Susan B. Anthony Part 26

"The Legislature of the State of New York," he continued, "has seen fit to say, that the franchise of voting shall be limited to the male s.e.x.... If the Fifteenth Amendment had contained the word 's.e.x,' the argument of the defendant would have been potent.... The Fourteenth Amendment gives no right to a woman to vote, and the voting of Miss Anthony was in violation of the law....

"There was no ignorance of any fact," he added, "but all the facts being known, she undertook to settle a principle in her own person....

To const.i.tute a crime, it is true, that there must be a criminal intent, but it is equally true that knowledge of the facts of the case is always held to supply this intent...."

Then hesitating a moment, he concluded, "Upon this evidence I suppose there is no question for the jury and that the jury should be directed to find a verdict of guilty."

Immediately Henry Selden was on his feet, addressing the judge, requesting that the jury determine whether or not the defendant was guilty of crime.

Judge Hunt, however, refused and firmly announced, "The question, gentlemen of the jury, in the form it finally takes, is wholly a question or questions of law, and I have decided as a question of law, in the first place, that under the Fourteenth Amendment which Miss Anthony claims protects her, she was not protected in a right to vote.

"And I have decided also," he continued, "that her belief and the advice which she took does not protect her in the act which she committed. If I am right in this, the result must be a verdict on your part of guilty, and therefore I direct that you find a verdict of guilty."

Again Henry Selden was on his feet. "That is a direction," he declared, "that no court has power to make in a criminal case."

The courtroom was tense. Susan, watching the jury and wondering if they would meekly submit to his will, heard the judge tersely order, "Take the verdict, Mr. Clerk."

"Gentlemen of the jury," intoned the clerk, "hearken to your verdict as the Court has recorded it. You say you find the defendant guilty of the offense whereof she stands indicted, and so say you all."

Claiming exception to the direction of the Court that the jury find a verdict of guilty in this a criminal case. Henry Selden asked that the jury be polled.

To this, Judge Hunt abruptly replied, "No. Gentlemen of the jury, you are discharged."

That night Susan recorded her estimate of Judge Hunt's verdict in her diary in one terse sentence, "The greatest outrage History ever witnessed."[307]

The New York _Sun_, the Rochester _Democrat and Chronicle_, and the Canandaigua _Times_ were indignant over Judge Hunt's failure to poll the jury. "Judge Hunt," commented the _Sun_, "allowed the jury to be impanelled and sworn, and to hear the evidence; but when the case had reached the point of rendering the verdict, he directed a verdict of guilty. He thus denied a trial by jury to an accused party in his court; and either through malice, which we do not believe, or through ignorance, which in such a flagrant degree is equally culpable in a judge, he violated one of the most important provisions of the Const.i.tution of the United States.... The privilege of polling the jury has been held to be an absolute right in this State and it is a substantial right ..."[308]

Claiming that the defendant had been denied her right of trial by jury. Henry Selden the next day moved for a new trial. Judge Hunt denied the motion, and, ordering the defendant to stand up, asked her, "Has the prisoner anything to say why sentence shall not be p.r.o.nounced."[309]

"Yes, your honor," Susan replied, "I have many things to say; for in your ordered verdict of guilty, you have trampled underfoot every vital principle of our government. My natural rights, my civil rights, my political rights, my judicial rights, are all alike ignored...."

Impatiently Judge Hunt protested that he could not listen to a rehearsal of arguments which her counsel had already presented.

"May it please your honor," she persisted, "I am not arguing the question but simply stating the reasons why sentence cannot in justice be p.r.o.nounced against me. Your denial of my citizen's right to vote is the denial of my right of consent as one of the governed, the denial of my right of representation as one of the taxed, the denial of my right to a trial by a jury of my peers ..."

"The Court cannot allow the prisoner to go on," interrupted Judge Hunt; but Susan, ignoring his command to sit down, protested that her prosecutors and the members of the jury were all her political sovereigns.

Again Judge Hunt tried to stop her, but she was not to be put off. She was pleading for all women and her voice rang out to every corner of the courtroom.

"The Court must insist," declared Judge Hunt, "the prisoner has been tried according to established forms of law."

"Yes, your honor," admitted Susan, "but by forms of law all made by men, interpreted by men, administered by men, in favor of men, and against women...."

"The Court orders the prisoner to sit down," shouted Judge Hunt. "It will not allow another word."

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

Once more Judge Hunt tried to stop her, and acquiescing at last, she sat down, only to be ordered by him to stand up as he p.r.o.nounced her sentence, a fine of $100 and the costs of prosecution.

"May it please your honor," she protested, "I shall never pay a dollar of your unjust penalty. All the stock in trade I possess is a $10,000 debt, incurred by publishing my paper--_The Revolution_ ... the sole object of which was to educate all women to do precisely as I have done, rebel against your man-made, unjust, unconst.i.tutional forms of law, that tax, fine, imprison, and hang women, while they deny them the right of representation in the government.... I shall earnestly and persistently continue to urge all women to the practical recognition of the old revolutionary maxim that 'Resistance to tyranny is obedience to G.o.d.'"

Pouring cold water on this blaze of oratory. Judge Hunt tersely remarked that the Court would not require her imprisonment pending the payment of her fine.

This shrewd move, obviously planned in advance, made it impossible to carry the case to the United States Supreme Court by writ of habeas corpus.

That same afternoon, Susan was on hand for the trial of the three election inspectors. This time Judge Hunt submitted the case to the jury but with explicit instructions that the defendants were guilty.

