Says article sixth: "Any law of Congress not made in pursuance of, or in unison with the Const.i.tution, is an illegal and void law." c.o.ke declared an Act of Parliament against Magna Charta was null and void.
But United States officials declare it a crime for a United States citizen to vote. If it is a crime for a native-born citizen, it ought to be a still greater crime for a foreign-born citizen. But the fact that citizenship carries with it the right of voting, is shown in the act of naturalization. A foreigner, after a certain length of residence in this country, proceeds to take out papers of citizenship. To become a citizen, is all that he needs to make of him a voter. At one and the same time he picks up a ballot, and his naturalization papers. Nothing more than his becoming a citizen is needed for him to vote--nothing less will answer. Susan B. Anthony is a native-born citizen. She had to take out no papers to make her a citizen--she was born in the United States--she is educated, intelligent, and FREE BORN. Native-born citizenship is generally conceded to be of more value than that which is bought. Do you not remember that when Paul was brought up, preparatory to being scourged, he demanded by what right they scourged him, a Roman citizen. The chief captain said, "I bought this freedom with a great price." Paul replied, "I am free born"; then great fear fell upon the chief captain, and he ordered the bonds removed from Paul. Native-born Roman citizenship was worth as much as that two thousand years ago.
To-day, the foreign-born American citizen, who has bought his freedom with a great price, who has left his home and country, and crossed the sea to a strange land, in order that he may find freedom, is held to be superior to "free born" American women citizens.
But Miss Anthony is not battling for herself alone, nor for the woman alone; she stands to-day, the embodiment of Republican principles. The question of to-day, is not has woman a right to vote, but has _any_ American citizen, white or black, native-born, or naturalized, a right to vote. The prosecution of Miss Anthony by the United States, for the alleged crime of having cast a vote at the last election, is a positive declaration of the government of the United States that it is a crime to vote. Let that decision be affirmed, and we have no republic; the ballot, the governing power in the hands of every person, is the only true republic. Each person to help make the laws which govern him or her, is the only true democracy. Individual responsibility, personal representation, exact political equality, are the only stable foundations of a republic, and when the United States makes voting a crime on the part of any free-born, law-abiding citizen, it strikes a blow at its own stability; it is undermining the very foundations of the republic--it is attempting to overthrow its own Const.i.tution.
Miss Anthony is to-day the representative of liberty; she is to-day battling for the rights of every man, woman and child in the country; she is not only upholding the right of every native-born citizen, but of every naturalized citizen; to-day is at stake in her person, the new-born hopes of foreign lands, the quickened instincts of liberty, so well nigh universal. All these are on trial with her; the destinies of America, the civilization of the world, are in the balance with her as she stands on her defence. If the women of this country are restricted in their right of self-government, what better is it for them to have been born in the United States, than to have been born in Russia, or France, or England, or many another monarchical country? No better; nor as well, as in all these countries, women vote upon certain questions.
In Russia, about one-half of the property of the country is in the hands of women, and they vote upon its disposition and control. In France and Sweden, women vote at munic.i.p.al elections, and in England, every woman householder or rate-payer, votes for city officers, for poor wardens and school commissioners, thus expressing her views as to the education of her children, which is a power not possessed by a single woman of this State of New York, whose boast has been that it leads the legislation of the world in regard to women. Property-holding women in England, vote equally with property-holding men, for every office except Parliamentary, and even that is near at hand, a pet.i.tion for it of 180,000 names going up last year. England, though a monarchy, is consistent with herself. As the foundation of English representation is property, not persons, property is allowed its representation, whether it is held by man or by woman.
"Are ye not of more value than many sparrows?" said one of old. Is it less pertinent for us to ask if personal representation is not more sacred than property representation? "Where governments lead, there are no revolutions," said the eloquent Castelar. But revolution is imminent in a government like ours, inst.i.tuted by the people, for the people, in its charters recognizing the most sacred rights of the people, but which, in a sovereign capacity, through its officials, tramples upon the most sacredly secured and guaranteed rights of the people.
