The History of Woman Suffrage Volume II Part 93

These points were amplified by the counsel at some length, who closed by saying, "The defendants should be discharged by the Court." Mr.

Crowley then rose to make his argument, when the Court said:

The COURT: I don't think it is necessary for you to spend time in argument, Mr. Crowley. I think upon the last authority cited by the counsel there is no defense in this case. It is entirely clear that where there is a distinct judicial act, the party performing the judicial act is not responsible, civilly or criminally, unless corruption is proven, and in many cases when corruption is not proven. But where the act is not judicial in its character--where there is no discretion--then there is no legal protection. That is the law as laid down in the authority last quoted, and the authority quoted by Judge Selden in his opinion. It is undoubtedly good law. They hold expressly in that case that the inspectors are administrative officers, and not judicial officers.

Now, this is the point in the case, in my view of it: If there was any case in which a female was ent.i.tled to vote, then it would be a subject of examination. If a female over the age of twenty-one was ent.i.tled to vote, then it would be within the judicial authority of the inspectors to examine and determine whether in the given case the female came within that provision.

If a married woman was ent.i.tled to vote, or if a married woman was not ent.i.tled to vote, and a single woman was ent.i.tled to vote, I think the inspectors would have a right in a case before them, to judge upon the evidence whether the person before them was married or single. If they decided erroneously, their judicial character would protect them. But under the law of this State, as it stands, under no circ.u.mstances is a woman ent.i.tled to vote. When Miss Anthony, Mrs. Leyden, and the other ladies came there and presented themselves for registry, and presented themselves to offer their votes, when it appeared that they were women--that they were of the female s.e.x--the power and authority of the inspectors was at an end. When they act upon a subject upon which they have no discretion, I think there is no judicial authority. There is a large range of discretion in regard to the votes offered by the male s.e.x. If a man offers his vote, there is a question whether he is a minor--whether he is twenty-one years of age. The subject is within their jurisdiction. If they decide correctly, it is well; if they decide erroneously, they act judicially, and are not liable. If the question is whether the person presenting his vote is a foreigner or naturalized, or whether he has been a resident of the State or district for a sufficient length of time, the subject is all within their jurisdiction, and they have a right to decide, and are protected if they decide wrong.

But upon the view which has been taken of this question of the right of females to vote, by the United States Court at Washington, and by the adjudication which was made this morning, upon this subject there is no discretion, and therefore I must hold that it affords no protection. In that view of the case, is there anything to go to the jury?

Mr. VAN VOORHIS: Yes, your honor. The COURT: What?

Mr. VAN VOORHIS: The jury must pa.s.s upon the whole case, and particularly as to whether any ballots were received for representative in Congress, or candidates for representative in Congress, and whether the defendants acted willfully and maliciously.

The COURT: It is too plain to argue that. Mr. VAN VOORHIS: There is nothing but circ.u.mstantial evidence.

The COURT: Your own witness testified to it. Mr. VAN VOORHIS: But "knowingly," your honor, implies knowing that it is a vote for representative in Congress.

The COURT: That comes within the decision of the question of law.

I don't see that there is anything to go to the jury. Mr. VAN VOORHIS: I can not take your honor's view of the case, but of course must submit to it. We ask to go to the jury upon this whole case, and claim that in this case, as in all criminal cases, the right of trial by jury is made inviolate by the Const.i.tution--that the Court has no power to take it from the jury. The COURT: I am going to submit it to the jury.

_Gentlemen of the Jury:_ This case is now before you upon the evidence as it stands, and I shall leave the case with you to decide. Mr. VAN VOORHIS: I claim the right to address the jury.

The COURT: I don't think there is anything upon which you can legitimately address the jury. _Gentlemen_, the defendants are charged with knowingly, willfully, and wrongfully receiving the votes of the ladies whose names are mentioned, in November last, in the city of Rochester. They are charged in the same indictment with willfully and improperly registering those ladies. I decided in the case this morning, which many of you heard, probably, that under the law as it stands the ladies who offered their votes had no right to vote whatever. I repeat that decision, and I charge you that they had no right to offer their votes. They having no right to offer their votes, the inspectors of election ought not to receive them. The additional question exists in this case whether the fact that they acted as inspectors will relieve them from the charge in this case. You have heard the views which I have given upon that. I think they are administrative officers. I charge you that they are administrative and ministerial officers in this respect, and that they are not judicial officers whose action protects them, and that therefore they are liable in this case. But, instead of doing as I did in the case this morning--directing a verdict--I submit the case to you with these instructions, and you can decide it here, or you may go out.

