privileges or immunities of citizens.” The Fifteenth, added in 1870, prohibited any state from withholding the right to vote from any citizen “on account of race, color, or previous condition of servitude.” The suffragists had lobbied to include the word sex, but again, the excuse of “party expediency” had prevailed. Nonetheless there could be no justifiable doubt because the Fourteenth also included the caveat that no state could deny “to any person… the equal protection of the laws.” Totally convinced of women’s constitutional right to vote, Anthony decided to present herself to the board of registry on the designated date; on Election Day, she would cast her ballot.

Two territories had already recognized women’s voting rights: Wyoming in 1869 and Utah in 1870. Nor would Anthony be the first woman to attempt to vote in one of the states. Marilla M. Ricker of Dover, New Hampshire, had been rebuffed in 1870, but in April of 1871 Nanette B. Gardner voted in Detroit and got away with it. That same month seventy-two women had tried to register in the District of Columbia but had been denied. When they had appealed to the supreme court of the district, the judges proclaimed that the granting of citizenship did not necessarily confer the right to vote, thereby ignoring several law dictionaries that defined citizenship as including the “right to vote… for public officers.” The United States Supreme Court saw no reason to overturn the lower court’s decision.

Several other voting attempts had been frustrated at one level or another, but Mrs. L. D. Mansfield and “three other ladies” had registered and succeeded in voting in Nyack, New York, in 1871. “No evil results followed,” The New York Times concluded in an editorial.

Anthony sought substantiation for her decision to vote from lawyers in her hometown of Rochester, New York, but none was interested until she called upon Henry R. Selden, a former judge of the New York Court of Appeals and of the state supreme court. Like the others, Selden had never considered the issue, but he agreed to review it. After doing so, he told Anthony the amendments did guarantee voting rights to women. He promised to support her claim.

Anthony was pleased, but she had already decided to proceed whatever his opinion. On Friday, November 1, when the Rochester Democrat and Chronicle urged all citizens to “Register NOW,” Anthony gathered 15 other women, including her three sisters, and appeared that very day before a startled board of registry in a barbershop in Rochester’s Eighth Ward.

Two members of the three-man board, Beverly Jones and Edwin F. Marsh, were Republicans; the third was a Democrat named William B. Hall. Anthony offered her credentials, and Jones, chief of the board, sought the advice of his superiors. Two U.S. supervisors of elections had been appointed to oversee things in the Eighth Ward, but one left the barbershop as soon as the

women entered. The other could see no way to get around placing the names in the register; he asked if Jones knew the penalty for refusing to register an eligible voter.

This convinced Jones and Marsh, but Hall resisted. The 2-to-1 majority prevailed, however, and all the women were registered. When the Rochester newspapers published the story the next day, some thirty-five other women came to register in other wards. Their action was denounced by the Rochester Union and Advertiser, which demanded the prosecution of any election official who accepted their ballots. The paper published the essential features of an enforcement act of the Fourteenth Amendment: “Any person… who shall vote without having a legal right to vote; or do any unlawful act to secure… an opportunity to vote for himself or any other person… shall be deemed guilty of a crime,” punishable by a fine of five hundred dollars and/or imprisonment up to three years. This warning was so intimidating that on Election Day, November 5, no official in any ward except the Eighth permitted women to vote.

The sixteen registered women of the Eighth Ward arrived as the polls opened at seven o’clock: they found the same three men there, now serving as inspectors of election. The women asked for ballots, they received them, and they all voted. Most of the ballots were returned to Jones or Marsh, but even Hall accepted some. The women went home, the ballots were counted, and the story was telegraphed across the nation.

On Thanksgiving Day, Thursday, November 28, an imposingly tall, impeccably attired, and very fidgety gentleman presented himself at the Anthony family’s front door. After a few nervous comments about the weather, he began hesitantly, “Miss Anthony,” but could not continue.

“Won’t you sit down?” she said pleasantly.

“No thank you. You see, Miss Anthony …,” he stammered. “I am here on a most uncomfortable errand.” He hesitated again. “The fact is, Miss Anthony … I have come to arrest you.”

The unhappy deputy marshal, E. J. Keeney, seemed about to collapse, but he pressed on. “If you will oblige me by coming as soon as possible to the District Attorney’s office, no escort will be necessary.”

“Is this the usual manner of serving a warrant?”

Keeney blushed and drew the warrant from his pocket. It said she had violated an act of Congress.

The possibility of arrest had never occurred to Anthony, but she kept her composure. “I prefer to be arrested like anybody else. You may handcuff me as soon as I get my coat and hat.” Keeney refused.

