The History of Woman Suffrage Volume II Part 90

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 trespa.s.s only; but because the intention and mind are secret, the intention must be judged of by the circ.u.mstances of the fact, and these circ.u.mstances are various, and may sometimes deceive, yet regularly and ordinarily these circ.u.mstances following direct in the case.

If A., thinking he hath a t.i.tle to the house of B., seizeth it as his own ... this regularly makes no felony, but a trespa.s.s only; but yet this may be a trick to color a felony, and the ordinary discovery of a felonious intent is, if the party doth it secretly or being charged with the goods denies it. (1 Hale's P. C, 509.)

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 a.s.sumed 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 judgment, p.r.o.nounce her guilty of the offense charged, in case the const.i.tution 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, can not const.i.tute 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 can not 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 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 inc.u.mbent 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 ent.i.tled to all the rights of a citizen on his coming of age. They also applied to two respectable counselors 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 a.s.sumed 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 can not 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 p.r.o.nounced his condemnation, upon their own principles, better than their victim, deserved the punishment which they inflicted. The condemnation of Miss Anthony, her good faith being conceded, would do no less violence to any fair administration of justice.

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 step by which it was possible to bring the great const.i.tutional 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 n.o.ble 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 a a criminal.

Her condemnation, however, under such circ.u.mstances, 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 questions which the case involves for your honor's consideration.

District Attorney Crowley followed Judge Selden with an argument two hours in length. He stated that, in his view, the case simply presented questions of law, and that his argument, therefore, would be addressed strictly to the court, leaving the court to give such instructions to the jury upon the facts as he might deem proper. He contended that the right to vote was not included in "privileges and immunities," and was only given by State laws and State const.i.tutions.

He concluded his argument by saying that an honest mistake of the facts may sometimes excuse, but a mistake of the law never. The COURT addressed the jury as follows:

_Gentlemen of the Jury:_ I have given this case such consideration as I have been able to, and, that there might be no misapprehension about my views, I have made a brief statement in writing.

The defendant is indicted under the act of Congress of 1870, for having voted for Representatives in Congress in November, 1872.

Among other things, that Act makes it an offense for any person knowingly to vote for such Representatives without having a right to vote. It is charged that the defendant thus voted, she not having a right to vote because she is a woman. The defendant insists that she has a right to vote; that the provision of the Const.i.tution of this State limiting the right to vote to persons of the male s.e.x is in violation of the XIV. Amendment of the Const.i.tution of the United States, and is void.

The XIII., XIV., and XV. Amendments were designed mainly for the protection of the newly emanc.i.p.ated negroes, but full effect must nevertheless be given to the language employed. The XIII.

Amendment provided that neither slavery nor involuntary servitude should longer exist in the United States. If honestly received and fairly applied, this provision would have been enough to guard the rights of the colored race. In some States it was attempted to be evaded by enactments cruel and oppressive in their nature; as that colored persons were forbidden to appear in the towns except in a menial capacity; that they should reside on and cultivate the soil without being allowed to own it; that they were not permitted to give testimony in cases where a white man was a party. They were excluded from performing particular kinds of business, profitable and reputable, and they were denied the right of suffrage. To meet the difficulties arising from this state of things, the XIV. and XV. Amendments were enacted.

The XIV. Amendment created and defined citizenship of the United States. It had long been contended, and had been held by many learned authorities, and had never been judicially decided to the contrary, that there was no such thing as a citizen of the United States, except as that condition arose from citizenship of some State. No mode existed, it was said, of obtaining a citizenship of the United States except by first becoming a citizen of some State. This question is now at rest. The XIV. Amendment defines and declares who shall be citizens of the United States, to wit: "All persons born or naturalized in the United States and subject to the jurisdiction thereof." The latter qualification was intended to exclude the children of foreign representatives and the like. With this qualification every person born in the United States or naturalized is declared to be a citizen of the United States, and of the State wherein he resides.

