United States vs Susan B. Anthony
ARGUMENT OF MR. SELDEN FOR THE DEFENDANT.
The defendant is indicted under the 19th section of the Act of Congress
of May 31, 1870 (16 St. at L., 144,), for "voting
The words of the Senate, so far as they are material in this case, are
The only alleged ground of illegality of the defendant's vote is that
she is a woman. If the same act had been done by her
If the advocates of female suffrage had been allowed to choose the point
of attack to be made upon their position, they could not have chosen it
more favorably for themselves; and I am disposed to thank those who have
been instrumental in this
Women have the same interest that men have in the establishment and maintenance of good government; they are to the same extent as men bound to obey the laws; they suffer to the same extent by bad laws, and profit to the same extent by good laws; and upon principles of equal justice, as it would seem, should be allowed equally with men, to express their preference in the choice of law-makers and rulers. But however that may be, no greater absurdity, to use no harsher, term, could be presented, than that of rewarding men and punishing women, for the same act, without giving to women any voice in the question which should be rewarded, and which punished.
I am aware, however, that we are here to be governed by the Constitution
and laws as they are, and that if the defendant has
This case, in its legal aspects, presents three questions, which I purpose to discuss.
1. .......... Was the defendant legally entitled
to vote at the election in question.
If the first question be decided in accordance with my views, the other questions become immaterial; if the second be decidedadversely to my views, the first and third become immaterial. The two first are questions of law to be decided by the court, the other is a question for the jury.
[The Judge here suggested that the argument should be confined to the legal questions, and the argument on the other question suspended, until his opinion on those questions should be made known. This suggestion was assented to, and the counsel proceeded.]
My first position is that the defendant had the same right to vote as any other citizen who voted at that election.
Before proceeding to the discussion of the purely legal question, I
desire, as already intimated, to pay some attention to the
Miss Anthony, and those united with her in demanding the right of suffrage, claim, and with a strong appearance of justice, that upon the principles upon which our government is founded, and which lie at the basis of all just government, every citizen has a right to take part, upon equal terms with every other citizen, in the formation and administration of government. This claim on the part of the female sex presents a question the magnitude of which is not well appreciated by the writers and speakers who treat it with ridicule. Those engaged in the movement are able, sincere and earnest women, and they will not be silenced by such ridicule, nor even by the villainous caricatures of Nast. On the contrary, they justly place all those things to the account of the wrongs which they think their sex has suffered. They believe, with an intensity of feeling which men who have not associated with them have not yet learned, that their sex has not had, and has not now, its just and true position in the organization of government and society. They may be wrong in their position, but will be content until their arguments are fairly, truthfully and candidly answered.
In the most celebrated document which has been put forth on this side of the Atlantic, our ancestors declared that "governments derive their just powers from the consent of the governed."
Blackstone says, "The lawfulness of punishing such criminals (i.e.,
persons offending merely against the laws of society) is
Quotations, to an unlimited extent, containing similar doctrines from
eminent writers, both English and American, on
Again, "Government is a contrivance instituted for the security of individuals; and it seems both reasonable that each man should have a share in providing for his own security, and probable, that partiality and cabal should by this means be most effectually excluded."
And again, "To give each man a voice in the public concerns comes nearest
to that admirable idea of which we should never
The mastery which this doctrine, whether right or wrong, has acquired
over the public mind, has produced as its natural fruit,
This extension of the suffrage is regarded by many as a source of danger to the stability of free government. I believe it furnishes the greatest security for free government, as it deprives the mass of the people of all motive for revolution; and that government so based is most safe, not because the whole people are less liable to make mistakes in government so selet few, but because they have no interest which can lead them to such mistakes, or to prevent their correction when made. On the contrary, the world has never seen an aristocracy, whether composed of few or many, powerful enough to control a government, who did not honestly believe that their interest was identical with the public interest, and who did not act persistenly in accordance with such belief; and, unfortunately, an aristocracy of sex has not proved an exception to the rule. The only method yet discovered of overcoming this tendency to the selfish use of power, whether consciously or unconsciously, by those possessing it, is the distribution of the power among all who are its subjects. Short of this the name free government is a misnomer.
