Part 6

This right, however, exists by virtue of the 15th Amendment. If the 15th Amendment had contained the word "sex," the argument of the defendant would have been potent. She would have said, an attempt by a State to deny the right to vote because one is of a particular sex, is expressly prohibited by that Amendment. The amendment, however, does not contain that word. It is limited to race, color, or previous condition of servitude. The Legislature of the State of New York has seen fit to say, that the franchise of voting shall be limited to the male sex. In saying this, there is, in my judgment, no violation of the letter or of the spirit of the 14th or of the 15th Amendment. This view is assumed in the second section of the 14th Amendment, which enacts that if the right to vote for Federal officers is denied by any state to any of the male inhabitants of such State, except for crime, the basis of representation of such State shall be reduced in proportion specified. Not only does this section assume that the right of male inhabitants to vote was the especial object of its protection, but it assumes and admits the right of a State, notwithstanding the existence of that clause under which the defendant claims to the contrary, to deny to classes or portions of the male inhabitants the right to vote which is allowed to other male inhabitants. The regulation of the suffrage is thereby conceded to the States as a State's right. The case of Myra Bradwell, decided at a recent term of the Supreme Court of the United States, sustains both the positions above put forth, viz: First, that the rights referred to in the 14th Amendment are those belonging to a person as a citizen of the United States and not as a citizen of a State, and second, that a right of the character here involved is not one connected with citizenship of the United States. Mrs. Bradwell made application to be admitted to practice as an attorney and counsellor at law, in the Courts of Illinois. Her application was denied, and upon appeal to the Supreme Court of the United States, it was there held that to give jurisdiction under the 14th Amendment, the claim must be of a right pertaining to citizenship of the United States, and that the claim made by her did not come within that class of cases. Mr. Justice Bradley and Mr. Justice Field held that a woman was not entitled to a license to practice law. It does not appear that the other Judges passed upon that question.

The 14th Amendment gives no right to a woman to vote, and the voting by Miss Anthony was in violation of the law.

If she believed she had a right to vote, and voted in reliance upon that belief, does that relieve her from the penalty? It is argued that the knowledge referred to in the act relates to her knowledge of the illegality of the act, and not to the act of voting; for it is said that she must know that she voted. Two principles apply here: First, ignorance of the law excuses no one; second, every person is presumed to understand and to intend the necessary effects of his own acts. Miss Anthony knew that she was a woman, and that the constitution of this State prohibits her from voting. She intended to violate that provision--intended to test it, perhaps, but certainly intended to violate it. The necessary effect of her act was to violate it, and this she is presumed to have intended. There was no ignorance of any fact, but all the facts being known, she undertook to settle a principle in her own person. She takes the risk, and she cannot escape the consequences. It is said, and authorities are cited to sustain the position, that there can be no crime unless there is a culpable intent; to render one criminally responsible a vicious will must be present. A commits a trespass on the land of B, and B, thinking and believing that he has a right to shoot an intruder on his premises, kills A on the spot. Does B's misapprehension of his rights justify his act? Would a Judge be justified in charging the jury that if satisfied that B supposed he had a right to shoot A he was justified, and they should find a verdict of not guilty? No Judge would make such a charge. To constitute a crime, it is true, that there must be a criminal intent, but it is equally true that knowledge of the facts of the case is always held to supply this intent. An intentional killing bears with it evidence of malice in law. Whoever, without justifiable cause, intentionally kills his neighbor, is guilty of a crime. The principle is the same in the case before us, and in all criminal cases. The precise question now before me has been several times decided, viz.: that one illegally voting was bound and was assumed to know the law, and that a belief that he had a right to vote gave no defense, if there was no mistake of fact. (Hamilton against The People, 57th of Barbour, p. 625; State against Boyet, 10th of Iredell, p. 336; State against Hart, 6th Jones, 389; McGuire against State, 7 Humphrey, 54; 15th of Iowa reports, 404.) No system of criminal jurisprudence can be sustained upon any other principle. Assuming that Miss Anthony believed she had a right to vote, that fact constitutes no defense if in truth she had not the right. She voluntarily gave a vote which was illegal, and thus is subject to the penalty of the law.

Upon this evidence I suppose there is no question for the jury and that the jury should be directed to find a verdict of guilty.