The marshal then served warrants on her three sisters; in other parts of the city, deputies were calling

on the 12 other women. The 16 were brought into a bleak, dirty courtroom where only a few years before runaway slaves had been held awaiting trial. No one acknowledged their presence until early evening, when the commissioner of elections arrived to inform them that the district attorney had failed to appear; they could go home and return the following morning.

On Friday, Anthony was subjected to an inquisition:

“Would you have made the same efforts to vote that you did, if you had not consulted with Judge Selden?”

“Yes, sir,” she replied.

“Were you influenced in the matter by his advice at all?”

“No, sir.”

“You went into this matter for the purpose of testing the question?”

“Yes, sir; I had been resolved for three years to vote at the first election when I had been at home for thirty days before.”

The hearing had aroused so much interest that crowds of women came to witness it, and the proceedings were moved to a larger, cleaner room. One local newspaper described “these lawbreakers” as “elderly, matronly-looking women, with thoughtful faces, just the sort one would like to see in charge of one’s sick room, considerate, patient, kindly.” Actually, Anthony was 52, and many of the others were younger; all but three were married. They pleaded not guilty and, placed under bail of $500 each, were ordered to appear before a grand jury in Albany on January 22. On that date, the 20 grand jurors swore that “the said Susan B. Anthony, being then and there a person of the female sex [which] she well knew… on the 5th day of November, 1872 … did knowingly and unlawfully vote,” which she “well knew” was unlawful. The indictment was signed by Richard Crowley, United States attorney.

The three inspectors were indicted for registering and later accepting the ballots, although William B. Hall, a Democrat, protested vainly he had been against it and should be excluded. Anthony asked Judge Selden to represent her, and he did without fee; he was joined by the attorney John Van Voorhis. A vindictive district judge, Nathan Hall, set Anthony’s bail at an abnormally high one thousand dollars. (At that time a family could live a whole year on a thousand dollars.) She refused to pay, electing jail, but Selden, unwilling to see his client go to prison, put up the money.

After she left the courtroom, Van Voorhis informed her that because she did not go to jail she had just lost the right to appeal to the U.S. Supreme Court. Anthony rushed back into the courtroom and asked Selden to withdraw the bail, but it was too late. The bail had been recorded. A jury trial was set for June 17, 1873, in Rochester. The government decided to prosecute her alone as representative of the sixteen. And all three inspectors were ordered to trial on June 18, over William B. Hall’s protests.

Anthony

now took her case directly to the people of Rochester’s Monroe County—her prospective jurors. In those pre-telephone days the district post offices were important gathering places where newspapers from other cities arrived first, where people came to gossip and exchange news, and where speakers could almost always find a crowd eager to hear their messages. Between her indictment and late May, Anthony appeared at all twenty-nine post offices in the county, sending posters on ahead to advertise each lecture. She told her audiences that “I not only committed no crime, but instead simply exercised my citizen’s right, guaranteed to me and all United States citizens by the National Constitution, beyond the power of any state to deny.” Those “grand documents” —the Declaration of Independence and the United States Constitution—do not delegate to government the “power to create or confer rights” but “propose to protect the people in the exercise of their God-given rights.” The constitutions of every one of the 36 states are “all alike” in that “not one of them pretends to bestow rights.” There is “no shadow of governmental authority over rights, nor exclusion of any class from their full and equal enjoyment.” She drew from the Declaration the phrase that rights are “unalienable” and that governments were formed only “to secure these rights,” not to grant what was inherent.

It was contrary to true constitutionalism, she asserted, that one-half of the people should be subjugated to the other half through a “hateful oligarchy of sex.” Women were compelled to pay taxes without representation; were brought to trial “without a jury of their peers,” imprisoned, and even hanged; were robbed in marriage of the custody of their own wages, their own children, their own persons. “We, the people” did not mean “We, the white male citizens” or even “We, the male citizens” but “We, the whole people,” and it “is a downright mockery to talk to women of their enjoyment of the blessings of liberty” while they are denied the ballot.

Anthony covered the county so well that, by May, Prosecutor Crowley was worried that no Monroe County jury would convict her. He carried this complaint to Judge Nathan Hall in Albany and requested moving the trial to the more remote town of Canandaigua. Hall readily complied, and only 22 days before the trial date he imposed additional costs and burdens on the defendants by requiring the 28-mile journey from Rochester.

Nothing seems to have been recorded about whether Anthony or the inspectors remained in Canandaigua throughout the period or commuted. In any case, Anthony made 21 appearances before the trial speaking on the subject “Is It a Crime for a United States Citizen to Vote?” Her friend Matilda Joslyn Gage traveled with her and gave

her speech, “The United States on Trial, Not Susan B. Anthony,” sixteen times. The two women appeared together on the evening of June 16. The next day, Susan B. Anthony went on trial.

