Part 21
Even more disconcerting was the adverse decision of the Supreme Court on the Myra Bradwell case, which at once shattered the confidence of most of her legal advisors. The court held that Illinois had violated no provision of the federal Constitution in refusing to allow Myra Bradwell to practice law because she was a woman and declared that the right to practice law in state courts is not a privilege or an immunity of a citizen of the United States, nor is the power of a state to prescribe qualifications for admission to the bar affected by the Fourteenth Amendment. Chief Justice Salmon P. Chase, filing a dissenting opinion, lived up to Susan's faith in him, but Benjamin Butler wrote her, "I do not believe anybody in Congress doubts that the Constitution authorizes the right of women to vote, precisely as it authorizes trial by jury and many other like rights guaranteed to citizens. But the difficulty is, the courts long since decided that the constitutional provisions do not act upon the citizens, except as guarantees, ex proprio vigore, and in order to give force to them there must be legislation.... Therefore, the point is for the friends of woman suffrage to get congressional legislation."[303]
Susan, however, never wavered in her conviction that she as a citizen had a constitutional right to vote and that it was her duty to test this right in the courts.
FOOTNOTES:
[288] Ray Strachey, _Struggle_ (New York, 1930), pp. 113-116.
[289] The U.S. Supreme Court upheld the decision of a lower court that without specific legislation by Congress, the 14th Amendment could not overrule the law of the District of Columbia which limited suffrage to male citizens over 21. _History of Woman Suffrage_, II, pp. 587-601.
[290] Harper, _Anthony_, I, p. 423.
[291] Nov. 5, 1872, Ida Husted Harper Collection, Henry E. Huntington Library. Miss Anthony had assured the election inspectors that she would pay the cost of any suit which might be brought against them for accepting women's votes.
[292] Harper, _Anthony_, I, p. 426. The Anthony home was then numbered 7 Madison Street.
[293] _An Account of the Proceedings of the Trial of Susan B. Anthony on the Charge of Illegal Voting_ (Rochester, New York, 1874), p. 16.
[294] Harper, _Anthony_, I, p. 428.
[295] _Ibid._, p. 433.
[296] _Trial_, pp. 2-3.
[297] N.d., Susan B. Anthony Papers, New York Public Library.
[298] _Trial_, pp. 151, 153. Judge Story, _Commentaries on the Constitution of the United States_, Sec. 456: "The importance of examining the preamble for the purpose of expounding the language of a statute has long been felt and universally conceded in all juridical discussion." _History of Woman Suffrage_, II, p. 477.
[299] Harper, _Anthony_, II, pp. 978, 986-987.
[300] Ms., Diary, May 10, June 7, 1873.
[301] Suffrage clubs in New York, Buffalo, Chicago, and Milwaukee sent $50 and $100 contributions. Susan's cousin, Anson Lapham, cancelled notes for $4000 which she had signed while struggling to finance _The Revolution_. The women of Rochester rallied behind her, forming a Taxpayers' Association to protest taxation without representation.
[302] Harper, _Anthony_, II, pp. 994-995.
[303] _Ibid._, I, p. 429.
"IS IT A CRIME FOR A CITIZEN ... TO VOTE?"
Charged with the crime of voting illegally, Susan was brought to trial on June 17, 1873, in the peaceful village of Canandaigua, New York. Simply dressed and wearing her new bonnet faced with blue silk and draped with a dotted veil,[304] she stoically climbed the court-house steps, feeling as if on her shoulders she carried the political destiny of American women. With her were her counsel, Henry R. Selden and John Van Voorhis, her sister, Hannah Mosher, most of the women who had voted with her in Rochester, and Matilda Joslyn Gage, whose interest in this case was akin to her own.
In the courtroom on the second floor, seated behind the bar, Susan watched the curious crowd gather and fill every available seat. She wondered, as she calmly surveyed the all-male jury, whether they could possibly understand the humiliation of a woman who had been arrested for exercising the rights of a citizen. The judge, Ward Hunt, did not promise well, for he had only recently been appointed to the bench through the influence of his friend and townsman, Roscoe Conkling, the undisputed leader of the Republican party in New York and a bitter opponent of woman suffrage. She tried to fathom this small, white-haired, colorless judge upon whose fairness so much depended. Prim and stolid, he sat before her, faultlessly dressed in a suit of black broadcloth, his neck wound with an immaculate white neckcloth. He ruled against her at once, refusing to let her testify on her own behalf.
