may also take into consideration, as bearing upon thesame question, the fact that the inspectors considered the question andcame to the conclusion that she had a right to vote. 

Fourth--That the jury have a right to find a general verdict of guiltyor not guilty as they shall believe that she has or has not committedthe offense described in the Statute. 

A professional friend sitting by has made this suggestion which I takeleave to avail myself of as bearing upon this question: "The Court haslistened for many hours to an argument in order to decide whether thedefendant has a right to vote. The arguments show the same question hasengaged the best minds of the country as an open question. Can it bepossible that the defendant is to be convicted for acting upon suchadvice as she could obtain while the question is an open and undecidedone?"

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 hasnot been guilty of an offense. At all events it is for the jury. 

THE COURT: I cannot charge these propositions of course. The question, gentlemen of the jury, in the form it finally takes, is wholly aquestion or questions of law, and I have decided as a question of law, in the first place, that under the 14th Amendment, which Miss Anthonyclaims protects her, she was not protected in a right to vote. And Ihave decided also that her belief and the advice which she took doesnot 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 thereforedirect that you find a verdict of guilty. 

JUDGE SELDEN: That is a direction no Court has power to make in acriminal case. 

THE COURT: Take the verdict, Mr. Clerk. 

THE CLERK: Gentlemen of the jury, hearken to your verdict as the Courthas recorded it. You say you find the defendant guilty of the offensewhereof she stands indicted, and so say you all?

JUDGE SELDEN: I don't know whether an exception is available, but Icertainly must except to the refusal of the Court to submit thosepropositions, and especially to the direction of the Court that the juryshould find a verdict of guilty. I claim that it is a power that is notgiven 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 by Judge Selden, asfollows:

_May it please the Court_:

The trial of this case commenced with a question of very greatmagnitude--whether by the constitution of the United States the right ofsuffrage was secured to female equally with male citizens. It is likelyto close with a question of much greater magnitude--whether the right oftrial by jury is absolutely secured by the federal constitution topersons 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 caseit should appear that in the haste and in the lack of opportunity forexamination which necessarily attend a jury trial, any material errorshould have been committed prejudicial to the defendant, as otherwise nomeans whatever are provided by the law for the correction of sucherrors. 

The defendant was indicted, under the nineteenth section of the act ofCongress of May 31st, 1870, entitled, "An act to enforce the right ofcitizens of the United States to vote in the several states of thisUnion, and for other purposes, " and was charged with having knowinglyvoted, without having a lawful right to vote, at the congressionalelection 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 thepresent case, are as follows:

"Section 19. If at any election for representative or delegate in theCongress of the United States, any person shall knowingly personate andvote, or attempt to vote, in the name of any other person, whetherliving, dead or fictitious, or vote more than once at the same electionfor any candidate for the same office, or vote at a place where he maynot be lawfully entitled to vote, or vote without having a lawful rightto vote, . . . Every such person shall be deemed guilty of a crime, andshall for such crime be liable to prosecution in any court of the UnitedStates, of competent jurisdiction, and, on conviction thereof, shall bepunished by a fine not exceeding $500 or by imprisonment for a term notexceeding three years, or both, in the discretion of the Court, andshall pay the costs of prosecution. "

It appeared on the trial that before voting the defendant called upon arespectable lawyer, and asked his opinion whether she had a right tovote, and he advised her that she had such right, and the lawyer wasexamined as a witness in her behalf, and testified that he gave her suchadvice, and that he gave it in good faith, believing that she had suchright. 

It also appeared that when she offered to vote, the question whether asa woman she had a right to vote, was raised by the inspectors, andconsidered by them in her presence, and they decided that she had aright to vote, and received her vote accordingly. 

It was also shown on the part of the government, that on the examinationof the defendant before the commissioner, on whose warrant she wasarrested, she stated that she should have voted, if allowed to vote, without reference to the advice she had received from the attorney whoseopinion she had asked; that she was not influenced to vote by thatopinion; that she had before determined to offer her vote, and had nodoubt about her right to vote. 

At the close of the testimony the defendant's counsel proceeded toaddress the jury, and stated that he desired to present forconsideration 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, it shehonestly believed that she had that right and voted in good faith inthat belief, she was guilty of no crime. 

Third--That when she gave her vote she gave it in good faith, believingthat it was her right to do so. 

That the two first propositions presented questions for the Court todecide, and the last for the jury. 

When the counsel had proceeded thus far, the Court suggested that thecounsel had better discuss in the first place the questions of law;which the counsel proceeded to do, and having discussed the two legalquestions at length, asked leave then to say a few words to the jury onthe question of fact. The Court then said to the counsel that he thoughtthat had better be left until the views of the Court upon the legalquestions should be made known. 

The District Attorney thereupon addressed the Court at length upon thelegal questions, and at the close of his argument the Court delivered anopinion adverse to the positions of the defendant's counsel upon both ofthe legal questions presented, holding that the defendant was notentitled to vote; and that if she voted in good faith in the belief infact that she had a right to vote, it would constitute no defense--thegrounds of the decision on the last point being that she was bound toknow that by law she was not a legal voter, and that even if she votedin good faith in the contrary belief, it constituted no defense to thecrime with which she was charged. The decision of the Court upon thesequestions was read from a written document. 

At the close of the reading, the Court said that the decision of thesequestions disposed of the case and left no question of fact for thejury, and that he should therefore direct the jury to find a verdict ofguilty, and proceeded to say to the jury that the decision of the Courthad disposed of all there was in the case, and that he directed them tofind a verdict of guilty, and he instructed the clerk to enter a verdictof guilty. 

At this point, before any entry had been made by the clerk, thedefendant's counsel asked the Court to submit the case to the jury, andto give to the jury the following several instructions:

First--That if the defendant, at the time of voting, believed that shehad a right to vote, and voted in good faith in that belief, she is notguilty of the offence charged. 

Second--In determining the question whether she did or did not believethat she had a right to vote, the jury may take into consideration, asbearing upon that question, the advice which she received from thecounsel to whom she applied. 

Third--That they may also take into consideration as bearing upon thesame question, the fact that the inspectors considered the question, andcame to the conclusion that she had a right to vote. 

Fourth--That the jury have a right to find a general verdict of guiltyor not guilty, as they shall believe that she has or has not been guiltyof the offense described in the statute. 

The Court declined to submit the case to the jury upon any questionwhatever, and directed them to render a verdict of guilty against thedefendant. 

The defendant's counsel excepted to the decision of the Court upon thelegal questions to its refusal to submit the case to the jury: to itsrefusal to give the instructions asked; and to its direction to the juryto find a verdict of guilty against the defendant--the counsel insistingthat it was a direction which no Court had a right to give in a criminalcase. 

The Court then instructed the clerk to take the verdict, and the clerksaid, "Gentlemen of the jury, hearken to the verdict as the Court hathrecorded it. You say you find the defendant guilty of the offencecharged. So say you all. "

No response whatever was made by the jury, either by word or sign. Theyhad not consulted together in their seats or otherwise. Neither of themhad spoken a word. Nor had they been asked whether they had or had notagreed upon a verdict. 

The defendant's counsel then asked that the clerk be requested to pollthe jury. The Court said, "that cannot be allowed. Gentlemen of thejury, you are discharged, " and the jurors left the box. No juror spoke aword during the trial, from the time they were impanelled to the time oftheir discharge. 

Now I respectfully submit, that in these proceedings the defendant hasbeen substantially denied her constitutional right of trial by jury. Thejurors composing the panel have been merely silent spectators of theconviction of the defendant by the Court. They have had no more share inher trial and conviction than any other twelve members of the jurysummoned to attend this Court, or any twelve spectators who have sat byduring the trial. If such course is allowable in this case, it must beequally allowable in all criminal cases, whether the charge be fortreason, murder or any minor grade of offence which can come under thejurisdiction of a United States court; and as I understand it, ifcorrect, substantially abolishes the right of trial by jury. 

It certainly does so in all those cases, where the judge shall be of theopinion that the facts which he may regard as clearly proved, leadnecessarily to the guilt of the defendant. Of course by refusing tosubmit any question to the jury, the judge refuses to allow counsel toaddress the jury in the defendant's behalf. 

The constitutional provisions which I insist are violated by thisproceeding are the following:

Constitution of the United States, article 3, section 2. "The trial ofall 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 animpartial jury of the State and District wherein the crime shall havebeen committed, which district shall have been previously ascertained bylaw; and to be informed of the nature and cause of the accusation; tobe confronted with the witnesses against him; to have compulsory processfor obtaining witnesses in his favor, and to have the assistance ofcounsel for his defense. "

In accordance with these provisions, I insist that in every criminalcase, where the party has pleaded not guilty, whether upon the trial theguilt of such party appears to the Judge to be clear or not, theresponse to the question, guilty or not guilty, must come from the jury, must be their voluntary act, and cannot be imposed upon them by theCourt. 

No opportunity has been given me to consult precedents on this subject, but a friend has referred me to an authority strongly supporting myposition, from which I will quote, though I deem a reference toprecedents unnecessary to sustain the plain declarations of theConstitution: I refer to the case of the _State vs. Shule_, (_10Iredell, 153_, ) the substance of which is stated in _2 Graham &Waterman_ on New Trials, page 363. Before stating that case I quote fromthe 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 theprosecuting attorney they were sent for by the Court. The Court thencharged them that although Jones, (the other defendant, ) had firstcommenced a battery upon Shule, yet, if the jury believed the evidence, the defendant, Shule, was also guilty. Thereupon, one of the jurorsremarked that they had agreed to convict Jones, but were about to acquitShule. The Court then charged the jury again, and told them that theycould retire if they thought proper to do so. The jury consultedtogether a few minutes in the Court room. The prosecuting attorneydirected 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 toit, as it was about to be read by the clerk. The clerk then read theverdict in the hearing of the jury. The jury, upon being requested, ifany of them disagreed to the verdict to make, it known by a nod, seemedto express their unanimous assent; and no juror expressed his dissent. "In reviewing the case the Court say: "The error complained of is, thatbefore the jury had announced their verdict, and in fact after they hadintimated an intention to acquit the defendant, Shule, the Court allowedthe clerk to be directed to enter a verdict finding him guilty, andafter the verdict was so entered, allowed the jury to be asked if any ofthem disagreed to the verdict which had been recorded by the clerk. Nojuror expressed his dissent; but by a nod which appeared to be made byeach juror, expressed their unanimous assent. The innovation is, thatinstead of permitting the jury to give their verdict, the Court allows averdict to be entered for them, such as it is to be presumed the Courtthinks they ought to render, and then they are asked if any of themdisagree to it; thus making a verdict for them, unless they are boldenough to stand out against a plain intimation of the opinion of theCourt. " A _venire de novo_ was ordered. The principal difference betweenthis case and the one under consideration is, that in the latter theCourt directed the clerk to enter the verdict, and in the former he wasallowed to do so, and in the latter the Court denied liberty to thejurors to dissent from the verdict, and in the former the Court allowedsuch dissent. 

With what jealous care the right of trial by jury in criminal cases hasbeen guarded by every English speaking people from the days of KingJohn, indeed from the days of King Alfred, is known to every lawyer andto every intelligent layman, and it does not seem to me that such alimitation of that right as is presented by the proceedings in thiscase, can be reconciled either with constitutional provisions, with thepractice of courts, with public sentiment on the subject, or with safetyin the administration of justice. How the question would be regarded bythe highest Court of this State may fairly be gathered from its decisionin the case of _Cancemi, 18 N. Y. , 128_, where, on a trial for murder, one juror, some time after the trial commenced, being necessarilywithdrawn, a stipulation was entered into, signed by theDistrict-Attorney, and by the defendant and his counsel, to the effectthat the trial should proceed before the remaining eleven jurors, andthat their verdict should have the same effect as the verdict of a fullpanel would have. A verdict of guilty having been rendered by the elevenjurors, 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, belawfully tried, by a less number of jurors than twelve. It would seem tofollow that he could not waive the entire panel, and effectually consentto be tried by the Court alone, and still less could the Court, againsthis protest, assume the duties of the jury, and effectually pronouncethe verdict of guilty or not guilty in their stead. 

It will doubtless be insisted that there was no disputed question offact upon which the jury were required to pass. In regard to that, Iinsist that however clear and conclusive the proof of the facts mightappear to be, the response to the question, guilty or not guilty, mustunder the Constitution come from the jury and could not be supplied bythe judgment of the Court, unless, indeed, the jury should see fit torender a special verdict, which they always may, but can never berequired, to do. 

It was the province of the Court to instruct the jury as to the law, andto point out to them how clearly the law, on its view of theestablished facts, made out the offence; but it has no authority toinstruct them positively on any question of fact, or to order them tofind any particular verdict. That must be their spontaneous work. 

But there was a question of fact, which constituted the very essence ofthe offence, and one on which the jury were not only entitled toexercise, but were in duty bound to exercise, their independentjudgment. That question of fact was, whether the defendant, at the timewhen she voted, knew that she had not a right to vote. The statute makesthis knowledge the very gist of the offence, without the existence ofwhich, in the mind of the voter, at the time of voting, there is nocrime. There is none by the statute and none in morals. The existence ofthis knowledge, in the mind of the voter, at the time of voting, isunder the statute, necessarily a fact and nothing but a fact, and onewhich the jury was bound to find as a fact, before they could, withoutviolating the statute, find the defendant guilty. The ruling which tookthat question away from the jury, on the ground that it was a questionof law and not of fact, and which declared that as a question of law, the knowledge existed, was, I respectfully submit, a most palpableerror, both in law and justice. It was an error in law, because itseffect was to deny any force whatever to the most important word whichthe statute uses in defining the offense--the word "knowingly. " It wasalso unjust, because it makes the law declare a known falsehood as atruth, and then by force of that judicial falsehood condemns thedefendant 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 thelaw. The soundness of this maxim, in all the cases to which it canproperly be applied, I have no desire to question; but it has noapplicability whatever to this case. It applies in every case where aparty does an act which the law pronounces criminal, whether the partyknows or does not know that the law has made the act a crime. That maximwould have applied to this case, if the defendant had voted, knowingthat she had no legal right to vote; without knowing that the law hadmade the act of knowingly voting without a right, a crime. In that caseshe would have done the act which the law made a crime, and could nothave 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 lawpronounces a crime. The law has not made the act of voting without alawful right to vote, a crime, where it is done by mistake, and in thebelief by the party voting that he has the lawful right to vote. Thecrime consists in voting "knowingly, " without lawful right. Unless theknowledge exists in fact, is the very gist of the offence is wanting. Tohold that the law presumes conclusively that such knowledge exists inall cases where the legal right is wanting, and to reject all evidenceto the contrary, or to deny to such evidence any effect, as has beendone on this trial, is to strike the word "knowingly" out of thestatute--and to condemn the defendant on the legal fiction that she wasacting in bad faith, it being all the while conceded that she was infact acting in good faith. I admit that there are precedents to sustainsuch ruling, but they cannot be reconciled with the fundamentalprinciples of criminal law, nor with the most ordinary rules of justice. Such a ruling cannot but shock the moral sense of all right-minded, unprejudiced men. 

No doubt the assumption by the defendant of a belief of her right tovote might be made use of by her as a mere cover to secure the privilegeof giving a known illegal vote, and of course that false assumptionwould constitute no defence to the charge of illegal voting. If thedefendant had dressed herself in male attire, and had voted as JohnAnthony, instead of Susan, she would not be able to protect herselfagainst a charge of voting with a knowledge that she had no right tovote, by asserting her belief that she had a right to vote as a woman. The artifice would no doubt effectually overthrow the assertion of goodfaith. No such question, however, is made here. The decision of which Icomplain concedes that the defendant voted in good faith, in the mostimplicit belief that she had a right to vote, and condemns her on thestrength 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, thatwas a question for the jury, and it was clear error for the court toassume the decision of it. 

Again. The denial of the right to poll the jury was most clearly anerror. Under the provisions of the constitution which have been cited, the defendant could only be convicted on the verdict of a jury. The caseof Cancemi shows that such jury must consist of twelve men; and it willnot be claimed that anything less than the unanimous voice of the jurycan be received as their verdict. How then could the defendant belawfully deprived of the right to ask every juror if the verdict had hisassent? I believe this is a right which was never before denied to aparty against whom a verdict was rendered in any case, either civil orcriminal. The following cases show, and many others might be cited tothe same effect, that the right to poll the jury is an absolute right inall 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 understand the decision of the court, "that the rights of thecitizens of the state as such were not under consideration in thefourteenth amendment; that they stand as they did before thatamendment. . . . The right of voting or the privilege of voting is a rightor privilege arising under the constitution of the state, and not of theUnited States. If the right belongs to any particular person, it isbecause such person is entitled to it as a citizen of the state where heoffers to exercise it, and not because of citizenship of the UnitedStates. . . . The regulation of the suffrage is conceded to the states as astate right. "

If this position be correct, which I am not now disposed to question, Irespectfully insist that the congress of the United States had no powerto pass the act in question, that by doing so it has attempted to usurpthe rights of the states, and that all proceedings under the act arevoid. 

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 severallywhether they assented to the verdict which the court had recorded forthem. 

Third--Because the court erroneously held, that the defendant had not alawful right to vote. 

Fourth--Because the court erroneously held, that if the defendant, whenshe voted, did so in good faith, believing that she had a right to vote, that fact constituted no defence. 

Fifth--Because the court erroneously held that the question, whether thedefendant, 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 offact to be decided by the jury. 

Sixth--Because the court erred in holding that it was a presumption oflaw that the defendant knew that she was not a legal voter, although infact she had not that knowledge. 

Seventh--Because congress had no constitutional right to pass the actunder which the defendant was indicted, and the act and all proceedingsunder 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, inwhich the decisions that are made in the haste and sometimes confusionof such trials, are not subject to review before any other tribunal. Ibelieve that to the decisions of this court, in criminal cases, noreview is allowed, except in the same court in the informal way in whichI now ask your honor to review the decisions made on this trial. This istherefore the court of last resort, and I hope your honor will give tothese, as they appear to me, grave questions, such careful anddeliberate consideration as is due to them from such final tribunal. 

If a new trial shall be denied to the defendant, it will be noconsolation to her to be dismissed with a slight penalty, leaving thestigma resting upon her name, of conviction for an offence, of which sheclaims to be, and I believe is, as innocent as the purest of themillions of male voters who voted at the same election, are innocent ofcrime in so voting. If she is in fact guilty of the crime with which shestands charged, and of which she has been convicted by the court, shedeserves the utmost penalty which the court under the law has power toimpose; if she is not guilty she should be acquitted, and not declaredupon the records of this high court guilty of a crime she nevercommitted. 

The court after hearing the district attorney, denied the motion. 

JUDGE HUNT--(Ordering the defendant to stand up), "Has the prisoneranything to say why sentence shall not be pronounced?"

MISS ANTHONY--Yes, your honor, I have many things to say; for in yourordered verdict of guilty, you have trampled under foot every vitalprinciple of our government. My natural rights, my civil rights, mypolitical rights, my judicial rights, are all alike ignored. Robbed ofthe fundamental privilege of citizenship, I am degraded from the statusof a citizen to that of a subject; and not only myself individually, butall of my sex, are, by your honor's verdict, doomed to politicalsubjection under this, so-called, form of government. 

JUDGE HUNT--The Court cannot listen to a rehearsal of arguments theprisoner'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 cannot, in justice, bepronounced against me. Your denial of my citizen's right to vote, is thedenial of my right of consent as one of the governed, the denial of myright of representation as one of the taxed, the denial of my right to atrial by a jury of my peers, as an offender against law, therefore, thedenial of my sacred rights to life, liberty, property and--

JUDGE HUNT--The Court cannot allow the prisoner to go on. 

MISS ANTHONY--But your honor will not deny me this one and only poorprivilege of protest against this high-handed outrage upon my citizen'srights. May it please the Court to remember that since the day of myarrest last November, this is the first time that either myself or anyperson of my disfranchised class has been allowed a word of defensebefore judge or jury--

JUDGE HUNT--The prisoner must sit down--the Court cannot allow it. 

MISS ANTHONY--All of my prosecutors, from the 8th ward corner grocerypolitician, who entered the complaint, to the United States Marshal, Commissioner, District Attorney, District Judge, your honor on thebench, 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 yourduty, even then I should have had just cause of protest, for not one ofthose men was my peer; but, native or foreign born, white or black, richor poor, educated or ignorant, awake or asleep, sober or drunk, each andevery man of them was my political superior; hence, in no sense, mypeer. Even, under such circumstances, a commoner of England, triedbefore a jury of Lords, would have far less cause to complain thanshould 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, sounanswerably before your honor, is my political sovereign. Precisely asno disfranchised person is entitled to sit upon a jury, and no woman isentitled to the franchise, so, none but a regularly admitted lawyer isallowed to practice in the courts, and no woman can gain admission tothe bar--hence, jury, judge, counsel, must all be of the superior class. 

JUDGE HUNT--The Court must insist--the prisoner has been tried accordingto 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 againstwomen; and hence, your honor's ordered verdict of guilty, against aUnited States citizen for the exercise of "_that citizen's right tovote_, " simply because that citizen was a woman and not a man. But, yesterday, the same man made forms of law, declared it a crimepunishable with $1, 000 fine and six months' imprisonment, for you, orme, or any of us, to give a cup of cold water, a crust of bread, or anight's shelter to a panting fugitive as he was tracking his way toCanada. And every man or woman in whose veins coursed a drop of humansympathy violated that wicked law, reckless of consequences, and wasjustified in so doing. As then, the slaves who got their freedom musttake it over, or under, or through the unjust forms of law, preciselyso, 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 possibleopportunity. 

JUDGE HUNT--The Court orders the prisoner to sit down. It will not allowanother word. 

MISS ANTHONY--When I was brought before your honor for trial, I hopedfor a broad and liberal interpretation of the Constitution and itsrecent amendments, that should declare all United States citizens underits protecting ægis--that should declare equality of rights the nationalguarantee to all persons born or naturalized in the United States. Butfailing 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 fullrigors 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 dollarsand the costs of the prosecution. 

MISS ANTHONY--May it please your honor, I shall never pay a dollar ofyour unjust penalty. All the stock in trade I possess is a $10, 000 debt, incurred by publishing my paper--_The Revolution_--four years ago, thesole object of which was to educate all women to do precisely as I havedone, rebel against your man-made, unjust, unconstitutional forms oflaw, that tax, fine, imprison and hang women, while they deny them theright of representation in the government; and I shall work on withmight and main to pay every dollar of that honest debt, but not a pennyshall go to this unjust claim. And I shall earnestly and persistentlycontinue to urge all women to the practical recognition of the oldrevolutionary maxim, that "Resistance to tyranny is obedience to God. "

JUDGE HUNT--Madam, the Court will not order you committed until the fineis paid. 

 * * *

INDICTMENT AGAINST BEVERLY W. JONES, EDWIN T. MARSH, AND WILLIAM B. HALL. 

 * * *

DISTRICT COURT OF THE UNITED STATES OF AMERICA, IN AND FOR THE NORTHERNDISTRICT OF NEW YORK. 

 * * *

At a stated Session of the District Court of the United States ofAmerica, held in and for the Northern District of New York, at the CityHall, in the city of Albany, in the said Northern District of New York, on the third Tuesday of January, in the year of our Lord one thousandeight hundred and seventy-three, before the Honorable Nathan H. Hall, Judge of the said Court, assigned to keep the peace of the said UnitedStates of America, in and for the said District, and also to hear anddetermine divers Felonies, Misdemeanors and other offences against thesaid United States of America, in the said District committed. 

Brace Millerd, James D. Wasson, Peter H. Bradt, James McGinty, Henry A. Davis, Loring W. Osborn, Thomas Whitbeck, John Mullen, Samuel C. Harris, Ralph Davis, Matthew Fanning, Abram Kimmey, Derrick B. Van Schoonhoven, Wilhelmus Van Natten, James Kenney, Adam Winne, James Goold, Samuel S. Fowler, Peter D. R. Johnson, Patrick Carroll, good and lawful men of the said District, then and there sworn andcharged to inquire for the said United States of America, and for thebody of said District, do, upon their oaths, present, that at the Cityof Rochester, in the County of Monroe, in the Northern District of NewYork, on the 15th day of October, A. D. 1872, Beverly W. Jones, Edwin T. Marsh and William B. Hall were then and there Inspectors of Elections inand for the first election District of the eighth ward of said City ofRochester, duly elected, appointed, qualified and acting as suchInspectors. 

And the Jurors aforesaid, upon their oaths aforesaid, do further presentthat on the day aforesaid, said Inspectors duly met at the placedesignated for holding a poll of an election to be had and held at andin said election District on the fifth day of November, A. D. 1872, forRepresentatives in the Congress of the United States, to-wit: aRepresentative in the Congress of the United States for the State of NewYork at large, and a Representative in the Congress of the United Statesfor the Twenty-Ninth Congressional District of the State of New York, said first election District of said eighth ward then and there being apart of said Twenty-Ninth Congressional District of the State of NewYork, and for other officers, and at said place on said day did then andthere duly organize themselves as a board for the purpose of Registeringthe names of the legal voters of such District, and did then and thereproceed to make a list of all persons entitled to vote at said electionin said District, said list to constitute and to be known as theRegistry of electors of said District. 

And said Board of Inspectors again duly met on the Friday of the weekpreceding the day of said election, to-wit, on the first day ofNovember, A. D. 1872, at the place designated for holding the poll ofsaid election in and for said first election District, for the purposeof receiving and correcting said list, and for that purpose duly met ateight o'clock in the morning of the day aforesaid, at the placeaforesaid, and remained in session until nine o'clock in the evening ofthat day; and for the purpose aforesaid, said Board of Inspectors againduly met at the place aforesaid, at eight o'clock in the morning of theday following, to-wit, the second day of November, A. D. 1872, andremained in session until nine o'clock in the evening of that day. 