The question brought up by this trial is not a woman"s rights question, but a citizen"s rights question. It is not denied that women are citizens,--it is not denied that Susan B. Anthony was born in the United States, and is therefore a citizen of the United States, and of the State wherein she resides, which is this State of New York. It cannot be denied that she is a person,--one of the people,--there is not a word in the Const.i.tution of the United States which militates against the recognition of woman as a person, as one of the people, as a citizen.
The whole question, then, to-day, turns on the power of the United States over the political rights of citizens--the whole question then, to-day, turns on the supreme authority of the National Const.i.tution.
The Const.i.tution recognizes native-born women as citizens, both of the United States, and of the States in which they reside, and the Enforcement Act of 1870, in unison with our national fundamental principles, is ent.i.tled "An Act _to enforce the right of citizens of the United States to vote_ in the several States of the Union." Out of those three words, "for other purposes," or any provisions of this act included in them, cannot be found authority for restraining any citizen not "guilty of partic.i.p.ating in the rebellion, or other crime," from voting, and we brand this prosecution of Miss Anthony by United States officials, under claim of provisions in this act, as _an illegal prosecution_--_an infamous prosecution_, in direct defiance of national law--dangerous in its principles, tending to subvert a republican form of government, and a direct step, whether so designed or not, to the establishment of a monarchy in this country. Where the right of one individual is attacked, the rights of all are menaced. A blow against one citizen, is a blow against every citizen.
The government has shown itself very weak in prosecuting Miss Anthony.
No astute lawyer could be found on a side so pregnant of flaws as this one, were not the plaintiff in the case, the sovereign United States.
The very fact of the prosecution is at one and the same time weakness on the part of the government, and an act of unauthorized authority. It is weakness, because by it, the United States comes onto the ground of the defendant, and, at once admits voting is an United States right, because United States rights _are citizens" rights_. By this prosecution, the United States clearly admits that protection of the ballot is an United States duty, instead of a State duty. It is an United States duty instead of a State duty, because voting is an United States right instead of a State right. This prosecution is an open admission by the United States, that voting is a _Const.i.tutional right_.
But the prosecution is also an admission of unauthorized authority in that by it, the United States _discriminates between citizens_. If there is one point of our government more strongly fortified than another, it is that the government is of the people. The Preamble of the Const.i.tution, heretofore quoted, _means all the people_, if language has a meaning. _All_ the people are citizens, if the fourteenth amendment has any signification at all.
If any minds are so obtuse as not to see that the ballot is an United States right,--if any person before me still claims suffrage as a state right alone, such person certainly cannot fail to see that under his views the United States has been guilty of a high-handed outrage upon Miss Anthony and the fourteen other women whom this great government,--this _big United States_ has prosecuted. Under this view of the right of suffrage such person cannot fail to see there has been unauthorized interference by the United States, with the duties and rights of the State of New York. And while Uncle Sam was thus busy last winter over the prosecution of women citizens of the State of New York, the State itself submitted in its Legislature, a resolution looking towards the recognition by the State of the right of tax-paying women to the ballot. Thus at one and the same time was seen the anomaly of a prosecution by the United States of women of the State of New York for an act that New York herself was resolving it right to perform, and which if the ballot is not a const.i.tutional right, the United States has no power over at all.
Look at this prosecution as you will, it presents a fine dilemma to solve; it presents to the country, as never before, the most important and vital question of United States rights; it presents the most important and vital question of unconst.i.tutional power which has grown to such dimensions in the hands of United States officials; and it must bring to people"s cognizance the very slight thread by which hangs the security of any citizen"s right to the ballot.
Governments try themselves. No government has been stable in the past; all have fallen because all have been one-sided; all have permitted the degradation of woman. Babylon fell; her religion defiled woman; the hand-writing appeared upon the wall, and in a single night she was overthrown. Neither was Rome immortal; her laws were cla.s.s laws; the rights of humanity were not respected; she underwent many changes, and that vast empire which once ruled the world lives now only in name.
