No opportunity has been given me to consult precedents on this subject, but a friend has referred me to an authority strongly supporting my position, from which I will quote, though I deem a reference to precedents unnecessary to sustain the plain declarations of the Const.i.tution: I refer to the case of the _State vs. Shule_, (_10 Iredell, 153_,) the substance of which is stated in _2 Graham & Waterman_ on New Trials, page 363. Before stating that case I quote from the text of G. & W.
"The verdict is to be the result of the deliberation of the jury upon all the evidence in the case. The Court has no right to antic.i.p.ate the verdict by an expression of opinion calculated so to influence the jury as to take from them their independence of action."
In the _State vs. Shule_, two defendants were indicted for an affray.
"The jury remaining out a considerable time, at the request of the prosecuting attorney they were sent for by the Court. The Court then charged them that although Jones, (the other defendant,) had first commenced a battery upon Shule, yet, if the jury believed the evidence, the defendant, Shule, was also guilty. Thereupon, one of the jurors remarked that they had agreed to convict Jones, but were about to acquit Shule. The Court then charged the jury again, and told them that they could retire if they thought proper to do so. The jury consulted together a few minutes in the Court room. The prosecuting attorney directed the clerk to enter a verdict of guilty as to both defendants.
When the clerk had entered the verdict, the jury were asked to attend to it, as it was about to be read by the clerk. The clerk then read the verdict in the hearing of the jury. The jury, upon being requested, if any of them disagreed to the verdict to make, it known by a nod, seemed to express their unanimous a.s.sent; and no juror expressed his dissent."
In reviewing the case the Court say: "The error complained of is, that before the jury had announced their verdict, and in fact after they had intimated an intention to acquit the defendant, Shule, the Court allowed the clerk to be directed to enter a verdict finding him guilty, and after the verdict was so entered, allowed the jury to be asked if any of them disagreed to the verdict which had been recorded by the clerk. No juror expressed his dissent; but by a nod which appeared to be made by each juror, expressed their unanimous a.s.sent. The innovation is, that instead of permitting the jury to give their verdict, the Court allows a verdict to be entered for them, such as it is to be presumed the Court thinks they ought to render, and then they are asked if any of them disagree to it; thus making a verdict for them, unless they are bold enough to stand out against a plain intimation of the opinion of the Court." A _venire de novo_ was ordered. The princ.i.p.al difference between this case and the one under consideration is, that in the latter the Court directed the clerk to enter the verdict, and in the former he was allowed to do so, and in the latter the Court denied liberty to the jurors to dissent from the verdict, and in the former the Court allowed such dissent.
With what jealous care the right of trial by jury in criminal cases has been guarded by every English speaking people from the days of King John, indeed from the days of King Alfred, is known to every lawyer and to every intelligent layman, and it does not seem to me that such a limitation of that right as is presented by the proceedings in this case, can be reconciled either with const.i.tutional provisions, with the practice of courts, with public sentiment on the subject, or with safety in the administration of justice. How the question would be regarded by the highest Court of this State may fairly be gathered from its decision in the case of _Cancemi, 18 N.Y., 128_, where, on a trial for murder, one juror, some time after the trial commenced, being necessarily withdrawn, a stipulation was entered into, signed by the District-Attorney, and by the defendant and his counsel, to the effect that the trial should proceed before the remaining eleven jurors, and that their verdict should have the same effect as the verdict of a full panel would have. A verdict of guilty having been rendered by the eleven jurors, was set aside and a new trial ordered by the Court of Appeals, on the ground that the defendant could not, even by his own consent, be lawfully tried, by a less number of jurors than twelve. It would seem to follow that he could not waive the entire panel, and effectually consent to be tried by the Court alone, and still less could the Court, against his protest, a.s.sume the duties of the jury, and effectually p.r.o.nounce the verdict of guilty or not guilty in their stead.
It will doubtless be insisted that there was no disputed question of fact upon which the jury were required to pa.s.s. In regard to that, I insist that however clear and conclusive the proof of the facts might appear to be, the response to the question, guilty or not guilty, must under the Const.i.tution come from the jury and could not be supplied by the judgment of the Court, unless, indeed, the jury should see fit to render a special verdict, which they always may, but can never be required, to do.
