Mr. VAN VOORHIS: And that in this country—under the laws of this country—The COURT: That is enough—you need not argue it, Mr. Van Voorhis.

Mr. VAN VOORHIS: Then. I ask your honor to charge the jury that they must find the fact that these inspectors received the votes of these persons knowingly, and that such votes were votes for some person for member of Congress, there being in the case no evidence that any man was voted for, for member of Congress, and there being no evidence except that secret ballots were received; that the jury have a right to find for the defendants, if they choose. The COURT: I charge the jury that there is sufficient evidence to sustain the indictment upon this point.

Mr. VAN VOORHIS: I ask your honor also to charge the jury that there is sufficient evidence to sustain a verdict of not guilty. The COURT: I can not charge that.

Mr. VAN VOORHIS: Then why should it go to the jury? The COURT: As a matter of form.

Mr. VAN VOORHIS: If the jury should find a verdict of not guilty, could your honor set it aside? The COURT: I will debate that with you when the occasion arises. Gentlemen, you may deliberate here, or retire, as you choose.

The jury retired for consultation, and the Court took a recess. The Court re-convened at 7 o'clock, when the clerk called the jury and asked them if they had agreed upon their verdict. The foreman replied in the negative.

The COURT: Is there anything upon which I can give you any advice gentlemen, or any information? A JUROR: We stand eleven for conviction, and one opposed.

The COURT: If that gentleman desires to ask any questions in respect to the questions of law, or the facts in the case, I will give him any information he desires. [No response from the jury.] It is quite proper, if any gentleman has doubts about anything, either as to the law or the facts, that he should state it to the Court. Counsel are both present, and I can give such information as is correct. A JUROR: I don't wish to ask any questions.

The COURT: Then you may retire again, gentlemen. The Court will adjourn until to-morrow morning.

The jury retired, and after an absence of about ten minutes returned into court. The clerk called the names of the jury.

The CLERK: Gentlemen, have you agreed upon your verdict? The FOREMAN: We have.

The CLERK: How say you, do you find the prisoners at the bar guilty of the offense whereof they stand indicted, or not guilty? The FOREMAN: Guilty.

The CLERK: Hearken to your verdict as it stands recorded by the court. You say you find the prisoners at the bar guilty of the offense whereof they stand indicted, and so say you all. Mr. VAN VOORHIS: I ask that the jury be polled. The clerk polled the jury, each juror answering in the affirmative to the question, "Is this your verdict."

On the next day, June 19, 1873, the counsel for the defendants, Mr. John Van Voorhis, made a motion to the court for a new trial in behalf of Beverley W. Jones, Edwin T. Marsh, and William B. Hall. The following are the grounds of the motion:

1. The indictment contains no sufficient statement of any crime under the Acts of Congress, upon which it is framed. 2. The court has no jurisdiction of the subject matter of the offense. 3. It was an error, for which a new trial should be granted, to refuse the defendants the fundamental right to address the jury through their counsel. This is a right guaranteed by the United States Constitution. (See Article VI. of the amendments to the U.S. Constitution. 1 Graham and Waterman on New Trials, pages 682, 683, and 684.) 4. The defendants were substantially deprived of the right of jury trial. The instructions of the court to the jury were imperative. They were equivalent to a direction to find a verdict of guilty. It was said by the court in the hearing of the jury, that the case was submitted to the jury "as a matter of form." The jury was not at liberty to exercise its own judgment upon the evidence, and without committing a gross discourtesy to the court, could render no verdict except that of guilty. 5. Admitting that the defendants acted without malice, or any corrupt motive, and in accordance with their best judgments, and in perfect good faith, it was error to charge that that was no defense. 6. The defendants are admitted to have acted in accordance with their duty as defined by the laws of New York (1 R. S. Edmonds' Ed., pp. 126-127, sections 13, 14, 15, 16, 17, 18 and 19) as construed by the Court of Appeals. (People vs. Pease, 27 N. Y. 45.)

They are administrative officers and bound to regard only the evidence which the statute prescribes. They are not clothed with the power to reject the vote of a person who has furnished the evidence which the law requires of a right to vote, on what they or either of them might know, as to the truth or falsity of such evidences. They have no discretion, and must perform their duty, as it is defined by the laws of New York and the decisions of her courts. 7. The defendant, William B. Hall, has been tried and convicted in his absence from the court. This is an error fatal to the conviction in his case.

The court denied the motion; then asked the defendants if they had anything to say why sentence should not be pronounced, in response to which they replied as follows:

BEVERLY W. JONES said: Your honor has pronounced me guilty of crime; the jury had but little to do with it. In the performance of my duties as an inspector of election, which position I have held for the last four years, I acted conscientiously, faithfully and according to the best of my judgment and ability. I did not believe that I had the right to reject the ballot of a citizen who offered to vote, and who took the preliminary and general oaths; and answered all questions prescribed by law. The instructions furnished me by the State authorities declared that I had no such right. As far as the registry of the names is concerned, they would never have been placed upon the registry if it had not been for Daniel Warner, the Democratic federal supervisor of elections, appointed by this court, who not only advised the registry, but addressed us, saying, "Young men, do you know the penalty of the law if you refuse to register these names?" And after discharging my duties faithfully and honestly and to the best of my ability, if it is to vindicate the law that I am to be imprisoned, I willingly submit to the penalty.

EDWIN T. MARSH said: In October last, just previous to the time fixed for the sitting of the Board of Registrars in the first district of the eighth ward of Rochester, a vacancy occurred. I was solicited to act, and consenting, I was duly appointed by the common council. I had never given the matter a thought until called to the position, and as a consequence knew nothing of the law. On the morning of the first day of the last session of the board, Miss Anthony and other women presented themselves and claimed the right to be registered. So far as I knew, the question of woman suffrage had never come up in that shape before. We were in a position where we could take no middle course. Decide which way me might, we were liable to prosecution. We devoted all the time to acquiring information on the subject that our duties as Registrars would allow. We were expected, it seems, to make an infallible decision, inside of two days, of a question in regard to which some of the best minds of the country are divided. The influences by which we were surrounded, were nearly all in unison with the course we took. I believed then, and believe now, that we acted lawfully.

I faithfully discharged the duties of my office according to the best of my ability, in strict compliance with the oath administered to me. I consider the argument of our counsel unanswered and unanswerable. The verdict is not the verdict of the jury. I am not guilty of the charge.

The Court then sentenced the defendants to pay a fine of $25 each, and the costs of the prosecution.[175]

The following petition was presented in the Senate by Mr. Sargent, the present (1882) United States Minister to Germany, and in the House by Mr. Loughridge, of Iowa:

Forty-third Congress, First Session, Senate, Mis. Doc. No. 39. A petition of Susan B. Anthony praying for the remission of a fine imposed upon her by the United States Court for the Northern District of New York, for illegal voting. January 22, 1874. Referred to the Committee on the Judiciary and ordered to be printed.

To the Congress of the United States:

The petition of Susan B. Anthony, of the city of Rochester, in the county of Monroe, and State of New York, respectfully represents: That, prior to the late presidential election, your petitioner applied to the Board of Registry in the Eighth Ward of the city of Rochester, in which city she had resided for more than twenty-five years, to have her name placed upon the register of voters; and the Board of Registry, after consideration of the subject, decided that your petitioner was entitled to have her name placed upon the register, and placed it there accordingly. On the day of election your petitioner, in common with hundreds of other American citizens, her neighbors, whose names had also been registered as voters, offered to the inspectors of election her ballots for electors of President and Vice-President, and for members of Congress, which were received and deposited in the ballot-box by the inspectors. For this act of your petitioner an indictment was found against her by the grand jury, at the sitting of the District Court of the United States for the Northern District of New York, at Albany, charging your petitioner, under the nineteenth section of the act of Congress of May 31, 1870, entitled "An act to enforce the rights of citizens of the United States to vote in the several States of this Union, and for other purposes," with having "knowingly voted without having a lawful right to vote."