After creating and defining citizenship of the United States, the Amendment provides that no State shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the United States. This clause is intended to be a protection, not to all our rights, but to our rights as citizens of the United States only; that is, the rights existing or belonging to that condition or capacity. (The words "or citizen of a State,"

used in the previous paragraph, are carefully omitted here.) In article 4, paragraph 2, of the Const.i.tution of the United States it had been already provided in this language, viz: "The citizens of each State shall be ent.i.tled to all the privileges and immunities of the citizens in the several States." The rights of citizens of the States and of citizens of the United States are each guarded by these different provisions. That these rights were separate and distinct, was held in the Slaughter-house Cases recently decided by the United States Supreme Court at Washington.

The rights of citizens of the State, as such, are not under consideration in the XIV. Amendment. They stand as they did before the adoption of the XIV. Amendment, and are fully guaranteed by other provisions. The rights of citizens of the States have been the subject of judicial decision on more than one occasion. (Corfield _agt._ Coryell, 4 Wash. C. C. R., 371.

Ward _agt._ Maryland, 12 Wall., 430. Paul _agt._ Virginia, 8 Wall., 140.) These are the fundamental privileges and immunities belonging of right to the citizens of all free governments, such as the right of life and liberty; the right to acquire and possess property, to transact business, to pursue happiness in his own manner, subject to such restraint as the Government may adjudge to be necessary for the general good. In Cromwell _agt._ Nevada, 6 Wallace, 36, is found a statement of some of the rights of a citizen of the United States, viz:

To come to the seat of the Government to a.s.sert any claim he may have upon the Government, to transact any business he may have with it; to seek its protection; to share its offices; to engage in administering its functions. He has the right of free access to its seaports through which all operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.

Another privilege of a citizen of the United States, says Miller, Justice, in the "Slaughter-house" cases, is to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. The right to a.s.semble and pet.i.tion for a redress of grievances, the privilege of the writ of _habeas corpus_, he says, are rights of the citizen guaranteed by the Federal Const.i.tution.

The right of voting, or the privilege of voting, is a right or privilege arising under the Const.i.tution of the State, and not of the United States. The qualifications are different in the different States. Citizenship, age, s.e.x, residence, are variously required in the different States, or may be so. If the right belongs to any particular person, it is because such person is ent.i.tled to it by the laws of the State where he offers to exercise it, and not because of citizenship of the United States.

If the State of New York should provide that no person should vote until he had reached the age of thirty-one years, or after he had reached the age of fifty, or that no person having gray hair, or who had not the use of all his limbs, should be ent.i.tled to vote, I do not see how it could be held to be a violation of any right derived or held under the Const.i.tution of the United States. We might say that such regulations were unjust, tyrannical, unfit for the regulation of an intelligent State; but if rights of a citizen are thereby violated, they are of that fundamental cla.s.s derived from his position as a citizen of the State, and not those limited rights belonging to him as a citizen of the United States, and such was the decision in Corfield _agt._ Coryell, _supra_.

The United States rights appertaining to this subject are those first under article 1, paragraph 2, of the United States Const.i.tution, which provides that electors of Representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the State Legislature, and second, under the XV. Amendment, which provides that the right of a citizen of the United States to vote shall not be denied or abridged by the United States or by any State, on account of race, color, or previous condition of servitude. If the Legislature of the State of New York should require a higher qualification in a voter for a representative in Congress than is required for a voter for a member of a.s.sembly, this would, I conceive, be a violation of a right belonging to one as a citizen of the United States. That right is in relation to a federal subject or interest, and is guaranteed by the Federal Const.i.tution. The inability of a State to abridge the right of voting on account of race, color, or previous condition of servitude, arises from a federal guaranty. Its violation would be the denial of a federal right--that is, a right belonging to the claimant as a citizen of the United States.

This right, however, exists by virtue of the XV. Amendment. If the XV. Amendment had contained the word "s.e.x," the argument of the defendant would have been potent. She would have said, an attempt by a State to deny the right to vote because one is of a particular s.e.x, is expressly prohibited by that Amendment. The Amendment, however, does not contain that word. It is limited to race, color, or previous condition of servitude. The Legislature of the State of New York has seen fit to say, that the franchise of voting shall be limited to the male s.e.x. In saying this there is, in my judgment, no violation of the letter or of the spirit of the XIV. or of the XV. Amendment.

