Miss Anthony was not only born in the United States, but the United States also has jurisdiction over her, as is shown by this suit, under which she was arrested in Rochester, and held there to examination in the same little room in which fugitive slaves were once examined. From Rochester she was taken to Albany, from Albany back to Rochester, and now from Rochester to Canandaigua, where she is soon to be tried. She has thus been fully acknowledged by the United States as one of its citizens, and also as a citizen of the State in which she resides.

In order to become a citizen of a State, and enjoy the privileges and immunities of States, a citizen of the United States must reside in a State. Citizenship of the United States secures nothing over the citizenship of other countries, unless it secures the right of self-government. State laws may hereafter regulate suffrage, but the difference between regulating and prohibiting, is as great as the difference between state and national citizenship. The question of the war was the question of State rights; it was the negro, vs. State rights, or the power of States over the ballot. The question to-day is, woman, vs. United States rights, or the power of the United over the ballot. The moral battle now waging will settle the question of the power of the United States over the rights of citizens. By the civil war, the United States was proven to be stronger than the States. It was proven we were a nation in so far that States were but parts of the whole. The woman question, of which in this pending trial, Miss Anthony stands as the exponent, is to settle the question of United States power over the individual political rights of the people; it is a question of a monarchy or a republic. The United States may usurp power, as did the States, but it has no rights in a sovereign capacity, not given it by the Constitution, or in other words, BY THE PEOPLE. By the Preamble we have discovered who are its people, and for what purpose its Constitution was instituted. Each and every amendment—the first ten, the eleventh, twelfth, thirteenth, fourteenth, and fifteenth, are only parts of the grand whole, and must, each and every one, be examined in the light of the Preamble.

Each added amendment makes this change in the status of the People, in that it gives new guaranties of freedom, and removes all pretense of right from any existing usurped power. People are slow to comprehend the change which has been effected by the decision as to State rights. One, claims that only the negro, or persons of African descent, were affected by it. Others claim, and among them, some prominent Republicans, that every civil right is by these amendments, thrown under national control. Recently, two or three suits have come before the United States on this apprehension. One of these, known as the Slaughter House Case, came up from New Orleans in the suit of certain persons against the State of Louisiana. A permit had been given certain parties to erect sole buildings for slaughter, and in other ways control that entire business in the city of New Orleans for a certain number of years. A suit upon it was appealed to the Supreme Court of the United States, on the ground of the change in the power of States, by, and through the last three amendments, and on the supposition that all the civil power of the States had thus been destroyed.

The Court decided it had no jurisdiction, though in its decision it proclaimed the far-reaching character of these amendments. In reference to the Thirteenth Amendment, the Court used this language:

"We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their full and just weight in any question of construction. Undoubtedly while negro slavery alone was in the minds of the Congress which proposed the thirteenth article, it forbids any kind of slavery, now, or hereafter. If Mexican peonage, or the Chinese cooley labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may be safely trusted to make it void."

This is the language used by the Supreme Court of the United States in reference to this thirteenth amendment; prohibiting any, all, and every kind of slavery, not only now, but in the hereafter, and this, although the decision, also acknowledges the fact that only African slavery was intended to be covered by this amendment.

The Court further said, "And so if other rights are assailed by the States, which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent."

What "other rights fall within the protection of these articles?" What "other rights" do these amendments cover? The fourteenth article, after declaring who are citizens of the United States, and of States, still further says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction, the equal protection of the laws." This comprises the first section of that amendment. The jurisdiction and protection of the general government applies to United States citizens. By its prosecution of Miss Anthony, the general government acknowledges her as a citizen of the United States, and what is much more, it acknowledges its own jurisdiction over the ballot—over the chief—chief, did I say,—over the only political right of its citizens. This prosecution is an admission of United States jurisdiction, instead of State jurisdiction. This whole amendment, with the exception of the first clause of the first section, which simply declares who are citizens of the United States and States, is directed against the interference of States in the rights of citizens. But in Miss Anthony's case, the State of New York has not interfered with her right to vote. She voted under local laws, and the State said not a word,—has taken no action in the case, consequently the United States has had no occasion to interfere on that ground. The question of State rights was not as great a question as this: What are United States rights? Can the United States, in its sovereign capacity, overthrow the rights of its own citizens? No, it cannot; for the Fifteenth Amendment to the Constitution specifically declares "The right of citizens 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."