To that indictment your petitioner pleaded not guilty, and the trial of the issue thus joined took place at the Circuit Court in Canandaigua, in the county of Ontario, before the Honorable Ward Hunt, one of the Justices of the Supreme Court of the United States, on the 18th day of June last. Upon that trial the facts of voting by your petitioner, and that she was a woman, were not denied; nor was it claimed on the part of the Government than your petitioner lacked any of the qualifications of a voter, unless disqualified by reason of her sex. It was shown on behalf of your petitioner, on the trial, that before voting she 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 shown on the part of the Government that, on the examination of your petitioner before the commissioner on whose warrant she was arrested, your petitioner stated that she should have voted if allowed to vote, without reference to the advice of the attorney whose opinion she asked; that she was not induced 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, your petitioner'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: 1. That your petitioner had a lawful right to vote. 2. That whether she had a right to vote or not, if she honestly believed that she had that right, and voted in good faith in that belief, she was guilty of no crime. 3. That when your petitioner 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 question for the jury. When your petitioner's counsel had proceeded thus far, the judge 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 then to say a few words to the jury on the question of fact. The judge 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 judge delivered an opinion adverse to the positions of your petitioner's counsel upon both of the legal questions presented, holding that your petitioner 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 ground of the decision on the last point being that your petitioner was bound to know that by the 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 judge upon those questions was read from a written document, and at the close of the reading the judge said that the decision of those 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. The judge then said 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 such a verdict.

At this time, before any entry had been made by the clerk, your petitioner's counsel asked the judge to submit the case to the jury, and to give to the jury the following several instructions. [See page 680.]

The judge declined to submit the case to the jury upon any question whatever, and directed them to render a verdict of guilty against your petitioner. Your petitioner's counsel excepted to the decision of the judge upon the legal questions, and to his direction to the jury to find a verdict of guilty, insisting that it was a direction which no court had a right to give in any criminal case.

The judge then instructed the clerk to take the verdict, and the clerk said, "Gentlemen of the jury, hearken to your verdict as the court hath recorded it. You say you find the defendant guilty of the offense 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. Your petitioner's counsel then asked that the clerk be requested to poll the jury. The judge said, "That can not 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 when they were empaneled to the time of their discharge. After denying a motion for a new trial, the judge proceeded upon the conviction thus obtained to pass sentence upon your petitioner, imposing upon her a fine of $100 and the costs of the prosecution.

Your petitioner respectfully submits that, in these proceedings, she has been denied the rights guaranteed by the Constitution to all persons accused of crime, the right of trial by jury, and the right to have the assistance of counsel for their defense. It is a mockery to call her trial a trial by jury; and unless the assistance of counsel may be limited to the argument of legal questions, without the privilege of saying a word to the jury upon the question of the guilt or innocence in fact of the party charged, or the privilege of ascertaining from the jury whether they do or do not agree to the verdict pronounced by the court in their name, she has been denied the assistance of counsel for her defense.

Your petitioner also respectfully insists that the decision of the judge that good faith on the part of your petitioner in offering her vote did not constitute a defense, was not only a violation of the deepest and most sacred principle of the criminal law, that no one can be guilty of crime unless a criminal intent exists; but was also a palpable violation of the statute under which the conviction was had; not on the ground that good faith could, in this, or in any case, justify a criminal act, but on the ground that bad faith in voting was an indispensable ingredient in the offense with which your petitioner was charged. Any other interpretation strikes the word "knowingly" out of the statute, the word which alone describes the essence of the offense. The statute means, as your petitioner is advised, and humbly submits, a knowledge in fact, not a knowledge falsely imputed by law to a party not possessing it in fact, as the judge in this case has held. Crimes can not, either in law or in morals, be established by judicial falsehood. If there be any crime in the case, your petitioner humbly insists it is to be found in such an adjudication.

To the decision of the judge upon the question of the right of your petitioner to vote, she makes no complaint. It was a question properly belonging to the court to decide, was fully and fairly submitted to the judge, and of his decision, whether right or wrong, your petitioner is well aware she can not here complain. But in regard to her conviction of crime, which she insists, for the reasons above given, was in violation of the principles of the common law, of common morality, of the statute under which she was charged, and of the Constitution—a crime of which she was as innocent as the judge by whom she was convicted—she respectfully asks, inasmuch as the law has provided no means of reviewing the decisions of the judge, or of correcting his errors, that the fine imposed upon your petitioner be remitted, as an expression of the sense of this high tribunal that her conviction was unjust.

Dated January 12, 1874. SUSAN B. ANTHONY.

In the Senate of the United States, June 20, 1874, Mr. Edmunds submitted the following report:

The Committee on the Judiciary, to whom was referred the bill (S. 391) to enable Susan B. Anthony to pay a fine imposed upon her by the District Court for the Northern District of New York, and a petition praying for the remission of said fine, report:

That they are not satisfied that the action of the Court was such as represented in the petition, and that, if it were so, the Senate could not legally take any action in the premises, and move that the Committee be discharged from the further consideration of the petition, and that the bill be postponed indefinitely.

Mr. Carpenter asked, and obtained, leave of the Senate to present the following as the views of the minority:

The Committee on the Judiciary, to whom was referred the memorial of SUSAN B. ANTHONY, praying to be relieved from a certain judgment, rendered against her by the Circuit Court of the United States for the Northern District of New York:

* * * * *

The majority of the Committee have determined that inasmuch as the relief prayed for by the memorial can not be granted, the Committee will ask to be discharged from its further consideration, and will not express any opinion as to the correctness or incorrectness of the course pursued on the trial of Miss Anthony.

The House of Lords in England or the Senate of the United States may engage in any investigation looking to legislation, although, as an incident to, or a result of, such investigation, it may appear that some officer who is impeachable has been guilty of conduct for which he might be impeached. Then, surely, in a case like this, where there is neither suggestion nor suspicion of corrupt conduct on the part of the estimable judge before whom the trial was conducted, it can not be improper for a committee of the Senate to inquire whether, in the trial of a citizen for alleged violation of the laws of the United States, a precedent dangerous to the liberties of every citizen has been set. Indeed, the injurious effect of every judicial departure from sound principle is in proportion to the eminence and purity of the judge by whom it is committed. The outrages perpetrated by Scroggs and Jeffreys in the administration of criminal justice were grievous upon the individuals unjustly or illegally convicted, but do no harm as precedents. A vicious precedent, set by an infamous judge, is harmless; while a similar violation of the law by a pure and upright magistrate is attended by far-reaching and detrimental consequences.

It is fashionable, we know, just now to heap contumely upon women who demand to be allowed to enjoy their civil political rights. Ridicule is the chief weapon employed against them, and is freely applied to all who advocate their cause. Gentlemen who would blush to be thought negligent in the offices of frivolous gallantry lack the manhood to accord to women their substantial rights. And, strange to say, ladies dwelling in luxurious ease join with the fops of society to cast contempt upon the earnest aspirations of woman for the possession of her just rights. We have acted upon the doctrines of the Declaration of Independence, so far as to make all men equal before the law; but women, our mothers, our wives, our sisters, and our daughters, we condemn to inequality—many to servitude. But the cry of women, who, in poverty and want, are driven from the employments of honest industry to indulgence in vice and to the haunts of shame, is rising on every hand, and appeals to the heart with as much power as the wailings of a slave beneath the lash of his master.

The wrongs of Martin Koszta in a foreign land touched the heart of the nation. But the denial of her rights to Miss Susan B. Anthony in a court of the Union is thought to be unworthy the attention of the American Senate. To those who are indifferent whether a woman be deprived of or be permitted to enjoy even the rights which are secured to her by the Constitution, it may be suggested that a bad precedent set in the trial of a woman who has presumed to express her choice as to those who should make laws for her, laws by which her rights are to be affected and her property be taxed, may stand in the way of some man's rights hereafter. It may yet happen, in the revolutions of time, that some one of the majority of your committee may be subjected to an unjust and false accusation, which must be submitted to the judgment of twelve men in the jury-box or of one man on the bench; twelve men fresh from the people and warmed with the instinctive sympathies of humanity, or one man, separated from the people by his station and by the habits of a life passed in seclusion and study. A jury-trial must be the same whether a man or woman be arraigned. And the subject under consideration is important even to men who are regardless of the rights of women.

I shall, therefore, proceed to inquire, as I think the committee ought to have done, whether the memorialist has been deprived, as she alleges, of the right of trial by jury secured to her by the Constitution of the United States. The memorialist claims that the court erred in its ruling, and in taking the case from the jury and directing a verdict against her; and also in refusing to have the jury polled in regard to their verdict; and she prays that her fine may be remitted by act of Congress.