It was the province of the Court to instruct the jury as to the law, and to point out to them how clearly the law, on its view of the established facts, made out the offence; but it has no authority to instruct them positively on any question of fact, or to order them to find any particular verdict. That must be their spontaneous work.
But there was a question of fact, which const.i.tuted the very essence of the offence, and one on which the jury were not only ent.i.tled to exercise, but were in duty bound to exercise, their independent judgment. That question of fact was, whether the defendant, at the time when she voted, knew that she had not a right to vote. The statute makes this knowledge the very gist of the offence, without the existence of which, in the mind of the voter, at the time of voting, there is no crime. There is none by the statute and none in morals. The existence of this knowledge, in the mind of the voter, at the time of voting, is under the statute, necessarily a fact and nothing but a fact, and one which the jury was bound to find as a fact, before they could, without violating the statute, find the defendant guilty. The ruling which took that question away from the jury, on the ground that it was a question of law and not of fact, and which declared that as a question of law, the knowledge existed, was, I respectfully submit, a most palpable error, both in law and justice. It was an error in law, because its effect was to deny any force whatever to the most important word which the statute uses in defining the offense--the word "knowingly." It was also unjust, because it makes the law declare a known falsehood as a truth, and then by force of that judicial falsehood condemns the defendant to such punishment as she could only lawfully be subject to, if the falsehood were a truth.
I admit that it is an established legal maxim that every person (judicial officers excepted) is bound, and must be presumed, to know the law. The soundness of this maxim, in all the cases to which it can properly be applied, I have no desire to question; but it has no applicability whatever to this case. It applies in every case where a party does an act which the law p.r.o.nounces criminal, whether the party knows or does not know that the law has made the act a crime. That maxim would have applied to this case, if the defendant had voted, knowing that she had no legal right to vote; without knowing that the law had made the act of knowingly voting without a right, a crime. In that case she would have done the act which the law made a crime, and could not have shielded herself from the penalty by pleading ignorance of the law.
But in the present case the defendant has not done the act which the law p.r.o.nounces a crime. The law has not made the act of voting without a lawful right to vote, a crime, where it is done by mistake, and in the belief by the party voting that he has the lawful right to vote. The crime consists in voting "knowingly," without lawful right. Unless the knowledge exists in fact, is the very gist of the offence is wanting. To hold that the law presumes conclusively that such knowledge exists in all cases where the legal right is wanting, and to reject all evidence to the contrary, or to deny to such evidence any effect, as has been done on this trial, is to strike the word "knowingly" out of the statute--and to condemn the defendant on the legal fiction that she was acting in bad faith, it being all the while conceded that she was in fact acting in good faith. I admit that there are precedents to sustain such ruling, but they cannot be reconciled with the fundamental principles of criminal law, nor with the most ordinary rules of justice.
Such a ruling cannot but shock the moral sense of all right-minded, unprejudiced men.
No doubt the a.s.sumption by the defendant of a belief of her right to vote might be made use of by her as a mere cover to secure the privilege of giving a known illegal vote, and of course that false a.s.sumption would const.i.tute no defence to the charge of illegal voting. If the defendant had dressed herself in male attire, and had voted as John Anthony, instead of Susan, she would not be able to protect herself against a charge of voting with a knowledge that she had no right to vote, by a.s.serting her belief that she had a right to vote as a woman.
The artifice would no doubt effectually overthrow the a.s.sertion of good faith. No such question, however, is made here. The decision of which I complain concedes that the defendant voted in good faith, in the most implicit belief that she had a right to vote, and condemns her on the strength of the legal fiction, conceded to be in fact a mere fiction, that she knew the contrary.
But if the facts admitted of a doubt of the defendant"s good faith, that was a question for the jury, and it was clear error for the court to a.s.sume the decision of it.
Again. The denial of the right to poll the jury was most clearly an error. Under the provisions of the const.i.tution which have been cited, the defendant could only be convicted on the verdict of a jury. The case of Cancemi shows that such jury must consist of twelve men; and it will not be claimed that anything less than the unanimous voice of the jury can be received as their verdict. How then could the defendant be lawfully deprived of the right to ask every juror if the verdict had his a.s.sent? I believe this is a right which was never before denied to a party against whom a verdict was rendered in any case, either civil or criminal. The following cases show, and many others might be cited to the same effect, that the right to poll the jury is an absolute right in all cases, civil and criminal. (The People vs. Perkins, 1 Wend. 91.