And the Jurors aforesaid, upon their oaths aforesaid, do further presentthat on the said second day of November, A. D. 1872, at the City ofRochester, in the County of Monroe, in the Northern District of NewYork, and within the jurisdiction of this Court, to-wit, at the placedesignated for holding the poll of said election for saidRepresentatives in the Congress of the United States, and other officersin and for said first election District of said eighth ward asaforesaid, and between the hours of eight o'clock in the morning, andnine o'clock in the evening of said second day of November, A. D. 1872, Beverly W. Jones, Edwin T. Marsh and William B. Hall, being then andthere Inspectors of Elections in and for said first election District ofsaid eighth ward of said City of Rochester, duly elected, appointed, qualified and acting as such, and having then and there duly met for thepurpose of revising and correcting said list of all persons entitled tovote at said election as aforesaid, known as the registry of electorsfor said election district, they, said Beverly W. Jones, Edwin T. Marshand William B. Hall, _did then and, there knowingly and wilfullyregister as a voter of said District, one Susan B. Anthony, she, saidSusan B. Anthony then and there not being entitled to be registered as avoter of said District in that she, said Susan B. Anthony was then andthere a person of the female sex, contrary to the form, of the statuteof the United States of America in such case made and provided, andagainst the peace of the United States of America and their dignity_. 

_Second Count_: And the Jurors aforesaid, upon their oaths aforesaid, dofurther present that at the City of Rochester, in the County of Monroe, in the Northern District of New York, on the fifteenth day of October, A. D. 1872, Beverly W. Jones, Edwin T. Marsh and William B. Hall, werethen and there Inspectors of Elections in and for the first electionDistrict of the eight ward of said City of Rochester, duly elected, appointed, qualified and acting as such. 

And the Jurors aforesaid, upon their oaths aforesaid, do further presentthat on the day aforesaid, said Inspectors duly met at the placedesignated for the holding of the poll of an election to be had and heldat and in said election District on the fifth day of November, A. D. 1872, for Representatives in the Congress of the United States, to-wit:a Representative in the Congress of the United States for the State ofNew York at large, and a Representative in the Congress of the UnitedStates for the Twenty-Ninth Congressional District of the State of NewYork, said first election district of said eighth ward then and therebeing a part of said Twenty-Ninth Congressional District of the State ofNew York, and for other officers, and at said place on said day, didthen and there duly organize themselves as a Board for the purpose ofRegistering the names of the legal voters of said District, and did thenand there proceed to make a list of all persons entitled to vote at saidelection in said District, said list to constitute and to be known asthe registry of electors of said District. 

And said Board of Inspectors again duly met on the Friday of the weekpreceding the day of said election, to-wit, on the first day ofNovember, A. D. 1872, at the place designated for holding the poll ofsaid election in and for said first Election District, for the purposeof revising and correcting said list, and for that purpose duly met ateight o'clock in the morning of the day aforesaid, at the placeaforesaid, and remained in session until nine o'clock in the evening ofthat day; and for the purpose aforesaid, said Board of Inspectors againduly met at the place aforesaid, at eight o'clock in the morning of theday following, to-wit, the second day of November, A. D. 1872, andremained in session until nine o'clock in the evening of that day. 

And the Jurors aforesaid, upon their oaths aforesaid, do furtherpresent, that on the said first day of November, A. D. 1872, at the Cityof Rochester, in the County of Monroe, in the Northern District of NewYork, and within the jurisdiction of this Court, to-wit, at the placedesignated for holding the poll of said election for saidRepresentatives in the Congress of the United States, and other officersin and for said first election District of said eighth ward of said Cityof Rochester, and between the hours of eight o'clock in the morning, andnine o'clock in the evening of said first day of November, A. D. 1872, Beverly W. Jones, Edwin T. Marsh and William B. Hall being then andthere Inspectors of Elections in and for said first election District ofsaid eighth ward of said City of Rochester, duly elected, appointed, qualified and acting as such as aforesaid, and having then and thereduly met for the purpose of revising and correcting said list of allpersons entitled to vote at said election as aforesaid, known as theRegistry of electors for said election District, they, said Beverly W. Jones, Edwin T. Marsh and William B. Hall, _did then and there knowinglyand wilfully register as voters of said District, certain persons, to-wit_: Susan B. Anthony, Sarah Truesdale, Mary Pulver, Mary Anthony, Ellen S. Baker, Margaret Leyden, Anna L. Moshier, Nancy M. Chapman, Lottie B. Anthony, Susan M. Hough, Hannah Chatfield, Mary S. Hibbard, Rhoda DeGarmo, and Jane Cogswell, said persons then and there not beingentitled to be Registered as voters of said District, in that each ofsaid persons was then and there a person of the female sex, contrary tothe form of the statute of the United States of America in such casemade and provided, and against the peace of the United States of Americaand their dignity. 

_Third Count_: And the Jurors aforesaid, upon their oaths aforesaid, dofurther present that Beverly W. Jones, Edwin T. Marsh and William D. Hall, of the City of Rochester, in the County of Monroe, with force andarms, &c. , to-wit, at and in the first election District of the eighthward of said City of Rochester, in the County of Monroe, in the NorthernDistrict of New York, and within the jurisdiction of this Court, heretofore, to-wit, on the fifth day of November, A. D. 1872, at anelection duly held at and in the said first election District of thesaid eighth ward of said City of Rochester, in said County, and in saidNorthern District of New York, which said election was forRepresentatives in the Congress of the United States, to-wit, aRepresentative in the Congress of the United States for the State of NewYork at large, and a Representative in the Congress of the United Statesfor the Twenty-Ninth Congressional District of the State of New York, said first election District of said eighth ward of said City ofRochester being then and there a part of said Twenty-Ninth CongressionalDistrict of the State of New York, and said Beverly W. Jones, Edwin T. Marsh, and William B. Hall, being then and there Inspectors of Electionsin and for said first election District of said eighth ward of said Cityof Rochester, in said County of Monroe, duly elected, appointed, andqualified and acting as such, they, said Beverly W. Jones, Edwin T. Marsh, and William B. Hall, as such Inspectors of Elections, did thenand there, to-wit, on the fifth day of November, A. D. 1872, at the firstelection District of the eighth ward of the City of Rochester, in theCounty of Monroe, in the Northern District of New York, and within thejurisdiction of this Court, knowingly and wilfully receive the votes ofcertain persons, and not then and there entitled to vote, to-wit: SusanB. Anthony, Sarah Truesdale, Mary Pulver, Mary Anthony, Ellen S. Baker, Margaret Leyden, Hannah L. Mosher, Nancy M. Chapman, Susan M. Hough, Guelma S. McLean, Hannah Chatfield, Mary S. Hibbard, Rhoda DeGarmo, andJane Cogswell, each of said persons then and there being a person of thefemale sex, and then and there not entitled to vote, as they, saidBeverly W. Jones, Edwin T. Marsh and William B. Hall then and there wellknew, contrary to the form of the statute of the United States ofAmerica in such case made and provided, and against the peace of theUnited States of America and their dignity. 

_Fourth Count_: And the Jurors aforesaid, upon their oaths aforesaid, dofurther present, that Beverly W. Jones, Edwin T. Marsh and William B. Hall, now, or late of Rochester, in the County of Monroe, with force andarms, &c. , to-wit, at and in the first election District of the eighthward of the City of Rochester, in the County of Monroe, in said NorthernDistrict of New York, and within the jurisdiction of this Courtheretofore, to wit, on the fifth day of November, A. D. 1872, at anelection duly held at and in the said first election District of saideighth ward of said City of Rochester, in said County of Monroe, in saidNorthern District of New York, which said election was forRepresentatives in the Congress of the United States, to-wit: aRepresentative in the Congress of the United States for the State of NewYork at large, and a Representative in the Congress of the United Statesfor the Twenty-Ninth Congressional District of the State of New York, said first election District of said eighth ward being then and there apart of said Twenty-Ninth Congressional District, and they, said BeverlyW. Jones, Edwin T. Marsh, and William B. Hall, being then and thereInspectors of Elections in and for said first election District of saideighth ward of said City of Rochester, in said County of Monroe, dulyappointed, elected, qualified and acting as such, they said Beverly W. Jones, Edwin T. Marsh, and William B. Hall, did then and there, to-wit, at said first election District of said eighth ward of said City ofRochester, in said County of Monroe, in said Northern District of NewYork, on said fifth day of November, A. D. 1872, knowingly and wilfullyreceive the votes of certain persons for candidate for Representative inthe Congress of the United States for the State of New York at large, and candidate for Representative in the Congress of the United Statesfor the Twenty-Ninth Congressional District of the State of New York, said persons then and there not being entitled to vote for saidRepresentatives in the Congress of the United States, viz. : Susan B. Anthony, Sarah Truesdale, Mary Pulver, Mary Anthony, Ellen S. Baker, Margaret Leyden, Hannah L. Mosher, Nancy M. Chapman, Lottie B. Anthony, Susan M. Hough, Guelma L. McLean, Hannah Chatfield, Mary S. Hibbard, Rhoda DeGarmo and Jane Cogswell, each of said persons then and therebeing a person of the female sex, and then and there not entitled tovote for said Representatives in Congress, as they, said Beverly W. Jones, Edwin T. Marsh and William B. Hall, then and there well knew, contrary to the form of the statute of the United States of America insuch case made and provided, against the peace of the United States ofAmerica and their dignity. 

 RICHARD CROWLEY, Attorney of the United States, in and for the Northern District of New York. 

(Endorsed. ) January 22, 1873. 

Jones and Marsh plead not guilty. 

 RICHARD CROWLEY, U. S. Attorney. 

Hall did not plead at all. 

 * * *

UNITED STATES CIRCUIT COURT. 

 * * *

NORTHERN DISTRICT OF NEW YORK. 

 * * *

THE UNITED STATES OF AMERICA. 

 _vs. _

BEVERLY W. JONES, EDWIN T. MARSH, ANDWILLIAM B. HALL. 

 * * *

HON. WARD HUNT, Presiding. 

 * * *

APPEARANCES. 

For the United States:

 HON. RICHARD CROWLEY, U. S. District Attorney. 

For the Defendants:

 JOHN VAN VOORHIS, ESQ. 

 * * *

Tried at Canandaigua, Wednesday, June 18th, 1873, before Hon. Ward Huntand a Jury. 

Case opened in behalf of the U. S. By Mr. Crowley. 

MR. VAN VOORHIS: I wish to raise some questions upon the indictment inthis case. This indictment, I claim, is bad for two reasons, and shouldbe quashed. 

First--The Act of Congress under which it is framed, is invalid so faras it relates to this offence, because not authorized by theConstitution of the United States. 

Second--There is no sufficient statement of any offence in theindictment. 

First. 

Congress has no power to pass laws for the punishment of Inspectors ofElections, elected or appointed under the laws of the State of New York, for receiving illegal votes, or registering as voters, persons who haveno right to be registered. 

No law of Congress defines the qualifications of voters in the severalStates. These are found only in the State Constitutions and Statutes. The offenses charged in the indictment are, that the defendants, beingState officers, have violated the laws of the State. If it be so, theymay be tried and punished in accordance with the State laws. Noproposition can be clearer. If the United States can also punish themfor the same offense, it follows that they may be twice indicted, tried, convicted and punished for one offense. A plea in a State Court, of aconviction and sentence, in a United States Court would constitute nobar or defense, (_12 Metcalf_, _387_, _Commonwealth v. Peters_, ) and thedefendants might be punished twice for the same offense. This cannot be, and if the act in question be valid, the State of New York is ousted ofjurisdiction. And where does Congress derive the power to pass laws topunish offenders against the laws of a State? This case must be triedunder the laws of the United States. Against those laws, no offense ischarged to have been committed. Such power, if it exist, must besomewhere expressly granted, or it must be necessary in order to executesome power that is expressly granted. 

The Act of Congress in question, became a law on May 31st, 1870. It isentitled--

"AN ACT TO ENFORCE THE RIGHT OF CITIZENS OF THE UNITED STATES TO VOTE INTHE SEVERAL STATES, AND FOR OTHER PURPOSE. "

The indictment is found under the 19th section of the Act as it passedoriginally, and the 20th section as amended by the Act of February 28th, 1871. 

The 19th Section, so far as it is necessary to quote it here, is asfollows:

 "_That if at any election for representatives or delegates 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 or 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 entitled to vote; _or vote without having a lawful right to vote, . . . Or knowingly and wilfully receives the vote of any person not entitled to vote_, or refuses to receive the vote of any person entitled 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 five hundred dollars, 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. "

Section 20, as amended, so far as pertinent, reads as follows:

 "That if at any registration of voters for an election for representatives or delegates in the Congress of the United States, any person shall _knowingly_ . . . Hinder any person having a lawful right to register, from duly exercising that right; or compel or induce by any of such means, or other unlawful means, ANY OFFICER OF REGISTRATION to admit to registration any person not legally entitled thereto; . . . _or if any such officer shall knowingly and wilfully register as a voter any person not entitled to be registered_, or refuse so to register any person entitled to be registered, . . . _every such person shall be deemed guilty of a crime, and shall be liable to prosecution and punishment therefor, as provided in section 19 of said Act of May 31, 1870, for persons guilty of the crimes therein specified_. "

No law of Congress describes the qualifications of voters in this State, or in any State. 

Congress has provided no registry law. Therefore, what constitutes theoffenses charged in this indictment, must be looked for in the laws ofthe State. By no Act of Congress can it be determined in what case aperson votes, "_without having a right to vote_. " By no Act of Congresscan it be determined when an Inspector of Election has received the voteof "_any person not entitled to vote_, " or has registered "_as a voter, any person not entitled to be registered_. " These are the offensesalleged in this indictment. They are penal offenses by the Statutes ofNew York. The jurisdiction of the State Courts over them is complete, and cannot be questioned. 

By the Act of May 31, 1870, above cited, Congress has ordained, in legaleffect, that if any person violates the penal Code of the State of NewYork, or any State, in respect of voting, he may be punished by theUnited States. And the offense is a variable quantity; what is a crimein one State under this Act, is a legal right and duty in another. Acitizen of Rhode Island, for instance, who votes when not possessed inhis own right, of an estate in fee simple--in fee tail, for life, or inreversion or remainder, of the value of $134 or up-wards, may beconvicted of a crime under this Act, and imprisoned in a State Prison. He voted in violation of the laws of his State. A citizen of New Yorkvotes under precisely similar circumstances, and with the samequalifications, and his act is a legal one, and he performs a simpleduty. Any State may, by its Constitution and laws, permit women to vote. Had these defendants been acting as Inspectors of Elections in suchState, their act would be no crime, and this indictment could not besustained, for the only illegality alleged is, that the citizens whosevotes were received were women, and therefore not entitled to vote. 

The Act of Congress thus, is simply an Act to enforce the diverse penalstatutes of the various States in relation to voting. In order to make acase, the United States must combine the federal law with the statutesof the State where the _venue_ of the prosecution is laid. 

Before the enactment of the 13th, 14th and 15th Amendments, it is not, and never was pretended, that Congress possessed any such power. Subdivision 1 of Section 2, of Article one of the Constitution, providesas follows:

 "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 requisite for electors of the most numerous branch of the State Legislature. "

By this provision, what shall qualify a person to be an elector, is leftentirely to the States. Whoever, in any State, is permitted to vote formembers of the most numerous branch of its legislature, is alsocompetent to vote for Representatives in Congress. The State mightrequire a property qualification, or it might dispense with it. It mightpermit negroes to vote, or it might exclude them. It might permit womento vote, or even foreigners, and the federal constitution would not beinfringed. If a State had provided a different qualification for anelector of Representatives in Congress, from that required of an electorof the most numerous branch of its Legislature, the power of the federalconstitution might be invoked, and the law annuled. But never was theidea entertained, that this provision of the Constitution authorizesCongress to pass laws for the punishment of individuals in the Statesfor illegal voting, or State returning officers for receiving illegalvotes. 

This power, if it exist, must be found in the recent Amendments to theU. S. Constitution. 

I assume that your Honor will hold, as you did yesterday in MissAnthony's case, that these amendments do not confer the right to voteupon citizens of the United States, and therefore not upon women. Thatdecision is the law of this case. It follows necessarily from thatdecision, that these amendments have nothing to do with the right ofvoting, except so far as that right "_is denied or abridged by theUnited States, or by any State, on account of race, color, or previouscondition of servitude_. "

The thirteenth article of the Amendments to the Constitution of theUnited States, in Section 1, ordains that "_neither slavery norinvoluntary servitude, except as a punishment for crime, whereof theparty shall have been duly convicted, shall exist within the UnitedStates, or any place subject to their jurisdiction_. "

Section 2, ordains that "_Congress shall have power to enforce thisArticle by appropriate legislation_. "

The fourteenth article of the Amendments to the Constitution of theUnited States, ordains in Section 1, "_All persons born or naturalizedin the United States, and subject to the jurisdiction thereof, arecitizens of the United States, and of the State where they reside. NoState shall make or enforce any law, which shall abridge the privilegesor immunities of citizens of the United States. Nor shall any Statedeprive any person of life, liberty or property, without due process oflaw, nor deny to any person within its jurisdiction, the equalprotection of the laws. _"

Section five enacts, "_The Congress shall have power to enforce byappropriate legislation, the provisions of this Article. _"

The fifteenth article of Amendment to the Constitution ordains in itsfirst section, that "That the right of citizens of the United States tovote, shall not be denied or abridged by the United States or by anyState, on account of race, color or previous condition of servitude. "

Section two enacts, that "_The Congress shall have power to enforce thisArticle by appropriate legislation. _"

These are the provisions of the Constitution relied on to support thelegislation of Congress now before this Court. Some features of thatlegislation may be constitutional and valid. Whether this be so or not, it is not necessary now to determine. The question here is, hasCongress, by either of these amendments, been clothed with the power, topass laws to punish inspectors of elections in this State for receivingthe votes of women?

The thirteenth amendment simply abolishes slavery, and authorizes suchlegislation as shall be necessary to make that enactment effectual. 

The power in question is not found there. 

The fourteenth amendment defines who are citizens of the United States, and prohibits the States from making or enforcing "_any law which shallabridge the privileges or immunities_" of such citizens. 

Either the right to vote is one of the "_privileges or immunities_" ofthe United States citizen, which the states are forbidden to abridge, orit is not. If it is, then the women whose votes these defendantsreceived, being citizens of the United States, and in every other wayqualified to vote, possessed the right to vote, and their votes wererightfully received. If it is not, then the fourteenth amendment confersno power upon Congress, to legislate, on the subject of voting in theStates. There is no other clause or provision of that amendment whichcan by any possibility confer such power--a power which cannot beimplied, but which, if it exist, must be expressly given in some part ofthe Constitution, or clearly needed to carry into effect some power thatis expressly given. 

No such power is conferred by the fifteenth amendment. That amendmentoperates upon the States and upon the United States, and not upon thecitizen. "The right of citizens of the United States to vote, shall notbe denied or abridged by 'THE UNITED STATES OR BY ANY STATE. '" The terms"_United States_" and "State, " as here used, mean the government of theUnited States and of the States. They do not apply to individuals or tooffenses committed by individuals, but only to acts done by the State orthe United States. 

But at any rate, the operation of this amendment, and the power given toCongress to enforce it, is limited to offenses committed in respect ofdepriving persons of the right to vote because of their "_race, color, or previous condition of servitude_. "

This is not such a case. There is no ground for saying that thesedefendants have committed any offense against the spirit or the letterof the fifteenth amendment, or any legitimate legislation for itsenforcement. 

Congress cannot make laws to regulate the duties of Inspectors, and itcannot inflict a penalty. 

Second. 

_No offense is stated in the indictment. _

The first count in the indictment is for knowingly and wilfullyregistering as a voter, Susan B. Anthony. This count is under Section 26of the Act of May 31, 1870, as amended by the Act of February 28, 1871. 

The indictment contains no averment that the defendants were "_officersof registration_, " and charged with the duty of making a correctregistry of voters. It simply alleges that they were _Inspectors ofElections_. What that means, the indictment does not inform us. It isnot an office defined by the Acts of Congress upon which this indictmentwas found, nor has the Court any information of which it can take noticeas to what are the duties of such officers. In the absence of any claimin the indictment to that effect, the Court will not presume theexistence of so important a circumstance against the defendants, andtherefore this count of the indictment must fail. 

2. The second count is for the same offense, and obnoxious to the sameobjection. The only variation being that the first count charges theillegal registry of one woman, and the second, fourteen. 

3. The third count charges that the defendants, being inspectors ofelections, received the votes of fourteen women who had no right tovote, wrongfully. 

This count does not allege that it was the duty of the defendants toreceive or count the votes. It simply alleges that they were Inspectorsof Election. Their duties as such are not stated. It is not alleged thatas such inspectors they were charged with the duty of receiving andcounting votes. It is not claimed by the indictment that these voteswere counted or put into the ballot box--or affected the result. Thedefendants simply received the votes. What they did with them, does notappear. Any bystander, who had received these votes, could be convictedunder this indictment as well as they. 

WILLIAM F. MORRISON, a witness called in behalf of the United States, testified as follows:

_Examined_ by Mr. Crowley:

Q. Where did you live, in November, 1872?

A. City of Rochester. 

Q. Where do you live now?

A. Same place. 

Q. Did you occupy any official position in the month of November, 1872?

A. I did. 

Q. And do you now?

A. Yes, sir. 

Q. What is it?

A. City Clerk. 

Q. Have you any registration lists and poll lists of the 1st ElectionDistrict, 8th Ward, City of Rochester, in your possession?

A. I have. 

Q. Will you produce them?

[Witness produces two books. ]

Q. Do you know the defendants, Beverly W. Jones, Edwin T. Marsh, and Wm. B. Hall, or any of them?

A. I know them all. 

Q. Do you know their hand-writing?

A. I cannot say that I do. 

Q. What are those books you hold in your hand?

A. The register of the Board of Registry, and the poll list kept onelection day. 

Q. In what district?

A. 1st election district of the 8th Ward. 

Q. By whom were those books left in your office, if by any one?

A. To the best of my knowledge, they were left by Beverly W. Jones, Chairman of the Board of Inspectors. 

Q. By whom do they purport to be signed?

A. Beverly W. Jones, Wm. B. Hall, and Edwin T. Marsh. 

Q. Is there a certificate attached to them, purporting to show what theyare?

A. There is a certificate attached to the register, but not to the polllist. 

Q. Please read the certificate attached to the registration list. 

A. "We, the undersigned, composing the Board of Registry for the firstdistrict, 8th Ward, City of Rochester, do certify that the foregoing isa correct list of the voters in said district, so far as the same isknown to us. Dated Nov. 2d, 1872. "

Q. In what Congressional District was the first election district of the8th Ward, in November, 1872?

A. 29th. 

Q. Was there an election for Members of Congress for that district, andfor Members of Congress at Large for the State, held in that ward andelection district, last November?

A. Yes, sir. 

Q. And candidates voted for both of those officers by those who saw fitto vote for them?

A. Yes, sir. 

Q. What day was the election?

A. 5th day of November. 

MR. CROWLEY: We offer the poll list and the registration of voters inevidence. 

[Poll list marked Ex. "A. " Registration list, marked Ex. "B. "]

[This witness was not cross-examined. ]

SYLVESTER LEWIS, a witness sworn in behalf of the United States, testified as follows:

_Examined by_ MR. CROWLEY:

Q. Where did you live in November, 1872?

A. In the city of Rochester. 

Q. Do you know the defendants, Jones, Marsh and Hall?

A. I do. 

Q. Do you know whether or not they acted as a Board of Registry for theregistration of voters in the first election district, 8th ward, City ofRochester, preceding the last general election?

A. I know they acted at the November election. 

Q. Did they act as a Board of Registry preceding the election?

A. Yes, sir. 

Q. Was you present on any day when they were registering voters?

A. I was present on Friday mostly, and on Saturday. 

Q. Were all three of these defendants there?

A. They were the most of the time. 

Q. Receiving the names of persons who claimed to be entitled to vote?

A. Yes, sir. 

Q. And taking a registration list?

A. Yes, sir. 

Q. Did you see Miss Anthony and other ladies there upon that day?

A. I saw Miss Anthony there on the first day, and other ladies. 

Q. Did you see there, upon that day, the following named persons: SusanB. Anthony, Sarah Truesdell, Mary Pulver, Mary Anthony, Ellen S. Baker, Margaret Leyden, Ann S. Mosher, Nancy M. Chapman, Lottie B. Anthony, Susan M. Hough, Hannah Chatfield, Mary S. Hibbard, Rhoda DeGarmo, JaneCogswell. 

A. I saw a number of them; I didn't see the whole of them. 

Q. Do you know by sight, any of those persons whose names I have read?

A. I know a number of them. 

Q. Did you see a number of them there?

A. I did. 

Q. Did you see any of them register on that day?

A. I did. 

Q. Have you a list of those that you saw register?

A. I have, (producing a paper. )

Q. Please state to the Jury, those that you saw register on that day. 

A. I can hardly recollect which day they registered. 

Q. Either of the days preceding the election, when this Board was insession. 

A. Rhoda DeGarmo, Mary Anthony, Sarah C. Truesdell, Susan M. Hough, Mrs. M. E. Pulver. 

By MR. VAN VOORHIS:

Q. What paper are you reading from?

A. From a memorandum I made at the time--No, it is a paper that wasgiven on the last day of registry. 

Q. A paper that you made yourself?

A. The names that I took. 

Q. On the last day of registry?

A. Yes, sir. 

By MR. CROWLEY:

Q. State them. 

A. The names of the parties that I found on the poll list as havingregistered; I didn't see them all register myself, but I did a goodportion of them. 

Q. I am asking you to state who you saw register. I don't ask you whowere registered before your attention was called to the list. 

A. Well, I saw Rhoda DeGarmo register; Miss Mary Anthony, Sarah C. Truesdell, Susan M. Hough; I think I saw Nancy M. Chatfield register;Mrs. Margaret Leyden, Mrs. M. E. Pulver; those I recollect; I was betteracquainted with those than with the others. 

Q. At the time you saw these ladies register, were the three inspectors, Hall, Jones, and Marsh present?

A. Some of the time I saw all three, I think, there; at other times Isaw but two of them; sometimes Hall and Jones, sometimes Marsh andJones, sometimes Hall and Marsh; I think they took turns when they wentto dinner. 

