Our law books furnish, perhaps, more satisfactory evidence of the earnestness with which women in England are claiming the right to vote, under the reform act of 1867, aided by Lord Brougham's act of 1850.

The case of Chorlton, appellant, vs. Lings, respondent, came before the Court of Common Pleas in England in 1869. It was an appeal from the decision of the revising barrister, for the borough of Manchester, to the effect "that Mary Abbott, being a woman, was not entitled to be placed on the register." Her right was perfect in all respects excepting that of sex. The court, after a very full and able discussion of the subject, sustained the decision of the revising barrister, denying to women the right to be placed on the register, and consequently denying their right to vote. The decision rested upon the peculiar phraseology of several Acts of Parliament, and the point decided has no applicability here. My object in referring to the case has been to call attention to the fact stated by the reporter, that appeals of 5,436 other women were consolidated and decided with this. No better evidence could be furnished of the extent and earnestness of the claim of women in England to exercise the elective franchise.—Law Rep. Com. Pleas, 4-374.

I infer, without being able to say how the fact is, that the votes given by women, as mentioned in the newspapers, were given at municipal elections merely, and that the cases decided by the Court of Common Pleas relate to elections for members of Parliament.

Another objection is, that the right to hold office must attend the right to vote, and that women are not qualified to discharge the duties of responsible offices.

I beg leave to answer this objection by asking one or more questions. How many of the male bipeds who do our voting are qualified to hold high offices? How many of the large class to whom the right of voting is supposed to have been secured by the fifteenth amendment, are qualified to hold office?

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

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

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

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

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

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

Another objection is that engaging in political controversies is not consistent with the feminine character. Upon that subject, women themselves are the best judges, and if political duties should be found inconsistent with female delicacy, we may rest assured that women will either effect a change in the character of political contests, or decline to engage in them. This subject may be safely left to their sense of delicacy and propriety.

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

I humbly submit to your honor, therefore, that on the constitutional grounds to which I have referred, Miss Anthony had a lawful right to vote; that her vote was properly received and counted; that the first section of the fourteenth amendment secured to her that right, and did not need the aid of any further legislation.

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

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

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

Mr. Bishop says, (1 Cr. Law, Sec.205): "There can be no crime unless a culpable intent accompanies the criminal act." The same author, (1 Cr. Prac. Sec.521), repeated in other words, the same idea: "In order to render a party criminally responsible, a vicious will must concur with a wrongful act."

I quote from a more distinguished author: "Felony is always accompanied with an evil intention, and therefore shall not be imputed to a mere mistake, or misanimadversion, as where persons break open a door, in order to execute a warrant, which will not justify such proceeding: Affectio enim tua nomen imponit operi tuo: item crimen non contrahitur nisi nocendi, voluntas intercedat," which, as I understand, may read: "For your volition puts the name upon your act; and a crime is not committed unless the will of the offender takes part in it."

1 Hawk. P.C., p. 99, Ch. 85, Sec.3.

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

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

Again, the same author, writing on the subject of knowledge, as necessary to establish the intent, says: "It is absolutely necessary to constitute guilt, as in indictments for uttering forged tokens, or other attempts to defraud, or for receiving stolen goods, and offences of a similar description." (1 Crim. Prac. Sec.504.)

In regard to the offence of obtaining property by false pretenses, the author says: "The indictment must allege that the defendant knew the pretenses to be false. This is necessary upon the general principles of the law, in order to show an offence, even though the statute does not contain the word 'knowingly.'" (2 Id. Sec.172.)

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

(1 Cr. Law, Sec.297.)

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

I quote from Sir Mathew Hale on the subject. Speaking of larceny, the learned author says: "As it is cepit and asportavit, so it must be felonice, or animo furandi, otherwise it is not felony, for it is the mind that makes the taking of another's goods to be a felony, or a bare trespass only; but because the intention and mind are secret, the intention must be judged of by the circumstances of the fact, and these circumstances are various, and may sometimes deceive, yet regularly and ordinarily these circumstances following direct in the case. If A., thinking he hath a title to the house of B., seizeth it as his own ... this regularly makes no felony, but a trespass only; but yet this may be a trick to colour a felony, and the ordinary discovery of a felonious intent is, if the party doth it secretly, or being charged with the goods denies it."

(1 Hales P.C. 509.)

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

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

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

Here a young man, innocent so far as his conduct in this case was involved, was condemned, for acting in good faith upon the advice, (mistaken advice it may be conceded,) of one governor and two lawyers to whom he applied for information as to his rights; and this condemnation has proceeded upon the assumed ground, conceded to be false in fact, that he knew the advice given to him was wrong. On this judicial fiction the young man, in the name of justice, is sent to prison, punished for a mere mistake, and a mistake made in pursuance of such advice. It cannot be, consistently with the radical principles of criminal law to which I have referred, and the numerous authorities which I have quoted, that this man was guilty of a crime, that his mistake was a crime, and I think the judges who pronounced his condemnation, upon their own principles, better than their victim, deserved the punishment which they inflicted.