Egypt held the wisdom of the world, and as to a certain extent she recognized the equality of woman, her empire endured for ages; at last, she too fell, for her civilization was still an unequal one.
Special laws, or laws specially defined for one particular body of people, on account of race, color, s.e.x, or occupation, is cla.s.s legislation, and bears the seeds of death within itself. It was the boast of our forefathers, that the rights for which they contended were the rights of human nature. Shall the women of this country forever have cause to say that the declaration and the const.i.tution are specially defined,--are organs of special law?
Where the legislative and executive function of the law are in the hands of a single cla.s.s, special law, or special renderings of law are the unvarying results. If the const.i.tution of the United States is defined and ruled by United States officials to discriminate between cla.s.ses of citizens, then the const.i.tution is by them made to be nothing less than an organ of special law, and is held not to sustain the rights of the people. While the cla.s.s which has usurped the legislative, the executive and the judicial functions of the government, defines political rights to belong to male citizens alone, the women of the United States are under special law; and while thus debarred from exercising their natural right of self-government, they are subjects, not citizens. It matters not if women never voted since the framing of the government, until now, this right has merely been retained by them; it has been held in abeyance, to be exercised by them whenever they chose. The principles advocated by the women to-day are the principles which brought on the revolutionary war, and Miss Anthony and other women a.s.sociated with her are exponents of the very principles which caused the colonies to rebel against the mother country.
The eyes of all nations are upon us; their hopes of liberty are directed towards us; the United States is now on trial by the light of its own underlying principle. Its a.s.sertion of human right to self-government lies a hundred years back of it. The chartered confirmation and renewal of this a.s.sertion has come up to our very day, and though all the world looked on and wondered to see us crush the rebellion of "61, it is at this hour,--at this soon coming trial of Miss Anthony at Canandaigua, before the Supreme Court of the Northern District of New York,--it is at this trial that republican inst.i.tutions will have their grand test, and as the decision is rendered for, or against the political rights of citizenship, so will the people of the United States find themselves free or slaves, and so will the United States have tried itself, and paved its way for a speedy fall, or for a long and glorious continuance.
Miss Anthony is to-day the representative of liberty. In all ages of the world, and during all times, there have been epochs in which some one person took upon their own shoulders the hopes and the sorrows of the world, and in their own person, through many struggles bore them onward.
Suddenly or gradually, as the case might be, men found the rugged path made smooth and the way opened for the world"s rapid advance. Such an epoch exists now, and such a person is Susan B. Anthony.
To you, men of Ontario county, has come an important hour. The fates have brought about that you, of all the men in this great land, have the responsibility of this trial. To you, freedom has come looking for fuller acknowledgement, for a wider area in which to work and grow. Your decision will not be for Susan B. Anthony alone; it will be for yourselves and for your children"s children to the latest generations.
You are not asked to decide a question under favor, but according to the foundation principles of this republic. You will be called upon to decide a question according to our great charters of liberty--the Declaration of Independence and the Const.i.tution of the United States.
You are to decide, not only on a question of natural right, but of absolute law, of the supreme law of the land. You are not to decide according to prejudice, but according to the const.i.tution. If your decision is favorable to the defendant, you will sustain the const.i.tution; if adverse, if you are blinded by prejudice; you will not decide against women alone, but against the United States as well. No more momentous hour has arisen in the interest of freedom, for the underlying principles of the republic, its warp and woof alike, is the exact and permanent political equality of every citizen of the nation, whether that citizen is native born or naturalized, white or black, man or woman. And may G.o.d help you.
JUDGE HUNT,
AND
The Right of Trial by Jury.
By JOHN HOOKER, Hartford, Conn.
The following article was intended for publication in a magazine, but the writer kindly contributed it for publication in this pamphlet.
