Miss Anthony says in her journal: "The greatest judicial outrage history ever recorded! No law, logic or demand of justice could change Judge Hunt's will. We were convicted before we had a hearing and the trial was a mere farce." Some time afterwards Judge Selden wrote her: "I regard the ruling of the judge, and also his refusal to submit the case to the jury, as utterly indefensible." Scarcely a newspaper in the country sustained Judge Hunt's action. The Canandaigua Times thus expressed the general sentiment in an editorial, soon after the trial:

The decisions of Judge Hunt in the Anthony case have been widely criticised, and it seems to us not without reason. Even among those who accept the conclusion that women have not a legal right to vote and who do not hesitate to express the opinion that Miss Anthony deserved a greater punishment than she received, we find many seriously questioning the propriety of a proceeding whereby the proper functions of the jury are dispensed with, and the Court arrogates to itself the right to determine as to the guilt or innocence of the accused party. If this may be done in one instance, why may it not in all? And if our courts may thus arbitrarily direct what verdicts shall be rendered, what becomes of the right to trial "by an impartial jury," which the Const.i.tution guarantees to all persons alike, whether male or female? These are questions of grave importance, to which the American people now have their attention forcibly directed through the extraordinary action of a judge of the Supreme Court. It is for them to say whether the right of trial by jury shall exist only in form, or be perpetuated according to the letter and spirit of the Const.i.tution.

The New York Sun scored the judge as follows:

Judge Hunt allowed the jury to be impanelled and sworn, and to hear the evidence; but when the case had reached the point of the rendering of the verdict, he directed a verdict of guilty. He thus denied a trial by jury to an accused party in his court; and either through malice, which we do not believe, or through ignorance, which in such a flagrant degree is equally culpable in a judge, he violated one of the most important provisions of the Const.i.tution of the United States. It is hardly worth while to argue that the right of trial by jury includes the right to a verdict by the jury, and to a free and impartial verdict, not one ordered, compelled and forced from them by an adverse and predetermined court. The language of the Const.i.tution of the United States is that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury." Do the words an "impartial jury" mean a jury directed and controlled by the court, and who might just as well, for all practical purposes, be twelve wooden automatons, moved by a string pulled by the hand of the judge?

The Rochester Democrat and Chronicle commented:

In the action of Judge Hunt there was a grand, over-reaching a.s.sumption of authority, unsupported by any point in the case itself, but adopted as an established legal principle. If there is such a principle, Judge Hunt did his duty beyond question, and he is scarcely lower than the angels so far as personal power goes.

The New York Sun a.s.sumes that there is no such principle; that if there were, "Judge Hunt might on his own _ipsedixit_, and without the intervention of a jury, fine, imprison or hang any man, woman or child in the United States." And the Sun proceeds to say that Judge Hunt "must be impeached and removed. Such punishment for the commission of a crime like his against civil liberty is a necessity. The American people will not tolerate a judge like this on the bench of their highest court. To do it would be to submit their necks to as detestable a tyranny as ever existed on the face.

of the earth. They will not sit quietly by to see their liberties, red and radiant with the blood of a million of their sons, silently melted away in the judicial crucible of a stolid and tyrannical judge of their Federal Court." This is forcible, certainly; but it ought to be speedily decided, at least, whether there is such a legal principle as we have mentioned.

The Utica Observer gave this opinion:

We have sought the advice of the best legal and judicial minds in our State in regard to the ruling of Justice Ward Hunt in the case of Susan B. Anthony. While the written opinion of the judge is very generally commended, his action in ordering a verdict of guilty to be entered, without giving the jury an opportunity of saying whether it was their verdict or not, is almost universally condemned. Such a case never before occurred in the history of our courts, and the hope is very general that it never will again.

Between the indictment and the judgment stands the jury, and there is no way known to the law by which the jury's power in criminal cases can be abrogated. The judge may charge the jury that the defense is invalid; that it is their clear duty to find the prisoner guilty. But beyond this he can not properly go. He has no right to order the clerk to enter a verdict which is not the verdict of the jury. In doing this thing Justice Hunt outraged the rights of Susan B. Anthony. It would probably puzzle him to tell why he submitted the case of the inspectors to the jury after taking the case of Miss Anthony out of their hands. It would also puzzle his newspaper champions.

The Legal News, of Chicago, edited by Myra Bradwell, made this pertinent comment: "Judge Ward Hunt, of the Federal Bench, violated the Const.i.tution of the United States more in convicting Miss Anthony of illegal voting, than she did in voting; for he had sworn to support it, and she had not."