This principle, after long strife, not yet entirely ended has been, practically at least, very generally recognized on this side of the Atlantic, as far as relates to men; but when the attempt is made to extend it to women, political philosophers and practical politicians, those "inside of polities," two classes not often found acting in concert, join in denouncing it. It remains to be determined whether the reasons which have produced the extension of the franchise to all adult men, do not equally demand its extension to all adult women. If it be necessary for men that each should have a share in the administration of government for his security, and to exclude partiality, as alleged by God-win, it would seem to be equally, if not more, necessary for women, on account of their inferior physical power: and if, as is persistently alleged by those who sneer at their claims, they are also inferior in mental power, that fact only gives additional weight to the argument in their behalf, as one of the primary objects of government, as acknowledged on all hands, is the protection of the weak against the power of the strong.
I can discover no ground consistent with the principal on which the
franchise has been given to all men, upon which it can be
The teachings of history in regard to the condition of women under the care of these self-constituted protectors, to which I can only briefly allude, show the value of this argument as applied to past ages; and in demonstration of its value as applied to more recent times, even at the risk of being tedious. I will give some examples from my own professional experience. I do this because nothing adds more to the efficacy of truth than the translation of the abstract into the concrete. Withholding names, I will state the facts with fullness and accuracy.
An educated and refined woman, who had been many years before deserted
by her drunken husband, was living in a small
It may properly be added, that if the action had proceeded to judgment
without interference from the husband, and such
In another case, two ladies, mother and daughter, some time prior to
1860 came from an eastern county of New York to
The state of the law a short time since, in other respects, in regard to the rights of married women, shows what kind of security had been provided for them by their assumed representatives. Prior to 1848 all the personal property of every woman on marriage became the absolute property of the husband-the use of all her real estate became his during coverture, and on the birth of a living child, it became his during his life. He could squander it in dissipation or bestow it upon harlots, and the wife could not touch or interfere with it. Prior to 1860, the husband could by will take the custody of his infant children away from the surviving mother, and give it to whom he pleased-and he could in like manner dispose of the control of the children's property, after his death, during their minority, without the mother's consent.
In most of these respects the state of the law has undergone great changes
within the last 25 years. The property, real and
If a married woman is slandered she can prosecute in her own name the slanderer, and recover to her own use damages for the injury.
The mother now has an equal claim with the father to the custody of
their minor children, and in case of controversy on the
The husband cannot now by will effectually appoint a guardian for his infant children without the consent of the mother, if living.
These are certainly ameliorations of the law; but how have they been
produced? Mainly as the result of exertions of a few
Much has been done, but much more remains to be done by women. If they had possessed the elective franchise, the reforms which have cost them a quarter of a century of labor would have been accomplished in a year. They are still subject to taxation upon their property, without any voice as to the levying or destination of the tax; and are still subject to laws made by men, which subject them to fine and imprisonment for the same acts which men do with honor and reward-and when brought to trial no woman is allowed a place on the bench or in the jury box, or a voice in her behalf at the bar. They are bound to suffer the penalty of such laws, made and administered solely by men, and to be silent under the infliction. Give them the ballot, and, although I do not suppose that any great revolution will be produced, or that all political evils will be removed, (I am not a believer in political panaceas,) but if I mistake not, valuable reforms will be introduced which are not now thought of. Schools, almshouses, hospitals, drinking saloons, and those worse dens which are destroying the morals and the constitutions of so many of the young of both sexes, will feel their influence to an extent now little dreamed of. At all events women will not be taxed without an opportunity to be heard, and will not be subject to fine and imprisonment by laws made exclusively by men for doing what it is lawful and honorable for men to do.
It may be said in answer to the argument in favor of female suffrage derived from the cases to which I have referred, that men, not individually, but collectively, are the natural and appropriate representatives of women, and that, notwithstanding cases of individual wrong, the rights of women are, on the whole, best protected by being left to their care. It must be observed, however, that the cases which I have stated, and which are only types of thousands like them, in their cruelty and injustice, are the result of ages of legislation by these assumed protectors of women. The wrongs were less in the men than in the laws which sustained them, and which contained nothing for the protection of the women.
But passing this view, let us look at the matter historically and on a broader field.
If Chinese women were allowed an equal share with men in shaping the
laws of that great empire, would they subject their
If Hindoo women could have shaped the laws of India, would widows for ages have been burned on the funeral pyres of their deceased husbands?
