2d, That, if she had not that right, she in good faith believed that she had it and, therefore, her act lacked the indispensable ingredient of all crime, a corrupt intention.

The judge denied the writ and increased her bail to $1,000. From the first Miss Anthony had been determined not to recognize the right of the courts to interfere with her exercise of the franchise, and again she refused to give bail, insisting that rather than do this she preferred to go to jail. Judge Selden, however, in kindness of heart, said there were times when a client must be guided by advice of her counsel, and himself went on her bond. As she came out of the courtroom she met her other lawyer, Mr. Van Voorhis, and told him what had been done. He exclaimed, "You have lost your chance to get your case before the Supreme Court by writ of habeas corpus!" In her ignorance of legal forms she had not understood this, and at once she rushed back and tried to have the bond cancelled, but, to her bitter disappointment, this was impossible. When she demanded of Judge Selden, "Did you not know that you had estopped me from carrying my case to the Supreme Court?" he replied with his old-time courtesy, "Yes, but I could not see a lady I respected put in jail."

The following day, January 22, the commission then in session at Albany for the purpose of revising the State Const.i.tution was addressed by Miss Anthony on woman's right to vote under the Const.i.tution of the United States. Her attorneys, Selden and Van Voorhis, were present and, when she finished, the former said to her, "If I had heard this address first I could have made a far better argument before Judge Hall."

Immediately following the judge's decision, Miss Anthony was indicted by the grand jury.[68]

During this winter she attended the Ohio and Illinois Suffrage conventions, and in a number of cities in these States and in Indiana made her great const.i.tutional argument on the right of women to vote under the Fourteenth Amendment. Every newspaper in the country took up the points involved and the interest and agitation were wide-spread.

She spoke at Ft. Wayne on February 25, an intensely cold night. Above her was an open scuttle, from which a stream of air poured down upon her head, and when half through her lecture she suddenly became unconscious. She was the guest of Mrs. Mary Hamilton Williams, and was taken at once to her home where she received every possible kindness and attention. As soon as she recovered consciousness she begged that steps be taken immediately to keep the occurrence from the a.s.sociated Press, as she feared that, on account of her mother's extremely delicate health, the shock and anxiety would prove fatal. Three nights later, although not wholly recovered, she spoke to a large audience at Marion, Ind.; the diary says, "going on the platform with fear and trembling."

She returned home, and on March 4 cast her ballot at the city election without any protest. Only two other ladies could be induced to vote, Mrs. Mary Pulver and Mrs. Mary S. Hebard. All of the others who had voted in the fall were thoroughly frightened, and their husbands and other male relatives were even more panic-stricken.

In the midst of her own perplexities Miss Anthony did not forget to issue the call[69] for the May Anniversary in New York, where she made an address, detailing the incidents of her arrest and defending her rights as a citizen. All the speeches and letters of the convention were deeply sympathetic, and among the resolutions bearing on this question was one stating that since the underlying principle of our government is equality of political rights, therefore "the trial of Susan B. Anthony, though ostensibly involving only the political status of woman, in reality questions the right of every man to share in the government; that it is not Susan B. Anthony or the women of the republic who alone are on trial today, but it is the government of the United States, and that as the decision is rendered for or against the political rights of citizenship, so will the men of America find themselves free or enslaved."

A reception was given by Dr. Clemence Lozier, founder of the Woman's Homeopathic College of New York, who was always Miss Anthony's faithful and devoted friend, never shaken in her trust by any storm that raged.

During the darkest days of her paper, The Revolution, when the generosity of all others had been exhausted, Dr. Lozier gave her $50 every Sat.u.r.day for many weeks and helped her by so much to bear the weight of the financial burden. For more than a quarter of a century her hospitable doors were always ajar for her, and it was to be expected that, at this crucial moment, she would again express her loyalty.

Miss Anthony's trial was set for the term of court beginning May 13, and she decided to make a canva.s.s of Monroe county, not to argue her own case but in order that the people might be educated upon the const.i.tutional points involved. Commencing March 11, she spoke in twenty-nine of the post-office districts. Being informed that District-Attorney Crowley threatened to move her trial into another county because she would prejudice the jury, she notified him she would see that that county also was thoroughly canva.s.sed, and asked him if she were prejudicing a jury by reading and explaining the Const.i.tution of the United States.

The speech delivered by Miss Anthony during these weeks was a masterpiece of clear, strong, logical argument in defense of woman's right to the ballot which never has been equalled.[70] Her audiences were large and attentive and public sentiment was thoroughly aroused.

One of the papers gives this description: "Miss Anthony was fashionably dressed in black silk with demi-train, basque with flowing sleeves, heavily trimmed in black lace; ruffled white lace undersleeves and a broad, graceful lace collar; with a gold neck chain and pendant. Her abundant hair was brushed back and bound in a knot after the fashion of our grandmothers."