Jackson vs. Hawks, 2 Wend. 619. Fox vs. Smith. 3 Cowen, 23.)
The ground on which the right of the defendant to vote has been denied, is, as I understand the decision of the court, "that the rights of the citizens of the state as such were not under consideration in the fourteenth amendment; that they stand as they did before that amendment.... The right of voting or the privilege of voting is a right or privilege arising under the const.i.tution of the state, and not of the United States. If the right belongs to any particular person, it is because such person is ent.i.tled to it as a citizen of the state where he offers to exercise it, and not because of citizenship of the United States.... The regulation of the suffrage is conceded to the states as a state right."
If this position be correct, which I am not now disposed to question, I respectfully insist that the congress of the United States had no power to pa.s.s the act in question, that by doing so it has attempted to usurp the rights of the states, and that all proceedings under the act are void.
I claim therefore that the defendant is ent.i.tled to a new trial.
First--Because she has been denied her right of trial by jury.
Second--Because she has been denied the right to ask the jury severally whether they a.s.sented to the verdict which the court had recorded for them.
Third--Because the court erroneously held, that the defendant had not a lawful right to vote.
Fourth--Because the court erroneously held, that if the defendant, when she voted, did so in good faith, believing that she had a right to vote, that fact const.i.tuted no defence.
Fifth--Because the court erroneously held that the question, whether the defendant, at the time of voting knew that she had not a right to vote, was a question of law to be decided by the court, and not a question of fact to be decided by the jury.
Sixth--Because the court erred in holding that it was a presumption of law that the defendant knew that she was not a legal voter, although in fact she had not that knowledge.
Seventh--Because congress had no const.i.tutional right to pa.s.s the act under which the defendant was indicted, and the act and all proceedings under it are void.
Sir, so far as my information in regard to legal proceedings extends, this is the only court in any country where trial by jury exists, in which the decisions that are made in the haste and sometimes confusion of such trials, are not subject to review before any other tribunal. I believe that to the decisions of this court, in criminal cases, no review is allowed, except in the same court in the informal way in which I now ask your honor to review the decisions made on this trial. This is therefore the court of last resort, and I hope your honor will give to these, as they appear to me, grave questions, such careful and deliberate consideration as is due to them from such final tribunal.
If a new trial shall be denied to the defendant, it will be no consolation to her to be dismissed with a slight penalty, leaving the stigma resting upon her name, of conviction for an offence, of which she claims to be, and I believe is, as innocent as the purest of the millions of male voters who voted at the same election, are innocent of crime in so voting. If she is in fact guilty of the crime with which she stands charged, and of which she has been convicted by the court, she deserves the utmost penalty which the court under the law has power to impose; if she is not guilty she should be acquitted, and not declared upon the records of this high court guilty of a crime she never committed.
The court after hearing the district attorney, denied the motion.
JUDGE HUNT--(Ordering the defendant to stand up), "Has the prisoner anything to say why sentence shall not be p.r.o.nounced?"
MISS ANTHONY--Yes, your honor, I have many things to say; for in your ordered verdict of guilty, you have trampled under foot every vital principle of our government. My natural rights, my civil rights, my political rights, my judicial rights, are all alike ignored. Robbed of the fundamental privilege of citizenship, I am degraded from the status of a citizen to that of a subject; and not only myself individually, but all of my s.e.x, are, by your honor"s verdict, doomed to political subjection under this, so-called, form of government.
JUDGE HUNT--The Court cannot listen to a rehearsal of arguments the prisoner"s counsel has already consumed three hours in presenting.
MISS ANTHONY--May it please your honor, I am not arguing the question, but simply stating the reasons why sentence cannot, in justice, be p.r.o.nounced against me. Your denial of my citizen"s right to vote, is the denial of my right of consent as one of the governed, the denial of my right of representation as one of the taxed, the denial of my right to a trial by a jury of my peers, as an offender against law, therefore, the denial of my sacred rights to life, liberty, property and--
JUDGE HUNT--The Court cannot allow the prisoner to go on.