If Jewish women had had a voice in framing Jewish laws, would be husband, at his own pleasure, have been allowed to "write his wife a bill of divorcement and give it in her hand, and send her out of his house"?
Would women in Turkey or Persia have made it a heinous, if not capital, offence for a wife to be seen abroad with her face not covered by an impenetrable veil?
Would women in England, however learned, have been for ages subjected to execution for offences for which men, who could read, were only subjected to burning in the hand and a few months imprisonment?
The principle which governs in these cases, or which has done so hitherto,
has been at all times and everywhere the same.
The condition of subjection in which women have been held is the result of this principle; the result of superior strength, not of superior right, on the part of men. Superior strength, combined with ignorance and selfishness, but not with malice. It is a relic of the barbarism in the shadow of which nations have grown up. Precisely as nations have receded from barbarism the severity of that subjection has been relaxed. So long as merely physical power governed in the affairs of the world, the wrongs done to women were without the possibility of redress or relief; but since nations have come to be governed by laws, there is room to hope, though the process may still be a slow one, that injustice in all its forms, or at least political injustice, may be extinguished. No injustice can be greater than to deny to any class of citizens not guilty of crime, all share in the political power of a state, that is, all share in the choice of rulers, and in the making and administration of the laws. Persons to which such share is denied, are essentially slaves, because they hold their rights, if they can be said to have any, subject to the will of those who hold the political power. For this reason it has been found necessary to give the ballot to the emancipated slaves. Until this was one their emancipation was far from complete. Without a share in the political powers of the state, no class of citizens has any security for its rights, and thee history of nations to which I briefly alluded, shows that women constitute no exception to the university of this rule.
Great errors, I think, exist in the minds of both the advocate and the opponents of this measure in their anticipation of the immediate effects to be produced by its adoption. On the one hand it is supposed by some that the character of women would be radically changed-that they would be unsexed, as it were, by clothing them with political rights, and that instead of modest, amiable and graceful beings, we should have bold, noisy and disgusting political demagogues, or something worse, if anything worse can be imagined. I think those who entertain such opinions are in error. The innate character of women is the result of God's laws, not of man's, nor can the laws of man affect that character beyond a very slight degree. Whatever rights may be given to them, and whatever duties may be charged upon them by human laws, their general character will remain unchanged. Their modesty, their delicacy, and intuitive sense of propriety, will never desert them, into whatever new positions their added rights or duties may carry them.
So far as women, without change of character as women, are qualified to discharge the duties of citizenship, they will discharge them if called upon to do so, and beyond that they will not go. Nature has put barriers in the way of any excessive devotion of women to public affairs, and it is not necessary that nature's work in that respect should be supplemented by additional barriers invented by men. Such offices as women are qualified to fill will be sought by those who do not find other employment, and others they will not seek, or if they do, will seek in vain. To aid in removing as far as possible the disheartening difficulties which women dependent upon their own exertions encounter, it is, I think, desirable that such official positions as they can fill should be thrown open to them, and that they should be given the same power that men have to aid each other by their votes. I would say, remove all legal barriers that stand in the way of their finding employment, official or unofficial, and leave them as much are left, to depend for success upon their character and their abilities. As long as men are allowed to act as milliners, with what propriety can they exclude women from the post of school commissioners when chosen to such positions by their neighbors? To deny them such rights, is to leave them in a condition of political servitude as absolute as that of the African slaves before their emancipation. This conclusion is readily to be deduced from the opinion of Chief Justice Jay in the case of Chisholm's Ex'rs vs. The State of Georgia (2 Dallas, 419-471), although the learned Chief Justice had of course no idea of any such application as I make of his opinion.
The action was assumpsit by a citizen of the State of South Carolina,
and the question was, whether the United States Court
The Chief Justice, in the course of his opinion, after alluding to the
feudal idea of the character of the sovereign in England, and giving some
of the reasons why he was not subject to suit before the courts of the
Now I beg leave to ask, in case this charge against Miss Anthony can
be sustained, what equality and what sovereignty is
If it be said that my language is stronger than the facts warrant, I appeal to the record in this case for its justification.
