History of Woman Suffrage Volume II Part 88

But, beyond that, whether she was a legal voter or not, whether she was ent.i.tled to a vote or not, if she sincerely believed that she had a right to vote, and offered her ballot in good faith, under that belief, whether right or wrong, by the laws of this country she is guilty of no crime. I apprehend that that proposition, when it is discussed, will be maintained with a clearness and force that shall leave no doubt upon the mind of the Court or upon your minds as the gentlemen of the jury. If I maintain that proposition here, then the further question and the only question which, in my judgment, can come before you to be pa.s.sed upon by you as a question of fact is whether or not she did vote in good faith, believing that she had a right to vote.

The public prosecutor a.s.sumes that, however honestly she may have offered her vote, however sincerely she may have believed that she had a right to vote, if she was mistaken in that judgment, her offering her vote and its being received makes a criminal offense--a proposition to me most abhorrent, as I believe it will be equally abhorrent to your judgment.

Before the registration, and before this election, Miss Anthony called upon me for advice upon the question whether, under the XIV. Amendment of the Const.i.tution of the United States, she had a right to vote. I had not examined the question. I told her I would examine it and give her my opinion upon the question of her legal right. She went away and came again after I had made the examination. I advised her that she was as lawful a voter as I am, or as any other man is, and advised her to go and offer her vote. I may have been mistaken in that, and if I was mistaken, I believe she acted in good faith. I believe she acted according to her right as the law and Const.i.tution gave it to her. But whether she did or not, she acted in the most perfect good faith, and if she made a mistake, or if I made one, that is not a reason for committing her to a felon's cell.

For the second time in my life, in my professional practice, I am under the necessity of offering myself as a witness for my client.

HENRY R. SELDEN, a witness sworn in behalf of the defendant, testified as follows: Before the last election, Miss Anthony called upon me for advice, upon the question whether she was or was not a legal voter. I examined the question, and gave her my opinion, unhesitatingly, that the laws and Const.i.tution of the United States authorized her to vote, as well as they authorize any man to vote; and I advised her to have her name placed upon the registry and to vote at the election, if the inspectors should receive her vote. I gave the advice in good faith, believing it to be accurate, and I believe it to be accurate still. [This witness was not cross-examined.]

Judge SELDEN: I propose to call Miss Anthony as to the fact of her voting--on the question of the intention or belief under which she voted.

Mr. CROWLEY: She is not competent as a witness in her own behalf.

[The Court so held.] Defendant rests.

JOHN E. POUND, a witness sworn in behalf of the United States, testified as follows, examined by Mr. CROWLEY:

_Q._ During the months of November and December, 1872, and January, 1873, were you a.s.sistant United States District Attorney for the Northern District of New York? _A._ Yes, sir.

_Q._ Do you know the defendant, Susan B. Anthony? _A._ Yes, sir.

_Q._ Did you attend an examination before Wm. C. Storrs, a United States Commissioner, in the city of Rochester, when her case was examined? _A._ I did.

_Q._ Was she called as a witness in her own behalf upon that examination? _A._ She was.

_Q._ Was she sworn? _A._ She was.

_Q._ Did she give evidence? _A._ She did.

_Q._ Did you keep minutes of evidence on that occasion? _A._ I did.

_Q._ (Handing the witness a paper). Please look at the paper now shown you and see if it contains the minutes you kept upon that occasion? _A._ It does.

_Q._ Turn to the evidence of Susan B. Anthony? _A._ I have it.

_Q._ Did she, upon that occasion, state that she consulted or talked with Judge Henry R. Selden, of Rochester, in relation to her right to vote?

Judge SELDEN: I object to that upon the ground that it is incompetent, that if they refuse to allow her to be sworn here, they should be excluded from producing any evidence that she gave elsewhere, especially when they want to give the version which the United States officer took of her evidence.

THE COURT: Go on.

By Mr. CROWLEY:

_Q._ State whether she stated on that examination, under oath, that she had talked or consulted with Judge Henry R. Selden in relation to her right to vote? _A._ She did.

_Q._ State whether she asked, upon that examination, if the advice given her by Judge Henry R. Selden would or did make any difference in her action in voting, or in substance that? _A._ She stated on the cross-examination, "I should have made the same endeavor to vote that I did had I not consulted Judge Selden. I didn't consult any one before I registered. I was not influenced by his advice in the matter at all; have been resolved to vote, the first time I was at home thirty days, for a number of years."

_Cross-examination by_ Mr. Van VOORHIS:

_Q._ Mr. Pound, was she asked there if she had any doubt about her right to vote, and did she answer, "Not a particle"? _A._ She stated, "Had no doubt as to my right to vote," on the direct examination.

_Q._ There was a stenographic reporter there, was there not? _A._ A reporter was there taking notes.