This fifteenth Amendment has been seriously misapprehended by many people, who have understood it to mean that women could be excluded from voting, simply because they are women. I have shown you that Statutes and Constitutions are always general in their character; that from generals we must argue down to particulars, and that if there is any doubt as to the interpretation of a statute, it must be defined in the interests of liberty. But as to the interpretation of this statute there can be no doubt. Had it read, "The right of citizens of the United States to take out passports, shall not be denied or abridged by the United States, on account of race, color, or previous condition of servitude," no person would interpret it to mean that such right to take out passport could be denied on account of female sex, or on account of male sex. We will read it now, first in the light of the Declaration; second, in that of the Preamble to the Constitution, and the Constitution itself, and its various amendments, to which I have referred: the first, sixth, ninth and tenth, which would have been interpreted male, had the Constitution meant men alone, but which have always been defined to cover, and include woman—to cover and include the rights of the whole people to freedom of conscience, to freedom of speech, to the right of a speedy and public trial, &c., &c., and this, although in the Sixth Amendment, the terms him and his are alone used. The Courts long ago decided that Statutes were of general bearing, as is fully true of the Declaration and Constitution, which are supreme statutes. The Fifteenth Amendment does not specifically exclude right of male citizens to vote, because they are male citizens, therefore, male citizens are of necessity included in the right of voting. It does not specifically exclude female citizens from the right of voting, because they are female citizens, therefore, female citizens are of necessity included in the right of voting—a right which the United States cannot abridge. No male citizen can claim that he, as a male citizen, is included, save by implication, and save on the general grounds that he is not specifically excluded, he is necessarily included. Can the United States, at pleasure, take from its own citizens the right of voting, or abridge that right? Has it the right to take from citizens of States the right of voting? Are citizens of States simply protected against States, and can the United States now, at will, step in and deny or abridge the right of voting to all its male citizens simply because they are male? If it has that power over its female citizens, it has the same power over its male citizens. You cannot fail to see that the question brought up by Miss Anthony's prosecution and trial by the United States for the act of voting, has developed the most important question of United States rights; a larger, most pregnant, more momentous question by far, than that of State rights. The liberties of the people are much more closely involved when the United States is the aggressor, than when the States are aggressors.

"The Act to Enforce the right of citizens to vote," declares that CITIZENS shall be entitled and allowed to vote at all elections by the people, in any state, territory, district, county, city, parish, township, school district, municipality, or other territorial division, &c.

This Act was passed after the ratification of the Fifteenth Amendment, and is designed to be in accordance with the Constitution. It does not say black citizens shall be entitled and allowed to vote; it does not say male citizens shall be entitled and allowed to vote—it merely says CITIZENS. It covers the right of women citizens to vote, and yet United States officials claim to find in this very act, their authority for prosecuting Miss Anthony and those fourteen other women citizens of Rochester for the alleged crime of voting. When Miss Anthony voted, what did she do? She merely exercised her citizen's right of suffrage—a right to which she, and all women citizens are entitled by virtue of their citizenship in the nation—a right to which they are entitled because individual political rights are the basis of the government. The United States has no other foundation. If that right is trampled upon, we have no nation. We may hang together in a sort of anarchical way for a time, but our dissolution draws near. Can the United States destroy rights on account of sex? In the original Constitution, before even the first ten amendments were added, States were forbidden to pass bills of attainder. By the fourteenth amendment, the right of voting was forbidden to be abridged, unless for crime. Is it a crime to be a woman? "In the beginning God created man, male and female, created he them." A bill of attainder inflicts punishment, creates liabilities or disabilities, on account of parentage, birth, or descent. Do United States officials presume to create a disability, or inflict a punishment, on account of birth as a woman, and this in direct defiance of the Constitution? When the Constitution of the United States presents no barrier, no lesser power has such authority. "The Constitution of the United States, and the laws made in pursuance thereof, shall be the supreme law of the land."