The first question is, whether in a criminal trial, plea not guilty, the jury have a right to render a general verdict involving questions of law as well as fact, under instructions by the court upon matters of law; or whether, when the testimony is not conflicting, the court may take the case from the jury and direct a verdict of guilty to be entered.

It is the practice in civil causes for the court, if there is no conflict in the evidence, to direct a verdict for the plaintiff or for the defendant, because in such case the court may set aside a verdict and grant a new trial in favor of plaintiff or defendant. It would, therefore, be a barren form to require the jury to deliberate and find a verdict in a case where if the verdict was not one way, the court would set it aside and order a new trial, and so on, until a verdict should be found that was satisfactory to the court. So in practice it is usual for the court to direct the jury to acquit the prisoner in a criminal case; because, if the jury find against the prisoner, the court may set the verdict aside and order a new trial, and continue to do so until a verdict of acquittal shall be rendered; though it is doubtful whether, even in a civil cause, the court could refuse to let the jury be polled, or could enter a verdict for the jury to which they did not agree. The court could direct the jury what to do, and set aside the verdict if they did otherwise; but it is not admitted that, even in a civil cause, the court could enter a verdict against the wishes of the jury.

But at the common law and in the Federal courts it is certain that where the jury render a verdict of acquittal, even against the evidence and the instructions of the court on propositions of law, the court can not set aside the verdict and order another trial. From this it follows that the court can not take from the jury this power of acquittal in a criminal case, by directing and compelling a verdict against the prisoner, and refusing to have the jury polled. But the importance of this question requires its examination not only in the light of reason, but of authority. The Constitution of the United States provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and a public trial by an impartial jury of the State and district wherein the crime shall have been committed, etc.

The Constitution does not define or regulate the trial by jury, but secures it as it was then known to the common law. This is a proposition so well settled by judicial determination that I shall spend no time upon it beyond citing the following authorities: Norval vs. Rice, 2 Wis., 22; May vs. R. R. Co., 3 Wis., 219; Byers & Davis vs. Com., 42 Penn. St., 89; United States vs. Lorenzo Dow, Taney Decis., 35; Lamb et al. vs. Lane, 4 Ohio Stat., 167.

Therefore, if it can be shown that, at the time the Constitution was adopted, it was well settled that the jury in a criminal cause might find a general verdict, including both law and fact, then this right is secured to juries in the Federal courts by the Constitution itself; and not even an act of Congress could take it away. What the law was at that time, is mere matter of historical inquiry, wholly different from another question, which is so often mistaken for it, whether juries ought to possess the right.

What, then, was the law upon this subject when the Constitution was adopted? Mr. Hargrave, in one of his annotations upon Lord Coke's first Institute, declares that, inasmuch as the jury may, as often as they think fit, find a general verdict, it was unquestionable that they might so far decide upon the law as well as fact, such a verdict necessarily involving both.

In this opinion, says Mr. Hargrave, I have the authority of Littleton himself, who writes, "that if the inquest will take upon them the knowledge of the law upon the matter, they may give their verdict generally."

In People vs. Croswell, 3 Johnson's Cases, 336, Chief-Justice Kent reviewed all the preceding authorities with great care, and discussed the philosophy of the doctrine under consideration, with the ability which characterizes his most celebrated opinions; and his decision in this case stands to this day as one of the landmarks upon this subject. After reciting the authorities, he says:

To meet and resist directly this stream of authority is impossible. But while the power of the jury is admitted, it is denied that they can rightfully or lawfully exercise it without compromitting their consciences, and that they are bound implicitly in all cases to receive the law from the court. The law must, however, have intended, in granting this power to a jury, to grant them a lawful and rightful power, or it would have provided a remedy against the undue exercise of it. The true criterion of a legal power is its capacity to produce a definitive effect, liable to neither censure nor review. And the verdict of not guilty in a criminal case is, in every respect, absolute and final. The jury are not liable to punishment, nor the verdict to control. No attaint lies, nor can a new trial be awarded. The exercise of this power in the jury has been sanctioned and upheld in constant activity from the earliest ages. It was made a question by Bracton (fol. 119, a. b.), who was to sit in judgment and decide upon points of law on appeals in capital cases. It could not be the king, he says, for then he would be both prosecutor and judge; nor his justices, for they represented him. He thinks, therefore, the curia and pares were to be judges in all cases of life and limb, or disherison of heir, where the crown was the prosecutor. And, indeed, it is probable that in the earliest stages of the English juridical history the jury, instead of deciding causes under the direction of the judge, decided all causes without the assistance of the judge. (Barrington on the Statutes, 18, 26, 311.)

He then proceeds to review the trial of Lilburn for high treason in 1549; Bushell's case, Vaughan, 135, and Sir T. Jones, 113; Algernon Sidney's case, 3 State Trials, 817; Tuchin's case, 5 State Trials, 542, and other cases. Again, he says:

To deny to the jury the right of judging of the intent and tendency of the act, is to take away the substance, and with it the value and security of this mode of trial. It is to transfer the exclusive cognizance of crimes from the jury to the court, and to give the judge the absolute control of the press. There is nothing peculiar in the law of libels to withdraw it from the jurisdiction of the jury. The twelve judges in their opinion in the House of Lords (April, 1792), admitted that the general criminal law of England was the law of libel. And by the general criminal law of England, the office of the jury is judicial. "They only are the judges," as Lord Somers observes (Essay on the Power and Duty of Grand Juries, p. 7), "from whose sentence the indicted are to expect life or death. Upon their integrity and understanding the lives of all that are brought into judgment do ultimately depend. From their verdict there lies no appeal. They resolve both law and fact, and this has always been their practice."

And, after referring to the case of Franklin, and other cases holding a contrary doctrine, he denounces them as innovations, and adding that the subject underwent a patient investigation and severe scrutiny upon principle and precedent in Parliament, says:

And a bill declaratory of the right of the jury to give a general verdict upon the whole matter put in issue, without being required or directed to find the defendant guilty merely on the proof of publication and the truth of the innuendoes, was at length agreed to, and passed with uncommon unanimity. It is entitled "An act to remove doubts respecting the functions of juries in cases of libel"; and, although I admit that a declaratory statute is not to be received as conclusive evidence of the common law, yet it must be considered as a very respectable authority in the case, and especially as the circumstances attending the passage of this bill reflect the highest honor on the moderation, the good sense, and the free and independent spirit of the British Parliament.

And again he says: The result, from this view, is, to my mind, a firm conviction that this court is not bound by the decisions of Lord Raymond and his successors. By withdrawing from the jury the consideration of the essence of the charge, they render their function nugatory and contemptible. Those opinions are repugnant to the more ancient authorities which had given to the jury the power, and with it the right, to judge of the law and the fact, when they were blended by the issue, and which rendered their decisions, in criminal cases, final and conclusive. The English bar steadily resisted those decisions as usurpations on the rights of the jury. Some of the judges treated the doctrine as erroneous, and the Parliament at last declared it an innovation by restoring the trial by jury, in cases of libel, to that ancient vigor and independence by which it had grown so precious to the nation as the guardian of liberty and life, against the power of the court, the vindictive persecution of the prosecutor, and the oppression of the government.

This celebrated opinion may safely be relied upon as a correct statement of the law as it stood when it was delivered in 1804. But still more conclusive authority remains to be considered. The sedition act of 1798, after defining what should be a criminal libel, and declaring that the defendant might give the truth of the matter in evidence, provides as follows:

And the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases. (1 Stat. at L., 507.)

The language of this act, "as in other cases," recognizes the right here contended for. In the celebrated Callender trial, in 1800, which was a prosecution under this statute, Mr. Justice Chase, whose general bearing was so unfriendly to the defendant as to secure his impeachment by the House of Representatives, admitted this right of the jury. He said:

We all know that juries have the right to decide the law as well as the fact. (Wharton's State Trials, 710.) And again he says:

I admit that the jury are to compare the statute with the facts proved, and then to decide whether the acts done are prohibited by the law, and whether they amount to the offense described in the indictment. (Ib., p. 713.)