As deductions from what has been said, I respectfully insist, 1st, That upon the principles upon which our government is based, the privilege of the elective franchise cannot justly be denied to women. 2d. That women need it for their protection. 3d. That the welfare of both sexes will be promoted by granting it to them.
Having occupied much more time than I intended in showing the justice
and propriety of the claim made by my client to the
It is not claimed that, under our State constitution and the laws made
in pursuance of it, women are authorize to vote at
The same Article, Section 3, "The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof for six years; and each senator shall have one vote."
Article II, Section 1. "Each State shall appoint in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the State may be entitled in the Congress."
Article IV, Section 2. "The citizens of each State shall be entitled
to all the privileges and immunities of citizens in thee several
Same Article, Section 4. "The United States shall guarantee to every State in the union a republican form of government."
"1. Neither slavery nor involuntary servitude, except as a punishment
for crime, whereof the party shall have been duly
"2. Congress shall have power to enforce this article by appropriate legislation."
Section 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
Section 2. "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged , except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."
Section 5. "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
Section 1. "The right of citizens of the United States to vote shall
not be denied or abridge by the United States, or by any
Section 2. "The Congress shall have power to enforce this article by appropriate legislation."
By reference to the provisions of the original Constitution, here recited,
it appears that prior to the thirteenth, if not until the
It will be seen, therefore, that the whole subject, as to what should constitute the "privileges and immunities" of the citizen being left to the States, no question, such as we now present, could have arisen under the original constitution of the United States.
But now, by the fourteenth amendment, the United States have not only declared what constitutes citizenship, both in the United States and in the several States, securing the rights of citizens to "all persons born or naturalized in the United States;" but have absolutely prohibited the States from making or enforcing " any law which shall abridge the privileges or immunities of citizens of the United States."
By virtue of this provision, I insist that the act of Miss Anthony in voting was lawful.
It has never, since the adoption of the fourteenth amendment, been questioned, and cannot be questioned, that women as well as men are included in the terms of its first section, nor that the same "privil ges and immunities of citizens" are equally secured to both.
What, then, are the "privileges and immunities of citizens of the United States" which are secured against such abridgement, by this section? I claim that these terms not only include the right of voting for public officers, but that they include that right as pre-eminently the most important of all the privileges and immunities to which the section refers. Among these privileges and immunities may doubtless be classed the right to life and liberty, to the acquisition and enjoyment of property, and to the free pursuit of one's own welfare, so far as such pursuit does not interfere with the rights and welfare of others; but what security has any one for the enjoyment of these rights when denied any voice in the making of the laws, or in the choice of those who make, and those who administer them? The possession of this voice, in the making and administration of the laws-this political right-is what gives security and value to the other rights, which are merely personal, not political. A person deprived of political rights is essentially a slave, because he holds his personal rights subject to the will of those who possess the political power. This principle constitutes the very corner-stone of our government-indeed, of all republican government. Upon that basis our separation from Great Britain was justified. "Taxation without representation is tyranny." This famous aphorism of James Otis, although sufficient for the occasion when it was put forth, expresses but a fragment of the principle, because government can be oppressive through means of many appliances besides that of taxation. The true principle is, that all government over persons deprived of any voice in such government, is tyranny. That is the principle of the declaration of independence. We were slow in allowing its application to the African race, and have been still slower in allowing its application to women; but it has been done by the fourteenth amendment, rightly construed, by a definition of "citizenship," which includes women as well as men, and in the declaration that "the privileges and immunities of citizens shall not be abridged." If there is any privilege of the citizen which is paramount to all others, it is the right of suffrage; and in a constitutional provision, designed to secure the most valuable rights of the citizen, the declaration that the privileges and immunities of the citizen shall not be abridged, must, as I conceive, be held to secure that right before all others. It is obvious, when the entire language of the section is examined, not only that this declaration was designed to secure to the citizen this political right, but that such was its principal, if not its sole object, those provisions of the section which follow it being devoted to securing the personal rights of "life, liberty, property, and the equal protection of the laws." The clause on which we rely, to wit:- "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, " might be stricken out of the section, and the residue would secure to the citizen every right which is now secured, excepting the political rights of voting and holding office. If the clause in question does not secure those political rights, it is entirely nugatory, and might as well have been omitted.