Says article sixth: "Any law of Congress not made in pursuance of, or in unison with the Constitution, is an illegal and void law." Coke declared an Act of Parliament against Magna Charta was null and void.

But United States officials declare it a crime for a United States citizen to vote. If it is a crime for a native-born citizen, it ought to be a still greater crime for a foreign-born citizen. But the fact that citizenship carries with it the right of voting, is shown in the act of naturalization. A foreigner, after a certain length of residence in this country, proceeds to take out papers of citizenship. To become a citizen, is all that he needs to make of him a voter. At one and the same time he picks up a ballot, and his naturalization papers. Nothing more than his becoming a citizen is needed for him to vote—nothing less will answer. Susan B. Anthony is a native-born citizen. She had to take out no papers to make her a citizen—she was born in the United States—she is educated, intelligent, and FREE BORN. Native-born citizenship is generally conceded to be of more value than that which is bought. Do you not remember that when Paul was brought up, preparatory to being scourged, he demanded by what right they scourged him, a Roman citizen. The chief captain said, "I bought this freedom with a great price." Paul replied, "I am free born"; then great fear fell upon the chief captain, and he ordered the bonds removed from Paul. Native-born Roman citizenship was worth as much as that two thousand years ago. To-day, the foreign-born American citizen, who has bought his freedom with a great price, who has left his home and country, and crossed the sea to a strange land, in order that he may find freedom, is held to be superior to "free born" American women citizens.

But Miss Anthony is not battling for herself alone, nor for the woman alone; she stands to-day, the embodiment of Republican principles. The question of to-day, is not has woman a right to vote, but has any American citizen, white or black, native-born, or naturalized, a right to vote. The prosecution of Miss Anthony by the United States, for the alleged crime of having cast a vote at the last election, is a positive declaration of the government of the United States that it is a crime to vote. Let that decision be affirmed, and we have no republic; the ballot, the governing power in the hands of every person, is the only true republic. Each person to help make the laws which govern him or her, is the only true democracy. Individual responsibility, personal representation, exact political equality, are the only stable foundations of a republic, and when the United States makes voting a crime on the part of any free-born, law-abiding citizen, it strikes a blow at its own stability; it is undermining the very foundations of the republic—it is attempting to overthrow its own Constitution.

Miss Anthony is to-day the representative of liberty; she is to-day battling for the rights of every man, woman and child in the country; she is not only upholding the right of every native-born citizen, but of every naturalized citizen; to-day is at stake in her person, the new-born hopes of foreign lands, the quickened instincts of liberty, so well nigh universal. All these are on trial with her; the destinies of America, the civilization of the world, are in the balance with her as she stands on her defence. If the women of this country are restricted in their right of self-government, what better is it for them to have been born in the United States, than to have been born in Russia, or France, or England, or many another monarchical country? No better; nor as well, as in all these countries, women vote upon certain questions. In Russia, about one-half of the property of the country is in the hands of women, and they vote upon its disposition and control. In France and Sweden, women vote at municipal elections, and in England, every woman householder or rate-payer, votes for city officers, for poor wardens and school commissioners, thus expressing her views as to the education of her children, which is a power not possessed by a single woman of this State of New York, whose boast has been that it leads the legislation of the world in regard to women. Property-holding women in England, vote equally with property-holding men, for every office except Parliamentary, and even that is near at hand, a petition for it of 180,000 names going up last year. England, though a monarchy, is consistent with herself. As the foundation of English representation is property, not persons, property is allowed its representation, whether it is held by man or by woman.

