Founding Feminists is FMF’s daily herstory column.
June 18, 1873: Susan B. Anthony has been found guilty of having “illegally” voted in last November’s General Election.
She was not convicted by a true jury of her peers, because women cannot serve on juries. Nor was she able to eloquently make her own case to the all-male jury, because the judge ruled in favor of the prosecution when the District Attorney said that as a woman “she is not competent as a witness in her own behalf.” Her conviction did not come about after secret deliberations by an unbiased jury because Judge Ward Hunt, after hearing the evidence, directed the jurors to find her guilty. Even a defense motion to poll the jurors individually after they delivered their verdict was denied. Only the final act of this farce now remains, with sentencing scheduled for tomorrow.
Anthony’s test of whether the 14th Amendment confers the vote upon women began on Friday, November 1st of last year when she, three of her sisters, and a number of other women went into a barber shop in the Eighth Ward of Rochester, New York, to register to vote for the 1872 General Election. Though it took an hour of debate with the Registrars – and the threat of suing them personally if she was refused the right to register – they finally did allow it. Four days later she came back to cast her vote.
As she explained in a letter written to Elizabeth Cady Stanton on election night, November 5th:
Dear Mrs. Stanton:
Well, I have been and gone and done it! Positively voted the Republican ticket – straight – this a.m. at 7 O’clock, and swore my vote in at that. Was registered on Friday, and 15 other women followed suit in this ward, then in sundry other wards. Some 20 or 30 other women tried to register, but all save two were refused.
All my three sisters voted – Rhoda De Garmo, too. Amy Post was rejected and she will immediately bring action for that – similar to the Washington action. Hon. Henry R. Selden will be our counsel; he has read up the law and all of our arguments, and is satisfied that we are right, and ditto the Old Judge Selden, his elder brother. So we are in a fine state of agitation in Rochester on the question.I hope the morning’s telegrams will tell of many women all over the country trying to vote. It is splendid that without any concert of action so many should have moved here so impromptu.
Haven’t we wedged ourselves into the work pretty fairly and fully. And now that the Repubs have taken our votes – for it is Republican members of the Board – the Democratic paper is out against us strong, and that scared the Dems on the registry board. How I wish you were here to write up the funny things said and done. Rhoda De Garmo told them that she wouldn’t swear or affirm, ‘but would tell the truth,’ and they accepted that.
When the Dems said my vote should not go in the box, one Repub said to the other: ‘What do you say Marsh?’ ‘I say put it in!’ ‘So do I,’ said Jones, and ‘we’ll fight it out on this line if it takes all winter.’
Mary Hallowell was just here. She and Sarah Wills tried to register but were refused; also Mrs. Mann the Unitarian minister’s wife, and Mary Curtis, Catherine Stebbins’ sister. Not a jeer, not a word, not a look disrespectful has met a single woman.
If only now all the woman suffrage women would work to this end, of enforcing the existing Constitutional supremacy of national law over State law, what strides we might make this very winter! But I’m awful tired; for five days I have been on the constant run, but to splendid purpose, so all right. I hope you voted too.
Affectionately,
Susan B. Anthony.
A warrant for Anthony’s arrest was issued on November 14th after a Democratic poll-watcher named Sylvester Lewis fled a complaint. She was charged with voting in a Congressional Election “without having a lawful right to vote and in violation of Section 19 of an Act of Congress.” The Enforcement Act carries a penalty of up to $500 and three years’ imprisonment. Arrest by a U.S. Deputy Marshal followed on November 18th.
At a hearing on November 29th, before United States Commissioner William C. Storrs, she was questioned by her lawyer and able to state that she believed she had the right to vote, as authorized by the 14th Amendment, and therefore was not guilty of willfully and knowingly casting an illegal vote. Storrs nevertheless decided that there was enough evidence for the case to proceed. On January 24th, a 20-man Grand Jury returned an indictment against her.
After her indictment, Anthony went on a speaking tour which proved so successful that in May, when the trial was supposed to begin, it was moved out of Monroe County because both the judge and the prosecutor agreed that there were probably not 12 local residents who would vote to convict. Anthony then went on another speaking tour, this time in Ontario County, where the trial was now to be held in the county seat of Canandaigua.
The trial began yesterday in a packed courtroom, with former President Fillmore among the spectators. Prosecutor Richard Crowley presented testimony from Inspector of Elections B.W. Jones that Anthony had cast a vote. Anthony’s defense attorney, Harry Selden, then called himself as a witness and testified that he had told her that “the laws of the Constitution of the United States authorized her to vote, as well as they authorize any man to vote.” Since as a woman she was denied the right to testify, this was the only meaningful evidence given that she had believed what she was doing was legal. Though the prosecution brought out the fact that Selden had told her this after she had registered, it was still before she had voted, and illegal voting was the offense with which she had been charged.
Selden then gave three hours of testimony which noted that the “crime” with which Anthony was being charged would have been considered an honorable and praiseworthy act if done by a man; that the 14th Amendment prohibits abridging “the privileges and immunities of citizens of the United States,” and therefore she cannot be denied the right to vote by New York State; and that even if one disagrees with these arguments, the fact that she believed she was acting lawfully means she did not, as the act requires, deliberately commit an illegal act, and therefore is not guilty.
District Attorney Crowley spoke for two hours, but apparently everything beyond the minimal legal formalities were unnecessary. Immediately following the end of testimony, Judge Hunt took a piece of paper out of his pocket and read a previously prepared statement to the jury and courtroom:
The Fourteenth Amendment gives no right to a woman to vote, and by voting Miss Anthony was in violation of the law … 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 … 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 ought not to shrink from the consequences.
Everyone will be back in court again tomorrow, when Anthony hopes to make a statement before sentencing, and we will find out whether she shall face imprisonment or a fine, and if a fine, whether she will pay it.
