The History of Woman Suffrage Volume II Part 96

a.s.suming, therefore, that this application is properly before us, we come to the second question of whether, by the proceedings in court, the legal rights of the pet.i.tioner have been infringed, from which she has suffered. It would not seem to be germane to this question to inquire whether or not the pet.i.tioner had the legal right to vote, because that was a question of law fully within the competency of the judge to decide, and his decision did not necessarily work a hardship to the defendant, even if mistaken in judgment. Or, in other words, it was a rightful execution of a power intrusted to him by law, from which there was no appeal to this or any other jurisdiction.

We come, therefore, to the great question in this case: whether the judge erred in withdrawing the case from the jury. Upon this question it would seem that the judge himself vacillated in the trial, because he permitted evidence to be gone into on both sides as a question of fact, tending to show whether the pet.i.tioner did or did not vote, knowing that she had no right so to do; but afterward withdrew the consideration of that evidence, upon the fact of intention or guilty knowledge, wholly from the jury, and ordered a verdict to be entered up upon his own decision, without allowing the question either to be argued or submitted to the jury, or the jury to pa.s.s upon it.

There certainly can be no graver question affecting the rights of citizens than this. The whole theory of trial by jury at common law consists in the fundamental maxim that before any conviction can be had for a crime it must be pa.s.sed upon by twelve good and lawful men, the peers of the accused; and the very oath prescribed to jurors by the common law most distinctly guaranteed this right to the accused: "You shall well and truly try and true deliverance make, between the King and the prisoner at the bar, according to your evidence;" while at the common law the oath prescribed in civil cases gave a right to a judge to direct the jury in the matter of law, and to direct the verdict one way or the other, as he saw fit, the oath being substantially as follows: "You shall well and truly try the issue between party and party according to the law and the evidence given you."

Whatever changes may have been made in the practice of the States since the time of the earlier amendments to the Const.i.tution, certain it is that at that time, after a jury had been impaneled, there was no way that the accused could be put in jeopardy of life or limb without his cause being submitted to twelve men, and their unanimous verdict pa.s.sing upon the fact of his guilt or innocence. And this right your committee deem is not one lightly to be sacrificed. Burke once said that the whole English Const.i.tution and machinery of government--not quoting words--were only to put into a jury-box twelve honest men. What advantage could it be to an accused to put twelve honest men into the jury-box, if the judge, without asking for their opinion, or without their intervention, can order a verdict of guilty to be entered up against the accused?

Nothing, therefore, can be of more consequence to the citizen in troublous times to protect him against the exercise of usurped or other power for oppression, than the intervention of the judgment of his peers upon the question whether he has been guilty of a crime, or alleged offense against the Government. And in the judgment of your committee, we can not too scrupulously guard, in the interest of the liberty of the citizen, this great and almost invaluable right. The friends of liberty under the common-law system have stood for it and stood by it, strenuously and a.s.siduously, as the palladium of their liberties and the impenetrable shield of the people from oppression. By the order of the judge the defendant was deprived of this right, and if, in this case of minor consequence so far as regards the punishment inflicted, this can be done, so in the trial for murder or treason a judge may order a verdict of the jury without allowing them to pa.s.s upon the fact. It has been sometimes said "Can this be done?" We are clearly of the opinion that it can not and ought not to be done. It is sometimes said as a triumphant argument in favor of the exercise of this power, "Has not the judge the power to order a verdict of acquittal?" The answer to that, as a matter of law, is "No; he can only direct the jury that upon the facts and matter of law he believes the case can not be maintained, but that it is for the jury to say whether they will follow that direction;" and his remedy is to set aside that verdict, and that power has always been exercised at common law in favor of the prisoner, but he can not set aside the verdict of not guilty.

Sometimes, in the darker hours of English jurisprudence, the judges fined the jury when they were not the obedient instruments of their will but persisted in finding the defendants in state prosecutions not guilty when the judge thought they ought to have been found guilty; but neither Jeffreys nor Scroggs ever dared to set aside a verdict of not guilty.

Your committee have been led by the great consequence of this precedent more carefully and at length to give an examination to this question to which its importance would not otherwise have ent.i.tled it. But your committee do not find it necessary to impute any intent of wrong to the learned judge who tried this case; but the effect of his error was to deprive this pet.i.tioner of a great and beneficent right, guaranteed to her as strongly as any other by the Const.i.tution of her country, to have the question of her guilt pa.s.sed upon by her peers, which error has had the same effect upon her rights as an intentional a.s.sumption of power would have had, and may have hereafter, in bad times, wherein corrupt judges, wielding instruments of power, shield themselves by precedents set by good judges in good times.