If we go to the lexicographers and to the writers upon law, to learn
what are the privileges and immunities of the "citizen" in a
The definition of the term "citizen" by Bouvier is:
By Worcester -"An inhabitant of a republic who enjoys the rights of a freeman, and has a right to vote for public officers."
By Webster -"In the United States a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enables him to vote for rulers, and to purchase and hold real estate."
The meaning of the word "citizen" is directly and plainly recognized by the latest amendment of the constitution (the fifteenth.)
"The right of the citizens of the United States to vote shall not be
denied or abridged by the United States, or by any State,
Mr. Richard Grant White, in his late work on Words and their Uses, says of the word citizen: "A citizen is a person who has certain political rights, and the word is properly used only to imply or suggest the possession of these rights."
Mr. Justice Washington, in the case of Corfield vs. Coryell (4 Wash.
C. C. Rep. 380), speaking of the "privileges and
Chancellor Kent and Judge Story both refer to the opinion of Mr. Justice Washington, above quoted, with approbation.
The Supreme Court of Kentucky, in the case ot Amy, a woman of color,
vs. Smith (1 Littell's Rep. 326), discussed with
In the case of Scott vs. Sanford (19 How. 404,) Chief Justice Taney
says: "The words people of the United States, and
Mr. Justice Daniel, in the same case, (p. 476), says: "Upon the principles
of etymology alone, the term citizen, as derived from civitas , conveys
the idea of connection or identification with the state or government,
and a participation in its functions. But beyond this, there is not, it
is believed, to be found in the theories of writers on government, or in
any actual experiment
Similar references might be made to an indefinite extent, but enough has been said to show that the term citizen, in the language of Mr. Justice Daniel, conveys the idea "of identification with the state or government, and a participation in its functions."
Beyond question, therefore, the first section of the fourteenth amendment, by placing the citizenship of women upon a par with that of men, and declaring that the "privileges and immunities" of the citizen shall not be abridged, has secured to women, equally with men, the right of suffrage, unless that conclusion is overthrown by some other provision of the constitution.
It is not necessary for the purposes of this argument to claim that this amendment prohibits a state from making or enforcing any law whatever, regulating the elective franchise, or prescribing the conditions upon which it may be exercised. But we do claim that in every republic the right of suffrage, in some form and to some extent, is not only one of the privileges of its citizens, but is the first, most obvious and most important of all the privileges they enjoy; that in this respect all citizens are equal, and that the effect of this amendment is, to prohibit the States from enforcing any law which denies this right to any of its citizens, or which imposes any restrictions upon it, which are inconsistent with a republican form of government. Within this limit, it is unnecessary for us to deny that the States may still regulate and control the exercise of the right.
The only provisions of the constitution, which it can be contented conflict
with the construction which has here been put upon
In regard to the fifteenth amendment, I shall only say, that if my interpretation of the fourteenth amendment is correct, there was still an object to be accomplished and which was accomplished by the fifteenth. The prohibition of any action abridging the privileges and immunities of citizens, contained in the fourteenth amendment, applies only to the States, and leaves the United States government free to abridge the political privileges and immunities of citizens of the United States, as such, at its pleasure. By the fifteenth amendment both the United States and the State governments, are prohibited from exercising this power, "on account of race, color, or previous condition of servitude" of the citizen.
The first remark to be made upon the second section of the fourteenth amendment is, that it does not give and was not designed to give to the States any power to deny or abridge the right of any citizen to exercise the elective franchise. So far as it touches that subject, it was designed to be restrictive upon the States. It gives to them no power whatever. It takes away no power, but it gives none, and if the States possess the power to deny or abridge the right of citizens to vote, it must be derived from some other provision of the constitution. I believe none such can be found, which was not necessarily abrogated by the first section of this amendment.