She was completely satisfied, however, as she listened to Henry Selden's presentation of her case. Tall and commanding, he stood before the court with nobility and kindness in his face and eyes, bringing to mind a handsome cultured Lincoln. So logical, so just was his reasoning, so impressive were his citations of the law that it seemed to her they must convince the jury and even the expressionless judge on the bench.
Pointing out that the only alleged ground of the illegality of Miss Anthony's vote was that she was a woman, Henry Selden declared, "If the same act had been done by her brother under the same circumstances, the act would have been not only innocent and laudable, but honorable; but having been done by a woman it is said to be a crime.... I believe this is the first instance in which a woman has been arraigned in a criminal court, merely on account of her sex."[305] He claimed that Miss Anthony had voted in good faith, believing that the United States Constitution gave her the right to vote, and he clearly outlined her interpretation of the Fourteenth and Fifteenth Amendments, declaring that she stood arraigned as a criminal simply because she took the only step possible to bring this great constitutional question before the courts.
After he had finished, Susan followed closely for two long hours the arguments of the district attorney, Richard Crowley, who contended that whatever her intentions may have been, good or bad, she had by her voting violated a law of the United States and was therefore guilty of crime.
At the close of the district attorney's argument, Judge Hunt without leaving the bench drew out a written document, and to her surprise, read from it as he addressed the jury. "The right of voting or the privilege of voting," he declared, "is a right or privilege arising under the constitution of the State, not of the United States.[306]
"The Legislature of the State of New York," he continued, "has seen fit to say, that the franchise of voting shall be limited to the male sex.... If the Fifteenth Amendment had contained the word 'sex,' the argument of the defendant would have been potent.... The Fourteenth Amendment gives no right to a woman to vote, and the voting of Miss Anthony was in violation of the law....
"There was no ignorance of any fact," he added, "but all the facts being known, she undertook to settle a principle in her own person.... 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...."
Then hesitating a moment, he concluded, "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."
Immediately Henry Selden was on his feet, addressing the judge, requesting that the jury determine whether or not the defendant was guilty of crime.
Judge Hunt, however, refused and firmly announced, "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 Fourteenth Amendment which Miss Anthony claims protects her, she was not protected in a right to vote.
"And I have decided also," he continued, "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 therefore I direct that you find a verdict of guilty."
Again Henry Selden was on his feet. "That is a direction," he declared, "that no court has power to make in a criminal case."
The courtroom was tense. Susan, watching the jury and wondering if they would meekly submit to his will, heard the judge tersely order, "Take the verdict, Mr. Clerk."
"Gentlemen of the jury," intoned the clerk, "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."
Claiming exception to the direction of the Court that the jury find a verdict of guilty in this a criminal case. Henry Selden asked that the jury be polled.
To this, Judge Hunt abruptly replied, "No. Gentlemen of the jury, you are discharged."
* * * * *
That night Susan recorded her estimate of Judge Hunt's verdict in her diary in one terse sentence, "The greatest outrage History ever witnessed."[307]
The New York _Sun_, the Rochester _Democrat and Chronicle_, and the Canandaigua _Times_ were indignant over Judge Hunt's failure to poll the jury. "Judge Hunt," commented the _Sun_, "allowed the jury to be impanelled and sworn, and to hear the evidence; but when the case had reached the point of rendering the verdict, he directed a verdict of guilty. He thus denied a trial by jury to an accused party in his court; and either through malice, which we do not believe, or through ignorance, which in such a flagrant degree is equally culpable in a judge, he violated one of the most important provisions of the Constitution of the United States.... The privilege of polling the jury has been held to be an absolute right in this State and it is a substantial right ..."[308]
Claiming that the defendant had been denied her right of trial by jury. Henry Selden the next day moved for a new trial. Judge Hunt denied the motion, and, ordering the defendant to stand up, asked her, "Has the prisoner anything to say why sentence shall not be pronounced."[309]
"Yes, your honor," Susan replied, "I have many things to say; for in your ordered verdict of guilty, you have trampled underfoot every vital principle of our government. My natural rights, my civil rights, my political rights, my judicial rights, are all alike ignored...."
Impatiently Judge Hunt protested that he could not listen to a rehearsal of arguments which her counsel had already presented.
"May it please your honor," she persisted, "I am not arguing the question but simply stating the reasons why sentence cannot in justice be pronounced 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 ..."
"The Court cannot allow the prisoner to go on," interrupted Judge Hunt; but Susan, ignoring his command to sit down, protested that her prosecutors and the members of the jury were all her political sovereigns.
Again Judge Hunt tried to stop her, but she was not to be put off. She was pleading for all women and her voice rang out to every corner of the courtroom.