"Are ye not of more value than many sparrows?" said one of old. Is it less pertinent for us to ask if personal representation is not more sacred than property representation? "Where governments lead, there are no revolutions," said the eloquent Castelar. But revolution is imminent in a government like ours, instituted by the people, for the people, in its charters recognizing the most sacred rights of the people, but which, in a sovereign capacity, through its officials, tramples upon the most sacredly secured and guaranteed rights of the people.

The question brought up by this trial is not a woman's rights question, but a citizen's rights question. It is not denied that women are citizens,—it is not denied that Susan B. Anthony was born in the United States, and is therefore a citizen of the United States, and of the State wherein she resides, which is this State of New York. It cannot be denied that she is a person,—one of the people,—there is not a word in the Constitution of the United States which militates against the recognition of woman as a person, as one of the people, as a citizen. The whole question, then, to-day, turns on the power of the United States over the political rights of citizens—the whole question then, to-day, turns on the supreme authority of the National Constitution.

The Constitution recognizes native-born women as citizens, both of the United States, and of the States in which they reside, and the Enforcement Act of 1870, in unison with our national fundamental principles, is entitled "An Act to enforce the right of citizens of the United States to vote in the several States of the Union." Out of those three words, "for other purposes," or any provisions of this act included in them, cannot be found authority for restraining any citizen not "guilty of participating in the rebellion, or other crime," from voting, and we brand this prosecution of Miss Anthony by United States officials, under claim of provisions in this act, as an illegal prosecution—an infamous prosecution, in direct defiance of national law—dangerous in its principles, tending to subvert a republican form of government, and a direct step, whether so designed or not, to the establishment of a monarchy in this country. Where the right of one individual is attacked, the rights of all are menaced. A blow against one citizen, is a blow against every citizen.

The government has shown itself very weak in prosecuting Miss Anthony. No astute lawyer could be found on a side so pregnant of flaws as this one, were not the plaintiff in the case, the sovereign United States. The very fact of the prosecution is at one and the same time weakness on the part of the government, and an act of unauthorized authority. It is weakness, because by it, the United States comes onto the ground of the defendant, and, at once admits voting is an United States right, because United States rights are citizens' rights. By this prosecution, the United States clearly admits that protection of the ballot is an United States duty, instead of a State duty. It is an United States duty instead of a State duty, because voting is an United States right instead of a State right. This prosecution is an open admission by the United States, that voting is a Constitutional right.

But the prosecution is also an admission of unauthorized authority in that by it, the United States discriminates between citizens. If there is one point of our government more strongly fortified than another, it is that the government is of the people. The Preamble of the Constitution, heretofore quoted, means all the people, if language has a meaning. All the people are citizens, if the fourteenth amendment has any signification at all.

If any minds are so obtuse as not to see that the ballot is an United States right,—if any person before me still claims suffrage as a state right alone, such person certainly cannot fail to see that under his views the United States has been guilty of a high-handed outrage upon Miss Anthony and the fourteen other women whom this great government,—this big United States has prosecuted. Under this view of the right of suffrage such person cannot fail to see there has been unauthorized interference by the United States, with the duties and rights of the State of New York. And while Uncle Sam was thus busy last winter over the prosecution of women citizens of the State of New York, the State itself submitted in its Legislature, a resolution looking towards the recognition by the State of the right of tax-paying women to the ballot. Thus at one and the same time was seen the anomaly of a prosecution by the United States of women of the State of New York for an act that New York herself was resolving it right to perform, and which if the ballot is not a constitutional right, the United States has no power over at all.

Look at this prosecution as you will, it presents a fine dilemma to solve; it presents to the country, as never before, the most important and vital question of United States rights; it presents the most important and vital question of unconstitutional power which has grown to such dimensions in the hands of United States officials; and it must bring to people's cognizance the very slight thread by which hangs the security of any citizen's right to the ballot.