Mr. VAN VOORHIS: I ask your honor to instruct the jury that if they find these inspectors acted honestly, in accordance with their best judgment, they should be acquitted. The COURT: I have expressly ruled to the contrary of that, gentlemen; that that makes no difference.

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

Van Voorhis.

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

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

The COURT: I can not charge that.

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

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

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

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

The COURT: If that gentleman desires to ask any questions in respect to the questions of law, or the facts in the case, I will give him any information he desires. [No response from the jury.]

It is quite proper, if any gentleman has doubts about anything, either as to the law or the facts, that he should state it to the Court. Counsel are both present, and I can give such information as is correct. A JUROR: I don't wish to ask any questions.

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

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

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

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

The FOREMAN: Guilty.

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

On the next day, June 19, 1873, the counsel for the defendants, Mr.

John Van Voorhis, made a motion to the court for a new trial in behalf of Beverley W. Jones, Edwin T. Marsh, and William B. Hall. The following are the grounds of the motion:

1. The indictment contains no sufficient statement of any crime under the Acts of Congress, upon which it is framed. 2. The court has no jurisdiction of the subject matter of the offense. 3. It was an error, for which a new trial should be granted, to refuse the defendants the fundamental right to address the jury through their counsel. This is a right guaranteed by the United States Const.i.tution. (See Article VI. of the amendments to the U.S.

Const.i.tution. 1 Graham and Waterman on New Trials, pages 682, 683, and 684.) 4. The defendants were substantially deprived of the right of jury trial. The instructions of the court to the jury were imperative. They were equivalent to a direction to find a verdict of guilty. It was said by the court in the hearing of the jury, that the case was submitted to the jury "as a matter of form." The jury was not at liberty to exercise its own judgment upon the evidence, and without committing a gross discourtesy to the court, could render no verdict except that of guilty. 5.

Admitting that the defendants acted without malice, or any corrupt motive, and in accordance with their best judgments, and in perfect good faith, it was error to charge that that was no defense. 6. The defendants are admitted to have acted in accordance with their duty as defined by the laws of New York (1 R. S. Edmonds' Ed., pp. 126-127, sections 13, 14, 15, 16, 17, 18 and 19) as construed by the Court of Appeals. (People _vs._ Pease, 27 N. Y. 45.)

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

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

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

EDWIN T. MARSH said: In October last, just previous to the time fixed for the sitting of the Board of Registrars in the first district of the eighth ward of Rochester, a vacancy occurred. I was solicited to act, and consenting, I was duly appointed by the common council. I had never given the matter a thought until called to the position, and as a consequence knew nothing of the law. On the morning of the first day of the last session of the board, Miss Anthony and other women presented themselves and claimed the right to be registered. So far as I knew, the question of woman suffrage had never come up in that shape before. We were in a position where we could take no middle course. Decide which way me might, we were liable to prosecution.

We devoted all the time to acquiring information on the subject that our duties as Registrars would allow. We were expected, it seems, to make an infallible decision, inside of two days, of a question in regard to which some of the best minds of the country are divided. The influences by which we were surrounded, were nearly all in unison with the course we took. I believed then, and believe now, that we acted lawfully.

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

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

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

Forty-third Congress, First Session, Senate, Mis. Doc. No. 39. A pet.i.tion of Susan B. Anthony praying for the remission of a fine imposed upon her by the United States Court for the Northern District of New York, for illegal voting. January 22, 1874.

Referred to the Committee on the Judiciary and ordered to be printed.

_To the Congress of the United States:_

The pet.i.tion of Susan B. Anthony, of the city of Rochester, in the county of Monroe, and State of New York, respectfully represents: That, prior to the late presidential election, your pet.i.tioner applied to the Board of Registry in the Eighth Ward of the city of Rochester, in which city she had resided for more than twenty-five years, to have her name placed upon the register of voters; and the Board of Registry, after consideration of the subject, decided that your pet.i.tioner was ent.i.tled to have her name placed upon the register, and placed it there accordingly.