JUDGE SELDEN: I submit that on the view which your Honor has taken, that the right to vote and the regulation of it is solely a State matter. That this whole law is out of the jurisdiction of the United States Courts and of Congress. The whole law upon that basis, as I understand it, is not within the constitutional power of the general Government, but is one which applies to the States. I suppose that it is for the jury to determine whether the defendant is guilty of a crime or not. And I therefore ask your Honor to submit to the jury these propositions:

First--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 offense 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 committed the offense described in the Statute.

A professional friend sitting by has made this suggestion which I take leave to avail myself of as bearing upon this question: "The Court has listened for many hours to an argument in order to decide whether the defendant has a right to vote. The arguments show the same question has engaged the best minds of the country as an open question. Can it be possible that the defendant is to be convicted for acting upon such advice as she could obtain while the question is an open and undecided one?"

THE COURT: You have made a much better argument than that, sir.

JUDGE SELDEN: As long as it is an open question I submit that she has not been guilty of an offense. At all events it is for the jury.

THE COURT: I cannot charge these propositions of course. The question, gentlemen of the jury, in the form it finally takes, is wholly a question or questions of law, and I have decided as a question of law, in the first place, that under the 14th Amendment, which Miss Anthony claims protects her, she was not protected in a right to vote. And I have decided also that her belief and the advice which she took does not protect her in the act which she committed. If I am right in this, the result must be a verdict on your part of guilty, and I therefore direct that you find a verdict of guilty.

JUDGE SELDEN: That is a direction no Court has power to make in a criminal case.

THE COURT: Take the verdict, Mr. Clerk.

THE CLERK: Gentlemen of the jury, hearken to your verdict as the Court has recorded it. You say you find the defendant guilty of the offense whereof she stands indicted, and so say you all?

JUDGE SELDEN: I don't know whether an exception is available, but I certainly must except to the refusal of the Court to submit those propositions, and especially to the direction of the Court that the jury should find a verdict of guilty. I claim that it is a power that is not given to any Court in a criminal case.

Will the Clerk poll the jury?

THE COURT: No. Gentlemen of the jury, you are discharged.

On the next day a motion for a new trial was made by Judge Selden, as follows:

_May it please the Court_:

The trial of this case commenced with a question of very great magnitude--whether by the constitution of the United States the right of suffrage was secured to female equally with male citizens. It is likely to close with a question of much greater magnitude--whether the right of trial by jury is absolutely secured by the federal constitution to persons charged with crime before the federal courts.

I assume, without attempting to produce any authority on the subject, that this Court has power to grant to the defendant a new trial in case it should appear that in the haste and in the lack of opportunity for examination which necessarily attend a jury trial, any material error should have been committed prejudicial to the defendant, as otherwise no means whatever are provided by the law for the correction of such errors.

The defendant was indicted, under the nineteenth section of the act of Congress of May 31st, 1870, entitled, "An act to enforce the right of citizens of the United States to vote in the several states of this Union, and for other purposes," and was charged with having knowingly voted, without having a lawful right to vote, at the congressional election in the eighth ward of the City of Rochester, in November last; the only ground of illegality being that the defendant was a woman.

The provisions of the act of Congress, so far as they bear upon the present case, are as follows:

"Section 19. 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 fictitious, 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 entitled to vote, or vote without having a lawful right to vote, ... every such person shall be deemed guilty of a crime, and shall for such crime be liable to prosecution in any court of the United States, of competent jurisdiction, and, on conviction thereof, shall be punished by a fine not exceeding $500 or by imprisonment for a term not exceeding three years, or both, in the discretion of the Court, and shall pay the costs of prosecution."

It appeared on the trial that before voting the defendant called upon a respectable lawyer, and asked his opinion whether she had a right to vote, and he advised her that she had such right, and the lawyer was examined as a witness in her behalf, and testified that he gave her such advice, and that he gave it in good faith, believing that she had such right.

It also appeared that when she offered to vote, the question whether as a woman she had a right to vote, was raised by the inspectors, and considered by them in her presence, and they decided that she had a right to vote, and received her vote accordingly.

It was also shown on the part of the government, that on the examination of the defendant before the commissioner, on whose warrant she was arrested, she stated that she should have voted, if allowed to vote, without reference to the advice she had received from the attorney whose opinion she had asked; that she was not influenced to vote by that opinion; that she had before determined to offer her vote, and had no doubt about her right to vote.