The condemnation of Miss Anthony, her good faith being conceded, would do no less violence to any fair administration of justice.

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

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

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

* * *

THE COURT addressed the jury as follows:

Gentlemen of the Jury:

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

The defendant is indicted under the act of Congress of 1870, for having voted for Representatives in Congress in November, 1872. Among other things, that Act makes it an offence for any person knowingly to vote for such Representatives without having a right to vote. It is charged that the defendant thus voted, she not having a right to vote because she is a woman. The defendant insists that she has a right to vote; that the provision of the Constitution of this State limiting the right to vote to persons of the male sex is in violation of the 14th Amendment of the Constitution of the United States, and is void. The 13th, 14th and 15th Amendments were designed mainly for the protection of the newly emancipated negroes, but full effect must nevertheless be given to the language employed. The 13th Amendment provided that neither slavery nor involuntary servitude should longer exist in the United States. If honestly received and fairly applied, this provision would have been enough to guard the rights of the colored race. In some States it was attempted to be evaded by enactments cruel and oppressive in their nature, as that colored persons were forbidden to appear in the towns except in a menial capacity; that they should reside on and cultivate the soil without being allowed to own it; that they were not permitted to give testimony in cases where a white man was a party. They were excluded from performing particular kinds of business, profitable and reputable, and they were denied the right of suffrage. To meet the difficulties arising from this state of things, the 14th and 15th Amendments were enacted.

The 14th Amendment created and defined citizenship of the United States. It had long been contended, and had been held by many learned authorities, and had never been judicially decided to the contrary, that there was no such thing as a citizen of the United States, except as that condition arose from citizenship of some State. No mode existed, it was said, of obtaining a citizenship of the United States except by first becoming a citizen of some State. This question is now at rest. The 14th Amendment defines and declares who should be citizens of the United States, to wit: "All persons born or naturalized in the United States and subject to the jurisdiction thereof." The latter qualification was intended to exclude the children of foreign representatives and the like. With this qualification every person born in the United States or naturalized is declared to be a citizen of the United States, and of the State wherein he resides. After creating and defining citizenship of the United States, the Amendment provides that no State shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the United States. This clause is intended to be a protection, not to all our rights, but to our rights as citizens of the United States only; that is, the rights existing or belonging to that condition or capacity. The words "or citizen of a State," used in the previous paragraph are carefully omitted here. In article 4, paragraph 2, of the Constitution of the United States it had been already provided in this language, viz: "the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States." The rights of citizens of the States and of citizens of the United States are each guarded by these different provisions. That these rights were separate and distinct, was held in the Slaughter House Cases recently decided by the United States Supreme Court at Washington. The rights of citizens of the State, as such, are not under consideration in the 14th Amendment. They stand as they did before the adoption of the 14th Amendment, and are fully guaranteed by other provisions. The rights of citizens of the States have been the subject of judicial decision on more than one occasion. Corfield agt. Coryell, 4 Wash.; C.C.R., 371. Ward agt. Maryland; 12 Wall., 430. Paul agt. Virginia, 8 Wall., 140.

These are the fundamental privileges and immunities belonging of right to the citizens of all free governments, such as the right of life and liberty; the right to acquire and possess property, to transact business, to pursue happiness in his own manner, subject to such restraint as the Government may adjudge to be necessary for the general good. In Cromwell agt. Nevada, 6 Wallace, 36, is found a statement of some of the rights of a citizen of the United States, viz: "To come to the seat of the Government to assert any claim he may have upon the Government, to transact any business he may have with it; to seek its protection; to share its offices; to engage in administering its functions. He has the right of free access to its seaports through which all operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States." Another privilege of a citizen of the United States, says Miller, Justice, in the "Slaughter House" cases, is to demand the care and protection of the Federal Government over his life, liberty and property when on the high seas or within the jurisdiction of a foreign government. The right to assemble and petition for a redress of grievances, the privilege of the writ of habeas corpus, he says, are rights of the citizen guaranteed by the Federal Constitution.

The right of voting, or the privilege of voting, is a right or privilege arising under the Constitution of the State, and not of the United States. The qualifications are different in the different States. Citizenship, age, sex, residence, are variously required in the different States, or may be so. If the right belongs to any particular person, it is because such person is entitled to it by the laws of the State where he offers to exercise it, and not because of citizenship of the United States. If the State of New York should provide that no person should vote until he had reached the age of 31 years, or after he had reached the age of 50, or that no person having gray hair, or who had not the use of all his limbs, should be entitled to vote, I do not see how it could be held to be a violation of any right derived or held under the Constitution of the United States. We might say that such regulations were unjust, tyrannical, unfit for the regulation of an intelligent State; but if rights of a citizen are thereby violated, they are of that fundamental class derived from his position as a citizen of the State, and not those limited rights belonging to him as a citizen of the United States, and such was the decision in Corfield agt. Coryell. (Supra.) The United States rights appertaining to this subject are those first under article I, paragraph 2, of the United States Constitution, which provides that electors of Representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the State Legislature, and second, under the 15th Amendment, which provides that the right of a citizen of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude. If the Legislature of the State of New York should require a higher qualification in a voter for a representative in Congress than is required for a voter for a Member of Assembly, this would, I conceive, be a violation of a right belonging to one as a citizen of the United States. That right is in relation to a Federal subject or interest, and is guaranteed by the Federal Constitution. The inability of a State to abridge the right of voting on account of race, color, or previous condition of servitude, arises from a Federal guaranty. Its violation would be the denial of a Federal right—that is a right belonging to the claimant as a citizen of the United States.