Governments try themselves. No government has been stable in the past; all have fallen because all have been one-sided; all have permitted the degradation of woman. Babylon fell; her religion defiled woman; the hand-writing appeared upon the wall, and in a single night she was overthrown. Neither was Rome immortal; her laws were class laws; the rights of humanity were not respected; she underwent many changes, and that vast empire which once ruled the world lives now only in name. Egypt held the wisdom of the world, and as to a certain extent she recognized the equality of woman, her empire endured for ages; at last, she too fell, for her civilization was still an unequal one.

Special laws, or laws specially defined for one particular body of people, on account of race, color, sex, or occupation, is class legislation, and bears the seeds of death within itself. It was the boast of our forefathers, that the rights for which they contended were the rights of human nature. Shall the women of this country forever have cause to say that the declaration and the constitution are specially defined,—are organs of special law?

Where the legislative and executive function of the law are in the hands of a single class, special law, or special renderings of law are the unvarying results. If the constitution of the United States is defined and ruled by United States officials to discriminate between classes of citizens, then the constitution is by them made to be nothing less than an organ of special law, and is held not to sustain the rights of the people. While the class which has usurped the legislative, the executive and the judicial functions of the government, defines political rights to belong to male citizens alone, the women of the United States are under special law; and while thus debarred from exercising their natural right of self-government, they are subjects, not citizens. It matters not if women never voted since the framing of the government, until now, this right has merely been retained by them; it has been held in abeyance, to be exercised by them whenever they chose. The principles advocated by the women to-day are the principles which brought on the revolutionary war, and Miss Anthony and other women associated with her are exponents of the very principles which caused the colonies to rebel against the mother country.

The eyes of all nations are upon us; their hopes of liberty are directed towards us; the United States is now on trial by the light of its own underlying principle. Its assertion of human right to self-government lies a hundred years back of it. The chartered confirmation and renewal of this assertion has come up to our very day, and though all the world looked on and wondered to see us crush the rebellion of '61, it is at this hour,—at this soon coming trial of Miss Anthony at Canandaigua, before the Supreme Court of the Northern District of New York,—it is at this trial that republican institutions will have their grand test, and as the decision is rendered for, or against the political rights of citizenship, so will the people of the United States find themselves free or slaves, and so will the United States have tried itself, and paved its way for a speedy fall, or for a long and glorious continuance.

Miss Anthony is to-day the representative of liberty. In all ages of the world, and during all times, there have been epochs in which some one person took upon their own shoulders the hopes and the sorrows of the world, and in their own person, through many struggles bore them onward. Suddenly or gradually, as the case might be, men found the rugged path made smooth and the way opened for the world's rapid advance. Such an epoch exists now, and such a person is Susan B. Anthony.

To you, men of Ontario county, has come an important hour. The fates have brought about that you, of all the men in this great land, have the responsibility of this trial. To you, freedom has come looking for fuller acknowledgement, for a wider area in which to work and grow. Your decision will not be for Susan B. Anthony alone; it will be for yourselves and for your children's children to the latest generations. You are not asked to decide a question under favor, but according to the foundation principles of this republic. You will be called upon to decide a question according to our great charters of liberty—the Declaration of Independence and the Constitution of the United States. You are to decide, not only on a question of natural right, but of absolute law, of the supreme law of the land. You are not to decide according to prejudice, but according to the constitution. If your decision is favorable to the defendant, you will sustain the constitution; if adverse, if you are blinded by prejudice; you will not decide against women alone, but against the United States as well. No more momentous hour has arisen in the interest of freedom, for the underlying principles of the republic, its warp and woof alike, is the exact and permanent political equality of every citizen of the nation, whether that citizen is native born or naturalized, white or black, man or woman. And may God help you.



JUDGE HUNT,

AND

The Right of Trial by Jury.

By JOHN HOOKER, Hartford, Conn.

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The following article was intended for publication in a magazine, but the writer kindly contributed it for publication in this pamphlet.