It may be conceded that the persons who prepared this section supposed,
that, by other parts of the constitution, or in some
But those who prepare constitutions are never those who adopt them,
and consequently the views of those who frame them
It has been, and may be again asserted, that the position which I have
taken in regard to the second section is inadmissible,
Neither do I think the position tenable which has been taken by one
tribunal, to which the consideration of this subject was
The provisions on which we rely were negative merely, and were designed
to nullify existing as well as any future State
The opinion of Mr. Justice Bradley, in a case in the United States Circuit
Court in New Orleans ( 1 Abb. U. S. Rep, 402 )
Senator Carpenter, who took part in the discussion of the fourteenth
amendment in the Senate, and aided in its passage, says:
It has been said, with how much or how little truth I do not know, that the subject of securing to women the elective franchise was not considered in the preparation, or in the adoption of these amendments. It is wholly immaterial whether that was so or not. It is never possible to arrive at the intention of the people in adopting constitutions, except by referring to the language used. As is said by Mr. Cooley, "the intent is to be found in the instrument itself" (p. 55), and to that I have confined my remarks. It is now a new thing for constitutional and legislative acts to have an effect beyond the anticipation of those who framed them. It is undoubtedly true, that in exacting Magna Charta from King John, the Barons of England provided better securities for the rights of the common people than they were aware of at the time, although the rights of the common people were neither forgotten nor neglected by them. It has also been said, perhaps with some truth, that the framers of the original Constitution of the United States "builded better than they knew;" and it is quite possible that in framing the amendments under consideration, those engaged in doing it have accomplished a much greater work than they were at the time aware of. I am quite sure that it will be fortunate for the country, if this great question of female suffrage, than which few greater were ever presented for the consideration of any people, shall be found, almost unexpectedly, to have been put at rest.
The opinion of Mr. Justice Bradley, in regard to this amendment, in the case before referred to, if I understand it, corresponds very nearly with what I have here said. The learned judge, in one part of his opinion, says: "It is possible that those who framed the article were not themselves aware of the far-reaching character of its terms. They may have had in mind but one particular phase of social and political wrong, which they desired to redress- yet, if the amendment, as framed and expressed, does, in fact, have a broader meaning, and does extend its protecting shield over those who were never thought of when it was conceived and put in form, and does reach such social evils which were never before prohibited by constitutional amendment, it is to be presumed that the American people, in giving it their imprimatur, understood what they were doing, and meant to decree what has, in fact, been done.
"It embraces much more. The privileges and immunities secured by the original Constitution were only such as each State gave its own citizens. Each was prohibited from discriminating in favor of its own citizens, and against the citizens of other States.
"But the fourteenth amendment prohibits any State from abridging the
privileges or immunities of the citizens of the United
It will doubtless be urged as an objection to my position (that citizenship
carries with it the right to vote) that it would, in that
Although not directly connected with the argument as to the right secured to women by the Constitution, I deem it not improper to allude briefly to some of the popular objections against the propriety of allowing females the privilege of voting. I do this because I know from the past experience that these popular objections, having no logical bearing upon the subject, are yet, practically, among the most potent arguments against the interpretation of the fourteenth amendment, which I consider the only one that its language fairly admits of.
It is said that woment do not desire to vote. Certainly many women do not, but that furnishes no reason for denying the right to those who do desire to vote. Many men decline to vote. Is that a reason for denying the right to those who would vote?
I believe, however, that the public mind is greatly in error in regard
to the proportion of female citizens who would vote if their right to do
so were recognized. In England there has been to some extent a test of
that question, with the following result, as given in the newspapers, the
correctness of which, in this respect, I think there is no reason to doubt:
Our law books furnish, perhaps, more satisfactory evidence of the earnestness
with which women in England are claiming the
The case of Chorlton, appellant, vs. Lings, respondent, came before
the Court of Common Pleas in England in 1869. It was
I infer, without being able to say how the fact is, that the votes given
by women, as mentioned in the newspapers, were given at municipal elections
merely, and that the cases decided by the Court of Common Pleas relate
to elections for members of
Another objection is, that the right to hold office must attend the right to vote, and that women are not qualified to discharge the duties of responsible offices.
I beg leave to answer this objection by asking one or more questions.
How many of the male bipeds who do our voting are
Whenever the qualifications of persons to discharge the duties of responsible offices is made the test of their right to vote, and we are to have a competitive examination on that subject, open to all claimants, my client will be content to enter the lists, and take her chances among the candidates for such honors.