MISS ANTHONY--But your honor will not deny me this one and only poor privilege of protest against this high-handed outrage upon my citizen"s rights. May it please the Court to remember that since the day of my arrest last November, this is the first time that either myself or any person of my disfranchised cla.s.s has been allowed a word of defense before judge or jury--
JUDGE HUNT--The prisoner must sit down--the Court cannot allow it.
MISS ANTHONY--All of my prosecutors, from the 8th ward corner grocery politician, who entered the complaint, to the United States Marshal, Commissioner, District Attorney, District Judge, your honor on the bench, not one is my peer, but each and all are my political sovereigns; and had your honor submitted my case to the jury, as was clearly your duty, even then I should have had just cause of protest, for not one of those men was my peer; but, native or foreign born, white or black, rich or poor, educated or ignorant, awake or asleep, sober or drunk, each and every man of them was my political superior; hence, in no sense, my peer. Even, under such circ.u.mstances, a commoner of England, tried before a jury of Lords, would have far less cause to complain than should I, a woman, tried before a jury of men. Even my counsel, the Hon.
Henry R. Selden, who has argued my cause so ably, so earnestly, so unanswerably before your honor, is my political sovereign. Precisely as no disfranchised person is ent.i.tled to sit upon a jury, and no woman is ent.i.tled to the franchise, so, none but a regularly admitted lawyer is allowed to practice in the courts, and no woman can gain admission to the bar--hence, jury, judge, counsel, must all be of the superior cla.s.s.
JUDGE HUNT--The Court must insist--the prisoner has been tried according to the established forms of law.
MISS ANTHONY--Yes, your honor, but by forms of law all made by men, interpreted by men, administered by men, in favor of men, and against women; and hence, your honor"s ordered verdict of guilty, against a United States citizen for the exercise of "_that citizen"s right to vote_," simply because that citizen was a woman and not a man. But, yesterday, the same man made forms of law, declared it a crime punishable with $1,000 fine and six months" imprisonment, for you, or me, or any of us, to give a cup of cold water, a crust of bread, or a night"s shelter to a panting fugitive as he was tracking his way to Canada. And every man or woman in whose veins coursed a drop of human sympathy violated that wicked law, reckless of consequences, and was justified in so doing. As then, the slaves who got their freedom must take it over, or under, or through the unjust forms of law, precisely so, now, must women, to get their right to a voice in this government, take it; and I have taken mine, and mean to take it at every possible opportunity.
JUDGE HUNT--The Court orders the prisoner to sit down. It will not allow another word.
MISS ANTHONY--When I was brought before your honor for trial, I hoped for a broad and liberal interpretation of the Const.i.tution and its recent amendments, that should declare all United States citizens under its protecting aegis--that should declare equality of rights the national guarantee to all persons born or naturalized in the United States. But failing to get this justice--failing, even, to get a trial by a jury _not_ of my peers--I ask not leniency at your hands--but rather the full rigors of the law.
JUDGE HUNT--The Court must insist--
(Here the prisoner sat down.)
JUDGE HUNT--The prisoner will stand up.
(Here Miss Anthony arose again.)
The sentence of the Court is that you pay a fine of one hundred dollars and the costs of the prosecution.
MISS ANTHONY--May it please your honor, I shall never pay a dollar of your unjust penalty. All the stock in trade I possess is a $10,000 debt, incurred by publishing my paper--_The Revolution_--four years ago, the sole object of which was to educate all women to do precisely as I have done, rebel against your man-made, unjust, unconst.i.tutional forms of law, that tax, fine, imprison and hang women, while they deny them the right of representation in the government; and I shall work on with might and main to pay every dollar of that honest debt, but not a penny shall go to this unjust claim. And I shall earnestly and persistently continue to urge all women to the practical recognition of the old revolutionary maxim, that "Resistance to tyranny is obedience to G.o.d."
JUDGE HUNT--Madam, the Court will not order you committed until the fine is paid.
INDICTMENT AGAINST BEVERLY W. JONES, EDWIN T. MARSH, AND WILLIAM B.
HALL.