Though, with seeming want of logic, he held that the jury could not decide whether the statute was constitutional or not. But the full admission that the jury were judges of the law as well as the fact, shows the general understanding upon this subject, though the judge may have erred in applying the principle in the case before him. In Fries's case, who was tried for treason, 1799-1800, the jury were instructed by Judge Peters as follows:

It is the duty of the court to declare the law; though both facts and law, which, I fear, are too plain to admit a reasonable doubt, are subject to your consideration. (Wharton's State Trials, 587.)

And, in the second trial of Fries, Judge Chase instructed the jury as follows:

It is the duty of the court in this case, and in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide in the present, and in all criminal cases, both the law and the facts, on their consideration of the whole case. (2 Chase's Trial, Appendix 1.)

In the answer of Judge Chase to articles of impeachment against him, he says:

He well knows that it is the right of juries, in criminal cases, to give a general verdict of acquittal, which can not be set aside on account of its being contrary to law, and that hence results the power of juries to decide on the law as well as on the facts in all criminal cases. This power he holds to be a sacred part of our legal privileges, which he has never attempted, and never will attempt to abridge or obstruct. (1 Chase's Trial, pp. 5, 34, 35.)

In Georgia vs. Brailsford, 3 Dallas, 4, in 1794, Chief-Justice Jay charged the jury as follows:

It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court, to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have, nevertheless, a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for as, on the one hand, it is presumed that juries are the best judges of facts, it is, on the other hand, presumable that the court are the best judges of law. But still both objects are lawfully within your power of decision.

This charge was delivered in a jury trial, at the bar of the Supreme Court, and expressed the unanimous opinion of the judges of that court, and that, too, in a civil cause. The decision in Georgia vs. Brailsford has never been expressly overruled by that court; although the practice in civil causes is for the court to direct a verdict where there is no conflict in regard to the testimony. In Beavans vs. The United States, 13 Wall, 56, which was an action ex contractu, on a receiver's bond, the court says:

The objection that the jury was instructed to find for the plaintiffs the amount claimed by the papers given in evidence (viz, the official settlements), with interest thereon, is entirely without merit. There was no evidence to impeach the accounts stated, or to show set-off, release, or payment. The instruction was, therefore, in accordance with the legal effect of the evidence, and there were no disputed facts upon which the jury could pass.

An act of Congress declares that the papers of official settlement shall be prima facie evidence of the condition of the accounts. No testimony was offered in this case to impeach that statement. There was, therefore, no fact in issue; and the instruction of the court to find a verdict for the plaintiff was, in substance, ruling upon matters of law only. And the Supreme Court, in their opinion, recognize, and merely recognize, the practice which now obtains universally in the trial of civil causes. And, although it is inconsistent with Georgia vs. Brailsford, and substantially overrules it, it does not impair the value of the decision in that case, as showing the understanding of the profession and the courts about the time of the adoption of the Constitution.

In United States vs. Wilson (1 Bald., 108), the jury were instructed as follows:

We have thus stated to you the law of this case under the solemn duties and obligations imposed on us, under the clear conviction that in doing so we have presented to you the true test by which you will apply the evidence to the case; but you will distinctly understand that you are the judges both of the law and the fact in a criminal case, and are not bound by the opinion of the court. You may judge for yourselves; and if you should feel it your duty to differ from us, you must find your verdict accordingly. At the same time, it is our duty to say that it is in perfect accordance with the spirit of our legal institutions that the courts should decide questions of law, and the juries of facts. The nature of the tribunals naturally leads to this division of powers; and it is better, for the sake of public justice, that it should be so. When the law is settled by a court there is more certainty than when done by a jury. It will be better known and more respected in public opinion. But if you are prepared to say that the law is different from what you have heard from us, you are in the exercise of a constitutional right to do so.

In United States vs. Porter (1 Bald., 108), the doctrine was stated more guardedly, as follows:

In repeating what was said on a former occasion to another jury, that you have the power to decide on the law as well as the facts of this case, and are not bound to find according to our opinion of the law, we feel ourselves constrained to make some explanations not then deemed necessary, but now called for from the course of the defense.

You may find a general verdict of guilty or not guilty as you think proper, or may find the facts specially, and leave the guilt or innocence of the prisoner to the judgment of the court. If your verdict acquits the prisoner, we can not grant a new trial, however much we may differ with you as to the law which governs the case; and, in this respect, a jury are the judges of law if they choose to become so.

In Farmer's trial before the Supreme Court of the State of New Hampshire in 1821, the Chief-Justice, speaking for the whole court, told the jury that they were the judges both of the law and the fact; that

It was the duty of the court to give them proper instructions and to aid them in forming a correct opinion as to the law applicable to the case. But if, contrary to his intentions, any expression should escape him which might seem to indicate any opinion as to the facts, they must disregard it; their verdict ought to be according to their own opinion as to the prisoner's guilt or innocence. (See Farmer's Trial, p. 68.)

In the trial of William S. Smith for misdemeanor, in the Circuit Court of the United States for the State of New York, in July, 1806, the jury were instructed as follows:

You have heard much said upon the right of a jury to judge of the law as well as the fact. Be assured that on this occasion there is not the least desire to abridge those rights. I am an advocate for the independence of the jury. It is the basis of civil liberty; and in this country, I trust, will ever be a sacred bulwark against oppression and encroachment upon political freedom. The law is now settled that this right appertains to a jury in all criminal cases.

On the trial of John Hodges for high treason, before the Circuit Court of the United States for the District of Maryland, in 1815, the Court charged the jury as follows:

The court said they were bound to declare the law whenever they were called upon, in civil or criminal cases. In the latter, however, it was also their duty to inform the jury that they were not obliged to take their direction as to the law. (Hodge's Trial, p. 20.)

The elementary writers declare the same principle. Blackstone, 4 Comm., 361, says:

And such public or open verdict may be either general (guilty or not guilty) or special, setting forth all the circumstances of the case, and praying the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. This is where they doubt the matter of the law, and therefore choose to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circumstances and finding a general verdict, if they think proper so to hazard a breach of their oaths; and, if their verdict be notoriously wrong, they may be punished and the verdict set aside by attaint at the suit of the King, but not at the suit of the prisoner. But the practice heretofore in use of fining, imprisoning, or otherwise punishing jurors, merely at the discretion of the court, for finding their verdict contrary to the direction of the Judge, was arbitrary, unconstitutional, and illegal, and is treated as such by Sir Thomas Smith two hundred years ago, who accounted "such doings to be very violent, tyrannical, and contrary to the liberty and custom of the realm of England." For, as Sir Matthew Hale well observes, it would be a most unhappy case for the Judge himself if the prisoner's fate depended upon his directions; unhappy also for the prisoner, for, if the Judge's opinion must rule the verdict, the trial by jury would be useless. Yet, in many instances where contrary to evidence the jury have found the prisoner guilty, their verdict hath been mercifully set aside and a new trial granted by the court of King's Bench; for in such case, as hath been said, it can not be set right by attaint. But there hath been yet no instance of granting a new trial where the prisoner was acquitted upon the first.

In Wilson's Lectures, Vol. II., p. 72, the same doctrine is declared and illustrated; and he says:

The jury must do their duty and their whole duty. They must decide the law as well as the fact. This doctrine is peculiarly applicable to criminal cases, and from them, indeed, derives its peculiar importance.

In Forsyth's Jury Trials, after an examination of the subject, it is said, p. 265:

It can not therefore be denied that, in all criminal cases, the jury do virtually possess the power of deciding questions of law as well as of fact.

The authorities quoted from conclusively show that at the time the Constitution was adopted, and for nearly a quarter of a century afterward, juries were understood and declared to possess the right to pass upon questions of law as well as fact in all criminal cases; and this is all that need be shown to bring this right within the protection of the Constitution.

The first case it is believed in which the contrary doctrine received favor in any American court was in the case of the United States vs. Battiste, 2 Sum., 240, decided in 1835. Mr. Justice Story, in that case, said:

My opinion is that the jury are no more judges of the law in a criminal case upon the plea of not guilty than they are in every civil case tried upon the general issue. In each of these cases their verdict, when general, is necessarily compounded of law and of fact, and includes both. In each they must necessarily determine the law as well as the fact. In each they have the physical power to disregard the law as laid down to them by the court. But I deny that in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure.