"The Court must insist," declared Judge Hunt, "the prisoner has been tried according to established forms of law."
"Yes, your honor," admitted Susan, "but by forms of law all made by men, interpreted by men, administered by men, in favor of men, and against women...."
"The Court orders the prisoner to sit down," shouted Judge Hunt. "It will not allow another word."
Unheeding, Susan continued, "When I was brought before your honor for trial, I hoped for a broad and liberal interpretation of the Constitution 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."
Once more Judge Hunt tried to stop her, and acquiescing at last, she sat down, only to be ordered by him to stand up as he pronounced her sentence, a fine of $100 and the costs of prosecution.
"May it please your honor," she protested, "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_ ... the sole object of which was to educate all women to do precisely as I have done, rebel against your man-made, unjust, unconstitutional forms of law, that tax, fine, imprison, and hang women, while they deny them the right of representation in the government.... 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 God.'"
Pouring cold water on this blaze of oratory. Judge Hunt tersely remarked that the Court would not require her imprisonment pending the payment of her fine.
This shrewd move, obviously planned in advance, made it impossible to carry the case to the United States Supreme Court by writ of habeas corpus.
* * * * *
That same afternoon, Susan was on hand for the trial of the three election inspectors. This time Judge Hunt submitted the case to the jury but with explicit instructions that the defendants were guilty. The jury returned a verdict of guilty, and the inspectors, denied a new trial, were each fined $25 and costs. Two of them, Edwin F. Marsh and William B. Hall, refused to pay their fines and were sent to jail. Susan appealed on their behalf to Senator Sargent in Washington, who eventually secured a pardon for them from President Grant. He also presented a petition to the Senate, in January 1874, to remit Susan's fine, as did William Loughridge of Iowa to the House, but the judiciary committees reported adversely.
Because neither of these cases had been decided on the basis of national citizenship and the right of a citizen to vote, Susan was heartsick. To have them relegated to the category of election fraud was as if her high purpose had been trailed in the dust. Wishing to spread reliable information about her trial and the legal questions involved, she had 3,000 copies of the court proceedings printed for distribution.[310]
It was hard for her to concede that justice for women could not be secured in the courts, but there seemed to be no way in the face of the cold letter of the law to take her case to the Supreme Court of the United States. This would have been possible on writ of habeas corpus had Judge Hunt sentenced her to prison for failure to pay her fine, but this he carefully avoided.
Even that intrepid fighter, John Van Voorhis, could find no loophole, and another of her loyal friends in the legal profession, Albert G. Riddle, wrote her, "There is not, I think, the slightest hope from the courts and just as little from the politicians. They will never take up this cause, never! Individuals will, parties never--till the thing is done.... The trouble is that man can govern alone, and that, though woman has the right, man wants to do it, and if she wait for him to ask her, she will never vote.... Either man must be made to see and feel ... the need of woman's help in the great field of human government, and so demand it; or woman must arise and come forward as she never has, and take her place."[311]
The case of Virginia Minor of St. Louis still held out a glimmer of hope. She had brought suit against an election inspector for his refusal to register her as a voter in the presidential election of 1872, and the case of Minor vs. Happersett reached the United States Supreme Court in 1874. An adverse decision, on March 29, 1875, delivered by Chief Justice Waite, a friend of woman suffrage, was a bitter blow to Susan and to all those who had pinned their faith on a more liberal interpretation of the Fourteenth and Fifteenth Amendments.
Carefully studying the decision, Susan tried to fathom its reasoning, so foreign to her own ideas of justice. "Sex," she read, "has never been made of one of the elements of citizenship in the United States.... The XIV Amendment did not affect the citizenship of women any more than it did of men.... The direct question is, therefore, presented whether all citizens are necessarily voters."[312]
She read on: "The Constitution does not define the privileges and immunities of citizens.... In this case we need not determine what they are, but only whether suffrage is necessarily one of them. It certainly is nowhere made so in express terms....
"When the Constitution of the United States was adopted, all the several States, with the exception of Rhode Island, had Constitutions of their own.... We find in no State were all citizens permitted to vote.... Women were excluded from suffrage in nearly all the States by the express provision of their constitutions and laws ... No new State has ever been admitted to the Union which has conferred the right of suffrage upon women, and this has never been considered valid objection to her admission. On the contrary ... the right of suffrage was withdrawn from women as early as 1807 in the State of New Jersey, without any attempt to obtain the interference of the United States to prevent it. Since then the governments of the insurgent States have been reorganized under a requirement that, before their Representatives could be admitted to seats in Congress, they must have adopted new Constitutions, republican in form. In no one of these Constitutions was suffrage conferred upon women, and yet the States have all been restored to their original position as States in the Union ... Certainly if the courts can consider any question settled, this is one....