Q. On the day of election were you at the polls?

A. I was. 

Q. Did you see any of these women vote on the day of election?

A. I did. 

Q. Were these defendants present when their votes were received?

A. They were. 

Q. And did they receive their votes?

A. They did. 

Q. Who did you see vote, or offer their votes upon the day of election?

A. Susan B. Anthony, Mrs. McLean, Rhoda DeGarmo, Mary Anthony, Ellen S. Baker, Sarah C. Truesdell, Mrs. Hough, Mrs. Mosher, Mrs. Leyden, Mrs. Pulver. I recollect seeing those ladies; in fact, I think I saw thewhole of them vote with the exception of two, but I will not be positiveon that point. 

Q. But you saw those whose names you have given?

A. Yes, sir. 

Q. Do you know how many tickets they voted, or offered to theinspectors?

A. I think they voted four tickets. 

Q. Do you know how these tickets were endorsed, or what they werecalled?

A. I was not near enough to see the endorsement; I noticed which boxesthey went into. 

Q. Upon the day of election were the defendants Jones, Marsh, and Hall, acting as inspectors of election?

A. Yes, sir. 

Q. Receiving votes?

A. Yes, sir. 

Q. And were acting as inspectors of election when these ladies voted?

A. Yes, sir. 

Q. About what time in the day, or what time in the morning was it thatthese ladies voted?

A. I think there had been but a very few votes received in the morningwhen a number of them voted. 

Q. Well, was it about 5 o'clock in the morning--very early?

A. No, sir; not so early as that; the probability is that there was notover 20 or 25 votes received before they presented theirs. 

_Conceded_: That the women named in the indictment were women on the 5thday of November, 1872. 

_Cross-Examination by_ MR. VAN VOORHIS:

Q. Which of those persons did you see register?

A. Mrs. Hough, Mrs. Pulver, Mrs. Truesdell, Mrs. Leyden. 

Q. Do you swear you saw Mrs. Leyden register?

A. I think I did. 

Q. Take a second thought and see if you are willing to say you saw herregister--please look off that paper. Do you recollect seeing thosepersons register, or do you suppose they did, because you find it on apaper there?

A. No, sir; I recollect seeing pretty much all of them on my list withthe exception of one or two; I won't be fully positive I saw Mrs. Leydenregister; I saw her vote. 

Q. Did you go to Mrs. Leyden's house and advise her to go and register?

A. I don't think I did. 

THE COURT: That is not important. 

Q. Do you recollect seeing any others register except those you have nowmentioned?

A. I think I saw Mary Anthony. 

Q. Any other?

A. Mrs. Chapman. 

Q. Can you recollect this without looking at that paper?

A. Well, the object in looking at that paper is to try to refresh mymemory on which day they registered. 

Q. Does that paper contain dates?

A. No, sir; it contains the names of all those who registered. 

Q. You copied that paper from the registry, didn't you?

A. They were copied by Hall at the time of the election, and handed tome. 

Q. What was your business at the registry at that time?

A. I had a poll list; I was checking parties that I supposed had a legalright to vote. 

Q. What sort of a poll list?

Objected to as immaterial. 

THE COURT: It is only competent as a test of his knowledge. 

A. I had canvassed the ward and taken a list of all the voters in thefirst district; all those that I supposed would be entitled to vote. 

Q. You had canvassed the ward in the employment of somebody?

Objected to as immaterial. 

Q. How many of these people did you see vote?

A. I think I saw the whole of them vote, with the exception of Mrs. Hough and Mrs. Cogswell. 

Q. Who took Miss Anthony's vote?

A. Mr. Jones. 

Q. Were both the other inspectors present when he took it?

A. I believe they were. 

Q. Did Jones take all of the votes of those persons whose names you haveon your list?

A. I don't think he did. 

Q. Who took any others that you saw?

A. I saw Mr. Hall take some of the ballots. 

Q. How many?

A. I couldn't tell how many. 

Q. Did you see him take more than one?

A. I don't know as I did. 

Q. Do you know whose it was?

A. If I recollect right, it was Mrs. DeGarmo's. 

Q. At that time was Jones there?

A. No, I believe Jones had stepped out. 

Q. Hall received the vote on account of Jones being absent?

A. I believe so. 

Q. Jones' position was at the window receiving votes?

A. Yes, sir. 

Q. Who put them in the boxes?

A. Jones and Hall. 

Q. You were not near enough to see what these ballots were?

A. No, sir. 

Q. How many ballot boxes were there?

A. Six, if I recollect right. 

Q. And six tickets voted at that poll?

A. Six tickets altogether; there was the Constitutional Amendment votedat that election. 

Q. Did you observe which boxes the tickets of these persons were putinto?

A. I did. 

Q. Which were they?

A. I think that the ballots that these ladies voted. 

Q. I don't want what you think; I want what you know. 

A. Well, they went into those boxes; Member of Congress, Member atLarge. 

Q. Were there two boxes for Congressmen?

A. I think there was; I am not quite positive; I rather think I ammistaken about that. 

Q. Well, give us what you know about the boxes?

A. The most that I know about is, that the remark was made by theinspector that they voted the four tickets. 

Q. You heard the remark made that they voted four tickets; who made thatremark?

A. Mr. Jones or Mr. Hall; when they passed their ballots they would say, "They vote all four tickets; no Constitutional Amendment voted. "

Q. That was the practice of the inspector, no matter who voted?

A. Yes, sir. 

Q. Then you didn't see the tickets as they went into the boxes?

A. No, sir. 

Q. You can't swear which boxes they went into?

A. I understood from the inspectors that they voted all the tickets withthe exception of the Constitutional Amendment. 

Q. I don't ask for any conversation; I ask for what you know by what yousaw. 

A. Well, I wasn't near enough to read the tickets. 

Q. Did you hear either of the inspectors say anything about it?

A. I did. 

Q. Which one?

A. I heard the inspector that would be at the window where the ballotswould be received. 

Q. Name him. 

A. I heard Mr. Jones say that they voted the four tickets. 

Q. Was that all he said?

A. Well, he would declare it in this way; sometimes he would say, "Theyvote all the tickets with the exception of the Amendment;" that is theway he generally declared it. 

Q. I want to get at what he said when these votes were taken?

A. He didn't at all times declare the ticket voted. 

Q. Are you willing to testify that you recollect distinctly, anythingthat was said by either of the inspectors when these ladies voted?

A. Most decidedly; I heard Jones say that they voted the Congressionalticket; I heard him say that they voted all the tickets. 

Q. At the time they voted?

A. The question would be asked what tickets they voted, and he wouldsay, "All the tickets with the exception of the Amendment. "

Q. Did he mention the Congressional ticket?

A. I think he did. 

Q. Do you recollect that he did?

A. My impression is that he said so; I can't say positively. 

Q. Did you say anything there, about getting twenty women to vote?

Objected to as immaterial. 

MR. VAN VOORHIS: I propose to show that this witness said to partiesthere that he would go and get twenty Irish women to vote, to offsetthese votes. 

Objected to as immaterial. 

Objection sustained. 

WILLIAM F. MORRISON recalled. 

_Examined by_ MR. CROWLEY:

Q. Please point out the following names, if you find them in theregistration list: Susan B. Anthony?

A. I find it. 

Q. Sarah Truesdell?

A. Sarah C. Truesdell. 

Q. Mary Pulver?

A. M. P. Pulver. 

Q. Mary Anthony?

A. I find it. 

Q. Ellen S. Baker?

A. Yes, sir; I have it. 

Q. Margaret Leyden?

A. Margaret L. Leyden. 

Q. Ann S. Mosher?

A. Hannah L. Mosher. 

Q. Nancy M. Chapman?

A. Nancy M. Chapman. 

Q. Lottie B. Anthony?

A. Lottie B. Anthony. 

Q. Susan M. Hough?

A. Susan M. Hough. 

Q. Hannah Chatfield?

A. Hannah Chatfield. 

Q. Mary S. Hibbard?

A. Mary S. Hibbard. 

Q. Rhoda DeGarmo?

A. I don't find any such name; I find Robert DeGarmo and Elias DeGarmo. 

Q. Jane Cogswell?

A. Jane Cogswell. 

Q. Now turn to the names of voters contained in the list copied uponelection day; do you find the name of Susan B. Anthony upon that list?

A. I do. 

Q. Sarah Truesdell?

A. Yes, sir. 

Q. Mary Pulver?

A. Yes, sir. 

Q. Mary Anthony?

A. Yes, sir. 

Q. Mary S. Baker?

A. Yes, sir. 

Q. Margaret Leyden?

A. Yes, sir. 

Q. Ann S. Mosher?

A. Hannah L. Mosher. 

Q. Nancy Chapman?

A. Yes, sir. 

Q. Lottie B. Anthony?

A. Yes, sir. 

Q. Susan M. Hough?

A. Yes, sir. 

Q. Hannah Chatfield?

A. Yes, sir. 

Q. Mary S. Hibbard?

A. Yes, sir. 

Q. Rhoda DeGarmo?

A. I find Mrs. Rosa DeGarmo. 

Q. Jane Cogswell?

A. Yes, sir. 

Q. Upon the list copied by the inspectors upon the day of election, isthere any heading purporting to show what tickets these people voted?

A. Yes, sir. 

Q. Please state from the heading what tickets it purports to show theyvoted?

A. The first column is Electoral; the second, State; the third, Congress; the fourth, Assembly; the fifth, Constitutional Amendment. 

Q. Please look and see which of those tickets the list purports to showthat they voted?

MR. VAN VOORHIS: I object to any marks upon that book which the witnessdidn't make, as any evidence that these persons voted for members ofCongress. 

By THE COURT:

Q. What is the statement there?

A. After the name of Miss Susan B. Anthony in the column of electorsthere is a small, straight mark. 

MR. VAN VOORHIS: I object to that, as not evidence of what these voteswere. 

THE COURT: I think it is competent. 

By MR. CROWLEY:

Q. State, Mr. Morrison?

A. Opposite each of the names that I have read there are checks, showingthat they voted Electoral, State, Congressional and Assemblytickets--four tickets. 

Q. There are a large number of the inspectors' books of the lastelection filed with you as City Clerk, are there not?

A. Yes, sir. 

Q. Do you know what the custom or habit is of copying these books whenpeople vote?

Objected to. 

Q. What custom the inspectors have of indicating what tickets a personvotes when he offers his vote?

Objected to. Question withdrawn. 

_Cross-Examination by_ MR. VAN VOORHIS. 

Q. All you know about these tickets or that book, is what appears on theface of it, is it not?

A. Yes, sir; that is all. 

Q. You don't know who made those straight marks?

A. I don't. 

Q. Or why they were made, so far as you have any knowledge?

A. No, sir. 

Q. Do you know what those letters are? [Pointing on the book. ]

A. Preliminary oath and general oath, I should say. 

Q. You would say that to each of these persons the preliminary oath wasadministered, and also the general oath?

A. Yes, sir; it so shows here. 

MRS. MARGARET LEYDEN, a witness called in behalf of the United States, having been duly affirmed, testified as follows:

_Examined by_ MR. CROWLEY:

Q. Did you reside in the City of Rochester in the month of November, 1872?

A. Yes, sir. 

Q. Did you reside in the 8th ward?

A. I did. 

Q. In the first election district of that ward?

A. I did. 

Q. Was your name registered before the election which took place on the5th of November, 1872?

A. It was. 

Q. By whom?

A. I think Mr. Jones; in fact, all three of the inspectors were there. 

Q. Did you, upon the 5th day of November, vote?

A. I did. 

Q. Who received your vote?

A. Mr. Jones. 

Q. Were the other inspectors there at the time?

A. Yes, sir. 

Q. Did you vote for a candidate for Congress?

A. I did. 

_Cross-Examination by_ MR. VAN VOORHIS:

Q. Was Mr. Lewis there when you registered?

A. Mr. Lewis was not there. 

Q. Do you recollect who took your vote?

A. I think Mr. Jones took it; I know he did. 

Q. Was your ballot folded up?

A. It was. 

Q. Could any person read it, or see what you voted, or who you votedfor?

A. No one but my husband. 

Q. He saw it before you voted?

A. Yes, sir. 

Q. Was your husband present when you voted?

Objected to as immaterial. 

A. He was. 

Q. No one had seen your ballot except your husband before you handed itin?

A. No, sir. 

Q. And when you handed it in it was folded, so that no one could see it?

A. It was. 

THE COURT: What is the object of this?

MR. VAN VOORHIS: The District Attorney inquired if she voted a certainticket, and assumes to charge these inspectors with knowing what shevoted. It is to show that the ticket being folded, the inspector couldnot see what was in it. 

Q. In voting, did you believe that you had a right to vote, and vote ingood faith?

Objected to as immaterial. 

Objection sustained. 

_Re-Direct Examination by_ MR. CROWLEY:

Q. You have heard me name the different persons, have you not, when Iasked Mr. Morrison questions?

A. Yes, sir. 

Q. Were these people, or any of them, present, and were they registeredat the same time you were?

A. Some of them were present. 

Q. Who?

A. Mrs. Lottie B. Anthony; there was one lady that registered who didn'tvote; I think Mrs. Anthony was the only lady that was present thatvoted; I can't recollect any more names. 

Q. Who of these ladies were present when you voted and voted with you, if any?

A. Miss Susan B. Anthony, Mrs. Pulver, Mrs. Mosher, Mrs. Lottie B. Anthony, Miss Mary Anthony, Miss Baker, Mrs. Chapman. 

Q. Did they all vote on that occasion?

A. They did. 

_Re-Cross Examination by_ MR. VAN VOORHIS. 

Q. Mrs. Lottie B. Anthony is the wife of Alderman Anthony?

A. Yes, sir. 

_United States rests. _

Case opened in behalf of the defendants by MR. VAN VOORHIS. 

BEVERLY W. JONES, one of the defendants, having been duly sworn as awitness in his own behalf, testified as follows:

_Examined by_ MR. VAN VOORHIS. 

Q. Mr. Jones, where do you reside?

A. Eighth ward, city of Rochester. 

Q. What is your age?

A. Twenty-five last spring. 

Q. Are you one of the defendants in this indictment?

A. Yes, sir. 

Q. Were you inspector of election in the 8th ward?

A. Yes, sir. 

Q. Which district?

A. First district. 

Q. Were you elected or appointed?

A. Elected. 

Q. By the people of the ward?

A. Yes, sir. 

Q. Were you present at the Board of Registry when Miss Anthony andothers appeared there and demanded to be registered?

A. I was. 

Q. Won't you state what occurred there?

A. Miss Anthony and two other ladies came into the room; Miss Anthonyasked if this was the place where they registered the names of voters; Itold her it was; she said she would like to have her name registered; Itold her I didn't think we could register her name; it was contrary tothe Constitution of the State of New York; she said she didn't claim anyrights under the Constitution of the State of New York; she claimed herrights under the Constitution of the United States; under an amendmentto the Constitution; she asked me if I was conversant with the 14thamendment; I told her I had read it and heard of it several times. 

Q. Before you go further, state who was present at that time?

A. William B. Hall and myself were the only inspectors; Mr. Marsh wasnot there; Daniel J. Warner, the United States Supervisor, Silas J. Wagner, another United States Supervisor, and a United States Marshal. 

Q. State which one of these was Republican, and which one Democratic. 

A. Silas J. Wagner, Republican; Daniel J. Warner, Democratic. 

Q. Now go on. 

A. She read the 14th amendment to the Constitution of the United States;while she was reading the amendment and discussing different points, Mr. Daniel J. Warner said--

MR. CROWLEY: I submit to the Court that it is entirely immaterial whateither Warner or Wagner said. 

THE COURT: I don't see that that is competent in any view of the case. 

Q. (By the Court). Was your objection to registering Miss Anthony on theground that she was a woman?

A. I said it was contrary to the Constitution of the State of New York, and I didn't think that we could register her. 

Q. (By the Court. ) On what ground was that?

A. Well, on the ground that she was a woman. 

By MR. VAN VOORHIS:

Q. You may proceed and state what occurred there?

A. Mr. Warner said--

Objected to. 

THE COURT: I don't think that is competent, what Warner said:

MR. VAN VOORHIS: The district attorney has gone into what occurred atthat time, and I ask to be permitted to show _all_ that occurred at thetime of the registry; this offense was committed there; it is a part ofthe _Res Gesta_; all that occurred at the moment Miss Anthony presentedherself and had her name put upon the registry. 

THE COURT: I don't think that is competent. 

MR. VAN VOORHIS: I ask to show what occurred at the time of registry. 

THE COURT: I don't think it is competent to state what Warner or Wagneradvised. 

MR. VAN VOORHIS: So that the question may appear squarely in the case Ioffer to show what was said and done at the time Miss Anthony and theother ladies registered, by them, the inspectors, and the federalSupervisors, Warner and Wagner, in their presence, in regard to thatsubject. 

THE COURT: I exclude it. 

MR. VAN VOORHIS: Does that exclude all conversations that occurred therewith any persons?

THE COURT: It excludes anything of that character on the subject ofadvising them. Your case is just as good without it as with it. 

MR. VAN VOORHIS: I didn't offer it in view of the advice, but to showprecisely what the operation of the minds of these inspectors was atthat time, and what the facts are. 

THE COURT: It is not competent. 

By MR. VAN VOORHIS:

Q. Were you present on the day of election?

A. Yes, sir. 

Q. Did you receive the votes of these persons?

A. I did. 

Q. How many ballot boxes were there there?

A. Six. 

Q. What position did you occupy during the day?

A. Chairman of the Board. 

Q. Did you stand at the window and receive the votes?

A. Most of the time I did. 

Q. Were those ballots which you received from them folded?

A. They were. 

Q. Did you or any of the inspectors see or know the contents of any ofthe ballots?

MR. CROWLEY: If your Honor please, I submit it is entirely immaterialwhether these inspectors saw the names upon the ballots. 

THE COURT: I have excluded that already. It is not competent. It isproved that they put in votes, and it is proved by one of the ladiesthat she did vote for a candidate for Congress. 

MR. VAN VOORHIS: I propose to show by the witness that he didn't knowthe contents of any ballot, and didn't see it. 

THE COURT: That will be assumed. He could not do it with any propriety. 

By MR. VAN VOORHIS:

Q. Did either one of the inspectors object to receiving the votes of thewomen at the polls?

A. Yes, sir. 

Q. Which one?

A. William B. Hall. 

Q. Did he take any part in receiving votes, and, if so, state what part?

A. I believe that he took the ballot of one lady, and placed it in thebox. I stepped out, I believe, for a few moments. 

Q. Did it to accommodate you while you stepped out?

A. Yes, sir. 

Q. On the day of registry did the inspectors as a board decideunanimously to register these votes, all three of you consenting?

A. We did. 

Q. When you came to receive the votes, Hall dissented?

A. He did, sir. 

Q. But the other two were a majority, and he was overruled; was this theway it was, or wasn't there anything in form said about it?

A. He was overruled; I felt it my duty to take the ballots. 

Q. In receiving those ballots did you act honestly in accordance withyour sense of duty, and in accordance with your best judgment?

A. I did. 

By MR. CROWLEY:

Q. All three of the inspectors agreed in receiving these names forregistration, did they not?

A. Yes, sir. 

By MR. VAN VOORHIS:

Q. I meant to have asked you in reference to the challenges; statewhether or not challenges were entered against these voters prior to theday of election?

A. There was. 

Q. On their presenting their votes, what was done?

A. I told Miss Anthony, when she offered her vote, that she waschallenged; she would have to swear her ballot in if she insisted uponvoting; she said she insisted upon voting, and I presented her the Bibleand administered to her the preliminary oath, which she took. I turnedto the gentleman that challenged her, and asked him if he still insistedupon her taking the general oath. 

Q. Were questions asked her?

A. There were, after taking the preliminary oath. 

Q. In accordance with the instruction?

A. Yes, sir. 

Q. Go on. 

A. I turned to the gentleman that challenged her, and asked him if hestill insisted on his challenge; he said he did; I told her she wouldhave to take the general oath; I administered the general oath, and shetook it. 

Q. Was that done in each case of the women who voted?

A. It was. 

By MR. CROWLEY:

Q. As I understand you, all three of the inspectors agreed in permittingthese people to be registered?

A. They didn't at first. 

Q. Well, they did before they were registered, did they not?

A. They did before their names were put upon the book. 

Q. And when they voted, yourself and Mr. Marsh were in favor ofreceiving the votes, and Hall was opposed to receiving the votes?

A. Yes, sir. 

By MR. VAN VOORHIS:

Q. Did you suppose at that time that the law required you to take theirvotes?

Objected to. Sustained. 

By MR. CROWLEY:

Q. Did you have two meetings for the purpose of registration prior toelection?

A. Yes, sir. 

Q. Upon the days fixed by the laws of the State of New York?

A. Yes, sir. 

Q. You made a list or registry, did you not, upon those days?

A. We did. 

Q. Upon the day of election you had a list of voters?

A. Yes, sir. 

Q. Those produced here to-day are the lists kept upon that occasion, arethey not?

A. (After looking at Exhibits A. And B. ) Those are the books. 

By THE COURT:

Q. Did these ladies vote the Congressional ticket, all of them?

A. I couldn't swear to that. 

Q. Look at the book as to that. 

A. It does not tell for certain; the clerks may have made a mistake inmaking these marks; they do very often. 

Q. Did you make any of the entries in that book?

A. No, sir; a clerk appointed by me did it. 

By MR. CROWLEY:

Q. When you counted up your votes at night, when the polls closed, didyou compare your votes with the list?

A. Yes, sir. 

Q. Did you find it correct?

A. We found it fell short of the poll list several ballots; I can't tellhow many. 

Q. Do you know whether it fell short on members of Congress?

A. Yes, sir, it did. 

Q. Did you make a certificate and return of that fact?

A. Yes, sir; the certificate was filed in the Clerk's office. 

EDWIN T. MARSH, one of the defendants, having been duly affirmed as awitness in his own behalf, testified as follows:

_Examined by_ MR. VAN VOORHIS:

Q. Were you one of the inspectors of the 8th ward?

A. I was. 

Q. How was you appointed?

A. I was appointed by the Common Council just before the first meetingof the board. 

Q. What is your age?

A. I am 33. 

Q. Did you hear the statement of Mr. Jones?

A. I did. 

Q. To save time, I will ask you whether that was substantially correctas you understand it?

A. Yes, sir. 

Q. Now, I will ask you the question if, in registering and receivingthese votes, you believed that the law required you to do it, and youacted conscientiously and honestly?

Objected to. 

THE COURT: Put the question as you did to the other witness--whether inreceiving these votes he acted honestly and according to the best of hisjudgment. 

By MR. VAN VOORHIS:

Q. Answer that question, please?

A. I most assuredly did. 

[This witness was not cross-examined. ]

WILLIAM C. STORRS, a witness sworn in behalf of the defendants, testified as follows:

_Examined by_ MR. VAN VOORHIS:

Q. Where do you reside?

A. City of Rochester. 

Q. What office do you hold?

A. United States Commissioner. 

Q. How long have you held that office?

A. Fifteen years. 

Q. Do you know these defendants, Jones and Marsh?

A. I do, sir. 

Q. Was any application made to you, by any person, at any time, for awarrant against them for this offence?

Objected to. 

MR. VAN VOORHIS: If the counsel objects I will not insist upon theevidence. 

[This witness was not cross-examined. ]

SUSAN B. ANTHONY, called as a witness in behalf of the defendants. 

MISS ANTHONY: I would like to know if the testimony of a person who hasbeen 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 ofRegistry, 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 ofdiscussion 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 atthe polls on election day?

A. Mr. Hall decidedly objected--

MR. CROWLEY: I submit to the Court that unless the counsel expects tochange the version given by the other witnesses, it is not necessary totake up time. 

THE COURT: As a matter of discretion, I don't see how it will be of anybenefit. 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 anerroneous one. 

By MR. VAN VOORHIS:

Q. You took the two oaths there, did you?

A. Yes, sir. 

By THE COURT:

Q. You presented yourself as a female, claiming that you had a right tovote?

A. I presented myself not as a female at all, sir; I presented myself asa citizen of the United States. I was called to the United States ballotbox by the 14th amendment, not as a female, but as a citizen, and I wentthere. 

MR. VAN VOORHIS: We have a number of witnesses to prove what occurred atthe time of registry, and what advice was given by these federalsupervisors, but under your Honor's ruling it is not necessary for us tocall them. Inasmuch as Mr. Hall is absent, I ask permission to put inhis evidence as he gave it before the Commissioners. 

MR. CROWLEY: I have not read it, your Honor, but I am willing theyshould use so much of it as is competent under your Honor's ruling. 

THE COURT: Will it change the case at all, Mr. Van Voorhis?

MR. VAN VOORHIS: It only varies it a little as to Hall. He stated thathe depended in consenting to the registry, upon the advice of Mr. Warner, who was his friend, and upon whom he looked as a politicalfather. 

THE COURT: I think you have all the question that any evidence couldgive you in the case. These men have sworn that they acted honestly, andin accordance with their best judgment. Now, if that is a defense, youhave it, and it will not make it any stronger to multiply evidence. 

MR. VAN VOORHIS: I suppose it will be conceded that Hall stands in thesame position as to his motives?

MR. CROWLEY: Yes; we have no evidence to offer upon that question atall. 

_Evidence closed. _

 * * *

Mr. Van Voorhis addressed the Court at some length, as follows:

May it please the Court, I submit that there is no ground whatever tocharge these defendants with any criminal offense. 

1. Because the women who voted were legal voters. 

2. Because they were challenged and took the oaths which the statuterequires of Electors, and the Inspectors had no right, after such oath, to reject their votes. 