In Commonwealth vs. Porter, 10 Met., decided in 1845, the Supreme Court of Massachusetts followed the decision in Battiste's case, and held that the jury are under a moral obligation to decide the case as instructed by the court, and the court sum up the subject as follows:

On the whole subject, the views of the court may be summarily expressed in the following propositions: That in all criminal cases it is competent for the jury, if they see fit, to decide upon all questions of fact embraced in the issue, and to refer the law arising thereon to the court in the form of a special verdict. But it is optional with the jury thus to return a special verdict or not, and it is within their legitimate province and power to return a general verdict if they see fit. In thus rendering a general verdict, the jury must necessarily pass upon the whole issue, compounded of the law and of the fact, and they may thus incidentally pass on questions of law.

The opinion in this case was delivered by Chief-Justice Shaw, and is rather a discussion of what is a convenient distribution of powers between the court and jury than an examination into the actual state of the law; and he neither cites nor refers to a single authority from the beginning to the end of the opinion. Again, the conclusions arrived at by the opinion admit the power of the jury to decide questions of law; and that, in cases where the jury acquit the defendant, there is no power to reverse or even to review the finding of the jury. And this opinion holds that the defendant, in all criminal cases, is entitled to address the jury upon the questions of law as well as of fact involved in the case. To maintain that the defendant has the right to address the jury upon matters which the jury have no right to determine, and yet that the jury possess the power—the ultimate and final power—to decide matters of law, and are nevertheless under moral obligation never to exercise the power, are palpable inconsistencies.

The Supreme Court of Vermont in State vs. Croteau, 23 Ver., 14, in a very able opinion, review these two cases and other subsequent decisions which follow their doctrine, and, after an able and critical examination of all the English and American cases, repudiate this new doctrine, and declare that in criminal prosecutions it is the ancient, common-law right of the jury in favor of the prisoner to determine the whole matter in issue—the law as well as the fact.

There are some American cases holding a contrary doctrine, but the current of American as well as of English authorities is overwhelmingly in favor of the proposition that juries in criminal causes are judges of the law as well as of the facts.[176]

In late years there has been considerable discussion, and some contrariety of judicial opinion, in regard to the moral right of juries to find a general verdict of not guilty against the instructions of the court on matters of law. This subject, however, need not be further discussed, because it is believed that no reported case can be found denying to juries the power of determining the law as well as the fact in all criminal cases. The utmost extent to which any case goes is, that the jury, in deciding upon the law, are morally bound to adopt the opinion expressed by the court; but every case admits their power to do otherwise if they see fit. But admitting the existence of the distinction between the legal power and the moral right of juries, still the decision of the court on the trial of Miss Anthony was erroneous, because the court did not instruct the jury in regard to the law, and then leave the jury to perform their duty in the premises. On the contrary, the court took the case from the jury altogether and directed their verdict; thus denying to the jury not only the moral right, but even the power of rendering a verdict of not guilty; and refused the request of counsel to have the jury polled in regard to their verdict. No precedent has been shown for this proceeding, and it is believed none exists. It is altogether a departure from, and a most dangerous innovation upon, the well-settled method of jury-trial in criminal cases. Such a doctrine renders the trial by jury a farce. The memorialist had no jury-trial within the meaning of the Constitution, and her conviction was therefore erroneous.

But it may be said that the ruling of the court was correct in point of law, and, had the court submitted the case to the jury, it would have been the duty of the jury to find the memorialist guilty; therefore she is not aggrieved by the judgment which the court pronounced. Should this reasoning be adopted, it would follow that the memorialist had been tried by the court and by Congress; but it would still be true that she had been denied trial by a jury which the Constitution secures to her.

It is not safe thus to trifle with the rights of citizens. The trial by jury—the judgment of one's peers—is the shield of real innocence imperiled by legal presumptions. A Judge would charge a jury that a child who had stolen bread to escape starvation had committed the crime of larceny, but all the Judges in Christendom could not induce a jury to convict in such a case. It is the humane policy of our law, that, before any citizen shall suffer punishment, he shall be condemned by the verdict of his peers, who may be expected to judge as they would be judged. To sustain the judgment in this case, is to strike a fatal blow at this sacred right.

But the question remains, What relief can be granted? I concur with the majority of the Committee that Congress can not remit the judgment; that would be to exercise the pardoning power. Congress can not grant a new trial; that would be an exercise of judicial power. There is no Court of the Government which has jurisdiction to review the case. In Commonwealth vs. Austin, 5 Gray, 226, Chief-Justice Shaw says:

Now, when a new statute is passed, and a question of law is raised by counsel, it must first come before the court, charged by law with the conduct and superintendence of a jury trial; and, in any well-ordered system of jurisprudence, provision is made that it be re-examinable by the court of last resort. When this question is definitively adjudged by the tribunal of last resort—the principles on which it is adjudged being immutable, and the rule of law adjudged in any one case being equally applicable to every other case presenting the same facts—the decision is necessarily conclusive of the law. I do not say how and after what consideration it maybe considered as definitively decided. In the first instance it may be misunderstood or feebly presented. It may have been misapprehended by the judges, and not considered in all its bearings, or they may have wanted time and means for a careful and thorough investigation, and may therefore consent and desire to reconsider it one or more times. But I only say that, when thus definitively adjudged, the decision must be deemed conclusive and stand as a rule of law.

Unfortunately the United States has no "well-ordered system of jurisprudence." A citizen may be tried, condemned, and put to death by the erroneous judgment of a single inferior judge, and no court can grant him relief or a new trial. If a citizen have a cause involving the title to his farm, if it exceed two thousand dollars in value, he may bring his cause to the Supreme Court; but if it involves his liberty or his life, he can not. While we permit this blemish to exist on our judicial system, it behooves us to watch carefully the judgments inferior courts may render; and it is doubly important that we should see to it that twelve jurors shall concur with the Judge before a citizen shall be hanged, incarcerated, or otherwise punished.

I concur with the majority of the Committee that Congress can not grant the precise relief prayed for in the memorial; but I deem it to be the duty of Congress to declare its disapproval of the doctrine asserted and the course pursued in the trial of Miss Anthony; and all the more for the reason that no judicial court has jurisdiction to review the proceedings therein.

I need not disclaim all purpose to question the motives of the learned Judge before whom this trial was conducted. The best of judges may commit the gravest of errors amid the hurry and confusion of a nisiprius term; and the wrong Miss Anthony has suffered ought to be charged to the vicious system which denies to those convicted of offenses against the laws of the United States a hearing before the court of last resort—a defect it is equally within the power and the duty of Congress speedily to remedy.

MATT H. CARPENTER.

Mr. Tremaine, from the House Judiciary Committee, reported adversely on the prayer of Miss Anthony's Petition, and Benjamin F. Butler favorably.

Forty-third Congress, 1st Session, House of Representatives, Report No. 608, Susan B. Anthony, May 25, 1874, recommitted to the Committee on the Judiciary and ordered to be printed.

Mr. B. F. BUTLER, from the Committee on the Judiciary, submitted the following Report to accompany bill H. R. 3492:

The Committee on the Judiciary, to whom was referred the memorial of Susan B. Anthony, of the city of Rochester, in the State of New York, praying that a fine alleged to have been unjustly imposed on the petitioner by a judgment of the Circuit Court of the United States for the Northern District of New York, may be remitted, having considered the prayer of the petitioner and the statement of facts set forth in the memorial, respectfully beg leave to report:

* * * * *

Are these positions of the petitioner well founded? By necessary division there arise two questions: First, has Congress any power, or is there any precedent for entertaining such petition for such purpose? And, secondly, are the acts and order of the judge in accordance with the law of the land, and not in derogation of the right of the citizen to trial by jury at common law as guaranteed by the Constitution, as known and practiced in the courts of the United States? If the first should be answered in the negative, of course the committee and the House would be spared the discussion of the second.

It seems to your committee that there are two very noted and historical cases which may form the precedents for this application, and favorable action thereon by Congress—in the proceeding concerning the fines imposed by the courts on Matthew Lyon and General Jackson.

Lyon was fined by a United States judge for a seditious libel. He petitioned for a remission of fine upon the ground that the law was unconstitutional under which he was convicted. That petition was very fully considered, and, in 1820, a report was presented to the Senate by Mr. Barbour, of Virginia, which, after elaborating the considerations, concludes thus:

In this case, therefore, the committee think the Government is under a moral obligation to indemnify the petitioner.