This view is a.s.sumed in the second section of the XIV. Amendment, which enacts that if the right to vote for Federal officers is denied by any State to any of the male inhabitants of such State, except for crime, the basis of representation of such State shall be reduced in proportion specified. Not only does this section a.s.sume that the right of male inhabitants to vote was the especial object of its protection, but it a.s.sumes and admits the right of a State, notwithstanding the existence of that clause under which the defendant claims to the contrary, to deny to cla.s.ses or portions of the male inhabitants the right to vote which is allowed to other male inhabitants. The regulation of the suffrage is thereby conceded to the States as a State's right.

The case of Myra Bradwell, decided at a recent term of the Supreme Court of the United States, sustains both the positions above put forth, viz: First, that the rights referred to in the XIV. Amendment are those belonging to a person as a citizen of the United States and not as a citizen of a State; and second, that a right of the character here involved is not one connected with citizenship of the United States. Mrs. Bradwell made application to be admitted to practice as an attorney and counselor-at-law in the Courts of Illinois. Her application was denied, and upon appeal to the Supreme Court of the United States, it was there held that to give jurisdiction under the XIV. Amendment, the claim must be of a right pertaining to citizenship of the United States, and that the claim made by her did not come within that cla.s.s of cases. Mr. Justice Bradley and Mr. Justice Field held that a woman was not ent.i.tled to a license to practice law. It does not appear that the other Judges pa.s.sed upon that question. The XIV. Amendment gives no right to a woman to vote, and the voting by Miss Anthony was in violation of the law.

If she believed she had a right to vote, and voted in reliance upon that belief, does that relieve her from the penalty? It is argued that the knowledge referred to in the act relates to her knowledge of the illegality of the act, and not to the act of voting; for it is said that she must know that she voted. Two principles apply here: First, ignorance of the law excuses no one; second, every person is presumed to understand and to intend the necessary effects of his own acts. Miss Anthony knew that she was a woman, and that the Const.i.tution of this State prohibits her from voting. She intended to violate that provision--intended to test it, perhaps, but certainly intended to violate it. The necessary effect of her act was to violate it, and this she is presumed to have intended. There was no ignorance of any fact, but all the facts being known, she undertook to settle a principle in her own person. She takes the risk, and she can not escape the consequences. It is said, and authorities are cited to sustain the position, that there can be no crime unless there is a culpable intent; to render one criminally responsible a vicious will must be present. A. commits a trespa.s.s on the land of B., and B., thinking and believing that he has a right to shoot an intruder on his premises, kills A. on the spot. Does B.'s misapprehension of his rights justify his act? Would a Judge be justified in charging the jury that if satisfied that B. supposed he had a right to shoot A he was justified, and they should find a verdict of not guilty? No Judge would make such a charge. 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. An intentional killing bears with it evidence of malice in law. Whoever, without justifiable cause, intentionally kills his neighbor, is guilty of a crime. The principle is the same in the case before us, and in all criminal cases. The precise question now before me has been several times decided, viz: That one illegally voting was bound and was a.s.sumed to know the law, and that a belief that he had a right to vote gave no defense, if there was no mistake of fact.

(Hamilton against The People, 57th of Barbour, p. 625; State against Boyet, 10th of Iredell, p. 336; State against Hart, 6th Jones, 389; McGuire against State, 7 Humphrey, 54; 15th of Iowa reports, 404.) No system of criminal jurisprudence can be sustained upon any other principle. a.s.suming that Miss Anthony believed she had a right to vote, that fact const.i.tutes no defense if in truth she had not the right. She voluntarily gave a vote which was illegal, and thus is subject to the penalty of the law.

The Judge directed the jury to find a verdict of guilty.