At 2:30 P.M., a jury was impaneled “without difficulty,” The New York Times reported. The government used one peremptory challenge, and the defense three. Nothing else is recorded about this jury, although an enormous issue was to rest with them. Although every other participant in the trial is identified, no record survives of how the basic venire was chosen. But since New York jurors had to be “male inhabitants” between 21 and 60 who owned personal property assessed at $250 or greater or a “freehold estate” belonging to them or their wives valued at $150, it is safe to assume that Anthony’s jury was composed of fairly wealthy, well-established men.

The courtroom in Canandaigua was crowded, with former President Millard Fillmore among the spectators. Selden asked Judge Nathan Hall to sit together with the presiding judge, despite his prejudice, because he believed it would be impossible to make an appeal on reversible error to a higher court with only a single judge. Hall refused.

It was evident almost from the first “Hear ye, hear ye” of the bailiff that Judge Ward Hunt, a Supreme Court justice and former mayor of Utica, had allied himself with Crowley. Early in the trial Hunt refused to permit Anthony to be a witness in her own behalf, ruling she was “incompetent.” But he did allow Assistant U.S. District Attorney John E. Pound to offer hearsay evidence concerning testimony she had given at pretrial hearings. Judge Selden protested: this would be “the version which the United States office took of her evidence,” and if Anthony was given no chance to reply, it should be excluded. At this objection Hunt delivered a two-word directive to Pound: “Go on.”

But Hunt did permit Selden to offer himself as a witness. Selden told the jury of his background of some dozen years as a judge, and how, after scholarly research, he had informed Anthony that she had a constitutionally guaranteed right to vote. He still believed it beyond any doubt, he said, and Anthony’s acting on it indicated she was only following in good faith a constitutional mandate; therefore, she could not possibly have “knowingly” voted “unlawfully.”

Crowley, for the prosecution, addressed the jury at some length. There was no law permitting women to vote, Crowley said, and not knowing this was no excuse. A “good faith” defense was “abhorrent,” even though Crowley himself had written the word knowingly into the indictment.

Selden knew that he faced heavy odds. His closing argument consumed nearly three hours. He put three propositions to the jury:

1. Was the defendant legally entitled to vote at the election in question?

2. If she were not entitled to vote, but believed that she

was, and voted in good faith in that belief, did such voting constitute a crime under the statute before referred to?

3. Did the defendant vote in good faith and belief?

Selden argued that all just government rests upon the principles that “every citizen has a right to take part upon equal terms with every other citizen” and that inherent in citizenship is the right to vote. He quoted from the dictionaries that the court of the District of Columbia had shunned the previous year.

Since women were citizens, having been born or naturalized within the meaning of the Fourteenth Amendment, it followed they had the right to vote. Otherwise, they would be held in “absolute political bondage”—in short, “slavery.” One of the chief arguments in the senatorial debates on the Fourteenth Amendment four years earlier, was that the amendment would “protect every citizen, black or white, male or female.”

At the very worst, Selden continued, if he had been mistaken and there were no right, Anthony had acted in good faith, and so the charge that she “knowingly” violated the Constitution must be void. “It is incumbent on the prosecution to show affirmatively that she voted knowing she had no right to vote. The essence of the offense is that it is done with a knowledge that it is without right.

“'Knowingly'was inserted,” Judge Selden went on, “to furnish security against the inability of stupid or prejudiced judges or jurors to distinguish between wilful wrong and innocent mistake. An innocent mistake is not a crime. An innocent mistake, whether of law or fact, can never constitute a crime.” Judge Hunt tolerated all this because he had the last say. He read a “brief statement” he had written before the trial had started—before any evidence, before Selden had presented any defense, any arguments, or points of law: “The question before the jury is wholly a question or questions of law [and] under the 14th Amendment… Miss Anthony 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 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.’ ”

The people in the courtroom gasped. Selden jumped to his feet. “That is a direction no court has the power to make in a criminal case,” he said incredulously.

Ignoring him, Hunt turned to the clerk. “Take the verdict, Mr. Clerk.”

The clerk addressed 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?”

Not a juror responded.

Selden demanded the jury be polled, but Hunt shut him off, saying, “No, gentlemen of

the jury, you are discharged,” and he adjourned the court. The finale was acted out so quickly that it seemed rehearsed.

