Defendant: Susan B.
Crime Charged: Unlawful voting
Chief Lawyers for Defendant: Henry R. Selden and John Van Voorhis
Chief Prosecutor: Richard Crowley
Judge: Ward Hunt
Place: Canandaigua, New York
Dates of Trial: June 17-18, 1873
Significance: Susan B. Anthony's casting of her ballot almost 50 years prior to the Nineteenth Amendment's national enfranchisement of American women was both an act of political defiance and an attempt to test whether the recently adopted Fourteenth Amendment would be interpreted as expanding or protecting women's rights.
When the Fourteenth Amendment became part of the U.S. Constitution in July 1868, women's rights leaders who had been actively campaigning through two decades for women's suffrage were angered by the wording of Section 2. That section, written to encourage states to give the vote to black males, seemed to place in doubt the citizenship of females by inserting the word "male" into the Constitution for the first time.
But Francis Minor, a lawyer and the husband of Virginia Minor (the president of the Woman Suffrage Association of Missouri and a plaintiff in the 1875 trial Minor v. Happersett [see page 104 of Women's Rights on Trial]), thought Section 1 of the Fourteenth Amendment was more to their point. It read:
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.
This clause, Minor wrote, confirmed the citizenship of women and made it clear that "provisions of the several state constitutions that exclude women from the franchise on account of sex, are violative alike of the spirit and letter of the federal Constitution."
Elizabeth Cady Stanton and Susan B. Anthony published Minor's analysis of the Fourteenth Amendment in their newspaper, the Revolution, and urged women to vote in defiance of any state law to the contrary. Women in at least 10 states heeded this advice in 1871 and 1872. Although most of the women were sent home, a few including Susan B. Anthony in 1872 managed to cast their ballots.
The Vote Is Cast
Anthony had consulted Judge Henry R. Selden before attempting voter registration in Rochester, New York. He concurred with Minor's reading of the Fourteenth Amendment and provided a written opinion saying so. Anthony took the written opinion with her and threatened the registrars with a lawsuit if she were turned away. Anthony and 14 other women registered, and they voted in the presidential election of November 5, 1872.
Anthony and the other women and the inspectors who had registered them were arrested on November 28. Bail was set at $500, and all but Anthony elected to pay it rather than face jail. Selden arranged Anthony's release until her trial. On January 21, 1873, a U.S. district judge reset her bail at $1,000. When Anthony again refused to pay her bail, Selden paid it, rather than "see a lady I respected put in jail."
Anthony's trial was scheduled to begin on May 13. Not waiting until then to tell her side of the story, she traveled to all 29 postal districts of her county and delivered the same speech:
Friends and fellow-citizens, I stand before you under indictment for the alleged crime of having voted illegally. . . We throw to the wind the old dogma that governments can give rights. The Declaration of Independence, the United States Constitution, the constitutions of the several states . . . propose to protect the people in the exercise of their God-given rights. No one of them pretends to bestow rights. . . . One half of the people of this Nation today are utterly powerless to blot from the statute books an unjust law, or to write a new and just one. . . . This form of government, that enforces taxation without representation that compels [women] to obey laws to which they have never given their consent that imprisons and hangs them without a trial by a jury of their peers that robs them, in marriage of the custody of their own persons, wages, and children [leaves] half of the people wholly at the mercy of the other half.
Following her "prejudic[ing] of any possible jury," in Monroe County, Anthony's trial was rescheduled for June 17 and moved to Canandaigua, a town in Ontario County, New York. By June 16, Anthony had delivered her speech in every village in Ontario county.
A Pre-judged Trial
On June 17, 1873, Anthony's trial opened before Judge Ward Hunt. The essence of the government's case was presented by U.S. District Attorney Richard Crowley: "Miss Susan B. Anthony . . . upon the 5th day of November, 1872, . . . voted. . . . At that time she was a woman."
Beverly W. Jones, one of the inspectors who had been arrested for registering Anthony, testified that he had both registered her and accepted ballots from her on November 5. The poll list containing Susan B. Anthony's name was introduced as further proof that she had voted, and Crowley rested the government's case.
When Selden called Anthony to the stand, Crowley objected, saying (since she was a woman), "She is not competent as a witness in her own behalf." Selden took the stand instead. He testified that he had agreed with Anthony as to the Fourteenth Amendment's protection of women's rights, and that he had counseled her to exercise her right of suffrage. He continued:
If the same act had been done by her brother under the same circumstances, the act would have been not only innocent, but honorable and laudable; but having been done by a woman it is said to be a crime. The crime, therefore, consists not in the act done, but in the simple fact that the person doing it was a woman and not a man.
As soon as Selden rested the defense's case, Hunt read a statement to the "Gentlemen of the Jury." Written prior to any argument of the case before him, it set forth that:
The right of voting, or the privilege of voting, is a right or privilege arising under the Constitution of the State, and not of the United States. . . . If the State of New York should provide that no person should vote until he had reached the age of 31 years, or after he had reached the age of 50 . . . I do not see how it could be held to be a violation of any right derived or held under the Constitution of the United States.
When Hunt also directed the jury to deliver a guilty verdict, Selden objected, stating "it is for the jury [to decide]." Hunt turned again to the jury:
I have decided as a question of law . . . that under the Fourteenth Amendment, which Miss Anthony claims protects her, she was not protected in a right to vote. . . . I therefore direct you to find a verdict of guilty.
Hunt then instructed the clerk to record the jury's verdict as guilty and refused Selden's request to have the jury polled.
A request for a new trial was denied. Hunt then asked Anthony, "Has the prisoner anything to say why sentence should not be pronounced?" but cut off her responses as "a rehearsal of arguments the prisoner's counsel has already consumed three hours in presenting." He then ordered the convicted Anthony to stand for sentencing. "The sentence of this Court," Hunt declared, "is that you pay a fine of $100 and the costs of prosecution."
Anthony responded, "May it please your honor, I will never pay a dollar of your unjust penalty. . . . 'Resistance to tyranny is obedience to God.'"
Hunt did not order her jailed, but released her, saying "Madam, the Court will not order you to stand committed until the fine is paid."
Susan B. Anthony neither paid her fine nor lived to see the Nineteenth Amendment's national enfranchisement of women in 1920. The Fourteenth Amendment was not successfully used to overturn a sex-biased law until Reed v. Reed (see page 112 of Women's Rights on Trial), 98 years later.
For Further Reading
Barry, Kathleen. Susan B. Anthony: A Biography. New York: New York University Press, 1988.
Flexner, Eleanor. Century of Struggle. Cambridge, Mass.: Harvard University Press, Belknap Press, 1959, revised 1975.
Frost, Elizabeth, and Kathryn Cullen-DuPont. Women's Suffrage in America: An Eyewitness History. New York: Facts on File, 1992.
Harper, Ida Husted. Life and Work of Susan B. Anthony. 1898. Reprint. Salem, N.H.: Ayer Co., 1983.
Stanton, Elizabeth Cady, Susan B. Anthony, and Matilda Joslyn Gage. History of Woman Suffrage, Vol. 2, 1882. Reprint. Salem, N.H.: Ayer Co., 1985.
Source: Women's Rights on Trial, 1st Ed., Gale, 1997, p.312.