This right, however, exists by virtue of the 15th Amendment. If the 15th Amendment had contained the word "sex," the argument of the defendant would have been potent. She would have said, an attempt by a State to deny the right to vote because one is of a particular sex, is expressly prohibited by that Amendment. The amendment, however, does not contain that word. It is limited to race, color, or previous condition of servitude. The Legislature of the State of New York has seen fit to say, that the franchise of voting shall be limited to the male sex. In saying this, there is, in my judgment, no violation of the letter or of the spirit of the 14th or of the 15th Amendment. This view is assumed in the second section of the 14th Amendment, which enacts that if the right to vote for Federal officers is denied by any state to any of the male inhabitants of such State, except for crime, the basis of representation of such State shall be reduced in proportion specified. Not only does this section assume that the right of male inhabitants to vote was the especial object of its protection, but it assumes and admits the right of a State, notwithstanding the existence of that clause under which the defendant claims to the contrary, to deny to classes or portions of the male inhabitants the right to vote which is allowed to other male inhabitants. The regulation of the suffrage is thereby conceded to the States as a State's right. The case of Myra Bradwell, decided at a recent term of the Supreme Court of the United States, sustains both the positions above put forth, viz: First, that the rights referred to in the 14th Amendment are those belonging to a person as a citizen of the United States and not as a citizen of a State, and second, that a right of the character here involved is not one connected with citizenship of the United States. Mrs. Bradwell made application to be admitted to practice as an attorney and counsellor at law, in the Courts of Illinois. Her application was denied, and upon appeal to the Supreme Court of the United States, it was there held that to give jurisdiction under the 14th Amendment, the claim must be of a right pertaining to citizenship of the United States, and that the claim made by her did not come within that class of cases. Mr. Justice Bradley and Mr. Justice Field held that a woman was not entitled to a license to practice law. It does not appear that the other Judges passed upon that question.

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

If she believed she had a right to vote, and voted in reliance upon that belief, does that relieve her from the penalty? It is argued that the knowledge referred to in the act relates to her knowledge of the illegality of the act, and not to the act of voting; for it is said that she must know that she voted. Two principles apply here: First, ignorance of the law excuses no one; second, every person is presumed to understand and to intend the necessary effects of his own acts. Miss Anthony knew that she was a woman, and that the constitution of this State prohibits her from voting. She intended to violate that provision—intended to test it, perhaps, but certainly intended to violate it. The necessary effect of her act was to violate it, and this she is presumed to have intended. There was no ignorance of any fact, but all the facts being known, she undertook to settle a principle in her own person. She takes the risk, and she cannot escape the consequences. It is said, and authorities are cited to sustain the position, that there can be no crime unless there is a culpable intent; to render one criminally responsible a vicious will must be present. A commits a trespass on the land of B, and B, thinking and believing that he has a right to shoot an intruder on his premises, kills A on the spot. Does B's misapprehension of his rights justify his act? Would a Judge be justified in charging the jury that if satisfied that B supposed he had a right to shoot A he was justified, and they should find a verdict of not guilty? No Judge would make such a charge. To constitute a crime, it is true, that there must be a criminal intent, but it is equally true that knowledge of the facts of the case is always held to supply this intent. An intentional killing bears with it evidence of malice in law. Whoever, without justifiable cause, intentionally kills his neighbor, is guilty of a crime. The principle is the same in the case before us, and in all criminal cases. The precise question now before me has been several times decided, viz.: that one illegally voting was bound and was assumed to know the law, and that a belief that he had a right to vote gave no defense, if there was no mistake of fact. (Hamilton against The People, 57th of Barbour, p. 625; State against Boyet, 10th of Iredell, p. 336; State against Hart, 6th Jones, 389; McGuire against State, 7 Humphrey, 54; 15th of Iowa reports, 404.) No system of criminal jurisprudence can be sustained upon any other principle. Assuming that Miss Anthony believed she had a right to vote, that fact constitutes no defense if in truth she had not the right. She voluntarily gave a vote which was illegal, and thus is subject to the penalty of the law.

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 constitutional power of the general Government, but is one which applies to the States. I suppose that it is for the jury to determine whether the defendant is guilty of a crime or not. And I therefore ask your Honor to submit to the jury these propositions:

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

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

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

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

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

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

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

THE COURT: I 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 constitution of the United States the right of suffrage was secured to female equally with male citizens. It is likely to close with a question of much greater magnitude—whether the right of trial by jury is absolutely secured by the federal constitution to persons charged with crime before the federal courts.