The Albany Law Journal, however, after indulging in a few vulgar plat.i.tudes on the fact of Miss Anthony's having admitted that she was a woman, declared that Judge Hunt transcended his rights but that "if Miss Anthony does not like our laws she'd better emigrate!" This legal authority failed to advise where she could emigrate to find laws which were equally just to men and to women. It might also have answered the question, "Should a woman be compelled to leave the land of her nativity because of the injustice of its laws?"

Miss Anthony's trial closed on Wednesday and she remained in Canandaigua to attend that of the three inspectors, which followed at once. She was called as a witness and inquired of Judge Hunt: "I should like to know if the testimony of a person convicted of a crime can be taken?" "They call you as a witness, madam," was his brusque reply.

Later, thinking to trap her, he asked, "You presented yourself as a female, claiming that you had a right to vote?" Quick as a flash came her answer: "I presented myself not as a female, sir, but as a citizen of the United States. I was called to the ballot-box by the Fourteenth Amendment, not as a female but as a citizen."

The inspectors were defended by Mr. Van Voorhis but, after the testimony was introduced, the judge refused to allow him to address the jury. He practically directed them to bring in a verdict of guilty, saying, "You can decide it here or go out." The jury returned a verdict of guilty. The motion for a new trial was denied. One of the inspectors (Hall) had been tried and convicted without being brought into court.

They were fined $25 each and the costs of the prosecution but, although neither was paid, they were not imprisoned at that time.

When asked for his opinion on the case, after a lapse of twenty-four years, Mr. Van Voorhis gave the following:

There never before was a trial in the country of one-half the importance of this of Miss Anthony's. That of Andrew Johnson had no issue which could compare in value with the one here at stake. If Miss Anthony had won her case on the merits, it would have revolutionized the suffrage of the country and enfranchised every woman in the United States. There was a pre-arranged determination to convict her. A jury trial was dangerous, and so the Const.i.tution was openly and deliberately violated.

The Const.i.tution makes the jury, in a criminal case, the judges of the law and of the facts. No matter how clear or how strong the case may appear to the judge, it must be submitted to the jury.

That is the mandate of the Const.i.tution. As no one can be convicted of crime except upon trial by jury, it follows that the jury are ent.i.tled to pa.s.s upon the law as well as the facts. The judge can advise the jury on questions of law. He can legally do no more. If he control the jury and direct a verdict of guilty, he himself is guilty of a crime for which impeachment is the remedy.

The jury in Miss Anthony's case was composed of excellent men. None better could have been drawn anywhere. Justice Hunt knew that. He had the jury impanelled only as a matter of form. He said so in the inspectors' case. He came to Canandaigua to hold the Circuit Court, for the purpose of convicting Miss Anthony. He had unquestionably prepared his opinion beforehand. The job had to be done, so he took the bull by the horns and directed the jury to find a verdict of guilty. In the case of the inspectors he refused to defendants'

counsel the right of addressing the jury.

Judge Hunt very adroitly, in pa.s.sing sentence on Miss Anthony imposing a fine of $100, refused to add, what is usual in such cases, that she be imprisoned until the fine be paid. Had he done so, Miss Anthony would have gone to prison, and then taken her case directly to the Supreme Court of the United States by writ of habeas corpus. There she would have been discharged, because trial by jury had been denied her. But as Miss Anthony was not even held in custody after judgment had been p.r.o.nounced, she could not resort to habeas corpus proceedings and had no appeal.

But the outrage of ordering a verdict of guilty against the defendant was not the only outrage committed by this judge on these trials:

It was an outrage to refuse the right of a defendant to poll the jury.

It was an outrage for the judge to refuse to hold that if the defendant believed she had a right to vote, and voted in good faith in that belief, she was not guilty of the charge.

It was an outrage to hold that the jury, in considering the question whether she did or did not believe she had a right to vote, might not consider that she took the advice of Judge Selden before she voted, and acted on that advice.

It was an outrage to hold that the jury might not take into consideration, as bearing upon the same question, the fact that the inspectors and supervisor of election looked into the question, and came to the conclusion that she had the right to be registered and vote, and told her so, and so decided.

It was an outrage for the judge to hold that the jury had not the right to consider the defendant's motive, and to find her innocent if she acted without any intent to violate the law.

In the case of the inspectors, it was an outrage to refuse defendants' counsel the right to address the jury.

It was an outrage to refuse to instruct the jury that if the defendants, being administrative officers, acted without any criminal motive but in accordance with their best judgment, and in perfect good faith, they were not guilty.