 1 R. S. Edmonds Ed. , 126-127. 

The duty of Inspectors of Election is defined by the Statute as follows: "§ 13. If any person offering to vote at any election shall be challenged in relation to his right to vote at that election, by an Inspector, or by any other person entitled to vote at the same poll, one of the Inspectors shall tender to him the following preliminary oath: 'You do swear (or affirm) that you will truly and fully answer all such questions as shall be put to you touching your place of residence and qualifications as an Elector. '"

 "§ 14. The Inspectors or one of them shall then proceed to question the person challenged in relation to his name; his then place of residence; how long he has resided in the town or ward where the vote is offered; what was the last place of his residence before he came into that town or ward, and also as to his citizenship, and whether a native or a naturalized citizen, and if the latter, when, where, and in what court, or before what officer, he was naturalized; whether he came into the town or ward for the purpose of voting at that election; how long he contemplates residing in the town or ward; and all such other questions as may tend to test his qualifications as a resident of the town or ward, citizenship and right to vote at that poll. "

 "§ 15. If any person shall refuse to take the said preliminary oath when so tendered, or to answer fully any questions which shall be so put to him, his vote shall be rejected. "

 "§ 16. After receiving the answers of the person so challenged, the board of inspectors shall point out to him the qualifications, if any, in respect to which he shall appear to them deficient. "

 "§ 17. If the person so offering shall persist in his claim to vote, and the challenge shall not be withdrawn, one of the inspectors shall then administer the following oath: 'You do swear (or affirm as the case may be) that you have been a citizen of the United States for ten days, and are now of the age of twenty one years; that you have been an inhabitant of this State for one year next preceding this election, and for the last four months a resident of this County; that you have been for thirty days next preceding this election a resident of this Assembly district (or Senate or Congressional district or districts, ward, town, village or city from which the officer is to be chosen for whom said person offers to vote); that you are now a resident of this town (or ward, as the case may be) and of the election district in which you now offer to vote, and that you have not made any bet or wager, and are not directly or indirectly interested in any bet or wager depending upon the result of this election, and that you have not voted at this election. '"

 "§ 18. Prescribes the form of oath to be administered to colored men. "

 "§ 19. If any person shall refuse to take the oath so tendered, his vote shall be rejected. "

The defendants performed their duty strictly and fully according to thestatute. 

The persons offering to vote were challenged; the defendantsadministered the preliminary oath to them; all the questions required bythe statute were answered fully and truly; the challenge was stillinsisted on; the general oath was administered by the defendants tothem; they took that oath, and every word contained in it was true intheir case. The inspectors had no alternative. They could not reject thevotes. 

This statute has been construed by the Court of Appeals of this State inthe case of _The People vs. Pease, 27 N. Y. 45_. 

In that case it is held, that inspectors of election have no authorityby statute to reject a vote except in three cases: (1) after a refusalto take the preliminary oath, or (2) fully to answer any questions put, or (3) on refusal to take the general oath. 

_Davies_ J. , in his opinion after an examination of the provisions ofthe statute says:

 "_It is seen, therefore, that the inspectors have no authority, by statute, to reject a vote except in the three cases: after refusal to take the preliminary oath, or fully to answer any questions put, or on refusal to take the general oath. And the only judicial discretion vested in them is, to determine whether any question put to the person offering to vote, has or has not, been fully answered. If the questions put have been fully answered, and such answers discover the fact, that the person offering to vote is not a qualified voter, yet if he persists in his claim to vote it is imperative upon the inspectors to administer to him the general oath, and if taken, to receive the vote and deposit the same in the ballot box. _"

_Selden_, J. , who wrote in the same case, examines this question withgreat care and reaches the same conclusion. He says:

 "The course required by the statute, to be pursued where the right of any person to vote is challenged, cannot be reconciled with any discretionary power of rejection vested in the inspectors. (Citing the statute as above quoted. ) The inspectors are, first, to administer what is called the preliminary oath, requiring the person offering the vote to answer such questions as shall be put to him touching his place of residence and qualifications as an elector. The statute then mentions several questions which are to be addressed to him by the inspectors, and authorizes such other questions as may tend to test his qualifications as a voter. If he refuse to take the oath, or to answer fully, his vote is to be rejected; but if he answers fully, the inspectors are required to point out to him the qualifications, if any, in which he shall appear to them to be deficient. If he still persists in his right to vote, and the challenge is not withdrawn, the inspectors are required to administer to him the general oath, in which he states in detail, and swears, that he possesses all the qualifications the Constitution and laws require the voter to possess. _If he refuse to take the oath, his vote shall be rejected. _ Is not the inference irresistible, that, if he take the oath, it shall be received? If his vote is to be rejected after he takes the oath, why not reject it before? _As I construe the statute, the inspectors have no discretion left them in such a case_ (where the person offering to vote is not shown by a record to have been convicted of a crime, or by his own oath to be interested in a bet upon the election, ) _but must deposit the ballot in the box, whatever they may believe or know of the want of qualifications of the voter. They are required to act upon the evidence which the statute prescribes, and have no judicial power to pass upon the question of its truth or falsehood; nor can they act upon their own opinion or knowledge. _"

These views were concurred in by all the Judges. _Denio_, J. , who wrotea dissenting opinion in the case, concurred with the other Judges as tothe powers and duties of inspectors. 

The defendants, then, have not in the least violated any law of theState of New York. They performed their duty according to the statuteand in accordance with the decision of the highest court of the State, and in accordance with the printed instructions furnished them by theSecretary of State. What further can be demanded of them? No UnitedStates statute prescribes or attempts to prescribe their duties. Theycannot legally be convicted and should be discharged. 

3. Because no malice is shown. Whether the women were entitled to havetheir names registered and to vote, or not, the defendants believed theyhad such right, and acted in good faith, according to their bestjudgment, in allowing the registry of their names--and in receivingtheir votes--and whether they decided right or wrong in point of law, they are not guilty of any criminal offense. 

The substance of the statute is, as to registration:

 "If any such officer shall . . . _knowingly and wilfully_ register as a voter any person not entitled to be registered, or refuse to so register any person entitled to be registered . . . Every such person shall be deemed guilty of a crime. "

Act of May 31, 1870, § 20, As Amended by Act of Feb. 28, 1871, § 1. 

And as to voting:

 "If any person shall . . . _knowingly and wilfully_ receive the vote of any person not entitled to vote, or refuse to receive the vote of any person entitled to vote . . . Every such person shall be deemed guilty of a crime. "

Act of May 31, 1870, § 19. 

To bring an inspector within either of these sections he must know as_matter of fact_, that the person offering to vote, or to be registered, is not entitled to be registered or to vote. 

The inspectors were _compelled to decide the question_, and to decide itinstantly, with no chance for examination or even consultation--and ifthey decided in good faith, according to the best of their ability, theyare excused, whether they decided correctly or not in point of law. 

This is too well settled to admit of dispute--settled by authority aswell as by the plainest principles of justice and common sense. 

The law never yet placed a public officer in a position where he wouldbe compelled to decide a doubtful legal question, and to act upon hisdecision, _subject to the penalty of fine_ or imprisonment if he chancedto err in his decision. 

All that is ever required of an officer, so placed, whether a judicialor ministerial officer, _so far as is necessary to escape anyimputations of crime_, is good faith. 

Ministerial officers may be required, in some cases to act at theirperil as to _civil_ responsibilities, but as to _criminalresponsibilities_ never. 

Inspectors of elections, however, _acting in good faith_, incur neithercivil nor criminal responsibilities. 

In _Jenkins vs. Waldron (11 John 114)_, which was an action on the caseagainst inspectors of election for refusing to receive the vote of theplaintiff, a duly qualified voter, it was held, that the action wouldnot lie _without proving malice_. Spencer, J. , delivering the opinion ofthe Court, closes as follows: "It would in our opinion be opposed to allthe principles of law, justice and sound policy, to hold that officerscalled upon to exercise their deliberate judgments, _are answerable fora mistake in law_, either civilly or criminally, where their motives arepure and untainted with fraud or malice. "

The same point precisely was decided in a like case, in the SupremeCourt of this State recently and _Jenkins vs. Waldron approved_. 

 Goetchens vs. Mathewson, 5 Lansing, 214. 

In Harman v. Tappenden and fifteen others (1 East 555) the plaintiff wasa freeman of the company of free fishermen and dredgermen of the manorand hundred of Faversham in Kent, and the defendants, as officers of thecompany, caused him "wrongfully, unlawfully and unjustly" to bedisfranchised, and removed from his said office of freeman. He wasrestored by mandamus, and brought his action on the case against thedefendants who removed him, to recover his damages. 

On the trial before Lord Kenyon, C. J. , a verdict was taken for theplaintiff for nominal damages, with leave to the defendant to move toenter a non-suit. 

On that motion Lord Kenyon, C. J. , said:

 "Have you any precedent to show that an action of this sort will lie, without proof of malice in the defendants, or that the act of disfranchisement was done on purpose to deprive the plaintiff of the particular advantage which resulted to him from his corporate character? I believe this is a case of the first impression, where an action of this kind had been brought, _upon a mere mistake, or error in judgment_. The plaintiff had broken a by-law, for which he had incurred certain penalties, and happening to be personally present in the court, he was called upon to show cause why he should not pay the forfeitures; to which not making any answer, but refusing to pay them, the court proceeded, taking the offense _pro confesso_, without any proof, to call on him to show cause why he should not be disfranchised; and they accordingly made the order. This was undoubtedly irregular, but it was nothing more than a mistake, and there was no ground to impute any malicious motives to the persons making the order. "

Lawrence, J. , said: "There is no instance of an action of this sort maintained for an act merely from error of judgment. Perhaps the action might have been maintained, if it had been proved that the defendants' contriving and intending to injure and prejudice the plaintiff, and to deprive him of the benefit of his profits from the fishery, which as a member of this body he was entitled to, according to the custom, had _wilfully and maliciously_ procured him to be disfranchised, in consequence of which he was deprived of such profits. But here there was no evidence of any wilful and malicious intention to deprive the plaintiff of his profits, or that they had disfranchised him with that intent, _which is necessary to maintain this action_. They were indeed guilty of an error in their proceedings to disfranchise him, in not going into any proof of the offence charged against him, but taking his silence as a confession. In the case of _Drewe v. Coulton_, where the action was against the Mayor of Saltash, who was returning officer, for refusing the plaintiff's vote at an election, which was claimed in right of a burgage tenement; Wilson, J. , nonsuited the plaintiff _because malice was not proved_; and he observed, that though Lord Holt, in the case of _Ashby v. White_, endeavored to show that the action lay for the obstruction of the right, yet the House of Lords, in the justification of their conduct, supposed to be written by the Chief Justice, puts it upon a different principle, the _wilfulness of the act_. The declaration in that case was copied from the precedent in _Milward v. Sargeant_, which came on in this court on a writ of error, _Hill 26, Geo. 3_, for refusing the plaintiff's vote for the borough of Hastings. There the charge was 'that the defendant contriving and wrongfully intending to injure and prejudice the plaintiff, and to hinder and deprive him of his privilege of voting, did not take or allow his vote. ' All which allegations Mr. Justice Wilson, in the case above alluded to, thought were essential to be proved in order to sustain the action. "

 "_Per Curiam. _ Rule discharged. "

The Reporter's head note is: "An action does not lie against individualsfor acts erroneously done by them _in a corporate capacity_ from whichdetriment has happened to the plaintiff. At least, not without proof ofmalice. "

The case of _Drewe v. Coulton_ is given at length in a note to _Harmanv. Tappenden and others 1 East 563_, and fully sustains what is said ofit by Mr. Justice Lawrence. 

The election was for member to serve in Parliament for the borough ofSALTASH. The defendant was Mayor and returning officer. The questionpresented to him was "whether the owners of burgage tenements in theborough, had a right of voting, or whether that right was confined tothe freemen of the corporation. " The defendant had rejected the voteoffered by the plaintiff, he claiming the right as a burgage tenant. 

The action was for that refusal, charging the defendant with "contrivingand wrongfully intending to deprive the plaintiff &c. , obstructed andhindered him from giving his vote. "

Wilson, J. , among other things, says: "This is in the nature of it, an action for misbehavior by a public officer in his duty. Now I think, that it cannot be called a misbehavior, _unless maliciously and wilfully done, and that the action will not lie for a mistake in law_. The case of the bridge master is in point [Bul N. P. 64. ]. It is there said, that an action on the case lies against a ministerial officer for _wilful_ misbehavior, as denying a poll for one who is a candidate for an elective office, such as bridge master &c. " "In all the cases put, the misbehavior must be _wilful and by wilful_ I understand _contrary to a man's own conviction_. Therefore I think from the opening of counsel, this is not a wilful refusal of the vote. . . . In very few instances is an officer answerable for what he does to the best of his judgment, in cases where he is compelled to act. But the action lies where the officer has an option whether he will act or not. Besides, I think, that if an action were to be brought upon every occasion of this kind by every person whose vote was refused, it would be such an inconvenience as the law would not endure. A returning officer in such a case would be in a most perilous situation. _This gentleman was put in a situation where he was bound to act; and if he acted to the best of his judgment it would be a great hardship that he should be answerable for the consequences, even though he is mistaken in a point of law. _ It was a very material observation of Mr. Gibbs, that the words of the resolution of the _House of Lords_ in _Ashby v. White_ followed the words of the statute of William III. For if that statute were declaratory of the common law, as it purports to be ['Be it enacted and declared that all false returns wilfully made' &c. ] and an action would not lie at common law for a false return, unless the return be proved to have been made maliciously, as well as falsely, it should seem, by a parity of reasoning, that a person whose vote is refused by a returning officer, cannot maintain an action against him, unless the refusal _be proved to have been wilful and malicious_. And if malice were necessary before the statute by the common law, and since by the statute which is declaratory thereof, to sustain an action for a false return which includes perhaps the votes of all, it seems equally necessary in an action like the present where the injury complained of is to one only. 

 "I do not mean to say, that in this kind of action, it is necessary to prove _express_ malice. It is sufficient if malice may be implied from the conduct of the officer; as if he had decided contrary to a last resolution of the House of Commons. There _I should leave it to the jury to imply malice_. But taking all _the circumstances of this case together, malice can in no shape be imputed to the defendant. The plaintiff may have a right to vote, but that depends upon an intricate question of law, with respect to burgage tenures_; the right itself founded on ancient documents and usages, and not acted upon for many years. . . . 

 "_From these grounds, therefore, it cannot be inferred that the defendant has acted wilfully and maliciously in refusing the plaintiff's vote; and unless that be so he is not liable in this action. _

 . . . "But without determining whether the statute be declaratory of the common law, or not; if not, the case rests on that of _Ashby v. White_. Now all the debates and arguments in that case _go upon the malice_; and all those who have acted on that determination since have considered that the refusal must be _wilful and malicious_ in order to support the action. . . . 

 "And in my opinion, it cannot be said, that because an officer is mistaken in a point of law, this action will lie against him. . . . It has also been said, that this is not like a case where a burdensome office is thrown upon a man, without his consent, wherein he is compellable to act; for that here the defendant has chosen to become a member of a corporation by which he had put himself in a situation to become a returning officer, and therefore that he is _bound to understand the whole law as far as it relates to his public situation, and is answerable for any determination he may make contrary to that law. But I much doubt whether that rule be generally true_; and in the present instance I am clearly of opinion that the want of malice is a full defense. "

Lawrence, J. , sat with Wilson. 

The plaintiff was nonsuited and no new trial was moved for. 

_Bernardiston v. Some_ (2 Lev. 114, 1 East. 586, note b. ) was an actionagainst the sheriff of Suffolk, charging that the defendant, intendingto deprive him of the office of Knight of the Shire, made a doublereturn. Upon a trial at bar, Twysden, Rainsford, and Wylie Js. Held, andso directed the jury, that if the return was made _maliciously_, theyought to find for the plaintiff, which they did and gave him £800. Onmotion in arrest of judgment, Hale, C. J. , being in court; he, Twysden &Wylie, Js. Held that for as much as the return was laid to be _falso etmalitiose et ea intentione_, to put the plaintiff to charge and expense, and so found by the jury, the action lay. Rainsford, J. , doubted. Butnotwithstanding this charge of malice, judgment was reversed _in Camscacc (vide 3 Lev. 30_) and that judgment of reversal was affirmed inParliament. Lord Chief justice North's first reason against the actionwas, because the sheriff as to declaring the Mayoralty is _judge_ and noaction will lie against a judge for what he does judicially, though itshould be laid _falso malitiose et scienter_. This reversal occasionedthe passage of the statute (7 and 8 W. III c. 7) which gives an actionagainst the returning officer, for all false returns "wilfully made, andfor double returns _falsely, wilfully and maliciously made_. "

_Groenvelt v. Burwell & al_ (1 Salk. 396, S. C. 2 Ld Ray. 230, Comyns76. ) In this case, the Censors of the College of Physicians andSurgeons, in London, were empowered to inspect, govern and censure, allpractices of physic in London--and to punish by fine and imprisonment. They convicted the plaintiff of administering noxious medicines, andfined him £20, and imprisonment 12 months. Being taken in execution, hebrought trespass against the Censors. It was held

1. That the Censors had judicial power. 

2. That being judges of the matter, what they had adjudged was nottraversable. That the plaintiff could not be permitted to gainsay, whatthe Censors had said by their judgment--that the medicines were noxious. 

3. Though the medicines were really good, yet no action lies against theCensors, because it is a wrong judgment in a matter within the limits oftheir jurisdiction; and a judge is not answerable, either to the King orthe party, for the mistakes or errors of his judgment in a matter ofwhich he has jurisdiction; It would expose the justice of the nation, and _no man would execute the office upon peril of being arraigned byaction or indictment for every judgment he pronounces_. 

All that I have quoted from the English cases and our own to show that_malice_ must be proven to make out the offense, _is expressly containedin the_ statute under which this indictment is framed. The words are(Sec. 19) "shall knowingly and _wilfully_ receive the vote of any personnot entitled to vote. " (And Section 20 as amended) "If any such officershall knowingly and _wilfully_ register, as a voter any person notentitled to vote. "

And wilfully means, to use the language of Mr. Justice Wilson, "_contrary to a man's own conviction_. "

If it be said that the defendants must be presumed to know the law, thatis answered above by the quotations from the opinion of Mr. JusticeWilson. 

Besides when the statute speaks of "knowledge, " aside from theexpression "wilfully" it means _knowledge_ as a _fact_--not any _forcedpresumption of knowledge_ against the clear facts of the case. 

To this extent and _to this extent only_, does the presumption thatdefendants were bound to know the law go, viz: They were bound to knowthat if they _as a fact_ "knowingly and wilfully registered as a voterany person not entitled to be registered" or "knowingly and wilfullyreceived the vote of any person not entitled to vote, " in either casethey were liable to the penalty; and they could not be allowed to urgein their defense any ignorance that _the law made those facts criminal_. 

Here is a total absence of any pretence of malice. The defendants actedhonestly and according to their best judgment. This is conceded. Themost that can be said against them is, that they have erred in judgment. They are not lawyers, nor skilled in the law. They had presented to thema legal question which, to say the least, has puzzled some of the ablestlegal minds of the nation. The penalty is the same, on which ever sidethey err. If they can be convicted of crime, a test must be imposed uponthem, which no judge in the land could stand. 

The defendants should be discharged by this 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 inargument, Mr. Crowley. I think upon the last authority cited by thecounsel there is no defense in this case. It is entirely clear thatwhere there is a distinct judicial act, the party performing thejudicial act is not responsible, civilly or criminally, unlesscorruption is proven, and in many cases not when corruption is proven. But where the act is not judicial in its character--where there is nodiscretion--then there is no legal protection. That is the law, as laiddown in the authority last quoted, and the authority quoted by JudgeSelden in his opinion. It is undoubtedly good law. They hold expresslyin that case that the inspectors are administrative officers, and notjudicial officers. 

Now, this is the point in the case, in my view of it: If there was anycase in which a female was entitled to vote, then it would be a subjectof examination. If a female over the age of 21 was entitled to vote, then it would be within the judicial authority of the inspectors toexamine and determine whether in the given case the female came withinthat provision. If a married woman was entitled to vote, or if a marriedwoman 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, tojudge upon the evidence whether the person before them was married orsingle. If they decided erroneously, their judicial character wouldprotect them. But under the law of this state, as it stands, under nocircumstances is a woman entitled to vote. When Miss Anthony, Mrs. Leyden and the other ladies came there and presented themselves forregistry, and presented themselves to offer their votes, when itappeared that they were women--that they were of the female sex--thepower and authority of the inspectors was at an end. When they act upona subject upon which they have no discretion, I think there is nojudicial authority. There is a large range of discretion in regard tothe votes offered by the male sex. If a man offers his vote, there is aquestion whether he is a minor--whether he is 21 years of age. Thesubject is within their jurisdiction. If they decide correctly, it iswell; if they decide erroneously, they act judicially, and are notliable. If the question is whether the person presenting his vote is aforeigner or naturalized, or whether he has been a resident of the stateor district for a sufficient length of time, the subject is all withintheir jurisdiction, and they have a right to decide, and are protectedif they decide wrong. 

But upon the view which has been taken of this question of the right offemales to vote, by the United States Court at Washington, and by theadjudication which was made this morning, upon this subject there is nodiscretion, 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, andparticularly as to whether any ballots were received for representativein Congress, or candidates for representative in Congress, and whetherthe defendants acted wilfully 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 isa vote for representative in Congress. 

THE COURT: That comes within the decision of the question of law. Idon't see that there is anything to go to the jury. 

MR. VAN VOORHIS: I cannot take your Honor's view of the case, but ofcourse 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 oftrial by jury is made inviolate by the constitution--that the Court hasno 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 shallleave 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 canlegitimately address the jury. 

Gentlemen, the defendants are charged with knowingly, willfully andwrongfully receiving the votes of the ladies whose names are mentioned, in November last, in the City of Rochester. They are charged in the sameindictment with willfully and improperly registering those ladies. Idecided in the case this morning, which many of you heard, probably, that under the law as it stands the ladies who offered their votes hadno right to vote whatever. I repeat that decision, and I charge you thatthey had no right to offer their votes. They having no right to offertheir votes, the inspectors of election ought not to receive them. Theadditional question exists in this case whether the fact that they actedas inspectors will relieve them from the charge in this case. You haveheard the views which I have given upon that. I think they areadministrative officers. I charge you that they are administrative andministerial officers in this respect, that they are not judicialofficers whose action protects them, and that therefore they are liablein this case. But, instead of doing as I did in the case thismorning--directing a verdict--I submit the case to you with theseinstructions, 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 findthese 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 thiscountry--

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 mustfind the fact that these inspectors received the votes of these personsknowingly, and that such votes were votes for some person for member ofCongress, there being in the case no evidence that any man was votedfor, for member of Congress, and there being no evidence except thatsecret ballots were received; that the jury have a right to find for thedefendants, if they choose. 

THE COURT: I charge the jury that there is sufficient evidence tosustain the indictment, upon this point. 

MR. VAN VOORHIS: I ask your Honor also to charge the jury that there issufficient evidence to sustain a verdict of not guilty. 

THE COURT: I cannot 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, couldyour 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 until 7P. M. 

The Court re-convened at 7 o'clock, when the clerk called the jury, andasked them if they had agreed upon their verdict. 

The foreman replied in the negative, whereupon the Court said:

THE COURT: Is there anything upon which I can give you any advice, gentlemen, or any information?

A JUROR: We stand 11 for conviction, and 1 opposed. 

THE COURT: If that gentleman desires to ask any questions in respect tothe questions of law, or the facts in the case, I will give him anyinformation he desires. (No response from the jury. ) It is quite proper, if any gentleman has any doubt about anything, either as to the law orthe facts, that he should state it to the Court. Counsel are bothpresent, 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 adjournuntil to-morrow morning. 

The jury retired, and after an absence of about ten minutes returnedinto court. 

The clerk called the names of the jury and then said:

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 ofthe 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 whereofthey 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 tothe question, "Is this your verdict?"

On the next day, June 19, 1873, the counsel for the defendants, Mr. JohnVan Voorhis, made a motion to the Court, for a new trial in behalf ofBeverly W. Jones, Edwin T. Marsh and William B. Hall. The argument wasoral and is not given, but the following are the grounds of the motion:

1. The indictment contains no sufficient statement of any crime underthe 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 refusethe defendants the fundamental right to address the jury, through theircounsel. This is a right guaranteed by the United States Constitution. (_See Article VI. Of the amendments to the U. S. Constitution. 1 Graham &Waterman on New Trials, pages 682, 683 and 684. _)

4. The defendants were substantially deprived of the right of jurytrial. The instructions of the Court to the jury were imperative. Theywere equivalent to a direction to find a verdict of guilty. It was saidby the Court in the hearing of the jury, that the case was submitted tothe jury "as a matter of form. " The jury was not at liberty to exerciseits own judgment upon the evidence, and without committing a grossdiscourtesy to the Court, could render no verdict except that of guilty. 

5. Admitting that the defendants acted without malice, or any corruptmotive, and in accordance with their best judgments, and in perfect goodfaith, it was error to charge that that was no defense. 

6. The defendants are admitted to have acted in accordance with theirduty as defined by the laws of New York (_1 R. S. , Edmond's Ed. , pp. 126-127, sections 13, 14, 15, 16, 17, 18 and 19_) as construed by theCourt of Appeals. (_People vs. Pease, 27 N. Y. 45. _)

They are administrative officers and bound to regard only the evidencewhich the Statute prescribes. They are not clothed with the power, toreject the vote of a person who has furnished the evidence, which thelaw requires, of right to vote, on what they or either of them mightknow, as to the truth or falsity of such evidences. They have nodiscretion, and must perform their duty, as it is defined by the laws ofNew York and the decisions of her Courts. 

7. The defendant, William B. Hall, has been tried and convicted in hisabsence from the Court. This is an error fatal to the conviction in hiscase. 

The Court denied the motion. 

The Court then asked the defendants if they had anything to say whysentence should not be pronounced, in response to which Beverly W. Jonessaid:

"Your honor has pronounced me guilty of crime; the jury had but littleto do with it. In the performance of my duties as an inspector ofelection, which position I have held for the last four years, I actedconscientiously, faithfully and according to the best of my judgment andability. I did not believe that I had a right to reject the ballot of acitizen who offered to vote, and who took the preliminary and generaloaths; and answered all questions prescribed by law. The instructionsfurnished 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 havebeen placed upon the registry, if it had not been for Daniel Warner, theDemocratic federal Supervisor of elections, appointed by this Court, whonot only advised the registry, but addressed us, saying, 'Young men, doyou know the penalty of the law if you refuse to register these names?'And after discharging my duties faithfully and honestly and to the bestof my ability, if it is to vindicate the law that I am to be imprisoned, I willingly submit to the penalty. "

And Edwin T. Marsh said:

"In October last, just previous to the time fixed for the sitting of theBoard of Registrars in the first district of the eighth ward ofRochester, a vacancy occurred. I was solicited to act, and consenting, 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 thefirst day of the last session of the Board, Miss Anthony and other womenpresented themselves and claimed the right to be registered. So far as Iknew, the question of woman suffrage had never come up in that shapebefore. We were in a position where we could take no middle course. 