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

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

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

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

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

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

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

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

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

Second—That whether she had a lawful right to vote or not, 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 entitled to vote; and that if she voted in good faith in the belief in fact that she had a right to vote, it would constitute no defense—the grounds of the decision on the last point being that she was bound to know that by law she was not a legal voter, and that even if she voted in good faith in the contrary belief, it constituted no defense to the crime with which she was charged. The decision of the Court upon these questions was read from a written document.

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

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

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 constitutional right of trial by jury. The jurors composing the panel have been merely silent spectators of the conviction of the defendant by the Court. They have had no more share in her trial and conviction than any other twelve members of the jury summoned to attend this Court, or any twelve spectators who have sat by during the trial. If such course is allowable in this case, it must be equally allowable in all criminal cases, whether the charge be for treason, murder or any minor grade of 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 constitutional provisions which I insist are violated by this proceeding are the following:

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

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

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

No opportunity has been given me to consult precedents on this subject, but a friend has referred me to an authority strongly supporting my position, from which I will quote, though I deem a reference to precedents unnecessary to sustain the plain declarations of the Constitution: I refer to the case of the State vs. Shule, (10 Iredell, 153,) the substance of which is stated in 2 Graham & Waterman on New Trials, page 363. Before stating that case I quote from the text of G. & W.

"The verdict is to be the result of the deliberation of the jury upon all the evidence in the case. The Court has no right to anticipate the verdict by an expression of opinion calculated so to influence the jury as to take from them their independence of action."

In the State vs. Shule, two defendants were indicted for an affray. "The jury remaining out a considerable time, at the request of the prosecuting attorney they were sent for by the Court. The Court then charged them that although Jones, (the other defendant,) had first commenced a battery upon Shule, yet, if the jury believed the evidence, the defendant, Shule, was also guilty. Thereupon, one of the jurors remarked that they had agreed to convict Jones, but were about to acquit Shule. The Court then charged the jury again, and told them that they could retire if they thought proper to do so. The jury consulted together a few minutes in the Court room. The prosecuting attorney directed the clerk to enter a verdict of guilty as to both defendants. When the clerk had entered the verdict, the jury were asked to attend to it, as it was about to be read by the clerk. The clerk then read the verdict in the hearing of the jury. The jury, upon being requested, if any of them disagreed to the verdict to make, it known by a nod, seemed to express their unanimous assent; and no juror expressed his dissent." In reviewing the case the Court say: "The error complained of is, that before the jury had announced their verdict, and in fact after they had intimated an intention to acquit the defendant, Shule, the Court allowed the clerk to be directed to enter a verdict finding him guilty, and after the verdict was so entered, allowed the jury to be asked if any of them disagreed to the verdict which had been recorded by the clerk. No juror expressed his dissent; but by a nod which appeared to be made by each juror, expressed their unanimous assent. The innovation is, that instead of permitting the jury to give their verdict, the Court allows a verdict to be entered for them, such as it is to be presumed the Court thinks they ought to render, and then they are asked if any of them disagree to it; thus making a verdict for them, unless they are bold enough to stand out against a plain intimation of the opinion of the Court." A venire de novo was ordered. The principal difference between this case and the one under consideration is, that in the latter the Court directed the clerk to enter the verdict, and in the former he was allowed to do so, and in the latter the Court denied liberty to the jurors to dissent from the verdict, and in the former the Court allowed such dissent.

With what jealous care the right of trial by jury in criminal cases has been guarded by every English speaking people from the days of King John, indeed from the days of King Alfred, is known to every lawyer and to every intelligent layman, and it does not seem to me that such a limitation of that right as is presented by the proceedings in this case, can be reconciled either with constitutional provisions, with the practice of courts, with public sentiment on the subject, or with safety in the administration of justice. How the question would be regarded by the highest Court of this State may fairly be gathered from its decision in the case of Cancemi, 18 N.Y., 128, where, on a trial for murder, one juror, some time after the trial commenced, being necessarily withdrawn, a stipulation was entered into, signed by the District-Attorney, and by the defendant and his counsel, to the effect that the trial should proceed before the remaining eleven jurors, and that their verdict should have the same effect as the verdict of a full panel would have. A verdict of guilty having been rendered by the eleven jurors, was set aside and a new trial ordered by the Court of Appeals, on the ground that the defendant could not, even by his own consent, be lawfully tried, by a less number of jurors than twelve. It would seem to follow that he could not waive the entire panel, and effectually consent to be tried by the Court alone, and still less could the Court, against his protest, assume the duties of the jury, and effectually pronounce the verdict of guilty or not guilty in their stead.

It will doubtless be insisted that there was no disputed question of fact upon which the jury were required to pass. In regard to that, I insist that however clear and conclusive the proof of the facts might appear to be, the response to the question, guilty or not guilty, must under the Constitution come from the jury and could not be supplied by the judgment of the Court, unless, indeed, the jury should see fit to render a special verdict, which they always may, but can never be required, to do.