The jury returned a verdict of guilty, and the inspectors, denied a new trial, were each fined $25 and costs. Two of them, Edwin F. Marsh and William B. Hall, refused to pay their fines and were sent to jail.

Susan appealed on their behalf to Senator Sargent in Washington, who eventually secured a pardon for them from President Grant. He also presented a pet.i.tion to the Senate, in January 1874, to remit Susan's fine, as did William Loughridge of Iowa to the House, but the judiciary committees reported adversely.

Because neither of these cases had been decided on the basis of national citizenship and the right of a citizen to vote, Susan was heartsick. To have them relegated to the category of election fraud was as if her high purpose had been trailed in the dust. Wishing to spread reliable information about her trial and the legal questions involved, she had 3,000 copies of the court proceedings printed for distribution.[310]

It was hard for her to concede that justice for women could not be secured in the courts, but there seemed to be no way in the face of the cold letter of the law to take her case to the Supreme Court of the United States. This would have been possible on writ of habeas corpus had Judge Hunt sentenced her to prison for failure to pay her fine, but this he carefully avoided.

Even that intrepid fighter, John Van Voorhis, could find no loophole, and another of her loyal friends in the legal profession, Albert G.

Riddle, wrote her, "There is not, I think, the slightest hope from the courts and just as little from the politicians. They will never take up this cause, never! Individuals will, parties never--till the thing is done.... The trouble is that man can govern alone, and that, though woman has the right, man wants to do it, and if she wait for him to ask her, she will never vote.... Either man must be made to see and feel ... the need of woman's help in the great field of human government, and so demand it; or woman must arise and come forward as she never has, and take her place."[311]

The case of Virginia Minor of St. Louis still held out a glimmer of hope. She had brought suit against an election inspector for his refusal to register her as a voter in the presidential election of 1872, and the case of Minor vs. Happersett reached the United States Supreme Court in 1874. An adverse decision, on March 29, 1875, delivered by Chief Justice Waite, a friend of woman suffrage, was a bitter blow to Susan and to all those who had pinned their faith on a more liberal interpretation of the Fourteenth and Fifteenth Amendments.

Carefully studying the decision, Susan tried to fathom its reasoning, so foreign to her own ideas of justice. "s.e.x," she read, "has never been made of one of the elements of citizenship in the United States.... The XIV Amendment did not affect the citizenship of women any more than it did of men.... The direct question is, therefore, presented whether all citizens are necessarily voters."[312]

She read on: "The Const.i.tution does not define the privileges and immunities of citizens.... In this case we need not determine what they are, but only whether suffrage is necessarily one of them. It certainly is nowhere made so in express terms....

"When the Const.i.tution of the United States was adopted, all the several States, with the exception of Rhode Island, had Const.i.tutions of their own.... We find in no State were all citizens permitted to vote.... Women were excluded from suffrage in nearly all the States by the express provision of their const.i.tutions and laws ... No new State has ever been admitted to the Union which has conferred the right of suffrage upon women, and this has never been considered valid objection to her admission. On the contrary ... the right of suffrage was withdrawn from women as early as 1807 in the State of New Jersey, without any attempt to obtain the interference of the United States to prevent it. Since then the governments of the insurgent States have been reorganized under a requirement that, before their Representatives could be admitted to seats in Congress, they must have adopted new Const.i.tutions, republican in form. In no one of these Const.i.tutions was suffrage conferred upon women, and yet the States have all been restored to their original position as States in the Union ... Certainly if the courts can consider any question settled, this is one....

"Our province," concluded Chief Justice Waite, "is to decide what the law is, not to declare what it should be.... Being unanimously of the opinion that the Const.i.tution of the United States does not confer the right of suffrage upon any one, and that the Const.i.tutions and laws of the several States which commit that important trust to men alone are not necessarily void, we affirm the judgment of the Court below."

"A states-rights doc.u.ment," Susan called this decision and she scored it as inconsistent with the policies of a Republican administration which, through the Civil War amendments, had established federal control over the rights and privileges of citizens. If the Const.i.tution does not confer the right of suffrage, she asked herself, why does it define the qualifications of those voting for members of the House of Representatives? How about the enfranchis.e.m.e.nt of Negroes by federal amendment or the enfranchis.e.m.e.nt of foreigners? Why did the federal government interfere in her case, instead of leaving it in the hands of the state of New York?

Like most abolitionists, Susan had always regarded the principles of the Declaration of Independence as underlying the Const.i.tution and as the essence of const.i.tutional law. In her opinion, the interpretation of the Const.i.tution in the Virginia Minor case was not only out of harmony with the spirit of the Declaration of Independence, but also contrary to the wise counsel of the great English jurist, Sir Edward c.o.ke, who said, "Whenever the question of liberty runs doubtful, the decision must be given in favor of liberty."[313]

In the face of such a ruling by the highest court in the land, she was helpless. Women were shut out of the Const.i.tution and denied its protection. From here on there was only one course to follow, to press again for a Sixteenth Amendment to enfranchise women.

FOOTNOTES:

[304] Ms., Diary, April 26, 1873.

[305] _Trial_, p. 17.

[306] _Ibid._, pp. 62-68.

[307] Ms., Diary, June 18, 1873.

[308] Susan B. Anthony Sc.r.a.pbook, 1873, Library of Congress.

[309] _Trial_, pp. 81-85.