In the recent trial of Susan B. Anthony for voting, (illegally, as was claimed, on the ground that as a woman she had no right to vote--a point which we do not propose to consider,) the course of Judge Hunt, in taking the case from the jury, and ordering a verdict of guilty to be entered up, was so remarkable, so contrary to all rules of law, and so subversive of the system of jury trials in criminal cases, that it should not be allowed to pa.s.s without an emphatic protest on the part of every public journal that values our liberties.
Let us first of all see precisely what were the facts. Miss Anthony was charged with having knowingly voted, without lawful right to vote, at the Congressional election in the eighth ward of the City of Rochester, in the State of New York, in November, 1872. The Act of Congress under which the prosecution was brought provides that, "If, at any election for representative or delegate in the Congress of the United States, any person shall knowingly personate and vote, or attempt to vote, in the name of any other person, whether living, dead or fict.i.tious, or vote more than once at the same election for any candidate for the same office, or vote at a place where he may not be lawfully ent.i.tled to vote, or vote without having a lawful right to vote, every such person shall be deemed guilty of a crime," &c.
The trial took place at Canandaigua, in the State of New York, in the Circuit Court of the United States, before Judge Hunt, of the Supreme Court of the United States.
The defendant pleaded not guilty--thus putting the Government upon the proof of their entire case, admitting, however, that she was a woman, but admitting nothing more.
The only evidence that she voted at all, and that, if at all, she voted for a representative in Congress, offered on the part of the government, was, that she handed four bits of paper, folded in the form of ballots, to the inspectors, to be placed in the voting boxes. There was nothing on the outside of these papers to indicate what they were, and the contents were not known to the witnesses nor to the inspectors. There were six ballot boxes, and each elector had the right to cast six ballots.
This evidence would undoubtedly warrant the conclusion that Miss Anthony voted for a Congressional representative, the fact probably appearing, although the papers before the writer do not show it, that one of the supposed ballots was placed by her direction in the box for votes for Members of Congress. The facts are thus minutely stated, not at all for the purpose of questioning their sufficiency, but to show how entirely it was a question of fact, and therefore a question for the jury.
Upon this evidence Judge Hunt directed the clerk to enter up a verdict of guilty. The counsel for the defendant interposed, but without effect, the judge closing the discussion by saying, "Take the verdict, Mr.
Clerk." The clerk then said, "Gentlemen of the jury, hearken to your verdict, as the Court has recorded it. You say you find the defendant guilty of the offence whereof she stands indicted, and so say you all."
To this the jury made no response, and were immediately after dismissed.
It is stated in one of the public papers, by a person present at the trial, that immediately after the dismissal of the jury, one of the jurors said to him that that was not his verdict, nor that of the rest, and that if he could have spoken he should have answered "Not guilty,"
and that other jurors would have sustained him in it. The writer has no authority for this statement, beyond the letter mentioned. The juror, of course, had a right, when the verdict was read by the clerk, to declare that it was not his verdict, but it is not strange, perhaps, that an ordinary juror, with no time to consider, or to consult with his fellows, and probably ignorant of his rights, and in awe of the Court, should have failed to a.s.sert himself at such a moment.
Probably the a.s.sumption by the judge that Miss Anthony in fact voted, did her no real injustice, as it was a notorious fact that she did vote, and claimed the right to do so. But all this made it no less an usurpation for the judge to take the case from the jury, and order a verdict of guilty to be entered up without consulting them.
There was, however, a real injustice done her by the course of the judge, inasmuch as the mere fact of her voting, and voting unlawfully, was not enough for her conviction. It is a perfectly settled rule of law that there must exist an intention to do an illegal act, to make an act a crime. It is, of course, not necessary that a person perpetrating a crime should have an actual knowledge of a certain law which forbids the act, but he must have a criminal intent. Thus, if one is charged with theft, and admits the taking of the property, which is clearly proved to have belonged to another, it is yet a good defence that he really believed that he had a right to take it, or that he took it by mistake.