In this claim of Lyon, after remaining before Congress until 1840, a bill, upon a favorable report of the Committee on the Judiciary, was passed by the House, restoring the fine with interest, by a vote of 124 to 15. This case, however, is subject to the criticism, that in it Congress undertook to do justice to a citizen suffering from an unconstitutional law which it had enacted, and thereby distinguishes it from the present application: but the case of General Jackson, so familiar to all that its facts need not be recited, covers that point. There was the remitting of a fine imposed by a judge in excess of his authority in acting without warrant of law.

Assuming, therefore, that this application is properly before us, we come to the second question of whether, by the proceedings in court, the legal rights of the petitioner have been infringed, from which she has suffered. It would not seem to be germane to this question to inquire whether or not the petitioner had the legal right to vote, because that was a question of law fully within the competency of the judge to decide, and his decision did not necessarily work a hardship to the defendant, even if mistaken in judgment. Or, in other words, it was a rightful execution of a power intrusted to him by law, from which there was no appeal to this or any other jurisdiction.

We come, therefore, to the great question in this case: whether the judge erred in withdrawing the case from the jury. Upon this question it would seem that the judge himself vacillated in the trial, because he permitted evidence to be gone into on both sides as a question of fact, tending to show whether the petitioner did or did not vote, knowing that she had no right so to do; but afterward withdrew the consideration of that evidence, upon the fact of intention or guilty knowledge, wholly from the jury, and ordered a verdict to be entered up upon his own decision, without allowing the question either to be argued or submitted to the jury, or the jury to pass upon it.

There certainly can be no graver question affecting the rights of citizens than this. The whole theory of trial by jury at common law consists in the fundamental maxim that before any conviction can be had for a crime it must be passed upon by twelve good and lawful men, the peers of the accused; and the very oath prescribed to jurors by the common law most distinctly guaranteed this right to the accused: "You shall well and truly try and true deliverance make, between the King and the prisoner at the bar, according to your evidence;" while at the common law the oath prescribed in civil cases gave a right to a judge to direct the jury in the matter of law, and to direct the verdict one way or the other, as he saw fit, the oath being substantially as follows: "You shall well and truly try the issue between party and party according to the law and the evidence given you."

Whatever changes may have been made in the practice of the States since the time of the earlier amendments to the Constitution, certain it is that at that time, after a jury had been impaneled, there was no way that the accused could be put in jeopardy of life or limb without his cause being submitted to twelve men, and their unanimous verdict passing upon the fact of his guilt or innocence. And this right your committee deem is not one lightly to be sacrificed. Burke once said that the whole English Constitution and machinery of government—not quoting words—were only to put into a jury-box twelve honest men. What advantage could it be to an accused to put twelve honest men into the jury-box, if the judge, without asking for their opinion, or without their intervention, can order a verdict of guilty to be entered up against the accused?

Nothing, therefore, can be of more consequence to the citizen in troublous times to protect him against the exercise of usurped or other power for oppression, than the intervention of the judgment of his peers upon the question whether he has been guilty of a crime, or alleged offense against the Government. And in the judgment of your committee, we can not too scrupulously guard, in the interest of the liberty of the citizen, this great and almost invaluable right. The friends of liberty under the common-law system have stood for it and stood by it, strenuously and assiduously, as the palladium of their liberties and the impenetrable shield of the people from oppression. By the order of the judge the defendant was deprived of this right, and if, in this case of minor consequence so far as regards the punishment inflicted, this can be done, so in the trial for murder or treason a judge may order a verdict of the jury without allowing them to pass upon the fact. It has been sometimes said "Can this be done?" We are clearly of the opinion that it can not and ought not to be done. It is sometimes said as a triumphant argument in favor of the exercise of this power, "Has not the judge the power to order a verdict of acquittal?" The answer to that, as a matter of law, is "No; he can only direct the jury that upon the facts and matter of law he believes the case can not be maintained, but that it is for the jury to say whether they will follow that direction;" and his remedy is to set aside that verdict, and that power has always been exercised at common law in favor of the prisoner, but he can not set aside the verdict of not guilty. Sometimes, in the darker hours of English jurisprudence, the judges fined the jury when they were not the obedient instruments of their will but persisted in finding the defendants in state prosecutions not guilty when the judge thought they ought to have been found guilty; but neither Jeffreys nor Scroggs ever dared to set aside a verdict of not guilty.

Your committee have been led by the great consequence of this precedent more carefully and at length to give an examination to this question to which its importance would not otherwise have entitled it. But your committee do not find it necessary to impute any intent of wrong to the learned judge who tried this case; but the effect of his error was to deprive this petitioner of a great and beneficent right, guaranteed to her as strongly as any other by the Constitution of her country, to have the question of her guilt passed upon by her peers, which error has had the same effect upon her rights as an intentional assumption of power would have had, and may have hereafter, in bad times, wherein corrupt judges, wielding instruments of power, shield themselves by precedents set by good judges in good times.

Therefore, because the fine has been imposed by a court of the United States for an offense triable by jury, without the same being submitted to the jury, and because the court assumed to itself the right to enter a verdict without submitting the case to the jury, and in order that the judgment of the House of Representatives, if it concur with the judgment of the committee, may, in the most signal and impressive form, mark its determination to sustain in its integrity the common-law right of trial by jury, your committee recommend that the prayer of the petitioner be granted, and to this end report the following bill, with the recommendation that it do pass.

The Inspectors were counseled to refuse to pay their fines, and take the consequences.

HOUSE OF REPRESENTATIVES, Washington, Feb. 22, 1874.

MY DEAR MISS ANTHONY:—In regard to the Inspectors of Election, I would not, if I were they, pay, but allow any process to be served; and I have no doubt the President will remit the fine if they are pressed too far.

I am yours truly, BENJAMIN F. BUTLER.

On Miss Anthony's return home, February 26, 1874, she found the three Inspectors lodged in jail. She at once called on Judge Selden, and after consultation with him as to what could be done for their protection, telegrams were sent to influential friends in Washington, to which the following reply was received:

WASHINGTON, D. C., March 2, 1874—12 noon.

TO MISS SUSAN B. ANTHONY:—I laid the case of the Inspectors before the President to-day. He kindly orders their pardon. Papers are being prepared.

A. A. SARGENT.

An Associated Press dispatch, dated Washington, March 2, 1874, said:

At the written request of Senator Sargent, the President to-day directed the Attorney-General to prepare the necessary papers to remit the fine and imprisonment of Hall, Marsh, and others, the Rochester Election Inspectors, who were tried and convicted in June, 1873, of registering Susan B. Anthony and other women, and receiving their votes.

The Rochester Evening Express of Feb. 26, 1874, said:

TYRANNY IN ROCHESTER.—The arrest and imprisonment in our city jail of the Election Inspectors who received the votes of Susan B. Anthony and other ladies, at the polls of the Eighth Ward, some months ago, is a petty but malicious act of tyranny, of which the officers who are responsible for it will yet be ashamed. It should be known to the public that these young men received Miss Anthony's vote by the advice of the best legal talent that could be procured. The ladies themselves took oath that they were citizens of the United States and entitled to vote.... The Court, however, fined these inspectors $25 and costs, for an offense which at the worst is merely technical, and now, nearly nine months after conviction, in default of payment, they are seized and shut up in jail, away from their families and their business, and subjected to all the inconvenience to say nothing of the odium of such an incarceration. This is an outrage which ought not to be tolerated in this country, and we shall be disappointed if public sentiment does not yet rebuke, in thunder-tones, the authorities who have perpetrated it. Miss Anthony is willing to fight her own battles and take the consequences, but she naturally feels indignant that others should suffer in this matter through no fault of their own....

The Rochester Democrat and Chronicle of March 26th, said:

AN OUTRAGE.—.... We regard this action on the part of District Attorney Crowley as an outrage, in that these young men, who, at the worst, are but accessories in the violation of law, are made to feel its terrors, while the chief criminal is allowed to defy the law with impunity. No effort has been made to satisfy the judgment of the court against Miss Anthony. She contemns the law which adjudged her guilty, and its duly appointed administrators are either too timid or too negligent of duty to endeavor to enforce it.... It is doubtful whether they had the right to refuse those votes. In any event their offense is venial as compared with hers. It does not look well for the District Attorney thus to proceed against the lesser offenders, while the chief offender snaps her fingers at the law, and dares its ministers to make her a martyr.... We write in no spirit of vindictiveness, nor even in one of antagonism toward Miss Anthony; but in the name of justice we are called upon to protest against the unseemly proceeding which persecutes those excellent young men and hesitates to attack this woman, who stands as a representative of what she regards a great reform, and in its advocacy shrinks not from any of the terrors the law may have in store for her. Mr. District Attorney, it is your duty to arrest Miss Anthony; to cross swords with an antagonist worthy of your steel. Your present action looks ignoble, and is unworthy of you or of the office you fill.