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

But there was a question of fact, which constituted the very essence of the offence, and one on which the jury were not only entitled to exercise, but were in duty bound to exercise, their independent judgment. That question of fact was, whether the defendant, at the time when she voted, knew that she had not a right to vote. The statute makes this knowledge the very gist of the offence, without the existence of which, in the mind of the voter, at the time of voting, there is no crime. There is none by the statute and none in morals. The existence of this knowledge, in the mind of the voter, at the time of voting, is under the statute, necessarily a fact and nothing but a fact, and one which the jury was bound to find as a fact, before they could, without violating the statute, find the defendant guilty. The ruling which took that question away from the jury, on the ground that it was a question of law and not of fact, and which declared that as a question of law, the knowledge existed, was, I respectfully submit, a most palpable error, both in law and justice. It was an error in law, because its effect was to deny any force whatever to the most important word which the statute uses in defining the offense—the word "knowingly." It was also unjust, because it makes the law declare a known falsehood as a truth, and then by force of that judicial falsehood condemns the defendant to such punishment as she could only lawfully be subject to, if the falsehood were a truth.

I admit that it is an established legal maxim that every person (judicial officers excepted) is bound, and must be presumed, to know the law. The soundness of this maxim, in all the cases to which it can properly be applied, I have no desire to question; but it has no applicability whatever to this case. It applies in every case where a party does an act which the law pronounces criminal, whether the party knows or does not know that the law has made the act a crime. That maxim would have applied to this case, if the defendant had voted, knowing that she had no legal right to vote; without knowing that the law had made the act of knowingly voting without a right, a crime. In that case she would have done the act which the law made a crime, and could not have shielded herself from the penalty by pleading ignorance of the law. But in the present case the defendant has not done the act which the law pronounces a crime. The law has not made the act of voting without a lawful right to vote, a crime, where it is done by mistake, and in the belief by the party voting that he has the lawful right to vote. The crime consists in voting "knowingly," without lawful right. Unless the knowledge exists in fact, is the very gist of the offence is wanting. To hold that the law presumes conclusively that such knowledge exists in all cases where the legal right is wanting, and to reject all evidence to the contrary, or to deny to such evidence any effect, as has been done on this trial, is to strike the word "knowingly" out of the statute—and to condemn the defendant on the legal fiction that she was acting in bad faith, it being all the while conceded that she was in fact acting in good faith. I admit that there are precedents to sustain such ruling, but they cannot be reconciled with the fundamental principles 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 to vote might be made use of by her as a mere cover to secure the privilege of giving a known illegal vote, and of course that false assumption would constitute no defence to the charge of illegal voting. If the defendant had dressed herself in male attire, and had voted as John Anthony, instead of Susan, she would not be able to protect herself against a charge of voting with a knowledge that she had no right to vote, by asserting her belief that she had a right to vote as a woman. The artifice would no doubt effectually overthrow the assertion of good faith. No such question, however, is made here. The decision of which I complain concedes that the defendant voted in good faith, in the most implicit belief that she had a right to vote, and condemns her on the strength of the legal fiction, conceded to be in fact a mere fiction, that she knew the contrary.

But if the facts admitted of a doubt of the defendant's good faith, that was a question for the jury, and it was clear error for the court to assume the decision of it.

Again. The denial of the right to poll the jury was most clearly an error. Under the provisions of the constitution which have been cited, the defendant could only be convicted on the verdict of a jury. The case of Cancemi shows that such jury must consist of twelve men; and it will not be claimed that anything less than the unanimous voice of the jury can be received as their verdict. How then could the defendant be lawfully deprived of the right to ask every juror if the verdict had his assent? I believe this is a right which was never before denied to a party against whom a verdict was rendered in any case, either civil or criminal. The following cases show, and many others might be cited to the same effect, that the right to poll the jury is an absolute right in all cases, civil and criminal. (The People vs. Perkins, 1 Wend. 91. Jackson vs. Hawks, 2 Wend. 619. Fox vs. Smith. 3 Cowen, 23.)

The ground on which the right of the defendant to vote has been denied, is, as I understand the decision of the court, "that the rights of the citizens of the state as such were not under consideration in the fourteenth amendment; that they stand as they did before that amendment.... The right of voting or the privilege of voting is a right or privilege arising under the constitution of the state, and not of the United States. If the right belongs to any particular person, it is because such person is entitled to it as a citizen of the state where he offers to exercise it, and not because of citizenship of the United States.... The regulation of the suffrage is conceded to the states as a state right."

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

I claim therefore that the defendant is entitled to a new trial.

First—Because she has been denied her right of trial by jury.

Second—Because she has been denied the right to ask the jury severally whether they assented to the verdict which the court had recorded for them.

Third—Because the court erroneously held, that the defendant had not a lawful right to vote.

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

Fifth—Because the court erroneously held that the question, whether the defendant, at the time of voting knew that she had not a right to vote, was a question of law to be decided by the court, and not a question of fact to be decided by the jury.