Just so in a case where, as sometimes occurs, the laws regulating the right to vote in a State are of doubtful meaning, and a voter is uncertain whether he has a right to vote in one town or another, and, upon taking advice from good counsel, honestly makes up his mind that he has a right to vote in the town of A. In this belief he applies to the registrars of that town, who upon the statement of the facts, are of the opinion that he has a right to vote there, and place his name upon the list, and on election day he votes there without objection. Now, if he should be prosecuted for illegal voting, it would not be enough that he acknowledged the fact of voting, and that the judge was of the opinion that his view of the law was wrong. There would remain another and most vital question in the case, and that is, did he intend to vote unlawfully? Now, precisely the wrong that would be done to the voter in the case we are supposing, by the judge ordering a verdict of guilty to be entered up, was done by that course in Miss Anthony"s case. She thoroughly believed that she had a right to vote. In addition to this she had consulted one of the ablest lawyers in Western New York, who gave it as his opinion that she had a right to vote, and who testified on the trial that he had given her that advice. The Act of Congress upon which the prosecution was founded uses the term "knowingly,"--"shall knowingly vote or attempt to vote in the name of any other person, or more than once at the same election for any candidate for the same office, or vote at a place where he may not be lawfully ent.i.tled to vote, or without having a lawful right to vote." Here most manifestly the term "knowingly" does not apply to the mere _act_ of voting. It is hardly possible that a man should vote, and not know the fact that he is voting. The statute will bear no possible construction but that which makes the term "knowingly" apply to the _illegality_ of the act. Thus, "shall knowingly vote without having a lawful right to vote," can only mean, shall vote knowing that there is no lawful right to vote. This being so, there was manifestly a most vital question beyond that of the fact of voting, and of the conclusion of the judge that the voting was illegal, viz., did Miss Anthony vote, knowing that she had no right to vote.
Now, many people will say that Miss Anthony ought to have known that she had no right to vote, and will perhaps regard it as an audacious attempt for mere effect, to a.s.sert a right that she might think she ought to have, but could not really have believed that she had. But whatever degree of credit her claim to have acted honestly in the matter is ent.i.tled to, whether to much, or little, or none, it was entirely a question for the jury, and they alone could pa.s.s upon it. The judge had no right even to express an opinion on the subject to the jury, much less to instruct them upon it, and least of all to order a verdict of guilty without consulting them.
There seems to have been an impression, as the writer infers from various notices of the matter in the public papers, that the case had resolved itself into a pure question of law. Thus, a legal correspondent of one of our leading religious papers, in defending the course of Judge Hunt, says: "There was nothing before the Court but a pure question of law. Miss Anthony violated the law of the State intentionally and deliberately, as she openly avowed, and when brought to trial her only defence was that the law was unconst.i.tutional. Here was nothing whatever to go to the jury." And again he says: "In jury trials all questions of law are decided by the judge." This writer is referred to only as expressing what are supposed to be the views of many others.
To show, however, how entirely incorrect is this a.s.sumption of fact, I insert here the written points submitted by Miss Anthony"s counsel to the Court, for its instruction to the jury.
First--That if the defendant, at the time of voting, believed that she had a right to vote, and voted in good faith in that belief, she is not guilty of the offence charged.
Second--In determining the question whether she did or did not believe that she had a right to vote, the jury may take into consideration, as bearing upon that question, the advice which she received from the counsel to whom she applied.
Third--That they may also take into consideration, as bearing upon the same question, the fact that the inspectors considered the question, and came to the conclusion that she had a right to vote.
Fourth--That the jury have a right to find a general verdict of guilty or not guilty, as they shall believe that she has or has not been guilty of the offense prescribed in the statute.
This certainly makes it clear that the question was not "a pure question of law," and that there was "something to go to the jury." And this would be so, even if, as that writer erroneously supposes, Miss Anthony had openly avowed before the Court that she voted.