Therefore, because the fine has been imposed by a court of the United States for an offense triable by jury, without the same being submitted to the jury, and because the court a.s.sumed to itself the right to enter a verdict without submitting the case to the jury, and in order that the judgment of the House of Representatives, if it concur with the judgment of the committee, may, in the most signal and impressive form, mark its determination to sustain in its integrity the common-law right of trial by jury, your committee recommend that the prayer of the pet.i.tioner be granted, and to this end report the following bill, with the recommendation that it do pa.s.s.

The Inspectors were counseled to refuse to pay their fines, and take the consequences.

HOUSE OF REPRESENTATIVES, Washington, Feb. 22, 1874.

MY DEAR MISS ANTHONY:--In regard to the Inspectors of Election, I would not, if I were they, pay, but allow any process to be served; and I have no doubt the President will remit the fine if they are pressed too far.

I am yours truly, BENJAMIN F. BUTLER.

On Miss Anthony's return home, February 26, 1874, she found the three Inspectors lodged in jail. She at once called on Judge Selden, and after consultation with him as to what could be done for their protection, telegrams were sent to influential friends in Washington, to which the following reply was received:

WASHINGTON, D. C., March 2, 1874--12 noon.

TO MISS SUSAN B. ANTHONY:--I laid the case of the Inspectors before the President to-day. He kindly orders their pardon.

Papers are being prepared.

A. A. SARGENT.

An a.s.sociated Press dispatch, dated Washington, March 2, 1874, said:

At the written request of Senator Sargent, the President to-day directed the Attorney-General to prepare the necessary papers to remit the fine and imprisonment of Hall, Marsh, and others, the Rochester Election Inspectors, who were tried and convicted in June, 1873, of registering Susan B. Anthony and other women, and receiving their votes.

The Rochester _Evening Express_ of Feb. 26, 1874, said:

TYRANNY IN ROCHESTER.--The arrest and imprisonment in our city jail of the Election Inspectors who received the votes of Susan B. Anthony and other ladies, at the polls of the Eighth Ward, some months ago, is a petty but malicious act of tyranny, of which the officers who are responsible for it will yet be ashamed. It should be known to the public that these young men received Miss Anthony's vote by the advice of the best legal talent that could be procured. The ladies themselves took oath that they were citizens of the United States and ent.i.tled to vote.... The Court, however, fined these inspectors $25 and costs, for an offense which at the worst is merely technical, and now, nearly nine months after conviction, in default of payment, they are seized and shut up in jail, away from their families and their business, and subjected to all the inconvenience to say nothing of the odium of such an incarceration. This is an outrage which ought not to be tolerated in this country, and we shall be disappointed if public sentiment does not yet rebuke, in thunder-tones, the authorities who have perpetrated it. Miss Anthony is willing to fight her own battles and take the consequences, but she naturally feels indignant that others should suffer in this matter through no fault of their own....

The Rochester _Democrat and Chronicle_ of March 26th, said:

AN OUTRAGE.--.... We regard this action on the part of District Attorney Crowley as an outrage, in that these young men, who, at the worst, are but accessories in the violation of law, are made to feel its terrors, while the chief criminal is allowed to defy the law with impunity. No effort has been made to satisfy the judgment of the court against Miss Anthony. She contemns the law which adjudged her guilty, and its duly appointed administrators are either too timid or too negligent of duty to endeavor to enforce it.... It is doubtful whether they had the right to refuse those votes. In any event their offense is venial as compared with hers. It does not look well for the District Attorney thus to proceed against the lesser offenders, while the chief offender snaps her fingers at the law, and dares its ministers to make her a martyr.... We write in no spirit of vindictiveness, nor even in one of antagonism toward Miss Anthony; but in the name of justice we are called upon to protest against the unseemly proceeding which persecutes those excellent young men and hesitates to attack this woman, who stands as a representative of what she regards a great reform, and in its advocacy shrinks not from any of the terrors the law may have in store for her. Mr. District Attorney, it is your duty to arrest Miss Anthony; to cross swords with an antagonist worthy of your steel. Your present action looks ign.o.ble, and is unworthy of you or of the office you fill.

More than a week elapsed before the arrival of President Grant's pardon papers, and during that time hundreds of the people of Rochester visited the "boys" in jail, and the best of dinners were furnished them daily by the fourteen women voters of the Eighth Ward.

VIRGINIA L. MINOR'S PEt.i.tION

IN THE CIRCUIT COURT OF ST. LOUIS COUNTY, DECEMBER TERM, 1872.

_St. Louis County, ss.:_ Virginia L. Minor and Francis Minor, her husband, Plaintiffs, _vs._ Reese Happersett, Defendant.