Sixth—Because the court erred in holding that it was a presumption of law that the defendant knew that she was not a legal voter, although in fact she had not that knowledge.

Seventh—Because congress had no constitutional right to pass the act under which the defendant was indicted, and the act and all proceedings under it are void.

Sir, so far as my information in regard to legal proceedings extends, this is the only court in any country where trial by jury exists, in which the decisions that are made in the haste and sometimes confusion of such trials, are not subject to review before any other tribunal. I believe that to the decisions of this court, in criminal cases, no review is allowed, except in the same court in the informal way in which I now ask your honor to review the decisions made on this trial. This is therefore the court of last resort, and I hope your honor will give to these, as they appear to me, grave questions, such careful and deliberate consideration as is due to them from such final tribunal.

If a new trial shall be denied to the defendant, it will be no consolation to her to be dismissed with a slight penalty, leaving the stigma resting upon her name, of conviction for an offence, of which she claims to be, and I believe is, as innocent as the purest of the millions of male voters who voted at the same election, are innocent of crime in so voting. If she is in fact guilty of the crime with which she stands charged, and of which she has been convicted by the court, she deserves the utmost penalty which the court under the law has power to impose; if she is not guilty she should be acquitted, and not declared upon the records of this high court guilty of a crime she never committed.

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

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

MISS ANTHONY—Yes, your honor, I have many things to say; for in your ordered verdict of guilty, you have trampled 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 sex, are, by your honor's verdict, doomed to political subjection under this, so-called, form of government.

JUDGE HUNT—The Court cannot listen to a rehearsal of arguments the prisoner's counsel has already consumed three hours in presenting.

MISS ANTHONY—May it please your honor, I am not arguing the question, but simply stating the reasons why sentence cannot, in justice, be pronounced against me. Your denial of my citizen's right to vote, is the denial of my right of consent as one of the governed, the denial of my right of representation as one of the taxed, the denial of my right to a trial by a jury of my peers, as an offender against law, therefore, the denial of my sacred rights to life, liberty, property and—

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

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

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

MISS ANTHONY—All of my prosecutors, from the 8th ward corner grocery politician, who entered the complaint, to the United States Marshal, Commissioner, District Attorney, District Judge, your honor on the bench, not one is my peer, but each and all are my political sovereigns; and had your honor submitted my case to the jury, as was clearly your duty, even then I should have had just cause of protest, for not one of those men was my peer; but, native or foreign born, white or black, rich or poor, educated or ignorant, awake or asleep, sober or drunk, each and every man of them was my political superior; hence, in no sense, my peer. Even, under such circumstances, a commoner of England, tried before a jury of Lords, would have far less cause to complain than should I, a woman, tried before a jury of men. Even my counsel, the Hon. Henry R. Selden, who has argued my cause so ably, so earnestly, so unanswerably before your honor, is my political sovereign. Precisely as no disfranchised person is entitled to sit upon a jury, and no woman is entitled to the franchise, so, none but a regularly admitted lawyer is allowed to practice in the courts, and no woman can gain admission to the bar—hence, jury, judge, counsel, must all be of the superior class.

JUDGE HUNT—The Court must insist—the prisoner has been tried according to the established forms of law.

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

JUDGE HUNT—The Court orders the prisoner to sit down. It will not allow another word.

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

JUDGE HUNT—The Court must insist—

(Here the prisoner sat down.)

JUDGE HUNT—The prisoner will stand up.

(Here Miss Anthony arose again.)

The sentence of the Court is that you pay a fine of one hundred dollars and the costs of the prosecution.

MISS ANTHONY—May it please your honor, I shall never pay a dollar of your unjust penalty. All the stock in trade I possess is a $10,000 debt, incurred by publishing my paper—The Revolution—four years ago, the sole object of which was to educate all women to do precisely as I have done, rebel against your man-made, unjust, unconstitutional forms of law, that tax, fine, imprison and hang women, while they deny them the right of representation in the government; and I shall work on with might and main to pay every dollar of that honest debt, but not a penny shall go to this unjust claim. And I shall earnestly and persistently continue to urge all women to the practical recognition of the old revolutionary maxim, that "Resistance to tyranny is obedience to God."

JUDGE HUNT—Madam, the Court will not order you committed until the fine is paid.

* * *

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

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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 of America, held in and for the Northern District of New York, at the City Hall, 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 thousand eight hundred and seventy-three, before the Honorable Nathan H. Hall, Judge of the said Court, assigned to keep the peace of the said United States of America, in and for the said District, and also to hear and determine divers Felonies, Misdemeanors and other offences against the said 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 and charged to inquire for the said United States of America, and for the body of said District, do, upon their oaths, present, that at the City of Rochester, in the County of Monroe, in the Northern District of New York, 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 in and for the first election District of the eighth ward of said City of Rochester, duly elected, appointed, qualified and acting as such Inspectors.