When the time for trial came, true to his promise, District-Attorney Crowley obtained an order removing the cause to the U.S. Circuit Court which was held at Canandaigua. This left just twenty-two days and, calling to her aid Matilda Joslyn Gage, Miss Anthony spoke in twenty-one places on the question, "Is it a crime for a United States citizen to vote?" and Mrs. Gage in sixteen on "The United States on trial, not Susan B. Anthony." Their last meeting was held in Canandaigua the evening before the trial, and resolutions against this injustice toward woman were heartily endorsed by the audience. The Rochester Union and Advertiser condemned her in unmeasured terms, having editorials similar to this:

SUSAN B. ANTHONY AS A CORRUPTIONIST.--We give in another column today, from a legal friend, a communication which shows very clearly that Miss Anthony is engaged in a work that will be likely to bring her to grief. It is nothing more nor less than an attempt to corrupt the source of that justice under law which flows from trial by jury. Miss Anthony's case has pa.s.sed from its gayest to its gravest character. United States courts are not stages for the enactment of comedy or farce, and the promptness and decision of their judges in sentencing to prison culprits convicted before them show that they are no respecters of persons.

Many influential newspapers, however, spoke in the highest terms of her courage and ability and the justice of her cause.[71]

The trial[72] opened the afternoon of June 17, at the lovely village of Canandaigua, a.s.sociate-Justice Ward Hunt on the bench, U.S.

District-Attorney Richard Crowley prosecuting, Hon. Henry R. Selden and John Van Voorhis, Esq., defending. Miss Anthony, most of the ladies who had voted with her, and also Mrs. Gage, were seated within the bar. On the right sat the jury. The courtroom was crowded, many prominent men being present, among them ex-President Fillmore. Judge Hall, of Buffalo, was an interested spectator and Miss Anthony's counsel endeavored to have him try the case with Judge Hunt in order that, if necessary, it might go to the Supreme Court, which was not possible with only one judge, but he refused.

[Ill.u.s.tration HW:

No one loves you and thanks G.o.d more sincerely for your great work for women than I do--

Lovingly Yours C S Lozier]

It was conceded that Miss Anthony was a woman and that she voted on November 5, 1872. Judge Selden, for the second time in all his practice, offered himself as a witness, and testified that he advised her to vote, believing that the laws and Const.i.tution of the United States gave her full authority. He then proposed to call Miss Anthony to testify as to the intention or belief under which she voted, but the Court held she was not competent as a witness in her own behalf. After making this decision, the Court then admitted all the testimony, as reported, which she gave on the preliminary examination before the commissioner, in spite of her counsel's protest against accepting the version which that officer took of her evidence. The prosecution simply alleged the fact of her having voted. Mr. Selden then addressed the judge and jury in a masterly argument of over three hours' duration, beginning:

The defendant is indicted under the 19th Section of the Act of Congress of May 31, 1870 (16th St. at L., 144), for "voting without having a lawful right to vote." The words of the statute, so far as they are material in this case, are as follows:

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

The only alleged ground of illegality of the defendant's vote is that she is a woman. If the same act had been done by her brother under the same circ.u.mstances, the act would have been not only innocent but honorable and laudable; but having been done by a woman it is said to be a crime. The crime therefore consists not in the act done but in the simple fact that the person doing it was a woman and not a man. I believe this is the first instance in which a woman has been arraigned in a criminal court merely on account of her s.e.x....

Women have the same interest that men have in the establishment and maintenance of good government; they are to the same extent as men bound to obey the laws; they suffer to the same extent by bad laws, and profit to the same extent by good laws; and upon principles of equal justice, as it would seem, should be allowed, equally with men, to express their preference in the choice of law-makers and rulers. But however that may be, no greater absurdity, to use no harsher term, could be presented, than that of rewarding men and punishing women for the same act, _without giving to women any voice in the question which should he rewarded and which punished_.

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

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

1. Was the defendant legally ent.i.tled to vote at the election in question?

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

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

He argued the case from a legal, const.i.tutional and moral standpoint and concluded:

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

The district-attorney followed with a two hours' speech. Then Judge Hunt, without leaving the bench, delivered a written opinion[73] to the effect that the Fourteenth Amendment, under which Miss Anthony claimed the authority to vote, "was a protection, not to all our rights, but to our rights as citizens of the United States only; that is, the rights existing or belonging to that condition or capacity." At its conclusion _he directed the jury to bring in a verdict of guilty_.

Miss Anthony's counsel insisted that the Court had no power to make such a direction in a criminal case and demanded that the jury be permitted to bring in its own verdict. The judge made no reply except to order the clerk to take the verdict. Mr. Selden demanded that the jury be polled. Judge Hunt refused, and at once discharged the jury without allowing them any consultation or asking if they agreed upon a verdict. Not one of them had spoken a word. After being discharged, the jurymen talked freely and several declared they should have brought in a verdict of "not guilty."

The next day Judge Selden argued the motion for a new trial on seven exceptions, but this was denied by Judge Hunt. The following scene then took place in the courtroom:

Judge Hunt.--(Ordering the defendant to stand up). Has the prisoner anything to say why sentence shall not be p.r.o.nounced?