_Q._ Was not this question put to her, "Did you have any doubt yourself of your right to vote?" and did she not answer, "Not a particle"?

THE COURT: Well, he says so, that she had no doubt of her right to vote.

Judge SELDEN: I beg leave to state, in regard to my own testimony, Miss Anthony informs me that I was mistaken in the fact that my advice was before her registry. It was my recollection that it was on her way to the registry, but she states to me now that she was registered and came immediately to my office. In that respect I was under a mistake.

_Evidence closed._

ARGUMENT OF MR. SELDEN FOR THE DEFENDANT.

The defendant is indicted under the 19th section of the Act of Congress of May 31, 1874 (16 St. at L., 144), for "voting without having a lawful right to vote." The words of the statute, so far as they are material in this ease, are as follows:

If at any election for representative or delegate in the Congress of the United States, any person shall knowingly ... vote without having a lawful right to vote ... every such person shall be deemed guilty of a crime ... and on conviction thereof shall be punished by a fine not exceeding $500, or by imprisonment for a term not exceeding three years, or by both, in the discretion of the court, and shall pay the costs of prosecution.

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 brother under the same circ.u.mstances, the act would have been not only innocent, but honorable and laudable; but having been done by a woman it is said to be a crime. The crime, therefore, consists not in the act done, but in the simple fact that the person doing it was a woman and not a man. I believe this is the first instance in which a woman has been arraigned in a criminal court merely on account of her s.e.x. 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 proceeding, for presenting it in the form of a criminal prosecution. 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 Const.i.tution and laws as they are, and that if the defendant has been guilty of violating the law, she must submit to the penalty, however unjust or absurd the law may be. But courts are not required to so interpret laws or const.i.tutions as to produce either absurdity or injustice, so long as they are open to a more reasonable interpretation. This must be my excuse for what I design to say in regard to the propriety of female suffrage, because with that propriety established there is very little difficulty in finding sufficient warrant in the Const.i.tution for its exercise. This case, in its legal aspects, presents three questions, which I purpose to discuss.

1. Was the defendant legally ent.i.tled to vote at the election in question?

2. If she was not ent.i.tled to vote, but believed that she was, and voted in good faith in that belief, did such voting const.i.tute a crime under the statute before referred to?

3. Did the defendant vote in good faith in that belief?

If the first question be decided in accordance with my views, the other questions become immaterial; if the second be decided adversely to my views, the first and third become immaterial. The first two are questions of law to be decided by the court, the other is a question for the jury.

The Court suggested that the argument should be confined to the legal questions, and the argument on the other question suspended. This suggestion was a.s.sented 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 propriety and justice of the rule which I claim to have been established by the Const.i.tution.

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 s.e.x 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 s.e.x has suffered. They believe, with an intensity of feeling which men who have not a.s.sociated with them have not yet learned, that their s.e.x 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 they will not be content until their arguments are fairly, truthfully, and candidly answered.

In the most celebrated doc.u.ment 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 founded upon this principle; that the law by which they suffer was made by their own consent; it is a part of the original contract into which they entered when first they engaged in society; it was calculated for and has long contributed to their own security.

Quotations, to an unlimited extent, containing similar doctrines from eminent writers, both English and American, on government, from the time of John Locke to the present day, might be made.

Without adopting this doctrine which bases the rightfulness of government upon the consent of the governed, I claim that there is implied in it the narrower and una.s.sailable principle that all citizens of a State, who are bound by its laws, are ent.i.tled to an equal voice in the making and execution of such laws. The doctrine is well stated by G.o.dwin in his treatise on "Political Justice." He says:

The first and most important principle that can be imagined relative to the form and structure of government, seems to be this: that as government is a transaction in the name and for the benefit of the whole, every member of the community ought to have some share in its administration. Again, Government is a contrivance inst.i.tuted 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 lose sight, the uncontrolled exercise of private judgment. Each man would thus be inspired with a consciousness of his own importance, and the slavish feelings that shrink up the soul in the presence of an imagined superior would be unknown.

The mastery which this doctrine, whether right or wrong, has acquired over the public mind, has produced as its natural fruit, the extension of the right of suffrage to all the adult male population in nearly all the States of the Union; a result which was well epitomized by President Lincoln, in the expression, "government by the people for the people." 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 ma.s.s 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 than a select 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 persistently in accordance with such belief; and, unfortunately, an aristocracy of s.e.x 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 politics," two cla.s.ses 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 G.o.dwin, 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 principle on which the franchise has been given to all men, upon which it can be denied to women. The princ.i.p.al argument against such extension, so far as argument upon that side of the question has fallen under my observation, is based upon the position that women are represented in the government by men, and that their rights and interests are better protected through that indirect representation than they would be by giving them a direct voice in the government. The teachings of history in regard to the condition of women under the care of these self-const.i.tuted 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.