The 12 jurors sat stunned and confused in the box. During the entire proceedings, they had uttered not a word, but now, quizzed by the defense and the press, they voiced frustration and outrage. Many complained this was not their verdict at all; they had not responded to the clerk simply because they didn’t know they could. It was clear that the sentiment of the panel was to acquit.

Hunt’s arbitrary action altered the entire character of the trial. No longer was the issue women suffrage alone; it was now the question of the fundamental right to trial by an impartial jury. Many newspapers across the country that would not support the women’s cause condemned Hunt. They would have far preferred a decision they disagreed with to a judicially forced verdict and the dangers that implied. The Rochester Democrat and Chronicle called it a “grand over-reaching assumption of authority” by a man who believed “he is scarcely lower than the angels so far as personal power goes.”

The New York Sun attacked Hunt for violating “one of the most important provisions of the Constitution. The right to trial by jury includes the right to a free and impartial verdict.” Otherwise the jury would be “twelve wooden automatons, moved by a string pulled by the hand of the judge.” The Utica Observer approved Hunt’s interpretation of the Fourteenth Amendment but nonetheless condemned his seizure of jury power, with which he had “outraged the rights of Susan B. Anthony.” The Legal News of Chicago charged Hunt with committing a worse offense against the Constitution than Anthony had by “voting illegally,” for “he had sworn to support the Constitution and she had not.” The Canandaigua Times editorialized that despite Anthony’s “crime,” there is “serious question” of the propriety of a proceeding in which the proper functions of the jury are dispensed with. “If this may be done in one instance, why may it not in all?”

On the morning of the day after the verdict, Selden appealed for a retrial, describing the “jealous care [with which] the right of trial by jury has been guarded by every English speaking people from the days of King John, indeed from the days of King Alfred.” He cited a recent New York murder trial which had continued and ended with a conviction even after a juror had become ill. The court of appeals had returned the case for retrial, as “even by a showing of consent” by the defendant, it was not a proper jury. There could never be fewer than twelve people on a true constitutional jury.

Hunt now asked if “the prisoner has anything to say why sentence shall not be pronounced.” She replied she had many things to say and

began by accusing him of “trampling underfoot every vital principle of our government. I am degraded from the status of citizen to that of a subject [as] all of my sex are by your honor’s verdict, doomed to political subjugation under this so-called form of government.”

Hunt tried to stop her, but she persisted for some time. Finally, Hunt said, “The court cannot allow the prisoner to go on… the prisoner must sit down… the court must insist.” Anthony sat down after complaining she had “failed, even to get a trial by jury not of my peers. I ask not leniency at your hands, but rather the full rigors of the law.”

Hunt then fined her one hundred dollars and costs, but she defied him by announcing she would “never pay a dollar of your unjust penalty” but would continue to “rebel against your manmade, unjust, unconstitutional forms of law that tax, fine, imprison and hang women while they deny them the right of representation in the government.”

“Madam,” Hunt responded, “the court will not order you committed until the fine is paid.” His apparent compassion was misleading. By not pressing for payment or imprisoning her, he had avoided criticism for “reversible errors” from higher courts. He had blocked her chance of appeal.

The judge was ready to commit more legal offenses in the trial of the three inspectors that afternoon. It was a different jury—again not identified in the record—and Hunt had arranged that they sit through the morning sessions so as to witness his methods.

When the defense attorney John Van Voorhis called one of the supervisors of elections to testify to the advice he had given the inspectors, Hunt ruled the man “incompetent.” He did permit Chief Inspector Beverly Jones to testify to the presence of the supervisors Silas J. Wagner, Republican, and Daniel J. Warner, Democrat. Jones went on to report that while Anthony “was reading the Fourteenth Amendment and discussing different points, Mr. Warner said…”

Prosecutor Crowley jumped in. “I submit to the court that it is entirely immaterial what either Warner or Wagner said.”

Hunt sustained him, stating, “I don’t see that that is competent in any view of the case.”

Later Van Voorhis asked Jones to “state what occurred.” Again Jones began: “Mr. Warner said…,” and again Crowley objected.

Hunt repeated, “I don’t think that is competent what Warner said.”

“The district attorney has gone into what occurred at that time. I ask to be permitted to show all that occurred.” 

"I don’t think that is competent.”

Van Voorhis persisted, demanding that the testimony include what the supervisor said.

“I exclude it.”

“Does that exclude all conversations that occurred there with any persons?”

“It excludes anything of that character on the subject of advising them. Your case is just as good without it as with it.”

Jones was followed on the stand by his fellow Republican

election board member Edwin F. Marsh and other witnesses. One of them was Susan B. Anthony herself, but with all of Crowley’s objections sustained by Hunt, she was effectively silenced.