At the close of the testimony the defendant's counsel proceeded to address the jury, and stated that he desired to present for consideration three propositions, two of law and one of fact:

First--That the defendant had a lawful right to vote.

Second--That whether she had a lawful right to vote or not, it she honestly believed that she had that right and voted in good faith in that belief, she was guilty of no crime.

Third--That when she gave her vote she gave it in good faith, believing that it was her right to do so.

That the two first propositions presented questions for the Court to decide, and the last for the jury.

When the counsel had proceeded thus far, the Court suggested that the counsel had better discuss in the first place the questions of law; which the counsel proceeded to do, and having discussed the two legal questions at length, asked leave then to say a few words to the jury on the question of fact. The Court then said to the counsel that he thought that had better be left until the views of the Court upon the legal questions should be made known.

The District Attorney thereupon addressed the Court at length upon the legal questions, and at the close of his argument the Court delivered an opinion adverse to the positions of the defendant's counsel upon both of the legal questions presented, holding that the defendant was not entitled to vote; and that if she voted in good faith in the belief in fact that she had a right to vote, it would constitute no defense--the grounds of the decision on the last point being that she was bound to know that by law she was not a legal voter, and that even if she voted in good faith in the contrary belief, it constituted no defense to the crime with which she was charged. The decision of the Court upon these questions was read from a written document.

At the close of the reading, the Court said that the decision of these questions disposed of the case and left no question of fact for the jury, and that he should therefore direct the jury to find a verdict of guilty, and proceeded to say to the jury that the decision of the Court had disposed of all there was in the case, and that he directed them to find a verdict of guilty, and he instructed the clerk to enter a verdict of guilty.

At this point, before any entry had been made by the clerk, the defendant's counsel asked the Court to submit the case to the jury, and to give to the jury the following several instructions:

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 described in the statute.

The Court declined to submit the case to the jury upon any question whatever, and directed them to render a verdict of guilty against the defendant.

The defendant's counsel excepted to the decision of the Court upon the legal questions to its refusal to submit the case to the jury: to its refusal to give the instructions asked; and to its direction to the jury to find a verdict of guilty against the defendant--the counsel insisting that it was a direction which no Court had a right to give in a criminal case.

The Court then instructed the clerk to take the verdict, and the clerk said, "Gentlemen of the jury, hearken to the verdict as the Court hath recorded it. You say you find the defendant guilty of the offence charged. So say you all."

No response whatever was made by the jury, either by word or sign. They had not consulted together in their seats or otherwise. Neither of them had spoken a word. Nor had they been asked whether they had or had not agreed upon a verdict.

The defendant's counsel then asked that the clerk be requested to poll the jury. The Court said, "that cannot be allowed. Gentlemen of the jury, you are discharged," and the jurors left the box. No juror spoke a word during the trial, from the time they were impanelled to the time of their discharge.

Now I respectfully submit, that in these proceedings the defendant has been substantially denied her constitutional right of trial by jury. The jurors composing the panel have been merely silent spectators of the conviction of the defendant by the Court. They have had no more share in her trial and conviction than any other twelve members of the jury summoned to attend this Court, or any twelve spectators who have sat by during the trial. If such course is allowable in this case, it must be equally allowable in all criminal cases, whether the charge be for treason, murder or any minor grade of offence which can come under the jurisdiction of a United States court; and as I understand it, if correct, substantially abolishes the right of trial by jury.

It certainly does so in all those cases, where the judge shall be of the opinion that the facts which he may regard as clearly proved, lead necessarily to the guilt of the defendant. Of course by refusing to submit any question to the jury, the judge refuses to allow counsel to address the jury in the defendant's behalf.

The constitutional provisions which I insist are violated by this proceeding are the following:

Constitution of the United States, article 3, section 2. "The trial of all crimes, except in cases of impeachment, shall be by jury."

Amendments to Constitution, article 6. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

In accordance with these provisions, I insist that in every criminal case, where the party has pleaded not guilty, whether upon the trial the guilt of such party appears to the Judge to be clear or not, the response to the question, guilty or not guilty, must come from the jury, must be their voluntary act, and cannot be imposed upon them by the Court.

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 Constitution: 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 anticipate 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 assent; 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 assent. 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 principal 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 constitutional 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, assume the duties of the jury, and effectually pronounce the verdict of guilty or not guilty in their stead.