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In the recent trial of Susan B. Anthony for voting, (illegally, as was claimed, on the ground that as a woman she had no right to vote—a point which we do not propose to consider,) the course of Judge Hunt, in taking the case from the jury, and ordering a verdict of guilty to be entered up, was so remarkable, so contrary to all rules of law, and so subversive of the system of jury trials in criminal cases, that it should not be allowed to pass without an emphatic protest on the part of every public journal that values our liberties.

Let us first of all see precisely what were the facts. Miss Anthony was charged with having knowingly voted, without lawful right to vote, at the Congressional election in the eighth ward of the City of Rochester, in the State of New York, in November, 1872. The Act of Congress under which the prosecution was brought provides that, "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," &c.

The trial took place at Canandaigua, in the State of New York, in the Circuit Court of the United States, before Judge Hunt, of the Supreme Court of the United States.

The defendant pleaded not guilty—thus putting the Government upon the proof of their entire case, admitting, however, that she was a woman, but admitting nothing more.

The only evidence that she voted at all, and that, if at all, she voted for a representative in Congress, offered on the part of the government, was, that she handed four bits of paper, folded in the form of ballots, to the inspectors, to be placed in the voting boxes. There was nothing on the outside of these papers to indicate what they were, and the contents were not known to the witnesses nor to the inspectors. There were six ballot boxes, and each elector had the right to cast six ballots.

This evidence would undoubtedly warrant the conclusion that Miss Anthony voted for a Congressional representative, the fact probably appearing, although the papers before the writer do not show it, that one of the supposed ballots was placed by her direction in the box for votes for Members of Congress. The facts are thus minutely stated, not at all for the purpose of questioning their sufficiency, but to show how entirely it was a question of fact, and therefore a question for the jury.

Upon this evidence Judge Hunt directed the clerk to enter up a verdict of guilty. The counsel for the defendant interposed, but without effect, the judge closing the discussion by saying, "Take the verdict, Mr. Clerk." The clerk then said, "Gentlemen of the jury, hearken to your verdict, as the Court has recorded it. You say you find the defendant guilty of the offence whereof she stands indicted, and so say you all." To this the jury made no response, and were immediately after dismissed.

It is stated in one of the public papers, by a person present at the trial, that immediately after the dismissal of the jury, one of the jurors said to him that that was not his verdict, nor that of the rest, and that if he could have spoken he should have answered "Not guilty," and that other jurors would have sustained him in it. The writer has no authority for this statement, beyond the letter mentioned. The juror, of course, had a right, when the verdict was read by the clerk, to declare that it was not his verdict, but it is not strange, perhaps, that an ordinary juror, with no time to consider, or to consult with his fellows, and probably ignorant of his rights, and in awe of the Court, should have failed to assert himself at such a moment.

Probably the assumption by the judge that Miss Anthony in fact voted, did her no real injustice, as it was a notorious fact that she did vote, and claimed the right to do so. But all this made it no less an usurpation for the judge to take the case from the jury, and order a verdict of guilty to be entered up without consulting them.