On the day of election your pet.i.tioner, in common with hundreds of other American citizens, her neighbors, whose names had also been registered as voters, offered to the inspectors of election her ballots for electors of President and Vice-President, and for members of Congress, which were received and deposited in the ballot-box by the inspectors. For this act of your pet.i.tioner an indictment was found against her by the grand jury, at the sitting of the District Court of the United States for the Northern District of New York, at Albany, charging your pet.i.tioner, under the nineteenth section of the act of Congress of May 31, 1870, ent.i.tled "An act to enforce the rights of citizens of the United States to vote in the several States of this Union, and for other purposes," with having "knowingly voted without having a lawful right to vote."

To that indictment your pet.i.tioner pleaded not guilty, and the trial of the issue thus joined took place at the Circuit Court in Canandaigua, in the county of Ontario, before the Honorable Ward Hunt, one of the Justices of the Supreme Court of the United States, on the 18th day of June last. Upon that trial the facts of voting by your pet.i.tioner, and that she was a woman, were not denied; nor was it claimed on the part of the Government than your pet.i.tioner lacked any of the qualifications of a voter, unless disqualified by reason of her s.e.x. It was shown on behalf of your pet.i.tioner, on the trial, that before voting she called upon a respectable lawyer and asked his opinion whether she had a right to vote, and he advised her that she had such right, and the lawyer was examined as a witness in her behalf, and testified that he gave her such advice, and that he gave it in good faith, believing that she had such right. It also appeared that when she offered to vote, the question whether, as a woman, she had a right to vote, was raised by the inspectors, and considered by them in her presence, and they decided that she had a right to vote, and received her vote accordingly.

It was shown on the part of the Government that, on the examination of your pet.i.tioner before the commissioner on whose warrant she was arrested, your pet.i.tioner stated that she should have voted if allowed to vote, without reference to the advice of the attorney whose opinion she asked; that she was not induced to vote by that opinion; that she had before determined to offer her vote, and had no doubt about her right to vote. At the close of the testimony, your pet.i.tioner's counsel proceeded to address the jury, and stated that he desired to present for consideration three propositions, two of law, and one of fact: 1. That your pet.i.tioner had a lawful right to vote. 2. That whether she had a right to vote or not, if she honestly believed that she had that right, and voted in good faith in that belief, she was guilty of no crime. 3. That when your pet.i.tioner gave her vote she gave it in good faith, believing that it was her right to do so.

That the two first propositions presented questions for the court to decide, and the last question for the jury. When your pet.i.tioner's counsel had proceeded thus far, the judge suggested that the counsel had better discuss, in the first place, the questions of law, which the counsel proceeded to do; and, having discussed the two legal questions at length, asked then to say a few words to the jury on the question of fact. The judge then said to the counsel that he thought that had better be left until the views of the court upon the legal questions should be made known.

The district attorney thereupon addressed the court at length upon the legal questions, and at the close of his argument the judge delivered an opinion adverse to the positions of your pet.i.tioner's counsel upon both of the legal questions presented, holding that your pet.i.tioner was not ent.i.tled to vote; and that if she voted in good faith in the belief in fact that she had a right to vote, it would const.i.tute no defense; the ground of the decision on the last point being that your pet.i.tioner was bound to know that by the law she was not a legal voter, and that even if she voted in good faith in the contrary belief, it const.i.tuted no defense to the crime with which she was charged.

The decision of the judge upon those questions was read from a written doc.u.ment, and at the close of the reading the judge said that the decision of those questions disposed of the case and left no question of fact for the jury, and that he should therefore direct the jury to find a verdict of guilty. The judge then said to the jury that the decision of the court had disposed of all there was in the case, and that he directed them to find a verdict of guilty; and he instructed the clerk to enter such a verdict.

At this time, before any entry had been made by the clerk, your pet.i.tioner's counsel asked the judge to submit the case to the jury, and to give to the jury the following several instructions.

[See page 680.]