But the practice of the world, and our own practice, give the lie to
this objection. Compare the administration of female and
The case of Olive vs. Ingraham (7 Modern Rep. 263) was an action brought
to try the title to an office. On the death of the
In the course of the discussion it was shown that women had held many
offices, those of constable, church warden, overseer of the poor, keeper
of the "gate house" (a public prison), governess of a house of correction,
keeper of casters, sheriffs of
If women are legally competent to hold minor offices, I would be glad
to have the rule of law, or of propriety, shown which
Another objections is that women cannot serve as soldiers. To this I
answer that capacity for military service has never been
Another objection is that engaging in political controversies is not
consistent with the feminine character. Upon that subject,
If any difficulty on this account should occur, it may not be impossible
to receive the votes of women at their places of
I humbly submit to your honor, therefore, that on the constitutional grounds to which I have referred, Miss Anthony had a lawful right to vote; that her vote was properly received and counted; that the first section of the fourteenth amendment secured to her that right, and did not need the aid of any further legislation.
But conceding that I may be in error in supposing that Miss Anthony had a right to vote, she has been guilty of no crime, if she voted in good faith believing that she had such right.
This proposition appears to me so obvious, that were it not for the severity to my client of the consequences which may follow a conviction, I should not deem it necessary to discuss it.
To make out the offence, it is incumbent on the prosecution to show
affirmatively, not only that the defendant knowingly voted, but that she
so voted knowing that she had no right to vote. That is, the term "knowingly,"
applies, not to the fact of voting, but to the fact of want of right. Any
other interpretation of the language would be absurd. We cannot conceive
of a case where a party could vote without knowledge of the fact of voting,
and to apply the term "knowingly" to the mere act of voting, would make
nonsense of the statute. This word was inserted as defining the essence
of the offence, and it limits the criminality to eases where the voting
is not only without right, but where it is done wilfully, with a knowledge
that it is without right. Short of that there is no offence within the
statute. This would be so upon well established principles, even if the
Mr. Bishop says, (1 Cr. Law. 205): "There can be no crime unless a culpable
intent accompanies the criminal act." The same
I quote from a more distinguished author: " Felony is always accompanied
with an evil intention, and therefore shall not
This quotation by Hawkins is, I believe, from Bracton, which carries
the principle back to a very early period in the existence of the common
law. It is a principle, however, which underlies all law, and must have
been recognized at all times, wherever
I quote again on this subject from Mr. Bishop: "The doctrine of the
intent as it prevails in the criminal law, is necessarily one of the foundation
principles of public justice. There is only criterion by which the guilt
of man is to be tested. It is whether the
Again, the same author, writing on the subject of knowledge, as necessary
to establish the intent, says: "It is absolutely
In regard to the offence of obtaining property by false pretenses, the author says: "The indictment must allege that the defendant knew the pretenses to be false. This is necessary upon the general principles of the law, in order to show an offence, even though the statute does not contain the word "knowingly." ( 2. Id. 172.)
As to a presumed knowledge of the law, where the fact involves a question
of law, the same author says: "The general
The conclusions of the writer here, are correct, but in a part of the statement the learned author has thrown some obscurity over his own principles. The doctrines elsewhere enunciated by him, show with great clearness, that in such cases the state of the mind constitutes the essence of the offence, and if the state of the mind which the law condemns does not exist, in connection with the act, there is no offence. It is immaterial whether its non-existence be owing to ignorance of law or ignorance of fact, in either case the fact which the law condemns, the criminal intent, is wanting. It is not, therefore, in an "indirect way," that ignorance of the law in such cases constitutes a defence, but in the most direct way possible. It is not a fact which jurors "may take into consideration," or not, at their pleasure, but which they must take into consideration, because, in case the ignorance exists, no matter from what cause, the offence which the statute describes is not committed. In such case, ignorance of the law is not interposed as a shield to one committing a criminal act, but merely to show, as it does show, that no criminal act has been committed.
I quote from Sir Mathew Hale on the subject. Speaking of larceny, the
learned author says: "As it is cepit and asportavit, so it must be felonice,
or animo furandi, otherwise it is not felony, for it is the mind that makes
the taking of another's goods to be a felony, or a bare trespass only;
but because the intention and mind are secret,the intention must be judged
of by the
I concede, that if Miss Anthony voted, knowing that as a woman she had no right to vote, she may properly be convicted, and that if she had dressed herself in men's apparel, and assumed a man's name, or resorted to any other artifice to deceive the board of inspectors, the jury might properly regard her claim of right, to be merely colorable, and might, in their judgement, pronounce her guilty of the offense charged, in case the constitution has not secured to her the right she claimed. All I claim is, that if she voted in perfect good faith, believing that it was her right, she has committed no crime. An innocent mistake, whether of law or fact, though a wrongful act may be done in pursuance of it, cannot constitute a crime.