More than a week elapsed before the arrival of President Grant's pardon papers, and during that time hundreds of the people of Rochester visited the "boys" in jail, and the best of dinners were furnished them daily by the fourteen women voters of the Eighth Ward.

VIRGINIA L. MINOR'S PETITION

IN THE CIRCUIT COURT OF ST. LOUIS COUNTY, DECEMBER TERM, 1872.

St. Louis County, ss.: Virginia L. Minor and Francis Minor, her husband, Plaintiffs, vs. Reese Happersett, Defendant.

The plaintiff, Virginia L. Minor (with whom is joined her husband, Francis Minor, as required by the law of Missouri), states, that under the Constitution and law of Missouri, all persons wishing to vote at any election, must previously have been registered in the manner pointed out by law, this being a condition precedent to the exercise of the elective franchise.

That on the fifteenth day of October, 1872 (one of the days fixed by law for the registration of voters), and long prior thereto, she was a native-born, free white citizen of the United States, and of the State of Missouri, and on the day last mentioned she was over the age of twenty-one years.

That on said day, the plaintiff was a resident of the thirteenth election district of the city and county of St. Louis, in the State of Missouri, and had been so residing in said county and election district, for the entire period of twelve months and more, immediately preceding said fifteenth day of October, 1872, and for more than twenty years had been and is a tax-paying, law-abiding citizen of the county and State aforesaid.

That on said last mentioned day, the defendant, having been duly and legally appointed Registrar for said election district, and having accepted the said office of Registrar and entered upon the discharge of the duties thereof at the office of registration, to wit: No. 2004 Market Street, in said city and county of St. Louis, it became and was then and there his duty to register all citizens, resident in said district as aforesaid, entitled to the elective franchise, who might apply to him for that purpose.

The plaintiff further states, that wishing to exercise her privilege as a citizen of the United States, and vote for Electors for President and Vice-President of the United States, and for a Representative in Congress, and for other officers, at the General Election held in November, 1872: While said defendant was so acting as Registrar, on said 15th day of October, 1872, she appeared before him, at his office aforesaid, and then and there offered to take and subscribe the oath to support the Constitution of the United States and of the State of Missouri, as required by the registration law of said State, approved March 10, 1871, and respectfully applied to him to be registered as a lawful voter, which said defendant then and there refused to do.

The plaintiff further states, that the defendant, well knowing that she, as a citizen of the United States and of the State of Missouri, resident as aforesaid, was then and there entitled to all the privileges and immunities of citizenship, chief among which is the elective franchise, and as such, was entitled to be registered, in order to exercise said privilege: yet, unlawfully intending, contriving, and designing to deprive the plaintiff of said franchise or privilege, then and there knowingly, willfully, maliciously, and corruptly refused to place her name upon the list of registered voters, whereby she was deprived of her right to vote.

Defendant stated to plaintiff, that she was not entitled to be registered, or to vote, because she was not a "male" citizen, but a woman! That by the Constitution of Missouri, Art. II., Sec. 18, and by the aforesaid registration law of said State, approved March 10, 1871, it is provided and declared, that only "male citizens" of the United States, etc., are entitled or permitted to vote.

But the plaintiff protests against such decision, and she declares and maintains that said provisions of the Constitution and registration law of Missouri aforesaid, are in conflict with, and repugnant to the Constitution of the United States, which is paramount to State authority; and that they are especially in conflict with the following articles and clauses of said Constitution of the United States, to wit:

Art. I. Sec. 9.—Which declares that no Bill of Attainder shall be passed.

Art. I. Sec. 10.—No State shall pass any Bill of Attainder, or grant any title of nobility.

Art. IV. Sec. 2.—The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

Art. IV. Sec. 4.—The United States shall guarantee to every State a republican form of government.

Art. VI.—This Constitution and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, anything in the Constitutions or laws of any State to the contrary notwithstanding.

AMENDMENTS.

Art. V.—No person shall be ... deprived of life, liberty, or property without due process of law.

Art. IX.—The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

Art. XIV. Sec. 1.—All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

The plaintiff states, that by reason of the wrongful act of the defendant as aforesaid, she has been damaged in the sum of ten thousand dollars, for which she prays judgment.

JOHN M. KRUM, } FRANCIS MINOR, } Att'ys for Plffs. JOHN B. HENDERSON, }

Demurrer. In the Circuit Court of St. Louis County: Virginia L. Minor and Francis Minor, her husband, Plaintiffs, vs. Reese Happersett.

The defendant, Reese Happersett, demurs to the petition of plaintiffs, and for cause of demurrer defendant states that said petition does not state facts sufficient to constitute a cause of action, for the following reasons:

1. Because said Virginia L. Minor, plaintiff, had no right to vote at the general election held in November, 1872, in said petition referred to.

2. Because said Virginia L. Minor had no right to be registered for voting by said defendant, at the time and in the manner in said petition alleged.

3. Because it was the duty of the defendant to refuse to place said Virginia L. Minor's name upon the list of registered voters in said petition referred to.

All of which appears by said petition.

SMITH P. GALT, Atty for Deft.

The defense, in substance, being based upon the Constitution of Missouri, which provides (Art. II., Sec. 18) that "every male citizen of the United States, etc., ... shall be entitled to vote"; and also upon the registration law of said State, approved March 10, 1871, which is as follows:

An act to provide for a uniform registration of voters, the appointment of judges of elections, and repealing all former acts relating thereto.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SECTION 1.—Every male citizen of the United States, and every person of foreign birth who may have declared his intention to become a citizen of the United States, according to law, not less than one year nor more than five years before he offers to vote, who is over the age of twenty-one years, who has resided in this State one year next preceding his registration as a voter, and during the last sixty days of that period shall have resided in the county, city, or town where he seeks registration as a voter, who is not convicted of bribery, perjury, or other infamous crime, nor directly or indirectly interested in any bet or wager depending upon the result of the election for which such registration is made, nor serving at the time of such registration in the regular army or navy of the United States, shall be entitled to vote at such elections for all officers, State, county, or municipal, made elective by the people, or any other election held in pursuance of the laws of this State; but he shall not vote elsewhere than in the election district where his name is registered, except as provided in the twenty-first section of the second article of the Constitution.

SEC. 2.—The several clerks of the County Courts in this State shall provide a suitable registration book for each election district in their several counties, which shall have written or printed therein the following oath: "We the undersigned, do solemnly swear or affirm that we will support the Constitution of the United States and of the State of Missouri."

SEC. 3.—On or before the 9th day of March, 1871, the several County Courts in this State shall appoint some competent person to act as Registrar in each election district in their respective counties, who shall have the qualifications of an elector in his election district, and who shall hold his office until the general election in 1872, and until his successor is elected and qualified. Said Registrar shall have authority to administer all oaths which may be necessary in the registration of voters.

SEC. 4.—Any person having the qualification of a voter as prescribed in the first section of this act, and who shall take and subscribe the oath required of voters by the second section of this act, and who applies for registration at the time and in the manner prescribed by law, and any naturalized citizen who shall subscribe to a written statement, under oath, before the Registrar, that he is naturalized according to the laws of the United States and of this State, and has resided in this State, according to the first section of this act, and that his naturalization papers or evidence of his citizenship have been lost or destroyed, or that the same are not accessible to him, and shall state where he was naturalized, shall be accepted by the registering officer, and duly registered as a qualified voter.

It is claimed, therefore, that the defendant was justified in refusing to register the plaintiff on account of her sex. The plaintiff, however, denies the validity of this clause of the Missouri Constitution, and the registration act based thereon, and contends that they are in violation of, and repugnant to, the Constitution of the United States, and particularly to those articles and clauses thereof which she has specified in her petition.