"Decide which way we might, we were liable to prosecution. We devotedall the time to acquiring information on the subject, that our duties asRegistrars would allow. 

"We were expected, it seems, to make an infallible decision, inside oftwo days, of a question in regard to which some of the best minds ofthe country are divided. The influences by which we were surrounded, were nearly all in unison with the course we took. I believed then, andbelieve now, that we acted _lawfully_. 

"I faithfully discharged the duties of my office, according to the bestof my ability, in strict compliance with the oath administered to me. Iconsider 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, andthe costs of the prosecution. 

APPENDIX. 

ADDRESS OF

SUSAN B. ANTHONY, Delivered in twenty-nine of the Post Office Districts of Monroe, andtwenty-one of Ontario, in her canvass of those Counties, prior to hertrial in June, 1873. 

 * * *

_Friends and Fellow-citizens_: I stand before you to-night, underindictment for the alleged crime of having voted at the lastPresidential election, without having a lawful right to vote. It shallbe my work this evening to prove to you that in thus voting, I not onlycommitted no crime, but, instead, simply exercised my _citizen's right_, guaranteed to me and all United States citizens by the NationalConstitution, beyond the power of any State to deny. 

Our democratic-republican government is based on the idea of the naturalright of every individual member thereof to a voice and a vote in makingand executing the laws. We assert the province of government to be tosecure the people in the enjoyment of their unalienable rights. We throwto the winds the old dogma that governments can give rights. Beforegovernments were organized, no one denies that each individual possessedthe right to protect his own life, liberty and property. And when 100 or1, 000, 000 people enter into a free government, they do not barter awaytheir natural rights; they simply pledge themselves to protect eachother in the enjoyment of them, through prescribed judicial andlegislative tribunals. They agree to abandon the methods of brute forcein the adjustment of their differences, and adopt those of civilization. 

Nor can you find a word in any of the grand documents left us by thefathers that assumes for government the power to create or to conferrights. The Declaration of Independence, the United States Constitution, the constitutions of the several states and the organic laws of theterritories, all alike propose to protect the people in the exercise oftheir God-given rights. Not one of them pretends to bestow rights. 

"All men are created equal, and endowed by their Creator with certainunalienable rights. Among these are life, liberty and the pursuit ofhappiness. That to secure these, governments are instituted among men, deriving their just powers from the consent of the governed. "

Here is no shadow of government authority over rights, nor exclusion ofany class from their full and equal enjoyment. Here is pronounced theright of all men, and "consequently, " as the Quaker preacher said, "ofall women, " to a voice in the government. And here, in this very firstparagraph of the declaration, is the assertion of the natural right ofall to the ballot; for, how can "the consent of the governed" be given, if the right to vote be denied. Again:

"That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute anew government, laying its foundations on such principles, andorganizing its powers in such forms as to them shall seem most likely toeffect their safety and happiness. "

Surely, the right of the whole people to vote is here clearly implied. For however destructive to their happiness this government mightbecome, a disfranchised class could neither alter nor abolish it, norinstitute a new one, except by the old brute force method ofinsurrection and rebellion. One-half of the people of this nation to-dayare utterly powerless to blot from the statute books an unjust law, orto write there a new and a just one. The women, dissatisfied as they arewith this form of government, that enforces taxation withoutrepresentation, --that compels them to obey laws to which they have nevergiven their consent, --that imprisons and hangs them without a trial by ajury of their peers, that robs them, in marriage, of the custody oftheir own persons, wages and children, --are this half of the people leftwholly at the mercy of the other half, in direct violation of the spiritand letter of the declarations of the framers of this government, everyone of which was based on the immutable principle of equal rights toall. By those declarations, kings, priests, popes, aristocrats, were allalike dethroned, and placed on a common level, politically, with thelowliest born subject or serf. By them, too, men, as such, were deprivedof their divine right to rule, and placed on a political level withwomen. By the practice of those declarations all class and castedistinction will be abolished; and slave, serf, plebeian, wife, woman, all alike, bound from their subject position to the proud platform ofequality. 

The preamble of the federal constitution says:

 "We, the people of the United States, in order to form a more perfect union, establish justice, insure _domestic_ tranquility, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America. "

It was we, the people, not we, the white male citizens, nor yet we, themale citizens; but we, the whole people, who formed this Union. And weformed it, not to give the blessings of liberty, but to secure them; notto the half of ourselves and the half of our posterity, but to the wholepeople--women as well as men. And it is downright mockery to talk towomen of their enjoyment of the blessings of liberty while they aredenied the use of the only means of securing them provided by thisdemocratic-republican government--the ballot. 

The early journals of Congress show that when the committee reported tothat body the original articles of confederation, the very first articlewhich became the subject of discussion was that respecting equality ofsuffrage. Article 4th said:

 "The better to secure and perpetuate mutual friendship and intercourse between the people of the different States of this Union, the free inhabitants of each of the States, (paupers, vagabonds and fugitives from justice excepted, ) shall be entitled to all the privileges and immunities of the free citizens of the several States. "

Thus, at the very beginning, did the fathers see the necessity of theuniversal application of the great principle of equal rights to all--inorder to produce the desired result--a harmonious union and ahomogeneous people. 

Luther Martin, attorney-general of Maryland, in his report to theLegislature of that State of the convention that framed the UnitedStates Constitution, said:

 "Those who advocated the equality of suffrage took the matter up on the original principles of government: that the reason why each individual man in forming a State government should have an equal vote, is because each individual, before he enters into government, is equally free and equally independent. "

James Madison said:

 "Under every view of the subject, it seems indispensable that the mass of the citizens should not be without a voice in making the laws which they are to obey, and in choosing the magistrates who are to administer them. " Also, "Let it be remembered, finally, that it has ever been the pride and the boast of America that the rights for which she contended were the rights of human nature. "

And these assertions of the framers of the United States Constitution ofthe equal and natural rights of all the people to a voice in thegovernment, have been affirmed and reaffirmed by the leading statesmenof the nation, throughout the entire history of our government. 

Thaddeus Stevens, of Pennsylvania, said in 1866:

 "I have made up my mind that the elective franchise is one of the inalienable rights meant to be secured by the declaration of independence. "

B. Gratz Brown, of Missouri, in the three days' discussion in the UnitedStates Senate in 1866, on Senator Cowan's motion to strike "male" fromthe District of Columbia suffrage bill, said:

 "Mr. President, I say here on the floor of the American Senate, I stand for universal suffrage; and as a matter of fundamental principle, do not recognize the right of society to limit it on any ground of race or sex. I will go farther and say, that I recognize the right of franchise as being intrinsically a natural right. I do not believe that society is authorized to impose any limitations upon it that do not spring out of the necessities of the social state itself. Sir, I have been shocked, in the course of this debate, to hear Senators declare this right only a conventional and political arrangement, a privilege yielded to you and me and others; not a right in any sense, only a concession! Mr. President, I do not hold my liberties by any such tenure. On the contrary, I believe that whenever you establish that doctrine, whenever you crystalize that idea in the public mind of this country, you ring the death-knell of American liberties. "

Charles Sumner, in his brave protests against the fourteenth andfifteenth amendments, insisted that, so soon as by the thirteenthamendment the slaves became free men, the original powers of the UnitedStates Constitution guaranteed to them equal rights--the right to voteand to be voted for. In closing one of his great speeches he said:

 "I do not hesitate to say that when the slaves of our country became 'citizens' they took their place in the body politic as a component part of the 'people, ' entitled to equal rights, and under the protection of these two guardian principles: First--That all just governments stand on the consent of the governed; and second, that taxation without representation is tyranny; and these rights it is the duty of Congress to guarantee as essential to the idea of a Republic. "

The preamble of the Constitution of the State of New York declares thesame purpose. It says:

 "We, the people of the State of New York, grateful to Almighty God for our freedom, in order to secure its blessings, do establish this Constitution. "

Here is not the slightest intimation, either of receiving freedom fromthe United States Constitution, or of the State conferring the blessingsof liberty upon the people; and the same is true of every one of thethirty-six State Constitutions. Each and all, alike declare rightsGod-given, and that to secure the people in the enjoyment of theirinalienable rights, is their one and only object in ordaining andestablishing government. And all of the State Constitutions are equallyemphatic in their recognition of the ballot as the means of securing thepeople in the enjoyment of these rights. 

Article 1 of the New York State Constitution says:

 "No member of this State shall be disfranchised or deprived of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers. "

And so carefully guarded is the citizen's right to vote, that theConstitution makes special mention of all who may be excluded. It says:

 "Laws may be passed excluding from the right of suffrage all persons who have been or may be convicted of bribery, larceny or any infamous crime. "

In naming the various employments that shall not affect the residence ofvoters--the 3d section of article 2d says "that being kept at any almshouse, or other asylum, at public expense, nor being confined at anypublic prison, shall deprive a person of his residence, " and hence hisvote. Thus is the right of voting most sacredly hedged about. The onlyseeming permission in the New York State Constitution for thedisfranchisement of women is in section 1st of article 2d, which says:

 "Every male citizen of the age of twenty-one years, &c. , shall be entitled to vote. "

But I submit that in view of the explicit assertions of the equal rightof the whole people, both in the preamble and previous article of theconstitution, this omission of the adjective "female" in the second, should not be construed into a denial; but, instead, counted as of noeffect. Mark the direct prohibition: "No member of this State shall bedisfranchised, unless by the 'law of the land, ' or the judgment of hispeers. " "The law of the land, " is the United States Constitution: andthere is no provision in that document that can be fairly construed intoa permission to the States to deprive any class of their citizens oftheir right to vote. Hence New York can get no power from that source todisfranchise one entire half of her members. Nor has "the judgment oftheir peers" been pronounced against women exercising their right tovote; no disfranchised person is allowed to be judge or juror--and nonebut disfranchised persons can be women's peers; nor has the legislaturepassed laws excluding them on account of idiocy or lunacy; nor yet thecourts convicted them of bribery, larceny, or any infamous crime. Clearly, then, there is no constitutional ground for the exclusion ofwomen from the ballot-box in the State of New York. No barriers whateverstand to-day between women and the exercise of their right to vote savethose of precedent and prejudice. 

The clauses of the United States Constitution, cited by our opponents asgiving power to the States to disfranchise any classes of citizens theyshall please, are contained in sections 2d and 4th of article 1st. Thesecond says:

 "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 requisite for electors of the most numerous branch of the State Legislature. "

This cannot be construed into a concession to the States of the power todestroy the right to become an elector, but simply to prescribe whatshall be the qualifications, such as competency of intellect, maturityof age, length of residence, that shall be deemed necessary to enablethem to make an intelligent choice of candidates. If, as our opponentsassert, the last clause of this section makes it the duty of the UnitedStates to protect citizens in the several States against higher ordifferent qualifications for electors for representatives in Congress, than for members of Assembly, then must the first clause make it equallyimperative for the national government to interfere with the States, andforbid them from arbitrarily cutting off the right of one-half of thepeople to become electors altogether. Section 4th says:

 "The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators. "

Here is conceded the power only to prescribe times, places and manner ofholding the elections; and even with these Congress may interfere, withall excepting the mere place of choosing Senators. Thus you see, thereis not the slightest permission in either section for the States todiscriminate against the right of any class of citizens to vote. Surely, to regulate cannot be to annihilate! nor to qualify to wholly deprive. And to this principle every true Democrat and Republican said amen, whenapplied to black men by Senator Sumner in his great speeches for EQUALRIGHTS TO ALL from 1865 to 1869; and when, in 1871, I asked that Senatorto declare the power of the United States Constitution to protect womenin their right to vote--as he had done for black men--he handed me acopy of all his speeches during that reconstruction period, and said:

 "Miss Anthony, put 'sex' where I have 'race' or 'color, ' and you have here the best and strongest argument I can make for woman. There is not a doubt but women have the constitutional right to vote, and I will never vote for a sixteenth amendment to guarantee it to them. I voted for both the fourteenth and fifteenth under protest; would never have done it but for the pressing emergency of that hour; would have insisted that the power of the original Constitution to protect all citizens in the equal enjoyment of their rights should have been vindicated through the courts. But the newly made freedmen had neither the intelligence, wealth nor time to wait that slow process. Women possess all these in an eminent degree, and I insist that they shall appeal to the courts, and through them establish the powers of our American _magna charta_, to protect every citizen of the Republic. But, friends, when in accordance with Senator Summer's counsel, I went to the ballot-box, last November, and exercised my citizen's right to vote, the courts did not wait for me to appeal to them--they appealed to me, and indicted me on the charge of having voted illegally. "

Senator Sumner, putting sex where he did color, said:

 "Qualifications cannot be in their nature permanent or insurmountable. Sex cannot be a qualification any more than size, race, color, or previous condition of servitude. A permanent or insurmountable qualification is equivalent to a deprivation of the suffrage. In other words, it is the tyranny of taxation without representation, against which our revolutionary mothers, as well as fathers, rebelled. "

For any State to make sex a qualification that must ever result in thedisfranchisement of one entire half of the people, is to pass a bill ofattainder, or an _ex post facto_ law, and is therefore a violation ofthe supreme law of the land. By it, the blessings of liberty are foreverwithheld from women and their female posterity. To them, this governmenthas no just powers derived from the consent of the governed. To themthis government is not a democracy. It is not a republic. It is anodious aristocracy; a hateful obligarchy of sex. The most hatefularistocracy ever established on the face of the globe. An obligarchy ofwealth, where the rich govern the poor; an obligarchy of learning, wherethe educated govern the ignorant; or even an obligarchy of race, wherethe Saxon rules the African, might be endured; but this obligarchy ofsex, which makes father, brothers, husband, sons, the obligarchs overthe mother and sisters, the wife and daughters of every household; whichordains all men sovereigns, all women subjects, carries dissension, discord and rebellion into every home of the nation. And this mostodious aristocracy exists, too, in the face of Section 4, of Article 4, which says:

 "The United States shall guarantee to every State in the Union a republican form of government. "

What, I ask you, is the distinctive difference between the inhabitantsof a monarchical and those of a republican form of government, savethat in the monarchical the people are subjects, helpless, powerless, bound to obey laws made by superiors--while in the republican, thepeople are citizens, individual sovereigns, all clothed with equalpower, to make and unmake both their laws and law makers, and the momentyou deprive a person of his right to a voice in the government, youdegrade him from the status of a citizen of the republic, to that of asubject, and it matters very little to him whether his monarch be anindividual tyrant, as is the Czar of Russia, or a 15, 000, 000 headedmonster, as here in the United States; he is a powerless subject, serfor slave; not a free and independent citizen in any sense. 

But, it is urged, the use of the masculine pronouns he, his and him, inall the constitutions and laws, is proof that only men were meant to beincluded in their provisions. If you insist on this version of theletter of the law, we shall insist that you be consistent, and acceptthe other horn of the dilemma, which would compel you to exempt womenfrom taxation for the support of the government, and from penalties forthe violation of laws. 

A year and a half ago I was at Walla Walla, Washington Territory. I sawthere a theatrical company, called the "Pixley Sisters, " playing beforecrowded houses, every night of the whole week of the territorial fair. The eldest of those three fatherless girls was scarce eighteen. Yetevery night a United States officer stretched out his long fingers, andclutched six dollars of the proceeds of the exhibitions of those orphangirls, who, but a few years before, were half starvelings in the streetsof Olympia, the capital of that far-off north-west territory. So thepoor widow, who keeps a boarding house, manufactures shirts, or sellsapples and peanuts on the street corners of our cities, is compelled topay taxes from her scanty pittance. I would that the women of thisrepublic, at once, resolve, never again to submit to taxation, untiltheir right to vote be recognized. 

Miss Sarah E. Wall, of Worcester, Mass. , twenty years ago, took thisposition. For several years, the officers of the law distrained herproperty, and sold it to meet the necessary amount; still she persisted, and would not yield an iota, though every foot of her lands should bestruck off under the hammer. And now, for several years, the assessorhas left her name off the tax list, and the collector passed her bywithout a call. 

Mrs. J. S. Weeden, of Viroqua, Wis. , for the past six years, has refusedto pay her taxes, though the annual assessment is $75. 

Mrs. Ellen Van Valkenburg, of Santa Cruz, Cal. , who sued the CountyClerk for refusing to register her name, declares she will never payanother dollar of tax until allowed to vote; and all over the country, women property holders are waking up to the injustice of taxationwithout representation, and ere long will refuse, _en masse_, to submitto the imposition. 

There is no she, or her, or hers, in the tax laws. 

The statute of New York reads:

 "Every person shall be assessed in the town or ward where _he_ resides when the assessment is made, for the lands owned by _him_, &c. " "Every collector shall call at least once on the person taxed, or at _his_ usual place of residence, and shall demand payment of the taxes charged on _him_. If any one shall refuse to pay the tax imposed on _him_, the collector shall levy the same by distress and sale of _his_ property. "

The same is true of all the criminal laws:

 "No person shall be compelled to be a witness against _himself_, &c. "

The same with the law of May 31st, 1870, the 19th section of which I amcharged with having violated; not only are all the pronouns in itmasculine, but everybody knows that that particular section was intendedexpressly to hinder the rebels from voting. It reads "If any personshall knowingly vote without _his_ having a lawful right, " &c. Preciselyso with all the papers served on me--the U. S. Marshal's warrant, thebail-bond, the petition for habeas corpus, the bill of indictment--notone of them had a feminine pronoun printed in it; but, to make themapplicable to me, the Clerk of the Court made a little carat at the leftof "he" and placed an "s" over it, thus making _she_ out of _he_. Thenthe letters "is" were scratched out, the little carat under and "er"over, to make _her_ out of _his_, and I insist if government officialsmay thus manipulate the pronouns to tax, fine, imprison and hang women, women may take the same liberty with them to secure to themselves theirright to a voice in the government. 

So long as any classes of men were denied their right to vote, thegovernment made a show of consistency, by exempting them from taxation. When a property qualification of $250 was required of black men in NewYork, they were not compelled to pay taxes, so long as they were contentto report themselves worth less than that sum; but the moment the blackman died, and his property fell to his widow or daughter, the blackwoman's name would be put on the assessor's list, and she be compelledto pay taxes on the same property exempted to her husband. The same istrue of ministers in New York. So long as the minister lives, he isexempted from taxation on $1, 500 of property, but the moment the breathgoes out of his body, his widow's name will go down on the assessor'slist, and she will have to pay taxes on the $1, 500. So much for thespecial legislation in favor of women. 

In all the penalties and burdens of the government, (except themilitary, ) women are reckoned as citizens, equally with men. Also, inall the privileges and immunities, save those of the jury box and ballotbox, the two fundamental privileges on which rest all the others. TheUnited States government not only taxes, fines, imprisons and hangswomen, but it allows them to pre-empt lands, register ships, and takeout passport and naturalization papers. Not only does the law permitsingle women and widows to the right of naturalization, but Section 2says: "A married woman may be naturalized without the concurrence of herhusband. " (I wonder the fathers were not afraid of creating discord inthe families of foreigners); and again: "When an alien, having compliedwith the law, and declared his intention to become a citizen, diesbefore he is actually naturalized, his widow and children shall beconsidered citizens, entitled to all rights and privileges as such, ontaking the required oath. " If a foreign born woman by becoming anaturalized citizen, is entitled to all the rights and privileges ofcitizenship, is not a native born woman, by her national citizenship, possessed of equal rights and privileges?

The question of the masculine pronouns, yes and nouns, too, has beensettled by the United States Supreme Court, in the Case of _Silverversus Ladd_, December, 1868, in a decision as to whether a woman wasentitled to lands, under the Oregon donation law of 1850. ElizabethCruthers, a widow, settled upon a claim, and received patents. She died, and her son was heir. He died. Then Messrs. Ladd & Nott took possession, under the general pre-emption law, December, 1861. The administrator, E. P. Silver, applied for a writ of ejectment at the land office inOregon City. Both the Register and Receiver decided that an unmarriedwoman could not hold land under that law. The Commissioner of theGeneral Land Office, at Washington, and the Secretary of the Interior, also gave adverse opinions. Here patents were issued to Ladd & Nott, andduly recorded. Then a suit was brought to set aside Ladd's patent, andit was carried through all the State Courts and the Supreme Court ofOregon, each, in turn, giving adverse decisions. At last, in the UnitedStates Supreme Court, Associate Justice Miller reversed the decisions ofall the lower tribunals, and ordered the land back to the heirs of Mrs. Cruthers. The Court said:

 "In construing a benevolent statute of the government, made for the benefit of its own citizens, inviting and encouraging them to settle on its distant public lands, the words 'single man, ' and 'unmarried man' may, especially if aided by the context and other parts of the statute, be taken in a generic sense. Held, accordingly, that the Fourth Section of the Act of Congress, of September 27th, 1850, granting by way of donation, lands in Oregon Territory, to every white settler or occupant, American half-breed Indians included, embraced within the term _single man_ an _unmarried woman_. "

And the attorney, who carried this question to its final success, is nowthe United States senator elect from Oregon, Hon. J. H. Mitchell, in whomthe cause of equal rights to women has an added power on the floor ofthe United States Senate. 

Though the words persons, people, inhabitants, electors, citizens, areall used indiscriminately in the national and state constitutions, therewas always a conflict of opinion, prior to the war, as to whether theywere synonymous terms, as for instance:

 "_No person_ shall be a _representative_ who shall not have been seven years a _citizen_, and who shall not, when elected, be an _inhabitant_ of that state in which he is chosen. No _person_ shall be a senator who shall not have been a _citizen_ of the United States, and an _inhabitant_ of that state in which he is chosen. "

But, whatever room there was for a doubt, under the old regime, theadoption of the fourteenth amendment settled that question forever, inits first sentence: "All persons born or naturalized in the UnitedStates and subject to the jurisdiction thereof, are citizens of theUnited States and of the state wherein they reside. "

And the second settles the equal status of all persons--all citizens:

 "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens; 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 only question left to be settled, now, is: Are women persons? And Ihardly believe any of our opponents will have the hardihood to say theyare not. Being persons, then, women are citizens, and no state has aright to make any new law, or to enforce any old law, that shall abridgetheir privileges or immunities. Hence, every discrimination againstwomen in the constitutions and laws of the several states, is to-daynull and void, precisely as is every one against negroes. 

Is the right to vote one of the privileges or immunities of citizens? Ithink the disfranchised ex-rebels, and the ex-state prisoners will allagree with me, that it is not only one of them, but the one withoutwhich all the others are nothing. Seek first the kingdom of the ballot, and all things else shall be given thee, is the political injunction. 

Webster, Worcester and Bouvier all define citizen to be a person, in theUnited States, entitled to vote and hold office. 

Prior to the adoption of the thirteenth amendment, by which slavery wasforever abolished, and black men transformed from property to persons, the judicial opinions of the country had always been in harmony withthese definitions. To be a person was to be a citizen, and to be acitizen was to be a voter. 

Associate Justice Washington, in defining the privileges and immunitiesof the citizen, more than fifty years ago, said: "they included all suchprivileges as were fundamental in their nature. And among them is theright to exercise the elective franchise, and to hold office. "

Even the "Dred Scott" decision, pronounced by the abolitionists andrepublicans infamous, because it virtually declared "black men had norights white men were bound to respect, " gave this true and logicalconclusion, that to be one of the people was to be a citizen and avoter. 

Chief Judge Daniels said:

 "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 considered as conferring the actual possession and enjoyment of the perfect right of acquisition and enjoyment of an entire equality of privileges, civil and political. "

Associate Justice Taney said:

 "The words 'people of the United States, ' and 'citizens, ' are synonymous terms, and mean the same thing. They both describe the political body, who, according to our republican institutions, form the sovereignty, and who 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. "

Thus does Judge Taney's decision, which was such a terrible ban to theblack man, while he was a slave, now, that he is a person, no longerproperty, pronounce him a citizen, possessed of an entire equality ofprivileges, civil and political. And not only the black man, but theblack woman, and all women as well. 

And it was not until after the abolition of slavery, by which thenegroes became free men, hence citizens, that the United StatesAttorney, General Bates, rendered a contrary opinion. He said:

 "The constitution uses the word 'citizen' only to express the political quality, (not equality mark, ) of the individual in his relation to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligations of allegiance on the one side, and protection on the other. The phrase, 'a citizen of the United States, ' without addition or qualification, means neither more nor less than a member of the nation. "

Then, to be a citizen of this republic, is no more than to be a subjectof an empire. You and I, and all true and patriotic citizens mustrepudiate this base conclusion. We all know that American citizenship, without addition or qualification, means the possession of equal rights, civil and political. We all know that the crowning glory of everycitizen of the United States is, that he can either give or withhold hisvote from every law and every legislator under the government. 

Did "I am a Roman citizen, " mean nothing more than that I am a "member"of the body politic of the republic of Rome, bound to it by thereciprocal obligations of allegiance on the one side, and protection onthe other? Ridiculously absurd question, you say. When you, young man, shall travel abroad, among the monarchies of the old world, and thereproudly boast yourself an "American citizen, " will you thereby declareyourself neither more nor less than a "member" of the American nation?

And this opinion of Attorney General Bates, that a black citizen was nota voter, made merely to suit the political exigency of the republicanparty, in that transition hour between emancipation and enfranchisement, was no less infamous, in spirit or purpose, than was the decision ofJudge Taney, that a black man was not one of the people, rendered inthe interest and at the behest of the old democratic party, in itsdarkest hour of subjection to the slave power. Nevertheless, all of theadverse arguments, adverse congressional reports and judicial opinions, thus far, have been based on this purely partisan, time-serving opinionof General Bates, that the normal condition of the citizen of the UnitedStates is that of disfranchisement. That only such classes of citizensas have had special legislative guarantee have a legal right to vote. 