Miss Anthony.--Yes, your honor, I have many things to say; for in your ordered verdict of guilty you have trampled under foot every vital principle of our government. My natural rights, my civil rights, my political rights, my judicial rights, are all alike ignored. Robbed of the fundamental privilege of citizenship, I am degraded from the status of a citizen to that of a subject; and not only myself individually but all of my s.e.x are, by your honor's verdict, doomed to political subjection under this so-called republican form of government.

Judge Hunt.--The Court can not listen to a rehearsal of argument which the prisoner's counsel has already consumed three hours in presenting.

Miss Anthony.--May it please your honor, I am not arguing the question, but simply stating the reasons why sentence can not, in justice, be p.r.o.nounced against me. Your denial of my citizen's right to vote, is the denial of my right of consent as one of the governed, the denial of my right of representation as one of the taxed, the denial of my right to a trial by a jury of my peers as an offender against law; therefore, the denial of my sacred right to life, liberty, property and--

Judge Hunt.--The Court can not allow the prisoner to go on.

Miss Anthony.--But your honor will not deny me this one and only poor privilege of protest against this high-handed outrage upon my citizen's rights. May it please the Court to remember that, since the day of my arrest last November, this is the first time that either myself or any person of my disfranchised cla.s.s has been allowed a word of defense before judge or jury--

Judge Hunt.--The prisoner must sit down--the Court can not allow it.

Miss Anthony.--Of all my prosecutors, from the corner grocery politician who entered the complaint, to the United States marshal, commissioner, district-attorney, district-judge, your honor on the bench--not one is my peer, but each and all are my political sovereigns; and had your honor submitted my case to the jury, as was clearly your duty, even then I should have had just cause of protest, for not one of those men was my peer; but, native or foreign born, white or black, rich or poor, educated or ignorant, sober or drunk, each and every man of them was my political superior; hence, in no sense, my peer. Under such circ.u.mstances a commoner of England, tried before a jury of lords, would have far less cause to complain than have I, a woman, tried before a jury of men. Even my counsel, Hon. Henry R. Selden, who has argued my cause so ably, so earnestly, so unanswerably before your honor, is my political sovereign. Precisely as no disfranchised person is ent.i.tled to sit upon a jury, and no woman is ent.i.tled to the franchise, so none but a regularly admitted lawyer is allowed to practice in the courts, and no woman can gain admission to the bar--hence, jury, judge, counsel, all must be of the superior cla.s.s.

Judge Hunt.--The Court must insist--the prisoner has been tried according to the established forms of law.

Miss Anthony.--Yes, your honor, but by forms of law all made by men, interpreted by men, administered by men, in favor of men and against women; and hence your honor's ordered verdict of guilty, against a United States citizen for the exercise of the "citizen's right to vote," simply because that citizen was a woman and not a man. But yesterday, the same man-made forms of law declared it a crime punishable with $1,000 fine and six months' imprisonment to give a cup of cold water, a crust of bread or a night's shelter to a panting fugitive tracking his way to Canada; and every man or woman in whose veins coursed a drop of human sympathy violated that wicked law, reckless of consequences, and was justified in so doing. As then the slaves who got their freedom had to take it over or under or through the unjust forms of law, precisely so now must women take it to get their right to a voice in this government; and I have taken mine, and mean to take it at every opportunity.

Judge Hunt.--The Court orders the prisoner to sit down. It will not allow another word.

Miss Anthony.--When I was brought before your honor for trial, I hoped for a broad and liberal interpretation of the Const.i.tution and its recent amendments, which should declare all United States citizens under its protecting aegis--which should declare equality of rights the national guarantee to all persons born or naturalized in the United States. But failing to get this justice--failing, even, to get a trial by a jury _not_ of my peers--I ask not leniency at your hands but rather the full rigor of the law.

Judge Hunt--The Court must insist--[Here the prisoner sat down.]

The prisoner will stand up. [Here Miss Anthony rose again.] The sentence of the Court is that you pay a fine of $100 and the costs of the prosecution. Miss Anthony.--May it please your honor, I will never pay a dollar of your unjust penalty. All the stock in trade I possess is a debt of $10,000, incurred by publishing my paper--The Revolution--the sole object of which was to educate all women to do precisely as I have done, rebel against your man-made, unjust, unconst.i.tutional forms of law, which tax, fine, imprison and hang women, while denying them the right of representation in the government; and I will work on with might and main to pay every dollar of that honest debt, but not a penny shall go to this unjust claim. And I shall earnestly and persistently continue to urge all women to the practical recognition of the old Revolutionary maxim, "Resistance to tyranny is obedience to G.o.d."

Judge Hunt.--Madam, the Court will not order you to stand committed until the fine is paid.

Thus ended the great trial, "The United States of America _vs._ Susan B. Anthony." From this date the question of woman suffrage was lifted from one of grievances into one of Const.i.tutional Law.

This was Judge Hunt's first criminal case after his elevation to the Supreme Bench of the United States. He was appointed at the solicitation of his intimate friend and townsman, Roscoe Conkling, and had an interview with him immediately preceding this trial. Mr.

Conkling was an avowed enemy of woman suffrage. Miss Anthony always has believed that he inspired the course of Judge Hunt and that his decision was written before the trial, a belief shared by most of those a.s.sociated in the case.