There was a desire on the part of many women to test the right to vote which they claimed was conferred on them by the Fourteenth Amendment, and in 1872 a number in different places attempted to cast their ballots at the November election. A few were accepted by the inspectors, but most of them were refused. On Friday morning, November 1, Miss Anthony read, at the head of the editorial columns of the Rochester Democrat and Chronicle, the following strong plea:
Now register! Today and tomorrow are the only remaining opportunities. If you were not permitted to vote, you would fight for the right, undergo all privations for it, face death for it. You have it now at the cost of five minutes' time to be spent in seeking your place of registration and having your name entered. And yet, on election day, less than a week hence, hundreds of you are likely to lose your votes because you have not thought it worth while to give the five minutes. Today and tomorrow are your only opportunities. Register now!
There was nothing to indicate that this appeal was made to men only, it said plainly that suffrage was a right for which one would fight and face death, and that it could be had at the cost of five minutes' time. She was a loyal American citizen, had just conducted a political campaign, was thoroughly conversant with the issues and vitally interested in the results of the election, and certainly competent to vote. She summoned her three faithful sisters and going to the registry office of the Eighth ward (in a barber's shop) they asked to be registered. There was some hesitation, but Miss Anthony read the Fourteenth Amendment and the article in the State constitution in regard to taking the oath, which made no sex-qualification, and at length their names were duly entered by the inspectors, Beverly W. Jones and Edwin F. Marsh, Republicans; William B. Hall, Democrat, objecting. Miss Anthony then called upon several other women in her ward, urging them to follow her example, and in all fifteen registered. The evening papers noted this fact and the next day enough women in other wards followed their example to bring the number up to fifty.
The Rochester Express and the Democrat and Chronicle (Republican) noted the circumstance, expressing no opinion, but the Union and Advertiser (Democratic) denounced the proceeding and declared that "if the votes of these women were received the inspectors should be prosecuted to the full extent of the law." This attack was kept up till the day of election, November 5, with the result of so terrorizing the inspectors that all refused to accept the votes of the women who had registered except those in the Eighth ward where the ballots of the fifteen3 were received.
In a letter to Mrs. Stanton, Miss Anthony says: "Well, I have been and gone and done it, positively voted this morning at 7 o'clock, and swore my vote in at that. Not a jeer, not a rude word, not a disrespectful look has met one woman. Now if all our suffrage women would work to this end of enforcing the constitutional supremacy of National over State law, what strides we might make from now on; but oh, I'm so tired! I've been on the go constantly for five days, but to good purpose, so all right. I hope you too voted."
The news of the acceptance of these votes was sent by the Associated Press to all parts of the country and created great interest and excitement. There was scarcely a newspaper in the United States which did not contain from one to a dozen editorial comments. Some of these were flippant or abusive, most of them non-committal but respectful, and many earnest, dignified and commendatory;4 a few, notably the New York Graphic, contained outrageous cartoons.
Immediately after registering Miss Anthony had gone to a number of the leading lawyers in Rochester for advice as to her right to vote on the following Tuesday, but none of them would consider her case. Finally she entered the office of Henry R. Selden, a leading member of the bar and formerly judge of the court of appeals. He listened to her attentively, took the mass of documents which she had brought with her—Benjamin F. Butler's minority report, Francis Minor's resolutions, Judge Riddle's speech made in Washington in a similar case the year previous, various Supreme Court decisions, an incontrovertible array of argument—and told her he would give her an answer on Monday. She called then and he said: "My brother Samuel and I have spent an entire day in examining these papers and we believe that your claim to a right to vote under the Fourteenth Amendment is valid. I will protect you in that right to the best of my ability."
Armed with this authority she cast her vote the next day, and advised the other women to do the same. As the inspectors hesitated to receive the votes, Miss Anthony assured them that should they be prosecuted she herself would bear all the expenses of the suit. They had been advised not to register the women by Silas J. Wagner, Republican supervisor. All three of the inspectors and also a bystander declared under oath that Daniel J. Warner, the Democratic supervisor, had advised them to register the names of the women; but on election day this same man attempted to challenge their votes. This, however, already had been done by one Sylvester Lewis, who testified later that he acted for the Democratic central committee. The general belief that these ladies voted the Republican ticket may have influenced this action.
About two weeks after election, Monday, November 18, Miss Anthony received a call from Deputy United States Marshal E.J. Keeney who, amid many blushes and much hesitation and stammering, announced that it was his unpleasant duty to arrest her. "Is this your usual method of serving a warrant?" she calmly inquired. The marshal, thus encouraged, produced the necessary legal document.5 As she wished to make some change in her dress, he told her she could come down alone to the commissioner's office, but she refused to take herself to court, so he waited until she was ready and then declined her suggestion that he put handcuffs on her. She had intended to have suit brought against those inspectors who refused to register the women, but it never had occurred to her that those who voted would themselves be arrested.
Under date of November 27, Judge Selden wrote her: "I suppose the commissioner will, as a matter of course, hold you for trial at the circuit court, whatever your rights may be in the matter. In my opinion, the idea that you can be charged with a crime on account of voting, or offering to vote, when you honestly believed yourself entitled to vote, is simply preposterous, whether your belief were right or wrong. However, the learned gentlemen engaged in this movement seem to suppose they can make a crime out of your honest deposit of your ballot, and perhaps they can find a respectable court or jury that will be of their opinion. If they do so I shall be greatly disappointed."
Miss Anthony and the fourteen other ladies who voted, went before U. S. Commissioner Storrs, U. S. District-Attorney Crowley and Assistant U. S. District-Attorney Pond, and were ordered to appear for examination Friday, November 29. Following is a portion of the examination of Miss Anthony by the commissioner:
Previous to voting at the 1st district poll in the Eighth ward, did you take the advice of counsel upon your voting?—Yes, sir.—Who was it you talked with?—Judge Henry E. Selden.—What did he advise you in reference to your legal right to vote?—He said it was the only way to find out what the law was upon the subject—to bring it to a test case.—Did he advise you to offer your vote?—Yes, sir.—State whether or not, prior to such advice, you had retained Mr. Selden. No, sir.—Have you anything further to say upon Judge Selden's advice?—I think it was sound.—Did he give you an opinion upon the subject?—He was like the rest of you lawyers—he had not studied the question.—What did he advise you?—He left me with this opinion: That he was a conscientious man; that he would thoroughly study the subject of woman's right to vote and decide according to the law.—Did you have any doubt yourself of your right to vote?—Not a particle.
Cross-examination—Would you not have made the same efforts to vote that you did, if you had not consulted with Judge Selden?—Yes, sir.—Were you influenced in the matter by his advice at all?—No, sir.—You went into this matter for the purpose of testing the question?—Yes, sir; I had been resolved for three years to vote at the first election when I had been at home for thirty days before.
It is an incident worthy of note that this examination took place and the commissioner's decision was rendered in the same