It is admitted, by the pleadings, that the plaintiff is a native-born, free white citizen of the United States and of the State of Missouri; that the defendant is a Registrar, qualified and acting as such; that the plaintiff, in proper time and in proper form made application to him to be registered, and that the defendant refused to register the plaintiff solely for the reason that she is a female (and that she possesses the qualifications of an elector, in all respects, except as to the matter of sex, as before stated).

The question is thus broadly presented of a conflict between the Constitution of the State of Missouri and that of the United States, as contemplated by the twenty-fifth section of the judiciary act of 1789, and the supplemental act of February 5, 1867.

ASSIGNMENT OF ERRORS.—And now comes Virginia L. Minor, the plaintiff in error in the above entitled cause, by her attorneys, John B. Henderson, John M. Krum, and Francis Minor, and says that in the records and proceedings in the above entitled cause, in said Supreme Court of the State of Missouri, there is manifest error in this, to wit:

1st. Because the said Supreme Court erred in affirming the judgment of the St. Louis Circuit Court—thereby, in effect, sustaining the demurrer filed in said Circuit Court by the defendant to the petition of the plaintiff.

2d. Because the said Supreme Court erred in its judgment affirming the judgment of the St. Louis Circuit Court—thereby, in effect, declaring that the plaintiff in error was not entitled to vote at the election mentioned in the record.

3. Because the said Supreme Court of Missouri erred in affirming the judgment of the St. Louis Circuit Court—thereby, in effect, declaring that the Constitution and laws of Missouri, before recited, do not conflict with the Constitution of the United States.

STATEMENT.—This was an action, brought by the plaintiff, against the defendant, a registering officer, for refusing to register her as a lawful voter.

The defendant demurred to the petition, the defense, in substance, being based upon the Constitution of Missouri, which provides (Art 2, Sec. 18) that "every male citizen of the United States, etc., ... shall be entitled to vote";—and also upon the registration law of said State, approved March 10, 1871, to the same effect; and it was claimed, therefore, that the defendant was justified in refusing to register the plaintiff on account of her sex.

The plaintiff, however, denied the validity of this clause of the Missouri Constitution, and the registration act based thereon, and contended that they are in violation of, and repugnant to, the Constitution of the United States, and particularly to those articles and clauses thereof which she had specified in her petition.

It was admitted, by the pleadings, that the plaintiff was a native-born, free, white citizen of the United States, and of the State of Missouri; that the defendant was a Registrar, qualified and acting as such; that the plaintiff, in proper time, and in proper form, made application to him to be registered, and that the defendant refused to register the plaintiff solely for the reason that she was a female (and that she possessed the qualifications of an elector, in all respects, except as to the matter of sex, as before stated). The question was thus broadly presented of a conflict between the Constitution of the State of Missouri and that of the United States, as contemplated by the 25th section of the Judiciary act of 1789, and 5th February, 1867.

* * * * *

ARGUMENT AND BRIEF.—We think the chief difficulty in this case is one of fact rather than of law. The practice is against the plaintiff. The States, with one exception, which we shall notice hereafter more in detail, have uniformly claimed and exercised the right to act, as to the matter of suffrage, just as they pleased—to limit or extend it, as they saw proper. And this is the popular idea on the subject. Men accept it as a matter of fact, and take for granted it must be right. So in the days of African slavery, thousands believed it to be right—even a Divine institution. But this belief has passed away; and, in like manner, this doctrine of the right of the States to exercise unlimited and absolute control over the elective franchise of citizens of the United States, must and will give way to a truer and better understanding of the subject. The plaintiff's case is simply one of the means by which this end will ultimately be reached.

We claim, and presume it will not be disputed, that the elective franchise is a privilege of citizenship within the meaning of the Constitution of the United States. In order to get a clearer idea of the true meaning of this term citizenship, it may be well to recur for a moment to its first introduction and use in American law.

Before the colonists asserted their independence they were politically bound to the sovereign of Great Britain, by what is termed in English law, "allegiance"; and those from whom this allegiance was due were termed "subjects." But when these "bands," as they are termed in the Declaration of Independence, were dissolved, the political relation became changed, and we no longer hear in the United States the term "subject" and "allegiance," except the latter, which is used to express the paramount duty of our citizens to our own government. The term citizen was substituted for that of "subject." But this was not a mere change of name; the men who framed the Constitution of the United States had all been "subjects" of the English king, and they well knew the radical change wrought by the revolution.

In the new political sovereignty thus created, the feudal idea of dependence gave way to that of independence, and the people became their own sovereigns or rulers in the government of their own creation. Of this body politic, represented by the Constitution of the United States, all persons born or naturalized therein and subject to the jurisdiction thereof, are members; without distinction as to political rights or privileges, except that the head or chief of the new government must be native-born—and this exception the more strongly proves the rule. It is to this Constitution, therefore, we must look for the limitations, if any, that may be placed upon the political rights of the people or citizens of the United States. A limitation not found there, or authorized by that instrument, can not be legally exercised by any lesser or inferior jurisdiction.

But the subject of suffrage (or the qualifications of electors, as the Constitution terms it) is simply remitted to the States by the Constitution, to be regulated by them; not to limit or restrict the right of suffrage, but to carry the same fully into effect. It is impossible to believe that anything more than this was intended. In the first place, it would be inconsistent and at variance with the idea of the supremacy of the Federal government; and, next, if the absolute, ultimate, and unconditional control of the matter had been intended to be given to the States, it would have been so expressed. It would not have been left to doubt or implication. In so important a matter as suffrage, the chief of all political rights or privileges, by which, indeed, life, liberty, and all others are guarded and maintained, and without which they would be held completely at the mercy of others; we repeat, it is impossible to conceive that this was intended to be left wholly and entirely at the discretion of the States.

A right so important must not be the subject of implication.[177] Some positive warrant or authority must be shown for it, and in the case at bar we challenge its production. There is another view of the subject that is important to be considered. There can be no division of citizenship, either of its rights or its duties. There can be no half-way citizenship. Woman, as a citizen of the United States, is entitled to all the benefits of that position, and liable to all its obligations, or to none. Only citizens are permitted to pre-empt land, obtain passports, etc., all of which woman can do; and, on the other hand, she is taxed (without her "consent") in further recognition of her citizenship; and yet, as to this chief privilege of all, she is forbidden to exercise it. We call upon the State to show its warrant for so doing—for inflicting upon the plaintiff and the class to which she belongs, the bar of perpetual disfranchisement, where no crime or offense is alleged or pretended, and without "due process of law."

We charge it as a "bill of attainder" of the most odious and oppressive character. The State can no more deprive a citizen of the United States of one privilege than of another, except by the "law of the land." There is no security for freedom if this be denied. To use the language of Mr. Madison, such a course "violates the vital principle of free government, that those who are to be bound by laws, ought to have a voice in making them." (Madison Papers, vol. 3—appendix, p. 12.)

It is sometimes said this is one of the "reserved rights" of the States. But this can not be, for the simple reason that, as to the "privileges and immunities" of federal citizenship, they had no existence prior to the adoption of the Federal Constitution; how then could they be reserved?

As Mr. Justice Story says: "The States can exercise no powers whatsoever, which exclusively spring out of the existence of the National Government, which the Constitution does not delegate to them.... No State can say that it has reserved what it never possessed." (Commentaries, Secs. 624-627.)

We say, then, that the States may regulate, but they have no right to prohibit the franchise to citizens of the United States. They may prescribe the qualifications of the electors. They may require that they shall be of a certain age, be of sane mind, be free from crime, etc., because these are conditions for the good of the whole, and to which all citizens, sooner or later, may attain. But to single out a class of citizens and say to them, "Notwithstanding you possess all these qualifications, you shall never vote, or take part in your government," what is it but a bill of attainder?

To show that the mere regulation of this matter of suffrage was left to the States for the purpose we have indicated, and not to their absolute and ultimate control, we will now quote the language of one of the framers of the Constitution, to whom, indeed, has been applied the epithet of "Father of the Constitution"—James Madison; and this, too, in reply to questions by Mr. Monroe, who sought an explanation on these very points. We quote from the debates in the Virginia convention upon the adoption of the Federal Constitution:

Mr. MONROE wished that the honorable gentleman who had been in the Federal Convention would give information respecting the clause concerning elections. He wished to know why Congress had an ultimate control over the time, place, and manner of elections of Representatives, and the time and manner of that of Senators, and also why there was an exception as to the place of electing Senators.