And if this decision of Attorney General Bates was infamous, as againstblack men, but yesterday plantation slaves, what shall we pronounce uponJudge Bingham, in the house of Representatives, and Carpenter, in theSenate of the United States, for citing it against the women of theentire nation, vast numbers of whom are the peers of those honorablegentlemen, themselves, in morals!! intellect, culture, wealth, family--paying taxes on large estates, and contributing equally withthem and their sex, in every direction, to the growth, prosperity andwell-being of the republic? And what shall be said of the judicialopinions of Judges Carter, Jameson, McKay and Sharswood, all based uponthis aristocratic, monarchial idea, of the right of one class to governanother?

I am proud to mention the names of the two United States Judges who havegiven opinions honorable to our republican idea, and honorable tothemselves--Judge Howe, of Wyoming Territory, and Judge Underwood, ofVirginia. 

The former gave it as his opinion a year ago, when the Legislatureseemed likely to revoke the law enfranchising the women of thatterritory, that, in case they succeeded, the women would still possessthe right to vote under the fourteenth amendment. 

Judge Underwood, of Virginia, in noticing the recent decision of JudgeCarter, of the Supreme Court of the District of Columbia, denying towomen the right to vote, under the fourteenth and fifteenth amendment, says;

 "If the people of the United States, by amendment of their constitution, could expunge, without any explanatory or assisting legislation, an adjective of five letters from all state and local constitutions, and thereby raise millions of our most ignorant fellow-citizens to all of the rights and privileges of electors, why should not the same people, by the same amendment, expunge an adjective of four letters from the same state and local constitutions, and thereby raise other millions of more educated and better informed citizens to equal rights and privileges, without explanatory or assisting legislation?"

If the fourteenth amendment does not secure to all citizens the right torote, for what purpose was that grand old charter of the fatherslumbered with its unwieldy proportions? The republican party, and JudgesHoward and Bingham, who drafted the document, pretended it was to dosomething for black men; and if that something was not to secure them intheir right to vote and hold office, what could it have been? For, bythe thirteenth amendment, black men had become people, and hence wereentitled to all the privileges and immunities of the government, precisely as were the women of the country, and foreign men notnaturalized. According to Associate Justice Washington, they already hadthe

 "Protection of 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 to such restraints as the government may justly prescribe for the general welfare of the whole; the right of a citizen of one state to pass through or to reside in any other state for the purpose of trade, agriculture, professional pursuit, or otherwise; to claim the benefit of the writ of habeas corpus, to institute and maintain actions of any 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 impositions than are paid by the other citizens of the state. "

Thus, you see, those newly freed men were in possession of everypossible right, privilege and immunity of the government, except that ofsuffrage, and hence, needed no constitutional amendment for any otherpurpose. What right, I ask you, has the Irishman the day after hereceives his naturalization papers that he did not possess the daybefore, save the right to vote and hold office? And the Chinamen, nowcrowding our Pacific coast, are in precisely the same position. Whatprivilege or immunity has California or Oregon the constitutional rightto deny them, save that of the ballot? Clearly, then, if the fourteenthamendment was not to secure to black men their right to vote, it didnothing for them, since they possessed everything else before. But, ifit was meant to be a prohibition of the states, to deny or abridge theirright to vote--which I fully believe--then it did the same for allpersons, white women included, born or naturalized in the United States;for the amendment does not say all male persons of African descent, butall persons are citizens. 

The second section is simply a threat to punish the states, by reducingtheir representation on the floor of Congress, should they disfranchiseany of their male citizens, on account of color, and does not allow ofthe inference that the states may disfranchise from any, or all othercauses; nor in any wise weaken or invalidate the universal guarantee ofthe first section. What rule of law or logic would allow the conclusion, that the prohibition of a crime to one person, on severe pains andpenalties, was a sanction of that crime to any and all other personssave that one?

But, however much the doctors of the law may disagree, as to whetherpeople and citizens, in the original constitution, were one and thesame, or whether the privileges and immunities in the fourteenthamendment include the right of suffrage, the question of the citizen'sright to vote is settled forever by the fifteenth amendment. "Thecitizen's right to vote shall not be denied by the United States, norany state thereof; on account of race, color, or previous condition ofservitude. " How can the state deny or abridge the right of the citizen, if the citizen does not possess it? There is no escape from theconclusion, that to vote is the citizen's right, and the specificationsof race, color, or previous condition of servitude can, in no way, impair the force of the emphatic assertion, that the citizen's right tovote shall not be denied or abridged. 

The political strategy of the second section of the fourteenthamendment, failing to coerce the rebel states into enfranchising theirnegroes, and the necessities of the republican party demanding theirvotes throughout the South, to ensure the re-election of Grant in 1872, that party was compelled to place this positive prohibition of thefifteenth amendment upon the United States and all the states thereof. 

If we once establish the false principle, that United States citizenshipdoes not carry with it the right to vote in every state in this Union, there is no end to the petty freaks and cunning devices, that will beresorted to, to exclude one and another class of citizens from the rightof suffrage. 

It will not always be men combining to disfranchise all women; nativeborn men combining to abridge the rights of all naturalized citizens, asin Rhode Island. It will not always be the rich and educated who maycombine to cut off the poor and ignorant; but we may live to see thepoor, hardworking, uncultivated day laborers, foreign and native born, learning the power of the ballot and their vast majority of numbers, combine and amend state constitutions so as to disfranchise theVanderbilts and A. T. Stewarts, the Conklings and Fentons. It is a poorrule that won't work more ways than one. Establish this precedent, admitthe right to deny suffrage to the states, and there is no power toforesee the confusion, discord and disruption that may await us. Thereis, and can be, but one safe principle of government--equal rights toall. And any and every discrimination against any class, whether onaccount of color, race, nativity, sex, property, culture, can butimbitter and disaffect that class, and thereby endanger the safety ofthe whole people. 

Clearly, then, the national government must not only define the rightsof citizens, but it must stretch out its powerful hand and protect themin every state in this Union. 

But if you will insist that the fifteenth amendment's emphaticinterdiction against robbing United States citizens of their right tovote, "on account of race, color, or previous condition of servitude, "is a recognition of the right, either of the United States, or anystate, to rob citizens of that right, for any or all other reasons, Iwill prove to you that the class of citizens for which I now plead, andto which I belong, may be, and are, by all the principles of ourgovernment, and many of the laws of the states, included under the term"previous condition of servitude. "

First. --The married women and their legal status. What is servitude?"The condition of a slave. " What is a slave? "A person who is robbed ofthe proceeds of his labor; a person who is subject to the will ofanother. "

By the law of Georgia, South Carolina, and all the states of the South, the negro had no right to the custody and control of his person. Hebelonged to his master. If he was disobedient, the master had the rightto use correction. If the negro didn't like the correction, andattempted to run away, the master had a right to use coercion to bringhim back. 

By the law of every state in this Union to-day, North as well as South, the married woman has no right to the custody and control of her person. The wife belongs to her husband; and if she refuses obedience to hiswill, he may use moderate correction, and if she doesn't like hismoderate correction, and attempts to leave his "bed and board, " thehusband may use moderate coercion to bring her back. The little word"moderate, " you see, is the saving clause for the wife, and woulddoubtless be overstepped should her offended husband administer hiscorrection with the "cat-o'-nine-tails, " or accomplish his coercion withblood-hounds. 

Again, the slave had no right to the earnings of his hands, theybelonged to his master; no right to the custody of his children, theybelonged to his master; no right to sue or be sued, or testify in thecourts. If he committed a crime, it was the master who must sue or besued. 

In many of the states there has been special legislation, giving tomarried women the right to property inherited, or received by bequest, or earned by the pursuit of any avocation outside of the home; also, giving her the right to sue and be sued in matters pertaining to suchseparate property; but not a single state of this Union has ever securedthe wife in the enjoyment of her right to the joint ownership of thejoint earnings of the marriage copartnership. And since, in the natureof things, the vast majority of married women never earn a dollar, bywork outside of their families, nor inherit a dollar from their fathers, it follows that from the day of their marriage to the day of the deathof their husbands, not one of them ever has a dollar, except it shallplease her husband to _let_ her have it. 

In some of the states, also, there have been laws passed giving to themother a joint right with the father in the guardianship of thechildren. But twenty years ago, when our woman's rights movementcommenced, by the laws of the State of New York, and all the states, thefather had the sole custody and control of the children. No matter if hewere a brutal, drunken libertine, he had the legal right, without themother's consent, to apprentice her sons to rumsellers, or her daughtersto brothel keepers. He could even will away an unborn child, to someother person than the mother. And in many of the states the law stillprevails, and the mothers are still utterly powerless under the commonlaw. 

I doubt if there is, to-day, a State in this Union where a married womancan sue or be sued for slander of character, and until quite recentlythere was not one in which she could sue or be sued for injury ofperson. However damaging to the wife's reputation any slander may be, she is wholly powerless to institute legal proceedings against heraccuser, unless her husband shall join with her; and how often have weheard of the husband conspiring with some outside barbarian to blast thegood name of his wife? A married woman cannot testify in courts in casesof joint interest with her husband. A good farmer's wife near Earlville, Ill. , who had all the rights she wanted, went to a dentist of thevillage and had a full set of false teeth, both upper and under. Thedentist pronounced them an admirable fit, and the wife declared theygave her fits to wear them; that she could neither chew nor talk withthem in her mouth. The dentist sued the husband; his counsel brought thewife as witness; the judge ruled her off the stand, saying "a marriedwoman cannot be a witness in matters of joint interest between herselfand her husband. " Think of it, ye good wives, the false teeth in yourmouths are joint interest with your husbands, about which you arelegally incompetent to speak!! If in our frequent and shocking railroadaccidents a married woman is injured in her person, in nearly all ofthe States, it is her husband who must sue the company, and it is to herhusband that the damages, if there are any, will be awarded. InAshfield, Mass. , supposed to be the most advanced of any State in theUnion in all things, humanitarian as well as intellectual, a marriedwoman was severely injured by a defective sidewalk. Her husband sued thecorporation and recovered $13, 000 damages. And those $13, 000 belong tohim _bona fide_; and whenever that unfortunate wife wishes a dollar ofit to supply her needs she must ask her husband for it; and if the manbe of a narrow, selfish, niggardly nature, she will have to hear himsay, every time, "What have you done, my dear, with the twenty-fivecents I gave you yesterday?" Isn't such a position, I ask you, humiliating enough to be called "servitude?" That husband, as would anyother husband, in nearly every State of this Union, sued and obtaineddamages for the loss of the services of his wife, precisely as themaster, under the old slave regime, would have done, had his slave beenthus injured, and precisely as he himself would have done had it beenhis ox, cow or horse instead of his wife. 

There is an old saying that "a rose by any other name would smell assweet, " and I submit if the deprivation by law of the ownership of one'sown person, wages, property, children, the denial of the right as anindividual, to sue and be sued, and to testify in the courts, is not acondition of servitude most bitter and absolute, though under the sacredname of marriage?

Does any lawyer doubt my statement of the legal status of married women?I will remind him of the fact that the old common law of Englandprevails in every State in this Union, except where the Legislature hasenacted special laws annulling it. And I am ashamed that not one Statehas yet blotted from its statute books the old common law of marriage, by which Blackstone, summed up in the fewest words possible, is made tosay, "husband and wife are one, and that one is the husband. "

Thus may all married women, wives and widows, by the laws of the severalStates, be technically included in the fifteenth amendment'sspecification of "condition of servitude, " present or previous. And notonly married women, but I will also prove to you that by all the greatfundamental principles of our free government, the entire womanhood ofthe nation is in a "condition of servitude" as surely as were ourrevolutionary fathers, when they rebelled against old King George. Womenare taxed without representation, governed without their consent, tried, convicted and punished without a jury of their peers. And is all thistyranny any less humiliating and degrading to women under ourdemocratic-republican government to-day than it was to men under theiraristocratic, monarchical government one hundred years ago? There is notan utterance of old John Adams, John Hancock or Patrick Henry, but findsa living response in the soul of every intelligent, patriotic woman ofthe nation. Bring to me a common-sense woman property holder, and I willshow you one whose soul is fired with all the indignation of 1776 everytime the tax-gatherer presents himself at her door. You will not findone such but feels her condition of servitude as galling as did JamesOtis when he said:

 "The very act of taxing exercised over those who are not represented appears to me to be depriving them of one of their most essential rights, and if continued, seems to be in effect an entire disfranchisement of every civil right. For, what one civil right is worth a rush after a man's property is subject to be taken from him at pleasure without his consent? If a man is not his own assessor in person, or by deputy, his liberty is gone, or he is wholly at the mercy of others. "

What was the three-penny tax on tea, or the paltry tax on paper andsugar to which our revolutionary fathers were subjected, when comparedwith the taxation of the women of this Republic? The orphaned Pixleysisters, six dollars a day, and even the women, who are proclaiming thetyranny of our taxation without representation, from city to citythroughout the country, are often compelled to pay a tax for the poorprivilege of defending our rights. And again, to show thatdisfranchisement was precisely the slavery of which the fatherscomplained, allow me to cite to you old Ben. Franklin, who in thoseolden times was admitted to be good authority, not merely in domesticeconomy, but in political as well; he said:

 "Every man of the commonalty, except infants, insane persons and criminals, is of common right and the law of God, a freeman and entitled to the free enjoyment of liberty. That liberty or freedom consists in having an actual share in the appointment of those who are to frame the laws, and who are to be the guardians of every man's life, property and peace. For the all of one man is as dear to him as the all of another; and the poor man has an equal right, but more need to have representatives in the Legislature than the rich one. That they who have no voice or vote in the electing of representatives, do not enjoy liberty, but are absolutely enslaved to those who have votes and their representatives; for to be enslaved is to have governors whom other men have set over us, and to be subject to laws made by the representatives of others, without having had representatives of our own to give consent in our behalf. "

Suppose I read it with the feminine gender:

 "That women who have no voice nor vote in the electing of representatives, do not enjoy liberty, but are absolutely enslaved to men who have votes and their representatives; for to be enslaved is to have governors whom men have set over us, and to be subject to the laws made by the representatives of men, without having representatives of our own to give consent in our behalf. "

And yet one more authority; that of Thomas Paine, than whom not one ofthe Revolutionary patriots more ably vindicated the principles uponwhich our government is founded:

 "The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce man to a state of slavery; for slavery consists in being subject to the will of another; and he that has not a vote in the election of representatives is in this case. The proposal, therefore, to disfranchise any class of men is as criminal as the proposal to take away property. "

Is anything further needed to prove woman's condition of servitudesufficiently orthodox to entitle her to the guaranties of the fifteenthamendment?

Is there a man who will not agree with me, that to talk of freedomwithout the ballot, is mockery--is slavery--to the women of thisRepublic, precisely as New England's orator Wendell Phillips, at theclose of the late war, declared it to be to the newly emancipated blackmen?

I admit that prior to the rebellion, by common consent, the right toenslave, as well as to disfranchise both native and foreign borncitizens, was conceded to the States. But the one grand principle, settled by the war and the reconstruction legislation, is the supremacyof national power to protect the citizens of the United States in theirright to freedom and the elective franchise, against any and everyinterference on the part of the several States. And again and again, have the American people asserted the triumph of this principle, bytheir overwhelming majorities for Lincoln and Grant. 

The one issue of the last two Presidential elections was, whether thefourteenth and fifteenth amendments should be considered the irrevocablewill of the people; and the decision was, they shall be--and that it isnot only the right, but the duty of the National Government to protectall United States citizens in the full enjoyment and free exercise ofall their privileges and immunities against any attempt of any State todeny or abridge. 

And in this conclusion Republicans and Democrats alike agree. 

Senator Frelinghuysen said:

 "The heresy of State rights has been completely buried in these amendments, that as amended, the Constitution confers not only national but State citizenship upon all persons born or naturalized within our limits. "

The Call for the national Republican convention said:

 "Equal suffrage has been engrafted on the national Constitution; the privileges and immunities of American citizenship have become a part of the organic law. "

The national Republican platform said:

 "Complete liberty and exact equality in the enjoyment of all civil, political and public rights, should be established and maintained throughout the Union by efficient and appropriate State and federal legislation. "

If that means anything, it is that Congress should pass a law to requirethe States to protect women in their equal political rights, and thatthe States should enact laws making it the duty of inspectors ofelections to receive women's votes on precisely the same conditions theydo those of men. 

Judge Stanley Mathews--a substantial Ohio democrat--in his preliminaryspeech at the Cincinnati convention, said most emphatically:

 "The constitutional amendments have established the political equality of all citizens before the law. "

President Grant, in his message to Congress March 30th, 1870, on theadoption of the fifteenth amendment, said:

 "A measure which makes at once four millions of people voters, is indeed a measure of greater importance than any act of the kind from the foundation of the Government to the present time. "

How could _four_ millions negroes be made voters if _two_ millions werenot included?

The California State Republican convention said:

 "Among the many practical and substantial triumphs of the principles achieved by the Republican party during the past twelve years, it enumerated with pride and pleasure, the prohibiting of any State from abridging the privileges of any citizen of the Republic, the declaring the civil and political equality of every citizen, and the establishing all these principles in the federal constitution by amendments thereto, as the permanent law. "

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

 "I do not believe anybody in Congress doubts that the Constitution authorizes the right of women to vote, precisely as it authorizes trial by jury and many other like rights guaranteed to citizens. "

And again, General Butler said:

 "It is not laws we want; there are plenty of laws--good enough, too. Administrative ability to enforce law is the great want of the age, in this country especially. Everybody talks of law, law. If everybody would insist on the enforcement of law, the government would stand on a firmer basis, and questions would settle themselves. "

And it is upon this just interpretation of the United StatesConstitution that our National Woman Suffrage Association whichcelebrates the twenty-fifth anniversary of the woman's rights movementin New York on the 6th of May next, has based all its arguments andaction the past five years. 

We no longer petition Legislature or Congress to give us the right tovote. We appeal to the women everywhere to exercise their too longneglected "citizen's right to vote. " We appeal to the inspectors ofelection everywhere to receive the votes of all United States citizensas it is their duty to do. We appeal to United States commissioners andmarshals to arrest the inspectors who reject the names and votes ofUnited States citizens, as it is their duty to do, and leave those alonewho, like our eighth ward inspectors, perform their duties faithfullyand well. 

We ask the juries to fail to return verdicts of "guilty" against honest, law-abiding, tax-paying United States citizens for offering their votesat our elections. Or against intelligent, worthy young men, inspectorsof elections, for receiving and counting such citizens' votes. 

We ask the judges to render true and unprejudiced opinions of the law, and wherever there is room for a doubt to give its benefit on the sideof liberty and equal rights to women, remembering that "the true rule ofinterpretation under our national constitution, especially since itsamendments, is that anything for human rights is constitutional, everything against human rights unconstitutional. "

And it is on this line that we propose to fight our battle for theballot--all peaceably, but nevertheless persistently through to completetriumph, when all United States citizens shall be recognized as equalsbefore the law. 

SPEECH OF

MATILDA JOSLYN GAGE, In Canandaigua and 16 other towns of Ontario county, previous to MissAnthony's Trial, June 17th, 1873. 

THE UNITED STATES ON TRIAL;

 _not_

SUSAN B. ANTHONY. 

Governments derive their just powers from the consent of the governed. That is the axiom of our republic. From this axiom we understand thatpowers used by the government without the consent of the governed, are_not just_ powers, but that on the contrary, they are _unjust_ powers, _usurped_ powers, _illegal_ powers. 

In what way does the consent of the governed come?

By and through the ballot alone. The ballot answers questions. It saysyes, or no. It declares what _principles_ shall rule; it says what_laws_ shall be made, it tells what _taxes_ are to be raised; it placesmen in office or lays their heads low in the dust. It is the _will_ of aman embodied in that little piece of paper; it is the consent of thegoverned. 

Are women governed? Most certainly; they pay taxes, --they are heldamenable to laws; they are tried for crimes; they are fined, imprisoned, hung. The government wields strong power over them. Have they consentedto this power of the government? Have they a recognized right to theballot? Has their consent bean asked through their votes? Have they hada voice in saying what taxes shall be levied on their property, --whatpenalties they shall pay for crimes? _No. _ They are ruled without theirconsent. The first principles of government are founded on the naturalrights of individuals; in order to _secure_ the exercise of thesenatural, individual rights our government professed to be founded. Governments never created a single right; rights did not come new-borninto the world with our revolutionary fathers. They were men of middleage when they severed their connexion with Great Britain, but thatseverance did not endow them with a single new right. It was at thattime they first entered into the _exercise_ of their natural, individualrights. Neither our Declaration, nor our Constitution created a singleright; they merely recognized certain rights as in existence. Theyrecognized those rights as human rights, --as inalienable rights, --asrights existing by virtue of common humanity. Natural rights neverchange, but the power to perceive these natural rights does change, andvarious nations have had their own standard. 

Three names, said to be the sweetest the world ever knew, are mother, home, and heaven. There is one still sweeter--one for which men havegiven up mother and home, and for which they have almost sacrificed thehope of heaven; that word is LIBERTY. 

When the fires of liberty began to creep through Europe in the middleages, at a time when hereditary monarchs and the catholic church ruledthe world, men placed its safeguards in municipal corporations. The ideaof municipal corporations descended from Rome to the rest of Europe, and"free cities" became the germ of personal freedom. But a new world wasneeded for the great experiment of individual freedom. Macauley callsgovernment an experimental science and therefore a progressive science;history shows this to be true. Liberty did not spring "full armed" likeMinerva from the head of Jove. The liberty possessed by the world hasbeen gradually secured, and it was left for our country first toincorporate in its foundation a recognition of individual rights. Ahundred years before the revolutionary war, Massachusetts and Virginiaresisted English tyranny. Massachusetts, in 1664, called herself a"perfect republic. " She preserved a neutral harbor by force of armsagainst opposing English factions; she enacted laws against thesupremacy of the English parliament, and she established her own mint. This last is noticeable, as in the progress of liberty, rights ofproperty, of which money is the exponent, have always been one of theforemost. Bancroft says Virginia was always a land of liberty; thatVirginia placed the defense of liberty not in municipal corporations, _but in persons_, and that the liberty of the individual was ever highlyprized. The difference between a monarchy and a republic is thedifference between force and consent; it is the difference between beinggoverned and governing yourself; it is the difference between the _men_of Russia and the _men_ of the United States; it is the differencebetween the political rights of one man as the government and thepolitical rights of the people as the government. But the world hasnever yet seen a true republic, though it has for hundreds of years beentaking steps towards one. 

The original principles of just governments are five, all of which wereacknowledged by the United States at its foundation. These principlesare:

_First. _ The natural right of each individual to self-government. 

_Second. _ The exact equality of these rights. 

_Third. _ That these rights when not delegated by the individual, areretained by the individual. 

_Fourth. _ That no person can exercise these rights of others withoutdelegated authority. 

_Fifth. _ That the non-use of these rights does not destroy them. 

These five underlying principles are the admitted basis of allgovernmental rights, and the old revolutionists acted upon them. Theywere men of middle life; they were under an old and established form ofgovernment to which they had not delegated authority, and during allthese years they had made no use of their natural, equal rights. Whenthey chose to assume the exercise of these rights, they at once tookthem up. 

The women of that day were no less in earnest than were the men. MercyOtis Warren, sister of that James Otis whose fiery words did so muchtowards rousing the colonies, was herself no less in earnest, had noless influence than her brother. She was a member of the famouscommittee of correspondence, and was constantly consulted by Adams, Jefferson, Franklin, Hancock, Washington and all the foremost men ofthat day. Through her lips was first whispered the word, separation. Noless active were the women of New England, and in 1770, five yearsbefore the breaking out of the revolutionary war, the women of Bostonheld a public meeting, and formed themselves into a league to resisttaxation. As tea was the article upon which Great Britain was thenmaking her stand, in order to sustain the _principle_ of taxation, thesewomen declared they would use no more tea until the tax upon it wasrepealed. This league was first formed by the married women, but thenext day the young women met "in innumerable numbers, " and took similaraction. They expressly stated, they did not do this so much forthemselves, as for the benefit of their posterity. In the country, thewomen of that hour went abroad over the fields and sowed their tea, asmen sow wheat. This action of the women of the revolution was takenthree years before the famous Tea Party of Boston harbor, and was thereal origin of that "Tea Party. " The women of the present day, the"posterity" of these women of the revolution, are now following theexample then set, and are protesting against taxation withoutrepresentation. A few weeks ago I attended a meeting of the tax-payingwomen of Rochester who met in the Mayor's office in that city, andthere, like their revolutionary mothers, formed a league againsttaxation without representation. Meetings for the discussion of measuresare regularly held by them, and they have issued an address, which Iwill read you. 

 _To the Women of the City of Rochester and the County of Monroe_:

 After twenty-five years of discussion, appeal and work, the Women of Rochester assembled, are prompted to advise and urge tax-paying women of the City and County, that the time has come to act, as our patriot mothers acted in 1770, _in protest against unjust government_, and the action appropriate and suited to the time, is strong and earnest protest against the violation of the Republican principles, which compels the payment of taxes by women, while they are denied the ballot. 

 By order of "THE WOMEN TAX PAYERS' ASSOCIATION of the City of Rochester and County of Monroe. "

They have also issued this memorial and protest, addressed

 _To the Board of Supervisors of the County of Monroe, and to the Hon. The Common Council of the City of Rochester_:

 The payment of taxes is exacted in direct violation of the principles that "Governments derive their just powers from the consent of the governed, " and that "there shall be no taxation without representation. " Therefore we earnestly protest against the payment of taxes, either Municipal, County, or State, until the ballot secures us in the right of representation, just and equal with other citizens. 

 By order of "THE WOMEN TAX PAYERS' ASSOCIATION of the City of Rochester and County of Monroe. "

Thus women are everywhere going back to fundamental principles, and thisaction of the women of Rochester is but the commencement of a protestwhich will soon become a resistance, and which will extend from the St. Lawrence to the Gulf of Mexico, from the Atlantic to the Pacific. Thewomen of the city of Rochester pay taxes on seven millions of property, and yet not one of these tax payers is consulted as to how, or when thattax shall be raised, or for what purpose used. This seven millions isbut a small proportion of property on which the women of that cityreally pay taxes, as it does not include that much larger amount ofproperty of which they have been robbed, and over which they are assumedto have no control. The foundation of a new city hall has recently beenlaid in that city. Women's property, without their consent, has beenused for this purpose. Water is soon to be brought in from Hemlock Lake, and a dozen other projects are on foot, all of which require money, andtowards all of which, the money of tax-paying women will be takenwithout their consent. 