Judge SELDEN: I submit that on the view which your honor has taken, that the right to vote and the regulation of it is solely a State matter. That this whole law is out of the jurisdiction of the United States Courts and of Congress. The whole law upon that basis, as I understand it, is not within the const.i.tutional power of the General Government, but is one which applies to the States. I suppose that it is for the jury to determine whether the defendant is guilty of a crime or not. And I therefore ask your honor to submit to the jury these propositions:

First.--If the defendant, at the time of voting, believed that she had a right to vote and voted in good faith in that belief, she is not guilty of the offense charged.

Second.--In determining the question whether she did or did not believe that she had a right to vote, the jury may take into consideration, as bearing upon that question, the advice which she received from the counsel to whom she applied.

Third.--That they may also take into consideration, as bearing upon the same question, the fact that the inspectors considered the question and came to the conclusion that she had a right to vote.

Fourth.--That the jury have a right to find a general verdict of guilty or not guilty as they shall believe that she has or has not committed the offense described in the statute.

A professional friend sitting by has made this suggestion which I take leave to avail myself of as bearing upon this question: "The Court has listened for many hours to an argument in order to decide whether the defendant has a right to vote. The arguments show the same question has engaged the best minds of the country as an open question. Can it be possible that the defendant is to be convicted for acting upon such advice as she could obtain while the question is an open and undecided one?"

THE COURT.--You have made a much better argument than that, sir.

JUDGE SELDEN.--As long as it is an open question, I submit that she has not been guilty of an offense. At all events, it is for the jury.

THE COURT.--I can not charge these propositions of course. 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 XIV.

Amendment, which Miss Anthony claims protects her, she was not protected in a right to vote. And I have decided also that her belief and the advice which she took do 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 I therefore direct that you find a verdict of guilty.

JUDGE SELDEN.--That is a direction no Court has power to make in a criminal case.

THE COURT.--Take the verdict, Mr. Clerk.

THE CLERK.--Gentlemen of the jury, 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?

JUDGE SELDEN.--I don't know whether an exception is available, but I certainly must except to the refusal of the Court to submit those propositions, and especially to the direction of the Court that the jury should find a verdict of guilty. I claim that it is a power that is not given to any Court in a criminal case. Will the Clerk poll the jury? THE COURT.--No. Gentlemen of the jury, you are discharged.

On the next day a motion for a new trial was made and argued by Judge Selden, as follows:

_May it please the Court:_--The trial of this case commenced with a question of very great magnitude--whether by the Const.i.tution of the United States the right of suffrage was secured to female equally with male citizens. It is likely to close with a question of much greater magnitude--whether the right of trial by jury is absolutely secured by the Federal Const.i.tution to persons charged with crime before the Federal Courts.

I a.s.sume, without attempting to produce any authority on the subject, that this Court has power to grant to the defendant a new trial in case it should appear that in the haste and in the lack of opportunity for examination which necessarily attend a jury trial, any material error should have been committed prejudicial to the defendant, as otherwise no means whatever are provided by the law for the correction of such errors.

The defendant was indicted under the nineteenth section of the act of Congress of May 31, 1870, ent.i.tled, "An act to enforce the right of citizens of the United States to vote in the several States of this Union, and for other purposes," and was charged with having knowingly voted, without having a lawful right to vote, at the Congressional election in the Eighth Ward of the City of Rochester, in November last; the only ground of illegality being that the defendant was a woman.

The provisions of the act of Congress, so far as they bear upon the present case, are as follows:

Section 19. If at any election for representative or delegate in the Congress of the United States, any person shall knowingly personate and vote, or attempt to vote, in the name of any other person, whether living, dead, or fict.i.tious, or vote more than once at the same election for any candidate for the same office, or vote at a place where he may not be lawfully ent.i.tled to vote, or vote without having a lawful right to vote, ... every such person shall be deemed guilty of a crime, and shall for such crime be liable to prosecution in any court of the United States, of competent jurisdiction, and on conviction thereof, shall be punished by a fine not exceeding $500 or by imprisonment for a term not exceeding three years, or both, in the discretion of the Court, and shall pay the costs of prosecution.

It appeared on the trial that before voting the defendant 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.