"Our province," concluded Chief Justice Waite, "is to decide what the law is, not to declare what it should be.... Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the Constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we affirm the judgment of the Court below."
"A states-rights document," Susan called this decision and she scored it as inconsistent with the policies of a Republican administration which, through the Civil War amendments, had established federal control over the rights and privileges of citizens. If the Constitution does not confer the right of suffrage, she asked herself, why does it define the qualifications of those voting for members of the House of Representatives? How about the enfranchisement of Negroes by federal amendment or the enfranchisement of foreigners? Why did the federal government interfere in her case, instead of leaving it in the hands of the state of New York?
Like most abolitionists, Susan had always regarded the principles of the Declaration of Independence as underlying the Constitution and as the essence of constitutional law. In her opinion, the interpretation of the Constitution in the Virginia Minor case was not only out of harmony with the spirit of the Declaration of Independence, but also contrary to the wise counsel of the great English jurist, Sir Edward Coke, who said, "Whenever the question of liberty runs doubtful, the decision must be given in favor of liberty."[313]
In the face of such a ruling by the highest court in the land, she was helpless. Women were shut out of the Constitution and denied its protection. From here on there was only one course to follow, to press again for a Sixteenth Amendment to enfranchise women.
FOOTNOTES:
[304] Ms., Diary, April 26, 1873.
[305] _Trial_, p. 17.
[306] _Ibid._, pp. 62-68.
[307] Ms., Diary, June 18, 1873.
[308] Susan B. Anthony Scrapbook, 1873, Library of Congress.
[309] _Trial_, pp. 81-85.
[310] This booklet also included the speeches of Susan B. Anthony and Matilda Joslyn Gage, delivered prior to the trial, and a short appraisal of the trial, _Judge Hunt and the Right of Trial by Jury_, by John Hooker, the husband of Isabella Beecher Hooker. The Rochester _Democrat and Chronicle_ called the booklet "the most important contribution yet made to the discussion of woman suffrage from a legal standpoint." The _Woman's Suffrage Journal_, IV, Aug. 1, 1873, p. 121, published in England by Lydia Becker, said: "The American law which makes it a criminal offense for a person to vote who is not legally qualified appears harsh to our ideas."
[311] Harper, _Anthony_, I, pp. 455-456.
[312] _History of Woman Suffrage_, II, pp. 737-739, 741-742.
[313] _Trial_, p. 191.
SOCIAL PURITY
Militancy among the suffragists continued to flare up here and there in resistance to taxation without representation. Abby Kelley Foster's home in Worcester was sold for taxes for a mere fraction of its worth, while in Glastonbury, Connecticut, Abby and Julia Smith's cows and personal property were seized for taxes. Both Dr. Harriot K. Hunt in Boston and Mary Anthony in Rochester continued their tax protests. Much as Susan admired this spirited rebellion, she recognized that these militant gestures were but flames in the wind unless they had behind them a well-organized, sustained campaign for a Sixteenth Amendment, and this she could not undertake until _The Revolution_ debt was paid. Nor was there anyone to pinch-hit for her since Ernestine Rose had returned to England and Mrs. Stanton gave all her time to Lyceum lectures.
At the moment the prospect looked bleak for woman suffrage. In Congress, there was not the slightest hope of the introduction of or
## action on a Sixteenth Amendment. In the states, interest was kept
alive by woman suffrage bills before the legislatures, and year by year, with more people recognizing the inherent justice of the demand, the margin of defeat grew smaller. Whenever these state contests were critical, Susan managed to be on hand, giving up profitable lecture engagements to speak without fees; in Michigan in 1874 and in Iowa in 1875, she made new friends for the cause but was unable to stem the tide of prejudice against granting women the vote. After the defeat in Michigan, she wrote in her diary, "Every whisky maker, vendor, drinker, gambler, every ignorant besotted man is against us, and then the other extreme, every narrow, selfish religious bigot."[314]
A new militant movement swept the country in 1874, starting in small Ohio towns among women who were so aroused over the evil influence of liquor on husbands, sons, fathers, and brothers, that they gathered in front of saloons to sing and pray, hoping to persuade drunkards to reform and saloon keepers to close their doors. Out of this uprising, the Women's Christian Temperance Union developed, and within the next few years was organized into a powerful reform movement by a young schoolteacher from Illinois, Frances E. Willard.