Chapter XXV:
Trial for Voting Under Fourteenth Amendment
(1873)
Miss Anthony's speech at Washington Convention; she appears before U.S. District-Judge at Albany and bail is increased to $1,000; addresses State Constitutional Commission; indicted by grand jury; becomes unconscious on lecture platform at Ft. Wayne; votes again; call for Twenty-fifth Suffrage Anniversary; Miss Anthony delivers her great Constitutional Argument in twenty-nine post office districts in Monroe Co.; District-Attorney moves her trial to another county; she speaks at twenty-one places and Mrs. Gage at sixteen in that county; Rochester Union and Advertiser condemns her; trial opens at Canandaigua; masterly argument of Judge Selden; Justice Ward Hunt delivers Written Opinion without leaving bench; declines to submit case to Jury or to allow it to be polled; refuses new trial; spirited encounter between Miss Anthony and Judge; newspaper comment; trial of Inspectors; Judge refuses to allow Counsel to address Jury; opinion of Mr. Van Voorhis; contributions sent to Miss Anthony by friends; death of sister Guelma McLean; Miss Anthony's letter of grief to mother; generous gift of Anson Lapham.
In the midst of these harassing circumstances Miss Anthony made the usual preparations for holding the annual woman suffrage convention in Washington, January 16 and 17, 1873, and presided over its deliberations. In her opening speech she said:
There are three methods of extending suffrage to new classes. The first is for the legislatures of the several States to submit the question to those already voters. Before the war this was the only way thought of, and during all those years we petitioned the legislatures to submit an amendment striking the word "male" from the suffrage clause of the State constitutions. The second method is for Congress to submit to the several legislatures a proposition for a Sixteenth Amendment which shall prohibit the States from depriving women citizens of their right to vote. The third plan is for women to take their right under the Fourteenth Amendment of the National Constitution, which declares that all persons are citizens, and no State shall deny or abridge the privileges or immunities of citizens.
Again, there are two ways of securing the right of suffrage under the Constitution as it is, one by a declaratory act of Congress instructing the officers of election to receive the votes of women; the other by bringing suits before the courts, as women already have done, in order to secure a judicial decision on the broad interpretation of the Constitution that all persons are citizens, and all citizens voters. The vaults in yonder Capitol hold the petitions of 100,000 women for a declaratory act, and the calendars of our courts show that many are already testing their right to vote under the Fourteenth Amendment. I stand here under indictment for having exercised my right as a citizen to vote at the last election; and by a fiction of the law, I am now in custody and not a free person on this platform.
Among the forcible resolutions adopted were one asserting "that States may regulate all local questions of property, taxation, etc., but the inalienable personal rights of citizenship must be declared by the Constitution, interpreted by the Supreme Court, protected by Congress, and enforced by the arm of the Executive;" and another declaring "that the criminal prosecution of Susan B. Anthony by the United States, for the alleged crime of exercising the citizen's right of suffrage, is an act of arbitrary and unconstitutional authority and a blow at the liberties of every citizen of this nation." Mrs. Gage, Mrs. Stanton, Mrs. Blake, Mrs. Belva A. Lockwood, Rev. Olympia Brown and others made ringing speeches on the right of women to vote under the Fourteenth Amendment, defended the course of Miss Anthony and denounced her arrest. This was the tenor of all the addresses. She was unanimously elected president for the ensuing year, notwithstanding prison walls loomed up before her; and then she hastened back to prepare for her legal battle.
Miss Anthony met her counsel at Albany, and on January 21 Judge Selden made a masterly argument before U.S. District-Judge N.K. Hall, in support of her demand for a writ of habeas corpus, and asked the discharge of the prisoner on the grounds: 1st, That in the act complained of she discharged a duty or, at all events, exercised a right, instead of committing a crime; that she had a constitutional and lawful right to offer her ballot and to have it received and counted; that she, as well as her brothers, was entitled to express her choice as to the persons who should make, and those who should execute the laws, inasmuch as she, as well as they, would be bound to observe them. 2d, That, if she had not that right, she in good faith believed that she had it and, therefore, her act lacked the indispensable ingredient of all crime, a corrupt intention.
The judge denied the writ and increased her bail to $1,000. From the first Miss Anthony had been determined not to recognize the right of the courts to interfere with her exercise of the franchise, and again she refused to give bail, insisting that rather than do this she preferred to go to jail. Judge Selden, however, in kindness of heart, said there were times when a client must be guided by advice of her counsel, and himself went on her bond. As she came out of the courtroom she met her other lawyer, Mr. Van Voorhis, and told him what had been done. He exclaimed, "You have lost your chance to get your case before the Supreme Court by writ of habeas corpus!" In her ignorance of legal forms she had not understood this, and at once she rushed back and tried to have the bond cancelled, but, to her bitter disappointment, this was impossible. When she demanded of Judge Selden, "Did you not know that you had estopped me from carrying my case to the Supreme Court?" he replied with his old-time courtesy, "Yes, but I could not see a lady I respected put in jail."
The following day, January 22, the commission then in session at Albany for the purpose of revising the State Constitution was addressed by Miss Anthony on woman's right to vote under the Constitution of the United States. Her attorneys, Selden and Van Voorhis, were present and, when she finished, the former said to her, "If I had heard this address first I could have made a far better argument before Judge Hall." Immediately following the judge's decision, Miss Anthony was indicted by the grand jury.1
During this winter she attended the Ohio and Illinois Suffrage conventions, and in a number of cities in these States and in Indiana made her great constitutional argument on the right of women to vote under the Fourteenth Amendment. Every newspaper in the country took up the points involved and the interest and agitation were wide-spread. She spoke at Ft. Wayne on February 25, an intensely cold night. Above her was an open scuttle, from which a stream of air poured down upon her head, and when half through her lecture she suddenly became unconscious. She was the guest of Mrs. Mary Hamilton Williams, and was taken at once to her home where she received every possible kindness and attention. As soon as she recovered consciousness she begged that steps be taken immediately to keep the occurrence from the Associated Press, as she feared that, on account of her mother's extremely delicate health, the shock and anxiety would prove fatal. Three nights later, although not wholly recovered, she spoke to a large audience at Marion, Ind.; the diary says, "going on the platform with fear and trembling."
She returned home, and on March 4 cast her ballot at the city election without any protest. Only two other ladies could be induced to vote, Mrs. Mary Pulver and Mrs. Mary S. Hebard. All of the others who had voted in the fall were thoroughly frightened, and their husbands and other male relatives were even more panic-stricken.
In the midst of her own perplexities Miss Anthony did not forget to issue the call2 for the May Anniversary in New York, where she made an address, detailing the incidents of her arrest and defending her rights as a citizen. All the speeches and letters of the convention were deeply sympathetic, and among the resolutions bearing on this question was one stating that since the underlying principle of our government is equality of political rights, therefore "the trial of Susan B. Anthony, though ostensibly involving only the political status of woman, in reality questions the right of every man to share in the government; that it is not Susan B. Anthony or the women of the