In his summation, Van Voorhis stressed the same theme that Selden had in Anthony’s defense: malice was essential to crime. “Here is a total absence of any pretense of malice. The defendants acted honestly and according to their best judgment. They are not lawyers, nor skilled in law. They had presented to them a legal question which, to say the least, has puzzled some of the ablest legal minds of the nation.”

When he concluded, Crowley rose, but Hunt restrained him. “I don’t think it is necessary for you to spend time in argument, Mr. Crowley,” he said, and then directed the jury: “Under no circumstance is a woman entitled to vote… and by the adjudication which was made this morning upon this subject, there is no discretion…. In that view of the case, is there anything to go to the jury?”

Fearing what would come, Van Voorhis jumped up to demand that the “whole case” go to the jury because trial by jury is inviolate and “the court had no power to take it from the jury.”

“I am going to submit it to the jury,” said Hunt.

“I claim the right to address the jury,” said Van Voorhis.

“I don’t think there is anything upon which you can legitimately address the jury,” Hunt said, and then proceeded to address them himself, stating that the women had no right to offer their votes, nor the inspectors to receive them, but “instead of doing as I did in the case this morning—directing a verdict—I submit the case to you with these instructions, and you can decide it here or go out.”

Van Voorhis tried again. “I ask your honor to instruct the jury that if they find these inspectors acted honestly, in accordance with their best judgments, they should be acquitted.”

“I have expressly ruled to the contrary of that, gentlemen.” Again Hunt charged the jury: “There is sufficient evidence to sustain the indictment upon this point.” Van Voorhis asked sarcastically, “Then why should it go to the jury?”

“As a matter of form.” Again Hunt tried to force the verdict right there in court. The jurors chose to go out. They returned soon afterward hung, eleven to one for the prosecution. An annoyed Hunt threatened the lone juror: “You may retire again, gentlemen,” adding that, unless they agreed within a few minutes, he would adjourn the court until the morning. He did not suggest any food or overnight accommodations for the jurors.

Under this pressure, the hesitating juror capitulated, and the panel returned within ten minutes with guilty verdicts

for all three defendants. This jury was also quizzed, and again it was clear that it was not the verdict of free choice. Van Voorhis’s plea for retrial was dismissed.

Hunt fined the inspectors twenty-five dollars each, but like Anthony they refused to pay, choosing instead to “allow process to be served.” Sen. Benjamin Butler of Massachusetts, who had been following the case with great interest, believed that President Grant himself would “remit the fine if they are pressed too far.”

And, indeed, they were pressed too far. On February 26, 1874, Hunt had the inspectors seized and imprisoned. Anthony rushed to the jail, urged the men to hold out, and promised to work for their early release. She barely rested for five days, lecturing, going to the newspapers, preparing an appeal to Grant for a pardon. On March 2, she returned to the jail with sixty-two dollars for bail and succeeded in having them released.

That same day, she received a telegram from Butler saying that Grant had arranged for a pardon and remission of the fines. During their five days in prison the inspectors received hundreds of callers and were served bountiful meals by the women whose votes they had accepted. Upon their release they were widely feted, and when they ran for inspectors at the next election, they were returned to office by a large majority—of male voters.

Anthony was never pardoned because she was never jailed. Judge Selden did appeal to both houses of Congress for remission of her fine, basing his claim on the precedent of publisher Matthew Lyon, who had been imprisoned and fined one thousand dollars after being denied trial by jury under the Alien and Sedition Acts of 1798. That fine was refunded with interest to his heirs. But the reviewing committees in both the Senate and the House rejected the Anthony appeal by narrow margins without considering the chief basis for the claim.

In 1897, Van Voorhis remembered the case this way: “There was a pre-arranged determination to convict [Susan B. Anthony]. A jury trial was dangerous, and so the Constitution was openly and deliberately violated.

“The Constitution makes the jury, in criminal cases, the judges of the law and of the facts. The mandate of the Constitution is that no matter how clear or how strong the case may appear to the judge, it must be submitted to the jury,” and if the judge controls the jury, “he himself is guilty of a crime for which impeachment is the remedy.”

This had been precisely the policy of the Supreme Court since 1794. The first chief justice, John Jay, had written that it is the obligation of the jury to disregard an inequitable law and nullify it. “The jury has a right to judge both law as well as fact in a controversy.” The voting trial jurors were, of course, not informed of this.

“If Miss Anthony had won her case on

its merits” in the first place, Van Voorhis commented a quarter century after her trial, “it would have revolutionized the suffrage of the country, and enfranchised every woman in the United States.”