[The following cases and authorities were referred to and commented upon by the counsel, as sustaining his positions: U.S. vs. Conover, 3 McLean's rep. 573; The State vs. McDonald, 4 Harrington, 555; The State vs. Homes, 17 Mo. 379; Rex vs. Hall, 3 C. P. 409, (S. C. 14 Eng. C. L.); The Queen vs, Reed, 1 C. M. 306. (S.C. 41 Eng. C.L.); Lancaster's Case, 3 Leon. 208; Starkie on Ev., part IV, Vol. 2, p. 828, 3d Am. Ed.]
The counsel then said, there are some cases which I concede cannot be reconciled with the position which I have endeavored to maintain, and I am sorry to say that one of them is found in the reports of this State. As the other cases are referred to in that,and the principle, if they can be said to stand on any principle, is in all of them the same, it will only be incumbent on me to notice that one. That case is not only irreconcilable with the numerous authorities and the fundamental principles of criminal law to which I have referred, but the enormity of its injustice is sufficient alone to condemn it. I refer to the case of Hamilton vs. The People, (57 Barb.725). In that case Hamilton had been convicted of a misdemeanor, in having voted at a general election, after having been previously convicted of a felony and sentenced to two years imprisonment in the state prison, and not having been pardoned; the conviction having by law deprived him of citizenship and right to vote, unless pardoned and restored to citizenship. The case came up before the General Term of the Supreme Court, on writ of error. It appeared that on the trial evidence was offered, that before the prisoner was discharged from the state prison, he and his father applied to the Governor for a pardon, and that the Governor replied in writing, that on the ground of the prisoner's being a minor at the time of his discharge from prison, a pardon would not be necessary, and that he would be entitle to all rights of a citizen on his coming of age. They also applied to two respectable counsellors of the Supreme Court, and they confirmed the Governor's opinion. All this evidence was rejected. It appeared that the prisoner was seventeen years old when convicted of the felony, and was nineteen when discharged from prison. The rejection of the evidence was approved by the Supreme Court on the ground that the prisoner was bound to know the law, and was presumed to do so, and his conviction was accordingly confirmed.
Here a young man, innocent so far as his conduct in this case was involved, was condemned, for acting in good faith upon the advice, (mistaken advice it may be conceded,) of one governor and two lawyers to whom he applied for information as to his rights; and this condemnation has proceeded upon the assumed ground, conceded to be false in fact, that he knew the advice given to him was wrong. On this judicial fiction the young man, in the name of justice, is sent to prison, punished for a mere mistake, and a mistake made in pursuance of such advice. It cannot be, consistently with the radical principles of criminal law to which I have referred, and the numerous authorities which I have quoted, that this man was guilty of a crime, that his mistake was a crime, and I think the judges who pronounced his condemnation, upon their own principles, better than their victim, deserved the punishment which they indicted.
The condemnation of Miss Anthony, her good faith being conceded, would
do no less violence to any fair administration of
One other matter will close what I have to say. Miss Anthony believed, and was advised that she had a right to vote. She may also have been advised, as was clearly the fact, that the question as to her right could not be brought before the courts for trial, without her voting or offering to vote, and if either was criminal, the one was as much so as the other. Therefore she stands now arraigned as a criminal, for taking the only steps by which it was possible to bring the great constitutional question as to her right, before the tribunals of the country for adjudication. If for thus acting, in the most perfect good faith, with motives as pure and impulses as noble as any which can find place in your honor's breast in the administration of justice, she is by the laws of her country to be condemned as a criminal, she must abide the consequences. Her condemnation, however, under such circumstances, would only add another most weighty reason to those which I have already advanced, to show that women need the aid of the ballot for their protection.
Upon the remaining question, of the good faith of the defendant, it is not necessary for me to speak. That she acted in the most perfect good faith stands conceded.
Thanking your honor for the great patience with which you have listened
to my too extended remarks, I submit the legal