To illustrate the extreme injustice with which women are treated in thismatter of taxation, to show you how contrary it is to all natural right, let us suppose that all the taxable property in the city of Rochesterbelonged to women, with the exception of a single small house and lot, which were owned by a man. As the law is now interpreted, the man whoowned that house and lot could vote a tax upon the property of all thosewomen at his own will, to build CITY HALLS, COURT HOUSES, JAILS, couldcall an election and vote an extraordinary tax to bring in water from adozen different lakes, erect fountains at every corner, fence in twentyparks, vote himself in, Mayor, Alderman, Assessor, Collector with a fatsalary from these women's money, attached to each one of these offices, and in the end elect himself the sole policeman of the city, to protectthe women from--himself; and this you call just government. It is nomore unjust, no more unrepublican, to take the property of fifty, or ahundred, or a thousand women in this way, than it would be to take theproperty of a single one; the principle is still the same. The women ofto-day, protest, as did their fore-mothers, for principle. Women comeinto the world endowed with the same natural rights as men, and this byvirtue of their common humanity, and when prevented or restrained fromtheir exercise, they are enslaved. Old Ben Franklin once said, "thosethat have no vote or voice in the laws, or the election of those whoadminister them, do not enjoy liberty, but are _absolutely enslaved_ tothose who have votes, and their representatives. " That sentiment is astrue to-day as when uttered. While the women of this nation arerestrained from the exercise of their natural rights of self-government, they are held enslaved to those who do administer the laws. Said an oldminister of revolutionary fame, "One who is bound to obey the will ofanother is as really a slave, though he may have a good master, as if hehad a bad one. " Those of you who remember Adolph in Uncle Tom's Cabin, will recall his apparent freedom. Dressed in style, wearing his master'sgarments before the first gloss was off, viewing Uncle Tom, superciliously through his eye glass, he was a petted companion of hismaster and did not feel his bonds. But one day the scene changed. St. Clair died, and poor Adolph, stripped of all his favors, was dragged offto the vile slave pen. Do you see no parallel between Adolph and thewomen of America? Adolph was restrained by unjust power from exercise ofhis natural rights, so are the women of this country, as is most fullyshown, by this prosecution and trial of Susan B. Anthony. 

In this country, two kinds of representation exist, property andpersonal. Let us look for a moment, at the Constitution of the UnitedStates. In three years we celebrate our centennial. From what does itdate? Not from the Constitution, as our country existed eleven yearswithout a Constitution, --in fact, thirteen years, before it was ratifiedby the thirteen colonies. The centennial dates from the declaration ofIndependence, which was based on underlying principles. But as ourgovernment has recognized its own needs, it has thrown new safeguardsaround liberty. Within a year after the Declaration, it was foundnecessary to enter into articles of Confederation, and those were soonfollowed by the Constitution, as it was found property rights were notsecure "under the action of thirteen different deliberatives. "

England has never possessed personal representation, but only that ofproperty; and in the secret proceedings upon the framing of ourConstitution, the question as to property, or personal representationwas strongly agitated. Some of the delegates favored the fullerrepresentation of property than of persons. Others, who advocated theequality of suffrage, took the matter up on the original principles ofgovernment, recognizing the fact that it was not strength, or wisdom, orproperty, that conferred rights, but that "in a state of nature, beforeany government is formed, all persons 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. It was also argued, and upon thisacknowledgment the Constitution was based, "that when individuals enterinto government they have _each_ a right to an equal voice in its firstformation, and afterwards have _each_ a right to an equal vote in everymatter which relates to their government. That if it could be doneconveniently, they have a right to exercise it in person. When it cannotbe done in person, but for convenience, representatives are appointed toact for them, every person has a right to an equal vote in choosing thatrepresentative, who is intrusted to do for the whole, that which, thewhole, if they could assemble, might do in person, and in thetransaction of which they would have an equal voice. "

This was the basis upon which the Constitution was established, andthese, the principles which led to its adoption; principles whichinclude the full recognition of each person as possessed of theinalienable right of self-government. 

The argument for equality was continued in the following strain, asreported by one of the delegates, to the Legislature of Maryland: "Thatif we were to admit, because a man was more wise, more strong, morewealthy, he should be entitled to more votes than another, it would beinconsistent with the freedom of that other, and would reduce him toslavery. " The following illustration was used: "Suppose, for instance, _ten individuals_ in a state of nature, about to enter into government, nine of whom were equally wise, equally strong, equally wealthy, thetenth 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 theothers, the nine might as well have no vote at all, and though the wholenine might assent to the measure, yet the vote of the tenth wouldcountervail, and set aside all their votes. If this tenth approved ofwhat they wished to adopt, it would be well; but if he disapproved, hecould prevent it, and in the same manner he could carry into executionany measure he wished, contrary to the opinion of all the others, hehaving ten votes, and the others altogether but nine. It is evident thaton these principles, the nine would have no will or discretion of theirown, but must be totally dependent on the will and discretion of thetenth; to him they would be as absolutely slaves as any negro is to hismaster. If he did not attempt to carry into execution any measuresinjurious to the other nine, it could only be said that they had a goodmaster; they would not be the less slaves, because they would be totallydependent upon the will of another and not on their own will. They mightnot feel their chains, but they would notwithstanding wear them; andwhenever their master pleased, he might draw them so tight as to gallthem to the bone. " Again it was urged that though every individualshould have a voice in the government, yet even then, superior wealth, strength, or understanding, would give great and undue advantage tothose who possessed them. But the point especially pressed in thesedebates was that each individual before entering into government, wasequally free and independent: and therefore the conclusion was drawnthat each person had equal right both at the time of framing agovernment, and also after a government or constitution was framed. 

To those who with old English ideas, constantly pressed propertyrepresentation, it was replied that "taxation and representation oughtto go together in so far that a person not represented ought not to betaxed. "

This Constitutional Convention was in session a number of months; itsdelegates were partially elected by women's votes, as at that datewomen were exercising their right of self-government through voting, certainly in the States of Massachusetts and New Jersey, if not inGeorgia and Delaware. These women sent their delegates orrepresentatives to assist in framing a Constitution. 

Let us look at the Preamble of that instrument. It reads thus:

 "We, the PEOPLE of the United States, in order to form a more perfect union, establish _justice_, insure domestic tranquility, provide for the _common_ welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. "

Here we have a statement as to _who_ established the Constitution. Itwas not the thirteen States as States, not the government in itssovereign capacity, but the people: not the white people alone, not thenative born alone, not the male people alone, but the people in acollective sense. Justice was not established by this Constitution ifone half the people were left out from its provisions, neither was the_common_ welfare considered unless all people in common, equally sharedthe benefits of the Constitution. And moreover, the posterity of thepeople of that time are female as well as male. Therefore not only byour knowledge of the course of argument taken by the framers of theConstitution, not only by our knowledge that women as well as men helpedelect delegates to that convention, --not only from the originalprinciples proclaimed in the Declaration, but also by and through thisPreamble to the Constitution do we find woman equally with man, recognized as part of the governing power. 

Although women do not rest their claim to self-government upon any humaninstrument, it is well to show that even in the Declaration, and theoriginal Constitution, the "Constitution as it was, " the rights of _all_people were most emphatically and truly recognized. 

Judge Story in his commentaries upon the Constitution, says, "Theimportance of examining _the Preamble_ for the purpose of expounding thelanguage of a Statute has always been felt and universally conceded inall judicial proceedings. "

 _Com. On Const. , 1, 443-4. _

Chief Justice Jay regarded the Preamble of the Constitution of theUnited States as an authoritative guide to a correct interpretation ofthat instrument. 

 2 _Dallas_, 414. 

Coke says, "The Preamble of a Statute is a good means to find out themeaning of the Statute, and as it were, a _key_ to the understandingthereof. "

Blackstone lays it down as a fundamental principle, that we "must arguefrom generals down to particulars. " Here is good legal authority. I havecited men whose opinions are accepted. We have thus argued down from the_generals_ of the Declaration and Constitution to the particulars whichappertain to each individual alike, and what is the result? Freedom forall; equal rights. We have read the Preamble of the Constitution, andquoted authorities to show in what light it must be read in reference toits following provisions. By its Preamble, the Constitution is shown tomake no distinction in favor of sex. From secret debates of theconvention which framed it, we find the motives and the arguments of itsframers. 

The great foundation and key stone alike of our Republican ideas, _ofour Constitution_, is _individual, personal representation_, and it isthe greatest blessing to the country at large that the question ofrepresentation has come up in the person of Miss Anthony. Men are_compelled_ to think upon underlying principles. They are compelled toask themselves where they get either natural or constitutional right togovern women. 

From the earliest ages men have queried among themselves as to where laythe governing power. In the time of Abraham, and even now in some partsof the world the Patriarch of the tribe is looked upon as its supremeruler. Members of Scottish clans to-day, look with more reverence upontheir chief, than upon the Queen: they obey his behests sooner thanparliamentary laws. Other men have believed the governing power lay inthe hands of a select few, an aristocracy, and that these few men couldby right make laws to govern the rest. Others again have believed thispower vested in a single man called King, or Czar, or Pope, but it wasleft to our country, and our age, to promulgate the idea that thegoverning power lay in the _people themselves_. It took men a great manythousand years to discover this pregnant fact, and although ourgovernment laid down at the very first, certain underlying truths, ithas taken a very long time even for this country to see, and practicethese principles; but as men have opened their eyes to liberty therehave been constant advances towards securing its full blessings to eachand every individual, and in this progress we had first, theDeclaration; second, the Articles of Confederation; third, theConstitution; then the ten Conciliatory Amendments, quickly followed byan eleventh and twelfth, each one of these designed to more fully secureliberty to the people, and making fifteen successive steps in the shortperiod of twenty-eight years. 

At the time of framing this government women existed as well as men, women are part of the people; the people created the government. Now, when speaking to you to-night, I am speaking to the people of this partof Ontario County, I am not speaking to men alone, I am not speaking towomen alone, but to you all as people. When people frame a governmentthe rights not delegated by them to the government, are retained bythem, as is declared by the tenth amendment. Now where do men get theirconstitutional right to govern women? Women have either delegated theirright of self-government to certain delegates, by them to be electedaccording to all the forms of this government, or they have not sodelegated their rights of self-government, but have retained them. Ineither case, according to the genius of our government, what is there toprevent them from exercising these rights any moment they choose, unlessit is force? What prevents them unless it is unjust illegal power? Theninth amendment declares that the enumeration of certain rights, shallnot be construed to deny, or disparage others retained by the people. Remember what are the foundation principles of just government, principles fully acted upon by the old revolutionists; remember that nogovernment of whatever kind or character can possibly _create_ the rightof self-government, but only _recognize_ rights as existent; rememberthe non-use of a right does not destroy that right. 

I have a natural right to as much fresh air as I can breathe; if youshut me in a close room with door and windows barred, that does notinvalidate my right to breathe pure, fresh air. I have a natural rightto obey the dictates of my own conscience, and to worship God as Ichoose. If you are physically stronger than I am, or if you are legallystronger than I am and use your strength to prevent the exercise ofthese natural rights, you by no means destroy them. Though I do not usethese rights, I still possess them. The framers of this government, themen and the women who voted at that early day had never until then, exercised their natural rights of self-government; when they chose, theytook them up. 

But people tell us it was not the intention to include women. What thenwas the intention? Did the framers of the Declaration intend to leavewomen under the government of Great Britain? Did they intend to setthemselves and their male compeers free, and leave women behind, under amonarchy? Were not women intended to be included in the benefits of theconstitution?

Oh, but says some one, they were intended to be generally included, butthe amendments had nothing to do with them. 

Let us look at this. Is it possible to amend a Constitution not inaccordance with its underlying principles? It can be repealed, abolished, destroyed, but not _amended; except in accordance with itsoriginal character_. The Supreme Court of the United States has declaredthat the powers of the Constitution are granted by the people, and areto be exercised strictly _on them_, and _for their benefit_. 

Story asks, "Who are the parties to this great contract?" and answersthe question by saying, "The people of the United States are the partiesto the Constitution. "

 _Com. On Con. _

_Com. On Con. Legal Rules_, 283, says: "This first paragraph of the Constitution, declaring its ends, is the most vital part of the instrument, revealing its spirit and intent, _and the understanding of its framers_. "

Here we have the recognized legal rule that the understanding orINTENTION of the framers of an instrument is to be found in its firstparagraph, and the first paragraph of the Constitution declares it wasframed BY THE PEOPLE, and for the purpose of securing the blessings ofliberty to themselves and their posterity. The native-born Americanwomen of to-day, are the posterity of the framers of the Constitution, which was thus designed for their benefit. The intention to includewomen is here positive; women are part of the people now, and ever havebeen. "Rules of legal interpretation are general in their character, "and so general has the interpretation of the Constitution been, that notonly did the people who framed the Constitution, and their posterity, come in for its blessings, but the people also of every nation andtongue, from continent or isles of the sea, who come to us, are includedin its benefits. Who can say our forefathers _intended_ to includeChinamen, or Sandwich Islanders, or the Norwegian, Russian, or Italianin its benefits? Yet they do all share in it as soon as they becomecitizens. How absurd we should think the assertion that it was not theLord's intention to hold the people of the United States under the lawof the Ten Commandments, as they were given to the Jews alone, some fourthousand years before the United States existed as a nation. Massachusetts never abolished slavery by legislative act; neverintentionally abolished it. In 1780 that State adopted a newConstitution with a Bill of Rights, declaring "All men born free andequal. " Upon this, some slaves demanded their freedom, and their mastersgranted it. The slavery of men and _women_, both, was thus destroyed inMassachusetts without intention on the part of the framers of theConstitution, and this, because it is a legal rule to argue down fromgenerals to particulars, and that the "words of a statute ought not tobe interpreted to destroy natural justice;" but as Coke says, "Wheneverthe question of liberty runs doubtful, _the decision must be given infavor of liberty_. "

 _Digest C. L. _

When a Charter declares "all men born free and equal, " it means, intends, and includes all women, too; it means all mankind, and this isthe _legal interpretation_ of the language. 

To go back to the Constitution of the United States, let us examine ifwomen were not intended. The first amendment reads, "Congress shall makeno law respecting an establishment of religion, or prohibiting the freeexercise thereof, or abridging the freedom of speech, or of the press;or the right of the people peaceably to assemble and to petition thegovernment for a redress of grievances. "

No mention is there made of women, but who will deny it was not intendedfor them to enjoy the right of worshipping as they choose? Were they notto be protected in freedom of speech, and in the right of assembling topetition the government for a redress of grievances? Not a man before mewill deny that women were included equally with men in the intention ofthe framers. 

The Sixth Amendment reads, "In all criminal prosecutions, the accusedshall enjoy the right to a speedy and public trial, by an impartial juryof the State and District wherein the crime shall have been committed, which District shall have been previously ascertained by law; and to beinformed of the nature and cause of the accusation; to be confrontedwith the witnesses against _him_; to have compulsory processes forobtaining witnesses in _his_ favor; and to have the existence of counselin _his_ defense. "

The words "him" and "his, " are three times mentioned in this amendment, yet no one can be found wild enough to say women were not intended to beincluded in its benefits. Miss Anthony, herself, has already come underits provisions, and were she denied a speedy and open trial, she couldappeal to the protection of this very amendment, which not only does notsay women, or her, but does alone say _him_ and _his_, and this, notwithstanding the other legal adage, that laws stand as they arewritten. This whole question of constitutional rights, turns on whetherthe United States is a nation. If the United States is a nation, it has_national_ powers. What is the admitted basis of our nation? We reply, equality of political rights. And what, again, is the basis of politicalrights? Citizenship. Nothing more, nothing less. National sovereignty isonly founded upon the political sovereignty of the individual, andnational rights are merely individual rights in a collective form. Theacknowledged basis of rights in each and every one of the thirty-sevenStates, is citizenship, --not State citizenship alone, as that alonecannot exist, but first, national citizenship. _National_ rights are thefundamental basis of _State_ rights. If this is not true, we are then nonation, but merely a confederacy, held together by our own separatewills, and the South was right in its war of secession. Every sovereignright of the United States exists solely from its existence as anation. 

As the nation has grown to know the needs of liberty, it has from timeto time thrown new safeguards around it, as I have shown in its fifteenprogressive steps since 1776. For sixty years there was no change. Slavery had cast its blight upon our country, and the struggle was forState supremacy. Men forgot the rights, and need of freedom; but in1861, the climax was reached, and then came the bitter struggle betweenstate and national power. Although our underlying principles were allright, freedom required new guards, and the right of all men to liberty, was put in a new form. An especial statute or amendment was added to ourNational Constitution, declaring that involuntary servitude, unless forcrime, could not exist in this republic. This statute created no newrights; it merely affirmed and elucidated rights as old as creation, andwhich, in a general way, had been recognized at the very firstfoundation of our government--even as far back as the old Articles ofAssociation, before the Declaration of Independence. This amendment wasthe sixteenth step in _securing_ the rights of the people, but it wasnot enough. Our country differs from every other country, in that wehave _two kinds_ of citizenship. First, we have national citizenship, based upon equal political rights. A person born a citizen of the UnitedStates, is, by the very circumstances of birth, endowed with certainpolitical rights. In this respect, the circumstances of birth are verydifferent from those of a person born in Great Britain. A person born inGreat Britain is not endowed with political rights, simply because bornin that country. Political rights in Great Britain are not based uponpersonal rights; they are based upon property rights. In England, persons are not represented; only property is represented. That is thevery great political difference between England and the United States. In the United States, representation is based upon individual, personalrights--therefore, every person born in the United States--_everyperson_, --not every white person, nor every male person, but everyperson is born with _political_ rights. The naturalization of foreignersalso secures to them the exercise of political rights, because itsecures to them citizenship, and they obtain naturalization through_national_ law. The war brought about a distinct and new recognition ofthe rights of national citizenship. States had assumed to be superior tothe nation in this very underlying national basis of voting rights, butwhen certain States boldly attempted to thwart national power, and votethemselves out of the Union, --when by this attempt they virtually said, there is no nation, a new protection was thrown around individual, personal, political rights, by a seventeenth step, known to the world bythe Fourteenth Amendment, which defined, (not created) citizenship. "Allpersons born or naturalized in the United States, and subject to thejurisdiction thereof, are citizens of the United States and of the Statewherein they reside, " thus recognizing United States citizenship as thefirst and superior citizenship. 

Miss Anthony was not only _born_ in the United States, but the UnitedStates also has jurisdiction over her, as is shown by this suit, underwhich she was arrested in Rochester, and held there to examination inthe same little room in which fugitive slaves were once examined. FromRochester she was taken to Albany, from Albany back to Rochester, andnow from Rochester to Canandaigua, where she is soon to be tried. Shehas thus been fully acknowledged by the United States as one of itscitizens, and also as a citizen of the State in which she resides. 

In order to become a citizen of a State, and enjoy the privileges andimmunities of States, a citizen of the United States must reside in aState. Citizenship of the United States secures nothing over thecitizenship of other countries, unless it secures the right ofself-government. State laws may hereafter regulate suffrage, but thedifference between regulating and prohibiting, is as great as thedifference between state and national citizenship. The question of thewar was the question of State rights; it was the negro, _vs. _ Staterights, or the power of States over the ballot. The question to-day is, woman, _vs. _ United States rights, or the power of the United over theballot. The moral battle now waging will settle the question of thepower of the United States over the rights of citizens. By the civilwar, the United States was proven to be stronger than the States. It wasproven we were a nation in so far that States were but parts of thewhole. The woman question, of which in this pending trial, Miss Anthonystands as the exponent, is to settle the question of United States powerover the individual political rights of the people; it is a question ofa monarchy or a republic. The United States may usurp power, as did theStates, but it has no rights in a sovereign capacity, not given it bythe Constitution, or in other words, BY THE PEOPLE. By the Preamble wehave discovered _who_ are its people, and for _what purpose_ itsConstitution was instituted. Each and every amendment--the first ten, the eleventh, twelfth, thirteenth, fourteenth, and fifteenth, are onlyparts of the grand whole, and must, each and every one, be examined inthe light of the Preamble. 

Each added amendment makes this change in the status of the People, inthat it gives new guaranties of freedom, and removes all pretense ofright from any existing usurped power. People are slow to comprehend thechange which has been effected by the decision as to State rights. One, claims that only the negro, or persons of African descent, were affectedby it. Others claim, and among them, some prominent Republicans, thatevery civil right is by these amendments, thrown under national control. Recently, two or three suits have come before the United States on thisapprehension. One of these, known as the Slaughter House Case, came upfrom New Orleans in the suit of certain persons against the State ofLouisiana. A permit had been given certain parties to erect solebuildings for slaughter, and in other ways control that entire businessin the city of New Orleans for a certain number of years. A suit upon itwas appealed to the Supreme Court of the United States, on the ground ofthe change in the power of States, by, and through the last threeamendments, and on the supposition that all the civil power of theStates had thus been destroyed. 

The Court decided it had no jurisdiction, though in its decision itproclaimed the far-reaching character of these amendments. In referenceto the Thirteenth Amendment, the Court used this language:

 "We do not say that no one else but the negro can share in this protection. Both the language _and spirit_ of these articles are to have their full and just weight in any question of construction. Undoubtedly while negro slavery alone was in the minds of the Congress which proposed the thirteenth article, it forbids any kind of slavery, now, or hereafter. If Mexican peonage, or the Chinese cooley labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may be safely trusted to make it void. "

This is the language used by the Supreme Court of the United States inreference to this thirteenth amendment; prohibiting any, _all_, andevery kind of slavery, not only now, but in the hereafter, and this, although the decision, also acknowledges the fact that only Africanslavery _was intended_ to be covered by this amendment. 

The Court further said, "And so if _other_ rights are assailed by theStates, _which properly and necessarily fall within the protection ofthese articles_, that protection will apply, though the party interestedmay not be of African descent. "

What "other rights fall within the protection of these articles?" What"other rights" do these amendments cover? The fourteenth article, afterdeclaring who are citizens of the United States, and of States, stillfurther says, "No State shall make or enforce any law which shallabridge 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 itsjurisdiction, the equal protection of the laws. " This comprises thefirst section of that amendment. The jurisdiction and protection of thegeneral government applies to United States citizens. By its prosecutionof Miss Anthony, the general government acknowledges her as a citizen ofthe United States, and what is much more, it acknowledges its ownjurisdiction over the ballot--over the chief--chief, did I say, --overthe _only_ political right of its citizens. This prosecution is anadmission of United States jurisdiction, instead of State jurisdiction. This whole amendment, with the exception of the first clause of thefirst section, which simply declares who are citizens of the UnitedStates and States, is directed against the interference of _States_ inthe rights of citizens. But in Miss Anthony's case, the State of NewYork has not interfered with her right to vote. She voted under locallaws, and the State said not a word, --has taken no action in the case, consequently the United States has had no occasion to interfere on thatground. The question of _State_ rights was not as great a question asthis: What are United States rights? Can the United States, in itssovereign capacity, overthrow the rights of its own citizens? No, itcannot; for the Fifteenth Amendment to the Constitution specificallydeclares "The right of citizens of the United States _to vote_, shallnot be denied or abridged by the United States, or by any State, onaccount of race, color, or previous condition of servitude. "

This fifteenth Amendment has been seriously misapprehended by manypeople, who have understood it to mean that _women_ could be excludedfrom voting, simply because they are women. I have shown you thatStatutes and Constitutions are always general in their character; thatfrom generals we must argue down to particulars, and that if there isany doubt as to the interpretation of a statute, it must be defined inthe interests of liberty. But as to the interpretation of this statutethere can be no doubt. Had it read, "The right of citizens of the UnitedStates to take out passports, shall not be denied or abridged by theUnited States, on account of race, color, or previous condition ofservitude, " no person would interpret it to mean that such right to takeout passport could be denied on account of _female_ sex, or on accountof _male_ sex. We will read it now, first in the light of theDeclaration; second, in that of the Preamble to the Constitution, andthe Constitution itself, and its various amendments, to which I havereferred: the first, sixth, ninth and tenth, which would have beeninterpreted male, had the Constitution meant men alone, but which havealways been defined to cover, and include woman--to cover and includethe rights of the _whole_ people to freedom of conscience, to freedom ofspeech, to the right of a speedy and public trial, &c. , &c. , and this, although in the Sixth Amendment, the terms _him_ and _his_ are aloneused. The Courts long ago decided that Statutes were of general bearing, as is fully true of the Declaration and Constitution, which are supremestatutes. The Fifteenth Amendment does not specifically exclude right ofmale citizens to vote, because they are _male_ citizens, therefore, malecitizens are of necessity included in the right of voting. It does notspecifically exclude female citizens from the right of voting, becausethey are female citizens, therefore, female citizens are of necessityincluded in the right of voting--a right which the United States cannotabridge. No male citizen can claim that he, as a male citizen, isincluded, save by implication, and save on the general grounds that heis not specifically excluded, he is necessarily included. Can theUnited States, at pleasure, take from its own citizens the right ofvoting, or abridge that right? Has it the right to take from citizens ofStates the right of voting? Are citizens of States simply protectedagainst States, and can the United States now, at will, step in and denyor abridge the right of voting to all its male citizens simply becausethey are male? If it has that power over its female citizens, it has thesame power over its male citizens. You cannot fail to see that thequestion brought up by Miss Anthony's prosecution and trial _by theUnited States_ for the act of voting, has developed the most importantquestion of United States rights; a larger, most pregnant, moremomentous question by far, than that of _State_ rights. The liberties ofthe people are much more closely involved when the United States is theaggressor, than when the States are aggressors. 

"The Act to Enforce the right of citizens to vote, " declares thatCITIZENS shall be entitled and allowed to vote at all elections by thepeople, in any state, territory, district, county, city, parish, township, school district, municipality, or other territorial division, &c. 

