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

JUDGE SELDEN: I submit that on the view which your Honor has taken, that the right to vote and the regulation of it is solely a State matter.

That this whole law is out of the jurisdiction of the United States Courts and of Congress. The whole law upon that basis, as I understand it, is not within the const.i.tutional power of the general Government, but is one which applies to the States. I suppose that it is for the jury to determine whether the defendant is guilty of a crime or not. And I therefore ask your Honor to submit to the jury these propositions:

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

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

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

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

A professional friend sitting by has made this suggestion which I take leave to avail myself of as bearing upon this question: "The Court has listened for many hours to an argument in order to decide whether the defendant has a right to vote. The arguments show the same question has engaged the best minds of the country as an open question. Can it be possible that the defendant is to be convicted for acting upon such advice as she could obtain while the question is an open and undecided one?"

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

JUDGE SELDEN: As long as it is an open question I submit that she has not been guilty of an offense. At all events it is for the jury.

THE COURT: I cannot charge these propositions of course. The question, gentlemen of the jury, in the form it finally takes, is wholly a question or questions of law, and I have decided as a question of law, in the first place, that under the 14th Amendment, which Miss Anthony claims protects her, she was not protected in a right to vote. And I have decided also that her belief and the advice which she took does not protect her in the act which she committed. If I am right in this, the result must be a verdict on your part of guilty, and I therefore direct that you find a verdict of guilty.

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

THE COURT: Take the verdict, Mr. Clerk.

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

JUDGE SELDEN: I don't know whether an exception is available, but I certainly must except to the refusal of the Court to submit those propositions, and especially to the direction of the Court that the jury should find a verdict of guilty. I claim that it is a power that is not given to any Court in a criminal case.

Will the Clerk poll the jury?

THE COURT: No. Gentlemen of the jury, you are discharged.

On the next day a motion for a new trial was made by Judge Selden, as follows:

_May it please the Court_:

The trial of this case commenced with a question of very great magnitude--whether by the const.i.tution of the United States the right of suffrage was secured to female equally with male citizens. It is likely to close with a question of much greater magnitude--whether the right of trial by jury is absolutely secured by the federal const.i.tution to persons charged with crime before the federal courts.

I a.s.sume, without attempting to produce any authority on the subject, that this Court has power to grant to the defendant a new trial in case it should appear that in the haste and in the lack of opportunity for examination which necessarily attend a jury trial, any material error should have been committed prejudicial to the defendant, as otherwise no means whatever are provided by the law for the correction of such errors.

The defendant was indicted, under the nineteenth section of the act of Congress of May 31st, 1870, ent.i.tled, "An act to enforce the right of citizens of the United States to vote in the several states of this Union, and for other purposes," and was charged with having knowingly voted, without having a lawful right to vote, at the congressional election in the eighth ward of the City of Rochester, in November last; the only ground of illegality being that the defendant was a woman.

The provisions of the act of Congress, so far as they bear upon the present case, are as follows:

"Section 19. If at any election for representative or delegate in the Congress of the United States, any person shall knowingly personate and vote, or attempt to vote, in the name of any other person, whether living, dead or fict.i.tious, or vote more than once at the same election for any candidate for the same office, or vote at a place where he may not be lawfully ent.i.tled to vote, or vote without having a lawful right to vote, ... every such person shall be deemed guilty of a crime, and shall for such crime be liable to prosecution in any court of the United States, of competent jurisdiction, and, on conviction thereof, shall be punished by a fine not exceeding $500 or by imprisonment for a term not exceeding three years, or both, in the discretion of the Court, and shall pay the costs of prosecution."

It appeared on the trial that before voting the defendant called upon a respectable lawyer, and asked his opinion whether she had a right to vote, and he advised her that she had such right, and the lawyer was examined as a witness in her behalf, and testified that he gave her such advice, and that he gave it in good faith, believing that she had such right.

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

It was also shown on the part of the government, that on the examination of the defendant before the commissioner, on whose warrant she was arrested, she stated that she should have voted, if allowed to vote, without reference to the advice she had received from the attorney whose opinion she had asked; that she was not influenced to vote by that opinion; that she had before determined to offer her vote, and had no doubt about her right to vote.

At the close of the testimony the defendant's counsel proceeded to address the jury, and stated that he desired to present for consideration three propositions, two of law and one of fact:

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

Second--That whether she had a lawful right to vote or not, it she honestly believed that she had that right and voted in good faith in that belief, she was guilty of no crime.

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

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

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

The District Attorney thereupon addressed the Court at length upon the legal questions, and at the close of his argument the Court delivered an opinion adverse to the positions of the defendant's counsel upon both of the legal questions presented, holding that the defendant was not ent.i.tled to vote; and that if she voted in good faith in the belief in fact that she had a right to vote, it would const.i.tute no defense--the grounds of the decision on the last point being that she was bound to know that by law she was not a legal voter, and that even if she voted in good faith in the contrary belief, it const.i.tuted no defense to the crime with which she was charged. The decision of the Court upon these questions was read from a written doc.u.ment.

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

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

First--That if the defendant, at the time of voting, believed that she had a right to vote, and voted in good faith in that belief, she is not guilty of the offence charged.

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

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

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

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

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

The Court then instructed the clerk to take the verdict, and the clerk said, "Gentlemen of the jury, hearken to the verdict as the Court hath recorded it. You say you find the defendant guilty of the offence charged. So say you all."

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

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

Now I respectfully submit, that in these proceedings the defendant has been substantially denied her const.i.tutional right of trial by jury. The jurors composing the panel have been merely silent spectators of the conviction of the defendant by the Court. They have had no more share in her trial and conviction than any other twelve members of the jury summoned to attend this Court, or any twelve spectators who have sat by during the trial. If such course is allowable in this case, it must be equally allowable in all criminal cases, whether the charge be for treason, murder or any minor grade of offence which can come under the jurisdiction of a United States court; and as I understand it, if correct, substantially abolishes the right of trial by jury.

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

The const.i.tutional provisions which I insist are violated by this proceeding are the following:

Const.i.tution of the United States, article 3, section 2. "The trial of all crimes, except in cases of impeachment, shall be by jury."

Amendments to Const.i.tution, article 6. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the a.s.sistance of counsel for his defense."

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