And the Jurors aforesaid, upon their oaths aforesaid, do further present that on the day aforesaid, said Inspectors duly met at the place designated for holding a poll of an election to be had and held at 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 of New York at large, and a Representative in the Congress of the United States for the Twenty-Ninth Congressional District of the State of New York, said first election District of said eighth ward then and there being a part of said Twenty-Ninth Congressional District of the State of New York, and for other officers, and at said place on said day did then and there duly organize themselves as a board for the purpose of Registering the names of the legal voters of such District, and did then and there proceed to make a list of all persons entitled to vote at said election in said District, said list to constitute and to be known as the Registry of electors of said District.

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

And the Jurors aforesaid, upon their oaths aforesaid, do further present that on the said second day of November, A.D. 1872, at the City of Rochester, in the County of Monroe, in the Northern District of New York, and within the jurisdiction of this Court, to-wit, at the place designated for holding the poll of said election for said Representatives in the Congress of the United States, and other officers in and for said first election District of said eighth ward as aforesaid, and between the hours of eight o'clock in the morning, and nine 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 and there Inspectors of Elections in and for said first election District of said eighth ward of said City of Rochester, duly elected, appointed, qualified and acting as such, and having then and there duly met for the purpose of revising and correcting said list of all persons entitled to vote at said election as aforesaid, known as the registry of electors for said election district, they, said Beverly W. Jones, Edwin T. Marsh and William B. Hall, did then and, there knowingly and wilfully register as a voter of said District, one Susan B. Anthony, she, said Susan B. Anthony then and there not being entitled to be registered as a voter of said District in that she, said Susan B. Anthony was then and there a person of the female sex, contrary to the form, of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity.

Second Count: And the Jurors aforesaid, upon their oaths aforesaid, do further 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, were then and there Inspectors of Elections in and for the first election District 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 present that on the day aforesaid, said Inspectors duly met at the place designated for the holding of the poll of an election to be had and held at 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 of New York at large, and a Representative in the Congress of the United States for the Twenty-Ninth Congressional District of the State of New York, said first election district of said eighth ward then and there being a part of said Twenty-Ninth Congressional District of the State of New York, and for other officers, and at said place on said day, did then and there duly organize themselves as a Board for the purpose of Registering the names of the legal voters of said District, and did then and there proceed to make a list of all persons entitled to vote at said election in said District, said list to constitute and to be known as the registry of electors of said District.

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

And the Jurors aforesaid, upon their oaths aforesaid, do further present, that on the said first day of November, A.D. 1872, at the City of Rochester, in the County of Monroe, in the Northern District of New York, and within the jurisdiction of this Court, to-wit, at the place designated for holding the poll of said election for said Representatives in the Congress of the United States, and other officers in and for said first election District of said eighth ward of said City of Rochester, and between the hours of eight o'clock in the morning, and nine 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 and there Inspectors of Elections in and for said first election District of said eighth ward of said City of Rochester, duly elected, appointed, qualified and acting as such as aforesaid, and having then and there duly met for the purpose of revising and correcting said list of all persons entitled to vote at said election as aforesaid, known as the Registry of electors for said election District, they, said Beverly W. Jones, Edwin T. Marsh and William B. Hall, did then and there knowingly and 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 being entitled to be Registered as voters of said District, in that each of said persons was then and there a person of the female sex, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace of the United States of America and their dignity.

Third Count: And the Jurors aforesaid, upon their oaths aforesaid, do further present that Beverly W. Jones, Edwin T. Marsh and William D. Hall, of the City of Rochester, in the County of Monroe, with force and arms, &c., to-wit, at and in the first election District of the eighth ward of said City of Rochester, in the County of Monroe, in the Northern District of New York, and within the jurisdiction of this Court, heretofore, to-wit, on the fifth day of November, A.D. 1872, at an election duly held at and in the said first election District of the said eighth ward of said City of Rochester, in said County, and in said Northern District of New York, which said election was for Representatives in the Congress of the United States, to-wit, a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the Twenty-Ninth Congressional District of the State of New York, said first election District of said eighth ward of said City of Rochester being then and there a part of said Twenty-Ninth Congressional District of the State of New York, and said Beverly W. Jones, Edwin T. Marsh, and William B. Hall, being then and there Inspectors of Elections in and for said first election District of said eighth ward of said City of Rochester, in said County of Monroe, duly elected, appointed, and qualified and acting as such, they, said Beverly W. Jones, Edwin T. Marsh, and William B. Hall, as such Inspectors of Elections, did then and there, to-wit, on the fifth day of November, A.D. 1872, at the first election District of the eighth ward of the City of Rochester, in the County of Monroe, in the Northern District of New York, and within the jurisdiction of this Court, knowingly and wilfully receive the votes of certain persons, and not then and there entitled to vote, to-wit: Susan B. 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, and Jane Cogswell, each of said persons then and there being a person of the female sex, and then and there not entitled to vote, 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 in such case made and provided, and against the peace of the United States of America and their dignity.