The plaintiff, Virginia L. Minor (with whom is joined her husband, Francis Minor, as required by the law of Missouri), states, that under the Const.i.tution and law of Missouri, all persons wishing to vote at any election, must previously have been registered in the manner pointed out by law, this being a condition precedent to the exercise of the elective franchise.

That on the fifteenth day of October, 1872 (one of the days fixed by law for the registration of voters), and long prior thereto, she was a native-born, free white citizen of the United States, and of the State of Missouri, and on the day last mentioned she was over the age of twenty-one years.

That on said day, the plaintiff was a resident of the thirteenth election district of the city and county of St. Louis, in the State of Missouri, and had been so residing in said county and election district, for the entire period of twelve months and more, immediately preceding said fifteenth day of October, 1872, and for more than twenty years had been and is a tax-paying, law-abiding citizen of the county and State aforesaid.

That on said last mentioned day, the defendant, having been duly and legally appointed Registrar for said election district, and having accepted the said office of Registrar and entered upon the discharge of the duties thereof at the office of registration, to wit: No. 2004 Market Street, in said city and county of St.

Louis, it became and was then and there his duty to register all citizens, resident in said district as aforesaid, ent.i.tled to the elective franchise, who might apply to him for that purpose.

The plaintiff further states, that wishing to exercise her privilege as a citizen of the United States, and vote for Electors for President and Vice-President of the United States, and for a Representative in Congress, and for other officers, at the General Election held in November, 1872: While said defendant was so acting as Registrar, on said 15th day of October, 1872, she appeared before him, at his office aforesaid, and then and there offered to take and subscribe the oath to support the Const.i.tution of the United States and of the State of Missouri, as required by the registration law of said State, approved March 10, 1871, and respectfully applied to him to be registered as a lawful voter, which said defendant then and there refused to do.

The plaintiff further states, that the defendant, well knowing that she, as a citizen of the United States and of the State of Missouri, resident as aforesaid, was then and there ent.i.tled to all the privileges and immunities of citizenship, chief among which is the elective franchise, and as such, was ent.i.tled to be registered, in order to exercise said privilege: yet, unlawfully intending, contriving, and designing to deprive the plaintiff of said franchise or privilege, then and there knowingly, willfully, maliciously, and corruptly refused to place her name upon the list of registered voters, whereby she was deprived of her right to vote.

Defendant stated to plaintiff, that she was not ent.i.tled to be registered, or to vote, because she was not a "male" citizen, but a woman! That by the Const.i.tution of Missouri, Art. II., Sec. 18, and by the aforesaid registration law of said State, approved March 10, 1871, it is provided and declared, that only "male citizens" of the United States, etc., are ent.i.tled or permitted to vote.

But the plaintiff protests against such decision, and she declares and maintains that said provisions of the Const.i.tution and registration law of Missouri aforesaid, are in conflict with, and repugnant to the Const.i.tution of the United States, which is paramount to State authority; and that they are especially in conflict with the following articles and clauses of said Const.i.tution of the United States, to wit:

Art. I. Sec. 9.--Which declares that no Bill of Attainder shall be pa.s.sed.

Art. I. Sec. 10.--No State shall pa.s.s any Bill of Attainder, or grant any t.i.tle of n.o.bility.

Art. IV. Sec. 2.--The citizens of each State shall be ent.i.tled to all privileges and immunities of citizens in the several States.

Art. IV. Sec. 4.--The United States shall guarantee to every State a republican form of government.

Art. VI.--This Const.i.tution and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, anything in the Const.i.tutions or laws of any State to the contrary notwithstanding.

AMENDMENTS.

Art. V.--No person shall be ... deprived of life, liberty, or property without due process of law.

Art. IX.--The enumeration in the Const.i.tution of certain rights, shall not be construed to deny or disparage others retained by the people.

Art. XIV. Sec. 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 process of law; nor deny to any person within its jurisdiction, the equal protection of the laws.

The plaintiff states, that by reason of the wrongful act of the defendant as aforesaid, she has been damaged in the sum of ten thousand dollars, for which she prays judgment.

JOHN M. KRUM, } FRANCIS MINOR, } _Att'ys for Plffs._ JOHN B. HENDERSON, }

_Demurrer. In the Circuit Court of St. Louis County:_ Virginia L.

Minor and Francis Minor, her husband, Plaintiffs, _vs._ Reese Happersett.

The defendant, Reese Happersett, demurs to the pet.i.tion of plaintiffs, and for cause of demurrer defendant states that said pet.i.tion does not state facts sufficient to const.i.tute a cause of action, for the following reasons:

1. Because said Virginia L. Minor, plaintiff, had no right to vote at the general election held in November, 1872, in said pet.i.tion referred to.