This Act was passed _after_ the ratification of the Fifteenth Amendment, and is designed to be in accordance with the Constitution. It does notsay _black_ citizens shall be entitled and allowed to vote; it does notsay _male_ citizens shall be entitled and allowed to vote--it merelysays CITIZENS. It covers the right of women citizens to vote, and yetUnited States officials claim to find in this very act, their authorityfor prosecuting Miss Anthony and those fourteen other women citizens ofRochester for the alleged _crime_ of voting. When Miss Anthony voted, what did she do? She merely exercised her citizen's right of suffrage--aright to which she, and all women citizens are entitled by virtue oftheir citizenship in the nation--a right to which they are entitledbecause individual political rights are the basis of the government. TheUnited States has no other foundation. If that right is trampled upon, we have no nation. We may hang together in a sort of anarchical way fora time, but our dissolution draws near. Can the United States destroyrights on account of sex? In the original Constitution, before even thefirst ten amendments were added, States were forbidden to pass bills ofattainder. By the fourteenth amendment, the right of voting wasforbidden to be abridged, _unless for crime_. Is it a crime to be awoman? "In the beginning God created man, male and female, created hethem. " A bill of attainder inflicts punishment, creates liabilities or_disabilities_, on account of parentage, _birth_, or descent. Do UnitedStates officials presume to create a disability, or inflict apunishment, on account of _birth_ as a woman, and this in directdefiance of the Constitution? When the Constitution of the United Statespresents no barrier, no lesser power has such authority. "TheConstitution of the United States, _and the laws made in pursuancethereof_, shall be the supreme law of the land. "

Says article sixth: "Any law of Congress not made in pursuance of, or inunison with the Constitution, is an illegal and void law. " Coke declaredan Act of Parliament against Magna Charta was null and void. 

But United States officials declare it a crime for a United Statescitizen to vote. If it is a crime for a native-born citizen, it ought tobe a still greater crime for a foreign-born citizen. But the fact thatcitizenship carries with it the right of voting, is shown in the act ofnaturalization. A foreigner, after a certain length of residence in thiscountry, proceeds to take out papers of citizenship. To become acitizen, is all that he needs to make of him a voter. At one and thesame time he picks up a ballot, and his naturalization papers. Nothingmore than his becoming a citizen is needed for him to vote--nothing lesswill answer. Susan B. Anthony is a native-born citizen. She had to takeout no papers to make her a citizen--she was born in the UnitedStates--she is educated, intelligent, and FREE BORN. Native-borncitizenship is generally conceded to be of more value than that which isbought. Do you not remember that when Paul was brought up, preparatoryto being scourged, he demanded by what right they scourged him, a Romancitizen. The chief captain said, "I bought this freedom with a greatprice. " Paul replied, "I am free born"; then great fear fell upon thechief captain, and he ordered the bonds removed from Paul. Native-bornRoman citizenship was worth as much as that two thousand years ago. To-day, the foreign-born American citizen, who has bought his freedomwith a great price, who has left his home and country, and crossed thesea to a strange land, in order that he may find freedom, is held to besuperior to "free born" American women citizens. 

But Miss Anthony is not battling for herself alone, nor for the womanalone; she stands to-day, the embodiment of Republican principles. Thequestion of to-day, is not has woman a right to vote, but has _any_American citizen, white or black, native-born, or naturalized, a rightto vote. The prosecution of Miss Anthony by the United States, for thealleged crime of having cast a vote at the last election, is a positivedeclaration of the government of the United States that it is a crime tovote. Let that decision be affirmed, and we have no republic; theballot, the governing power in the hands of every person, is the onlytrue republic. Each person to help make the laws which govern him orher, is the only true democracy. Individual responsibility, personalrepresentation, exact political equality, are the only stablefoundations of a republic, and when the United States makes voting acrime on the part of any free-born, law-abiding citizen, it strikes ablow at its own stability; it is undermining the very foundations of therepublic--it is attempting to overthrow its own Constitution. 

Miss Anthony is to-day the representative of liberty; she is to-daybattling for the rights of every man, woman and child in the country;she is not only upholding the right of every native-born citizen, but ofevery naturalized citizen; to-day is at stake in her person, thenew-born hopes of foreign lands, the quickened instincts of liberty, sowell nigh universal. All these are on trial with her; the destinies ofAmerica, the civilization of the world, are in the balance with her asshe stands on her defence. If the women of this country are restrictedin their right of self-government, what better is it for them to havebeen born in the United States, than to have been born in Russia, orFrance, or England, or many another monarchical country? No better; noras well, as in all these countries, women vote upon certain questions. In Russia, about one-half of the property of the country is in the handsof women, and they vote upon its disposition and control. In France andSweden, women vote at municipal elections, and in England, every womanhouseholder or rate-payer, votes for city officers, for poor wardens andschool commissioners, thus expressing her views as to the education ofher children, which is a power not possessed by a single woman of thisState of New York, whose boast has been that it leads the legislation ofthe world in regard to women. Property-holding women in England, voteequally with property-holding men, for every office exceptParliamentary, and even that is near at hand, a petition for it of180, 000 names going up last year. England, though a monarchy, isconsistent with herself. As the foundation of English representation isproperty, not persons, property is allowed its representation, whetherit is held by man or by woman. 

"Are ye not of more value than many sparrows?" said one of old. Is itless pertinent for us to ask if personal representation is not moresacred than property representation? "Where governments lead, there areno revolutions, " said the eloquent Castelar. But revolution is imminentin a government like ours, instituted by the people, for the people, inits charters recognizing the most sacred rights of the people, butwhich, in a sovereign capacity, through its officials, tramples upon themost sacredly secured and guaranteed rights of the people. 

The question brought up by this trial is not a woman's rights question, but a citizen's rights question. It is not denied that women arecitizens, --it is not denied that Susan B. Anthony was born in the UnitedStates, and is therefore a citizen of the United States, and of theState wherein she resides, which is this State of New York. It cannot bedenied that she is a person, --one of the people, --there is not a word inthe Constitution of the United States which militates against therecognition of woman as a person, as one of the people, as a citizen. The whole question, then, to-day, turns on the power of the UnitedStates over the political rights of citizens--the whole question then, to-day, turns on the supreme authority of the National Constitution. 

The Constitution recognizes native-born women as citizens, both of theUnited States, and of the States in which they reside, and theEnforcement Act of 1870, in unison with our national fundamentalprinciples, is entitled "An Act _to enforce the right of citizens of theUnited States to vote_ in the several States of the Union. " Out of thosethree words, "for other purposes, " or any provisions of this actincluded in them, cannot be found authority for restraining any citizennot "guilty of participating in the rebellion, or other crime, " fromvoting, and we brand this prosecution of Miss Anthony by United Statesofficials, under claim of provisions in this act, as _an illegalprosecution_--_an infamous prosecution_, in direct defiance of nationallaw--dangerous in its principles, tending to subvert a republican formof government, and a direct step, whether so designed or not, to theestablishment of a monarchy in this country. Where the right of oneindividual is attacked, the rights of all are menaced. A blow againstone citizen, is a blow against every citizen. 

The government has shown itself very weak in prosecuting Miss Anthony. No astute lawyer could be found on a side so pregnant of flaws as thisone, were not the plaintiff in the case, the sovereign United States. The very fact of the prosecution is at one and the same time weakness onthe part of the government, and an act of unauthorized authority. It isweakness, because by it, the United States comes onto the ground of thedefendant, and, at once admits voting is an United States right, becauseUnited States rights _are citizens' rights_. By this prosecution, theUnited States clearly admits that protection of the ballot is an UnitedStates duty, instead of a State duty. It is an United States dutyinstead of a State duty, because voting is an United States rightinstead of a State right. This prosecution is an open admission by theUnited States, that voting is a _Constitutional right_. 

But the prosecution is also an admission of unauthorized authority inthat by it, the United States _discriminates between citizens_. If thereis one point of our government more strongly fortified than another, itis that the government is of the people. The Preamble of theConstitution, heretofore quoted, _means all the people_, if language hasa meaning. _All_ the people are citizens, if the fourteenth amendmenthas any signification at all. 

If any minds are so obtuse as not to see that the ballot is an UnitedStates right, --if any person before me still claims suffrage as a stateright alone, such person certainly cannot fail to see that under hisviews the United States has been guilty of a high-handed outrage uponMiss Anthony and the fourteen other women whom this greatgovernment, --this _big United States_ has prosecuted. Under this view ofthe right of suffrage such person cannot fail to see there has beenunauthorized interference by the United States, with the duties andrights of the State of New York. And while Uncle Sam was thus busy lastwinter over the prosecution of women citizens of the State of New York, the State itself submitted in its Legislature, a resolution lookingtowards the recognition by the State of the right of tax-paying women tothe ballot. Thus at one and the same time was seen the anomaly of aprosecution by the United States of women of the State of New York foran act that New York herself was resolving it right to perform, andwhich if the ballot is not a constitutional right, the United States hasno power over at all. 

Look at this prosecution as you will, it presents a fine dilemma tosolve; it presents to the country, as never before, the most importantand vital question of United States rights; it presents the mostimportant and vital question of unconstitutional power which has grownto such dimensions in the hands of United States officials; and it mustbring to people's cognizance the very slight thread by which hangs thesecurity of any citizen's right to the ballot. 

Governments try themselves. No government has been stable in the past;all have fallen because all have been one-sided; all have permitted thedegradation of woman. Babylon fell; her religion defiled woman; thehand-writing appeared upon the wall, and in a single night she wasoverthrown. Neither was Rome immortal; her laws were class laws; therights of humanity were not respected; she underwent many changes, andthat vast empire which once ruled the world lives now only in name. Egypt held the wisdom of the world, and as to a certain extent sherecognized the equality of woman, her empire endured for ages; at last, she too fell, for her civilization was still an unequal one. 

Special laws, or laws specially defined for one particular body ofpeople, on account of race, color, sex, or occupation, is classlegislation, and bears the seeds of death within itself. It was theboast of our forefathers, that the rights for which they contended werethe rights of human nature. Shall the women of this country foreverhave cause to say that the declaration and the constitution arespecially defined, --are organs of special law?

Where the legislative and executive function of the law are in the handsof a single class, special law, or special renderings of law are theunvarying results. If the constitution of the United States is definedand ruled by United States officials to discriminate between classes ofcitizens, then the constitution is by them made to be nothing less thanan organ of special law, and is held not to sustain the rights of thepeople. While the class which has usurped the legislative, the executiveand the judicial functions of the government, defines political rightsto belong to male citizens alone, the women of the United States areunder special law; and while thus debarred from exercising their naturalright of self-government, they are subjects, not citizens. It mattersnot if women never voted since the framing of the government, until now, this right has merely been retained by them; it has been held inabeyance, to be exercised by them whenever they chose. The principlesadvocated by the women to-day are the principles which brought on therevolutionary war, and Miss Anthony and other women associated with herare exponents of the very principles which caused the colonies to rebelagainst the mother country. 

The eyes of all nations are upon us; their hopes of liberty are directedtowards us; the United States is now on trial by the light of its ownunderlying principle. Its assertion of human right to self-governmentlies a hundred years back of it. The chartered confirmation and renewalof this assertion has come up to our very day, and though all the worldlooked on and wondered to see us crush the rebellion of '61, it is atthis hour, --at this soon coming trial of Miss Anthony at Canandaigua, before the Supreme Court of the Northern District of New York, --it is atthis trial that republican institutions will have their grand test, andas the decision is rendered for, or against the political rights ofcitizenship, so will the people of the United States find themselvesfree or slaves, and so will the United States have tried itself, andpaved its way for a speedy fall, or for a long and gloriouscontinuance. 

Miss Anthony is to-day the representative of liberty. In all ages of theworld, and during all times, there have been epochs in which some oneperson took upon their own shoulders the hopes and the sorrows of theworld, and in their own person, through many struggles bore them onward. Suddenly or gradually, as the case might be, men found the rugged pathmade smooth and the way opened for the world's rapid advance. Such anepoch exists now, and such a person is Susan B. Anthony. 

To you, men of Ontario county, has come an important hour. The fateshave brought about that you, of all the men in this great land, have theresponsibility of this trial. To you, freedom has come looking forfuller acknowledgement, for a wider area in which to work and grow. Yourdecision will not be for Susan B. Anthony alone; it will be foryourselves and for your children's children to the latest generations. You are not asked to decide a question under favor, but according to thefoundation principles of this republic. You will be called upon todecide a question according to our great charters of liberty--theDeclaration of Independence and the Constitution of the United States. You are to decide, not only on a question of natural right, but ofabsolute law, of the supreme law of the land. You are not to decideaccording to prejudice, but according to the constitution. If yourdecision is favorable to the defendant, you will sustain theconstitution; if adverse, if you are blinded by prejudice; you will notdecide against women alone, but against the United States as well. Nomore momentous hour has arisen in the interest of freedom, for theunderlying principles of the republic, its warp and woof alike, is theexact and permanent political equality of every citizen of the nation, whether that citizen is native born or naturalized, white or black, manor woman. And may God help you. 

JUDGE HUNT, AND

The Right of Trial by Jury. 

By JOHN HOOKER, Hartford, Conn. 

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The following article was intended for publication in a magazine, butthe writer kindly contributed it for publication in this pamphlet. 

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In the recent trial of Susan B. Anthony for voting, (illegally, as wasclaimed, on the ground that as a woman she had no right to vote--a pointwhich we do not propose to consider, ) the course of Judge Hunt, intaking the case from the jury, and ordering a verdict of guilty to beentered up, was so remarkable, so contrary to all rules of law, and sosubversive of the system of jury trials in criminal cases, that itshould not be allowed to pass without an emphatic protest on the part ofevery public journal that values our liberties. 

Let us first of all see precisely what were the facts. Miss Anthony wascharged with having knowingly voted, without lawful right to vote, atthe Congressional election in the eighth ward of the City of Rochester, in the State of New York, in November, 1872. The Act of Congress underwhich the prosecution was brought provides that, "If, at any electionfor representative or delegate in the Congress of the United States, anyperson shall knowingly personate and vote, or attempt to vote, in thename of any other person, whether living, dead or fictitious, or votemore than once at the same election for any candidate for the sameoffice, or vote at a place where he may not be lawfully entitled tovote, or vote without having a lawful right to vote, every such personshall be deemed guilty of a crime, " &c. 

The trial took place at Canandaigua, in the State of New York, in theCircuit Court of the United States, before Judge Hunt, of the SupremeCourt of the United States. 

The defendant pleaded not guilty--thus putting the Government upon theproof of their entire case, admitting, however, that she was a woman, but admitting nothing more. 

The only evidence that she voted at all, and that, if at all, she votedfor a representative in Congress, offered on the part of the government, was, that she handed four bits of paper, folded in the form of ballots, to the inspectors, to be placed in the voting boxes. There was nothingon the outside of these papers to indicate what they were, and thecontents were not known to the witnesses nor to the inspectors. Therewere six ballot boxes, and each elector had the right to cast sixballots. 

This evidence would undoubtedly warrant the conclusion that Miss Anthonyvoted for a Congressional representative, the fact probably appearing, although the papers before the writer do not show it, that one of thesupposed ballots was placed by her direction in the box for votes forMembers of Congress. The facts are thus minutely stated, not at all forthe purpose of questioning their sufficiency, but to show how entirelyit was a question of fact, and therefore a question for the jury. 

Upon this evidence Judge Hunt directed the clerk to enter up a verdictof guilty. The counsel for the defendant interposed, but without effect, the judge closing the discussion by saying, "Take the verdict, Mr. Clerk. " The clerk then said, "Gentlemen of the jury, hearken to yourverdict, as the Court has recorded it. You say you find the defendantguilty of the offence whereof she stands indicted, and so say you all. "To this the jury made no response, and were immediately after dismissed. 

It is stated in one of the public papers, by a person present at thetrial, that immediately after the dismissal of the jury, one of thejurors said to him that that was not his verdict, nor that of the rest, and that if he could have spoken he should have answered "Not guilty, "and that other jurors would have sustained him in it. The writer has noauthority for this statement, beyond the letter mentioned. The juror, ofcourse, had a right, when the verdict was read by the clerk, to declarethat it was not his verdict, but it is not strange, perhaps, that anordinary juror, with no time to consider, or to consult with hisfellows, and probably ignorant of his rights, and in awe of the Court, should have failed to assert himself at such a moment. 

Probably the assumption by the judge that Miss Anthony in fact voted, did her no real injustice, as it was a notorious fact that she did vote, and claimed the right to do so. But all this made it no less anusurpation for the judge to take the case from the jury, and order averdict of guilty to be entered up without consulting them. 

There was, however, a real injustice done her by the course of thejudge, inasmuch as the mere fact of her voting, and voting unlawfully, was not enough for her conviction. It is a perfectly settled rule of lawthat there must exist an intention to do an illegal act, to make an acta crime. It is, of course, not necessary that a person perpetrating acrime should have an actual knowledge of a certain law which forbids theact, but he must have a criminal intent. Thus, if one is charged withtheft, and admits the taking of the property, which is clearly proved tohave belonged to another, it is yet a good defence that he reallybelieved that he had a right to take it, or that he took it by mistake. Just so in a case where, as sometimes occurs, the laws regulating theright to vote in a State are of doubtful meaning, and a voter isuncertain whether he has a right to vote in one town or another, and, upon taking advice from good counsel, honestly makes up his mind that hehas a right to vote in the town of A. In this belief he applies to theregistrars of that town, who upon the statement of the facts, are of theopinion that he has a right to vote there, and place his name upon thelist, and on election day he votes there without objection. Now, if heshould be prosecuted for illegal voting, it would not be enough that heacknowledged the fact of voting, and that the judge was of the opinionthat his view of the law was wrong. There would remain another and mostvital question in the case, and that is, did he intend to voteunlawfully? Now, precisely the wrong that would be done to the voter inthe case we are supposing, by the judge ordering a verdict of guilty tobe entered up, was done by that course in Miss Anthony's case. Shethoroughly believed that she had a right to vote. In addition to thisshe had consulted one of the ablest lawyers in Western New York, whogave it as his opinion that she had a right to vote, and who testifiedon the trial that he had given her that advice. The Act of Congress uponwhich the prosecution was founded uses the term "knowingly, "--"shallknowingly vote or attempt to vote in the name of any other person, ormore than once at the same election for any candidate for the sameoffice, or vote at a place where he may not be lawfully entitled tovote, or without having a lawful right to vote. " Here most manifestlythe term "knowingly" does not apply to the mere _act_ of voting. It ishardly possible that a man should vote, and not know the fact that heis voting. The statute will bear no possible construction but that whichmakes the term "knowingly" apply to the _illegality_ of the act. Thus, "shall knowingly vote without having a lawful right to vote, " can onlymean, shall vote knowing that there is no lawful right to vote. Thisbeing so, there was manifestly a most vital question beyond that of thefact of voting, and of the conclusion of the judge that the voting wasillegal, viz. , did Miss Anthony vote, knowing that she had no right tovote. 

Now, many people will say that Miss Anthony ought to have known that shehad no right to vote, and will perhaps regard it as an audacious attemptfor mere effect, to assert a right that she might think she ought tohave, but could not really have believed that she had. But whateverdegree of credit her claim to have acted honestly in the matter isentitled to, whether to much, or little, or none, it was entirely aquestion for the jury, and they alone could pass upon it. The judge hadno right even to express an opinion on the subject to the jury, muchless to instruct them upon it, and least of all to order a verdict ofguilty without consulting them. 

There seems to have been an impression, as the writer infers fromvarious notices of the matter in the public papers, that the case hadresolved itself into a pure question of law. Thus, a legal correspondentof one of our leading religious papers, in defending the course of JudgeHunt, says: "There was nothing before the Court but a pure question oflaw. Miss Anthony violated the law of the State intentionally anddeliberately, as she openly avowed, and when brought to trial her onlydefence was that the law was unconstitutional. Here was nothing whateverto go to the jury. " And again he says: "In jury trials all questions oflaw are decided by the judge. " This writer is referred to only asexpressing what are supposed to be the views of many others. 

To show, however, how entirely incorrect is this assumption of fact, Iinsert here the written points submitted by Miss Anthony's counsel tothe Court, for its instruction to the jury. 

First--That if the defendant, at the time of voting, believed that shehad a right to vote, and voted in good faith in that belief, she is notguilty of the offence charged. 

Second--In determining the question whether she did or did not believethat she had a right to vote, the jury may take into consideration, asbearing upon that question, the advice which she received from thecounsel to whom she applied. 

Third--That they may also take into consideration, as bearing upon thesame question, the fact that the inspectors considered the question, andcame to the conclusion that she had a right to vote. 

Fourth--That the jury have a right to find a general verdict of guiltyor not guilty, as they shall believe that she has or has not been guiltyof the offense prescribed in the statute. 

This certainly makes it clear that the question was not "a pure questionof law, " and that there was "something to go to the jury. " And thiswould be so, even if, as that writer erroneously supposes, Miss Anthonyhad openly avowed before the Court that she voted. 

But even if this point be wholly laid out of the case, and it had beenconceded that Miss Anthony had knowingly violated the law, if she shouldbe proved to have voted at all, so that the only questions before theCourt were, first--whether she had voted as charged, andsecondly--whether the law forbade her voting; and if in this state ofthe case a hundred witnesses had been brought by the government, totestify that she had "openly avowed" in their presence that she hadvoted, so that practically the question of her having voted was provedbeyond all possible question, still, the judge would have no right toorder a verdict of guilty. The proof that she voted would still be_evidence_, and _mere evidence_, and a judge has no power whatever todeal with evidence. He can deal only with the law of the case, and thejury alone can deal with the facts. 

But we will go further than this. We will suppose that in New York, asin some of the States, a defendant in a criminal case is allowed totestify, and that Miss Anthony had gone upon the stand as a witness, andhad stated distinctly and unequivocally that she did in fact vote ascharged. We must not forget that, if this had actually occurred, shewould at the same time have stated that she voted in the full beliefthat she had a right to vote, and that she was advised by eminentcounsel that she had such right; a state of the case which we havebefore referred to as presenting a vital question of fact for the jury, and which excludes the possibility of the case being legally dealt withby the judge alone; but this point we are laying out of the case in theview we are now taking of it. We will suppose that Miss Anthony not onlytestified that she voted in fact, but also that she had no belief thatshe had any right to vote; making a case where, if the Court shouldhold as matter of law that she had no right to vote, there would seem tobe no possible verdict for the jury to bring in but that of "guilty. "

Even in this case, which would seem to resolve itself as much aspossible into a mere question of law, there is yet no power whatever onthe part of the judge to order a verdict of guilty, but it restsentirely in the judgment and conscience of the jury what verdict theywill bring in. They may act unwisely and unconscientiously, perhaps bymere favoritism, or a weak sympathy, or prejudice, or on any otherindefensible ground; but yet they have entire _power_ over the matter. It is for them finally to say what their verdict shall be, and the judgehas no power beyond that of instruction upon the law involved in thecase. 

The proposition laid down by the writer before referred to, that "injury trials all questions of law are decided by the judge, " is notunqualifiedly true. It is so in civil causes, but in criminal causes ithas been holden by many of our best courts that the jury are judges ofthe law as well as of the facts. Pages could be filled with authoritiesin support of this proposition. The courts do hold, however, that thejudges are to _instruct_ the jury as to the law, and that it is theirduty to take the law as thus laid down. But it has never been held thatif the jury assume the responsibility of holding a prisoner not guiltyin the face of a charge from the judge that required a verdict ofguilty, where the question was wholly one of law, they had not fullpower to do it. 

The question is one ordinarily of little practical importance, but ithere helps to make clear the very point we are discussing. Here thejudge laid down the law, correctly, we will suppose, certainly in termsthat left the jury no doubt as to what he meant; and here, by all theauthorities, the jury ought, as a matter of proper deference in oneview, or of absolute duty in the other, to have adopted the view of thelaw given them by the judge. But it was in either case the _jury only_who could apply the law to the case. The judge could _instruct_, but thejury only could _apply the instruction_. That is, the instruction of thejudge, no matter how authoritative we may regard it, could find its wayto the defendant _only through the verdict of the jury_. 

It is only where the confession of facts is _matter of record_, (thatis, where the plea filed or recorded in the case _admits_ them), thatthe judge can enter up a judgment without the finding of a jury. Thus, if the defendant pleads "guilty, " there is no need of a jury finding himso. If, however, he pleads "not guilty, " then, no matter howoverwhelming is the testimony against him on the trial, no matter if ahundred witnesses prove his admission of all the facts, the whole is notlegally decisive like a plea of guilty; but the question still remains aquestion of fact, and the jury alone can determine what the verdictshall be. In other words, it is no less a question of fact for thereason that the evidence is all one way and overwhelming, or that thedefendant has in his testimony admitted all the facts against himself. 

The writer has intended this article for general rather thanprofessional readers, and has therefore not encumbered it withauthorities; but he has stated only rules and principles that are wellestablished and familiar to all persons practising in our courts of law. 

This case illustrates an important defect in the law with regard to therevision of verdicts and judgments in the United States Circuit Court. In almost all other courts, an application for a new trial on the groundof erroneous rulings by the judge, is made to a higher and independenttribunal. In this court, however, an application for a new trial isaddressed to and decided by the same judge who tried the case, and whoseerroneous rulings are complained of. Such a motion was made and arguedby Miss Anthony's counsel before Judge Hunt, who refused to grant a newtrial. Thus it was Judge Hunt alone who was to decide whether Judge Huntwas wrong. It is manifest that the opportunity for securing justice evenbefore the most honest of judges, would be somewhat less than before anentirely distinct tribunal, as the judge would be prejudiced in favor ofhis own opinion, and the best and most learned of judges are human andfallible; while if a judge is disposed to be unfair, it is perfectlyeasy for him to suppress all attempts of a party injured by his decisionto set it aside. 

The only remedy for a party thus wronged is by an appeal to the public. Such an appeal, as a friend of justice and of the law, without regard toMiss Anthony's case in any other aspect, the writer makes in thisarticle. The public, thus the only appellate tribunal, should willinglylisten to such a case, and pass its own supreme and decisive judgmentupon it. 

The writer cannot but regard Judge Hunt's course as not only irregularas a matter of law, but a very dangerous encroachment on the right ofevery person accused to be tried by a jury. It is by yielding to suchencroachments that liberties are lost.