Fourth Count: And the Jurors aforesaid, upon their oaths aforesaid, do further present, that Beverly W. Jones, Edwin T. Marsh and William B. Hall, now, or late of Rochester, in the County of Monroe, with force and arms, &c., to-wit, at and in the first election District of the eighth ward of the City of Rochester, in the County of Monroe, in said Northern District of New York, and within the jurisdiction of this Court heretofore, to wit, on the fifth day of November, A.D. 1872, at an election duly held at and in the said first election District of said eighth ward of said City of Rochester, in said County of Monroe, in said Northern District of New York, which said election was for Representatives in the Congress of the United States, to-wit: a Representative in the Congress of the United States for the State of New York at large, and a Representative in the Congress of the United States for the Twenty-Ninth Congressional District of the State of New York, said first election District of said eighth ward being then and there a part of said Twenty-Ninth Congressional District, and they, said Beverly W. Jones, Edwin T. Marsh, and William B. Hall, being then and there Inspectors of Elections in and for said first election District of said eighth ward of said City of Rochester, in said County of Monroe, duly appointed, 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 of Rochester, in said County of Monroe, in said Northern District of New York, on said fifth day of November, A.D. 1872, knowingly and wilfully receive the votes of certain persons for candidate for Representative in the Congress of the United States for the State of New York at large, and candidate for Representative in the Congress of the United States for the Twenty-Ninth Congressional District of the State of New York, said persons then and there not being entitled to vote for said Representatives 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 there being a person of the female sex, and then and there not entitled to vote 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 in such case made and provided, against the peace of the United States of America 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.



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UNITED STATES CIRCUIT COURT.

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NORTHERN DISTRICT OF NEW YORK.

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THE UNITED STATES OF AMERICA.

vs.

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

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HON. WARD HUNT, Presiding.

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APPEARANCES.

For the United States:

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

For the Defendants:

JOHN VAN VOORHIS, ESQ.

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Tried at Canandaigua, Wednesday, June 18th, 1873, before Hon. Ward Hunt and 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 in this case. This indictment, I claim, is bad for two reasons, and should be quashed.

First—The Act of Congress under which it is framed, is invalid so far as it relates to this offence, because not authorized by the Constitution of the United States.

Second—There is no sufficient statement of any offence in the indictment.

First.

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

No law of Congress defines the qualifications of voters in the several States. These are found only in the State Constitutions and Statutes. The offenses charged in the indictment are, that the defendants, being State officers, have violated the laws of the State. If it be so, they may be tried and punished in accordance with the State laws. No proposition can be clearer. If the United States can also punish them for 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 a conviction and sentence, in a United States Court would constitute no bar or defense, (12 Metcalf, 387, Commonwealth v. Peters,) and the defendants 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 of jurisdiction. And where does Congress derive the power to pass laws to punish offenders against the laws of a State? This case must be tried under the laws of the United States. Against those laws, no offense is charged to have been committed. Such power, if it exist, must be somewhere expressly granted, or it must be necessary in order to execute some power that is expressly granted.

The Act of Congress in question, became a law on May 31st, 1870. It is entitled—

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

The indictment is found under the 19th section of the Act as it passed originally, 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 as follows:

"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 the offenses charged in this indictment, must be looked for in the laws of the State. By no Act of Congress can it be determined in what case a person votes, "without having a right to vote." By no Act of Congress can it be determined when an Inspector of Election has received the vote of "any person not entitled to vote," or has registered "as a voter, any person not entitled to be registered." These are the offenses alleged in this indictment. They are penal offenses by the Statutes of New 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 legal effect, that if any person violates the penal Code of the State of New York, or any State, in respect of voting, he may be punished by the United States. And the offense is a variable quantity; what is a crime in one State under this Act, is a legal right and duty in another. A citizen of Rhode Island, for instance, who votes when not possessed in his own right, of an estate in fee simple—in fee tail, for life, or in reversion or remainder, of the value of $134 or up-wards, may be convicted 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 York votes under precisely similar circumstances, and with the same qualifications, and his act is a legal one, and he performs a simple duty. Any State may, by its Constitution and laws, permit women to vote. Had these defendants been acting as Inspectors of Elections in such State, their act would be no crime, and this indictment could not be sustained, for the only illegality alleged is, that the citizens whose votes were received were women, and therefore not entitled to vote.

The Act of Congress thus, is simply an Act to enforce the diverse penal statutes of the various States in relation to voting. In order to make a case, the United States must combine the federal law with the statutes of 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, provides as 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 left entirely to the States. Whoever, in any State, is permitted to vote for members of the most numerous branch of its legislature, is also competent to vote for Representatives in Congress. The State might require a property qualification, or it might dispense with it. It might permit negroes to vote, or it might exclude them. It might permit women to vote, or even foreigners, and the federal constitution would not be infringed. If a State had provided a different qualification for an elector of Representatives in Congress, from that required of an elector of the most numerous branch of its Legislature, the power of the federal constitution might be invoked, and the law annuled. But never was the idea entertained, that this provision of the Constitution authorizes Congress to pass laws for the punishment of individuals in the States for illegal voting, or State returning officers for receiving illegal votes.