There was, however, a real injustice done her by the course of the judge, inasmuch as the mere fact of her voting, and voting unlawfully, was not enough for her conviction. It is a perfectly settled rule of law that there must exist an intention to do an illegal act, to make an act a crime. It is, of course, not necessary that a person perpetrating a crime should have an actual knowledge of a certain law which forbids the act, but he must have a criminal intent. Thus, if one is charged with theft, and admits the taking of the property, which is clearly proved to have belonged to another, it is yet a good defence that he really believed that he had a right to take it, or that he took it by mistake. Just so in a case where, as sometimes occurs, the laws regulating the right to vote in a State are of doubtful meaning, and a voter is uncertain whether he has a right to vote in one town or another, and, upon taking advice from good counsel, honestly makes up his mind that he has a right to vote in the town of A. In this belief he applies to the registrars of that town, who upon the statement of the facts, are of the opinion that he has a right to vote there, and place his name upon the list, and on election day he votes there without objection. Now, if he should be prosecuted for illegal voting, it would not be enough that he acknowledged the fact of voting, and that the judge was of the opinion that his view of the law was wrong. There would remain another and most vital question in the case, and that is, did he intend to vote unlawfully? Now, precisely the wrong that would be done to the voter in the case we are supposing, by the judge ordering a verdict of guilty to be entered up, was done by that course in Miss Anthony's case. She thoroughly believed that she had a right to vote. In addition to this she had consulted one of the ablest lawyers in Western New York, who gave it as his opinion that she had a right to vote, and who testified on the trial that he had given her that advice. The Act of Congress upon which the prosecution was founded uses the term "knowingly,"—"shall knowingly vote or attempt to vote in the name of any other person, or 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 without having a lawful right to vote." Here most manifestly the term "knowingly" does not apply to the mere act of voting. It is hardly possible that a man should vote, and not know the fact that he is voting. The statute will bear no possible construction but that which makes the term "knowingly" apply to the illegality of the act. Thus, "shall knowingly vote without having a lawful right to vote," can only mean, shall vote knowing that there is no lawful right to vote. This being so, there was manifestly a most vital question beyond that of the fact of voting, and of the conclusion of the judge that the voting was illegal, viz., did Miss Anthony vote, knowing that she had no right to vote.

Now, many people will say that Miss Anthony ought to have known that she had no right to vote, and will perhaps regard it as an audacious attempt for mere effect, to assert a right that she might think she ought to have, but could not really have believed that she had. But whatever degree of credit her claim to have acted honestly in the matter is entitled to, whether to much, or little, or none, it was entirely a question for the jury, and they alone could pass upon it. The judge had no right even to express an opinion on the subject to the jury, much less to instruct them upon it, and least of all to order a verdict of guilty without consulting them.

There seems to have been an impression, as the writer infers from various notices of the matter in the public papers, that the case had resolved itself into a pure question of law. Thus, a legal correspondent of one of our leading religious papers, in defending the course of Judge Hunt, says: "There was nothing before the Court but a pure question of law. Miss Anthony violated the law of the State intentionally and deliberately, as she openly avowed, and when brought to trial her only defence was that the law was unconstitutional. Here was nothing whatever to go to the jury." And again he says: "In jury trials all questions of law are decided by the judge." This writer is referred to only as expressing what are supposed to be the views of many others.

To show, however, how entirely incorrect is this assumption of fact, I insert here the written points submitted by Miss Anthony's counsel to the Court, for its instruction to the jury.

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 prescribed in the statute.

This certainly makes it clear that the question was not "a pure question of law," and that there was "something to go to the jury." And this would be so, even if, as that writer erroneously supposes, Miss Anthony had openly avowed before the Court that she voted.

But even if this point be wholly laid out of the case, and it had been conceded that Miss Anthony had knowingly violated the law, if she should be proved to have voted at all, so that the only questions before the Court were, first—whether she had voted as charged, and secondly—whether the law forbade her voting; and if in this state of the case a hundred witnesses had been brought by the government, to testify that she had "openly avowed" in their presence that she had voted, so that practically the question of her having voted was proved beyond all possible question, still, the judge would have no right to order a verdict of guilty. The proof that she voted would still be evidence, and mere evidence, and a judge has no power whatever to deal with evidence. He can deal only with the law of the case, and the jury alone can deal with the facts.

But we will go further than this. We will suppose that in New York, as in some of the States, a defendant in a criminal case is allowed to testify, and that Miss Anthony had gone upon the stand as a witness, and had stated distinctly and unequivocally that she did in fact vote as charged. We must not forget that, if this had actually occurred, she would at the same time have stated that she voted in the full belief that she had a right to vote, and that she was advised by eminent counsel that she had such right; a state of the case which we have before referred to as presenting a vital question of fact for the jury, and which excludes the possibility of the case being legally dealt with by the judge alone; but this point we are laying out of the case in the view we are now taking of it. We will suppose that Miss Anthony not only testified that she voted in fact, but also that she had no belief that she had any right to vote; making a case where, if the Court should hold as matter of law that she had no right to vote, there would seem to be no possible verdict for the jury to bring in but that of "guilty."