Judge Selden has pa.s.sed to his eternal rest and lies beneath a ma.s.sive monument of granite in beautiful Mount Hope cemetery. Mr. Van Voorhis thus paid tribute to his a.s.sociate in this noted case: "His argument on the const.i.tutional points involved is one of the ablest and most complete to be found in history. As a lawyer he had no superior; he was a master in his profession. He had a most discriminating mind and a marvellous memory. He was familiar with the books, and possessed a power of statement equal to that of Daniel Webster. I predict that the verdict of history will be that Judge Selden was right and the Court wrong upon the const.i.tutional question involved in this case."

To the heavy debts of The Revolution which, with all her efforts, Miss Anthony had been able to reduce but a fraction, were now added the costs of this suit. She did not propose to pay the fines, but she did intend to see that the inspectors were relieved of all expense in connection with the trial. Her indomitable courage did not fail her even in this emergency, and as usual she was sustained by the substantial appreciation of her friends. Letters of sympathy and financial help poured in from acquaintances and strangers in all parts of the country. Indignation meetings were held and contributions sent also by various reform clubs and societies.[74] All were swallowed up in the heavy and unavoidable expenses of the suits of herself and the inspectors. Neither of her lawyers ever presented a bill. She had 5,000 copies made of Judge Selden's argument on the habeas corpus at Albany, which she scattered broadcast. She also had printed 3,000 pamphlets, at a cost of $700, containing a full report of the trial, and sent them to all the law journals in the United States and Canada, to the newspapers, etc. The Democrat and Chronicle said of this book, "We believe it is the most important contribution yet made to the discussion of woman suffrage from a legal standpoint." None of the other cases ever were brought to trial.[75]

Miss Anthony had no fears of not being able to raise money to pay her debts if she could be free to give her time to the lecture platform, but an entire year had been occupied with her trial, and the money received during this period had been required to meet its expenses. She had a vital reason, however, for feeling that she could not leave home--the rapidly-failing health of her beloved sister Guelma, her senior by only twenty months, for more than half a century her close companion, and for the past eight years living under the same roof. Her heart had been broken by the death, a few years before, of her two beautiful children just at the dawn of manhood and womanhood, and the fatal malady consumption met with no resistance. Day by day she faded away, the physician holding out no hope from the first. Her mother, now eighty years of age, was completely crushed; the sister Mary was princ.i.p.al of one of the city schools and busy all day, and Miss Anthony felt it her imperative duty to remain beside the invalid, even could she have overcome her grief sufficiently to appear in public.

Invitations to lecture came to her from many points but she refused them and remained by the gentle sufferer day and night.[76] At daybreak on November 9 the loved one pa.s.sed away, and the tender hands of sisters and of the only daughter performed the last ministrations.[77]

With Miss Anthony the love of family was especially intense as she had formed no outside ties, and the parents, the brothers and sisters filled her world of affection. The sundering of these bonds wrenched her very heartstrings and upon every recurring anniversary the anguish broke forth afresh, scarcely a.s.suaged by the lapse of years. A short time after this last sorrow she writes:

MY DEAR MOTHER: How continually, except the one hour when I am on the platform, is the thought of you and your loss and my own with me! How little we realize the constant presence in our minds of our loved and loving ones until they are forever gone. We would not call them back to endure again their suffering, but we can not help wishing they might have been spared to us in health and vigor. Our Guelma, does she look down upon us, does she still live, and shall we all live again and know each other, and work together and love and enjoy one another? In spite of instinct, in spite of faith, these questions will come up again and again.... She said you would soon follow her, and we know that in the nature of things it must be so. When that time comes, dear mother, may you fall asleep as sweetly and softly as did your eldest born; and as the sands of life ebb out into the great eternal, may all of us be with you to make the way easy. It does seem too cruel that every one of us must be so overwhelmingly immersed in work, but may the Good Father help us so to do that there may be no vain regrets for things done or left undone when the last hour comes.

A beautiful incident cast a flood of light through the heavy shadows of this trying year, and made November 27 in truth a day of Thanksgiving for one brave woman. At his urgent invitation, Miss Anthony had spent it in the home of her cousin, Anson Laphain, at Skaneateles. After a pleasant day, as she sat quietly and sadly by the window, watching the deepening twilight, the n.o.ble-hearted cousin took from his desk her notes for $4,000, which he had so generously loaned her during the stormy days of The Revolution, cancelled all and presented them to her.

She was overwhelmed with surprise and when she attempted to express her grat.i.tude, he stopped her with words of respect, confidence and encouragement which seemed to roll away a stone from her heart and in its place put new hope, ambition and strength.

[Footnote 68: ... Good and lawful men of the said District, then and there sworn and charged to inquire for the said United States of America, and for the body of said District, do, upon their oaths, present, that Susan B. Anthony now or late of Rochester, in the county of Monroe, with force and arms,... did knowingly, wrongfully and unlawfully vote for a Representative in the Congress of the United States for the State of New York at large, and for a Representative in the Congress of the United States for said twenty-ninth Congressional District, without having a lawful right to vote in said election district (the said Susan B. Anthony being then and there a person of the female s.e.x), as she, the said Susan B. Anthony then and there well knew, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity, etc.]

[Footnote 69: The Twenty-fifth Woman Suffrage Anniversary will be held in Apollo Hall, New York, Tuesday, May 6, 1873. Lucretia Mott and Elizabeth Cady Stanton, who called the first woman's rights convention at Seneca Falls in 1848, will be present to give their reminiscences.

That convention was scarcely mentioned by the local press; now, over the whole world, equality for woman is demanded. In the United States, woman suffrage is the chief political question of the hour. Great Britain is deeply agitated upon the same topic. Germany has a princess at the head of its national woman's rights organization. Portugal, Spain and Russia have been roused. In Rome an immense meeting, composed of the representatives of Italian democracy, was recently called in the Coliseum; one of its resolutions demanded a reform in the laws relating to woman and a re-establishment of her natural rights. Turkey, France, England, Switzerland, Italy, sustain papers devoted to woman's enfranchis.e.m.e.nt. A Grand International Woman's Rights Congress is to be held in Paris, in September of this year, to which the whole world is invited to send delegates, and this congress is to be under the management of the most renowned liberals of Europe. Come up, then, friends, and celebrate the silver wedding of the woman suffrage movement. Let our twenty-fifth anniversary be one of power; our reform is everywhere advancing, let us redouble our energies and our courage.

SUSAN B. ANTHONY, _President_; MATILDA JOSLYN GAGE, _Chairman Executive Committee_.]

[Footnote 70: See Appendix for speech in full.]

[Footnote 71: See Appendix for newspaper comment.]

[Footnote 72: A full report of this trial, testimony, arguments of counsel, etc., may be found in the History of Woman Suffrage, Vol. II, beginning page 647.]

[Footnote 73: Can a judge with propriety prepare a _written_ opinion before he has heard all the arguments in a case?]

[Footnote 74: The Buffalo suffrage club sent $100; the Chicago club, through Mrs. Fernando Jones, $75; the Milwaukee club, through Madame Anneke, $50; the Milwaukee "radicals," $20; the New York club, through Lillie Devereux Blake, $50; the patients at the Dansville Sanitarium, $30. Dr. Lozier sent $30; Lucretia Mott, $30; Dr. E.B. Foote, of New York, $25; Phebe Jones, of Albany, $25; Dr. Sarah Dolley, of Rochester, $20; the Hallowells, $25; the Glas...o...b..ry Smith sisters, $20; and from men and women in all parts of the country came sums from fifty cents upwards, all amounting to over $1,100. Gerrit Smith sent at first $30 to help defray the expenses of the trial, and after it was over a draft for $100, saying: "I send you herewith the money to pay your fine. If you shall still decline doing so, then use it at your own discretion to promote the cause of woman suffrage." Mrs. Lewia C. Smith raised a purse of $100 among Rochester friends and presented it as a testimonial to Judge Selden, in the name of the Women Tax-Payers' Society. Miss Anthony gave a lecture in Corinthian Hall for the benefit of the inspectors, which netted about $180.]

[Footnote 75: The first Woman's Congress, afterwards called the a.s.sociation for the Advancement of Women, was organized during the autumn of this year. To the call were appended the names of most of the noted women of the day, but Miss Anthony's was conspicuously absent.

Her most intimate friends being among the signers, and supposing she was to be also, made inquiry as to the reason and received this answer: 1st, Her name beginning with A would have had to head the list; 2d, Her t.i.tle as president of the National Woman Suffrage a.s.sociation would have had to be given; 3d, She could not be managed. Miss Anthony was so greatly amused at these reasons that she quite forgave the omission of her name.]

[Footnote 76: And yet on November 4 she stole away long enough to go to the polling-place and again offer her vote. It was refused, she found her name had been struck from the register, and thus ended that battle.]

[Footnote 77: Three of the brave Rochester women who went to the polls at the election of 1872, died within one year: Guelma Anthony McLean, Mary B.F. Curtis and Rhoda De Garmo.]

CHAPTER XXVI.

NO CONSt.i.tUTIONAL RIGHT TO JURY OR FRANCHISE.