Even in this case, which would seem to resolve itself as much as possible into a mere question of law, there is yet no power whatever on the part of the judge to order a verdict of guilty, but it rests entirely in the judgment and conscience of the jury what verdict they will bring in. They may act unwisely and unconscientiously, perhaps by mere favoritism, or a weak sympathy, or prejudice, or on any other indefensible ground; but yet they have entire power over the matter. It is for them finally to say what their verdict shall be, and the judge has no power beyond that of instruction upon the law involved in the case.

The proposition laid down by the writer before referred to, that "in jury trials all questions of law are decided by the judge," is not unqualifiedly true. It is so in civil causes, but in criminal causes it has been holden by many of our best courts that the jury are judges of the law as well as of the facts. Pages could be filled with authorities in support of this proposition. The courts do hold, however, that the judges are to instruct the jury as to the law, and that it is their duty to take the law as thus laid down. But it has never been held that if the jury assume the responsibility of holding a prisoner not guilty in the face of a charge from the judge that required a verdict of guilty, where the question was wholly one of law, they had not full power to do it.

The question is one ordinarily of little practical importance, but it here helps to make clear the very point we are discussing. Here the judge laid down the law, correctly, we will suppose, certainly in terms that left the jury no doubt as to what he meant; and here, by all the authorities, the jury ought, as a matter of proper deference in one view, or of absolute duty in the other, to have adopted the view of the law given them by the judge. But it was in either case the jury only who could apply the law to the case. The judge could instruct, but the jury only could apply the instruction. That is, the instruction of the judge, no matter how authoritative we may regard it, could find its way to the defendant only through the verdict of the jury.

It is only where the confession of facts is matter of record, (that is, where the plea filed or recorded in the case admits them), that the judge can enter up a judgment without the finding of a jury. Thus, if the defendant pleads "guilty," there is no need of a jury finding him so. If, however, he pleads "not guilty," then, no matter how overwhelming is the testimony against him on the trial, no matter if a hundred witnesses prove his admission of all the facts, the whole is not legally decisive like a plea of guilty; but the question still remains a question of fact, and the jury alone can determine what the verdict shall be. In other words, it is no less a question of fact for the reason that the evidence is all one way and overwhelming, or that the defendant has in his testimony admitted all the facts against himself.

The writer has intended this article for general rather than professional readers, and has therefore not encumbered it with authorities; but he has stated only rules and principles that are well established and familiar to all persons practising in our courts of law.

This case illustrates an important defect in the law with regard to the revision of verdicts and judgments in the United States Circuit Court. In almost all other courts, an application for a new trial on the ground of erroneous rulings by the judge, is made to a higher and independent tribunal. In this court, however, an application for a new trial is addressed to and decided by the same judge who tried the case, and whose erroneous rulings are complained of. Such a motion was made and argued by Miss Anthony's counsel before Judge Hunt, who refused to grant a new trial. Thus it was Judge Hunt alone who was to decide whether Judge Hunt was wrong. It is manifest that the opportunity for securing justice even before the most honest of judges, would be somewhat less than before an entirely distinct tribunal, as the judge would be prejudiced in favor of his own opinion, and the best and most learned of judges are human and fallible; while if a judge is disposed to be unfair, it is perfectly easy for him to suppress all attempts of a party injured by his decision to set it aside.

The only remedy for a party thus wronged is by an appeal to the public. Such an appeal, as a friend of justice and of the law, without regard to Miss Anthony's case in any other aspect, the writer makes in this article. The public, thus the only appellate tribunal, should willingly listen to such a case, and pass its own supreme and decisive judgment upon it.

The writer cannot but regard Judge Hunt's course as not only irregular as a matter of law, but a very dangerous encroachment on the right of every person accused to be tried by a jury. It is by yielding to such encroachments that liberties are lost.

THE END