I was looking around, trying to find a case where a judge directed the jury to rule a certain way or decided the jury was wrong and so overruled them. As you know, SCO is asking the judge in SCO v. Novell to overturn the jury's verdict, as one possible form of relief it would like. So that's why I started researching. And I stumbled upon a case, one that I think will also illustrate another point I keep making but some of you find hard to accept. It was a case in the 1800s involving the issue of women's suffrage. The defendant was Susan B. Anthony. Her crime was voting in an election "while she was a woman".
I came across this case when I was looking for all the works I could find written by anonymous authors, and there it was,
An Account of the Proceedings on
the Trial of Susan B. Anthony by Anonymous. Anthony's personal, marked-up copy is in the Library of Congress's Rare Book and Special Collections Division, part of the library's Susan B. Anthony Collection. In olden times, you had to visit the Library of Congress to read the account of her trial, and you still can, if you go there, but now, there is a wonderful site called ManyBooks, and guess what they have in their Anonymous authors collection? Yes, the very same book, 'An Account of the Proceedings on the Trial of Susan B. Anthony', published in 1874, now available as a free (as in beer) ebook, and you can choose your format, including plain text, thanks to Project Gutenberg, or you can just read it online.
I hope the Library of Congress knows about its availability in these formats. They could verify it for accuracy and then make it available in their new online resources collection. Here's the license Project Gutenberg uses for this book:
This eBook is for the use of anyone anywhere at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of the Project Gutenberg License included with this eBook or online at www.gutenberg.org. It doesn't have to be as complicated as the Google Books Project turned out to be, if you use volunteers who are not trying to make any money and neither are you.
Here are the people who did the work for us:
Produced by Marilynda Fraser-Cunliffe, Graeme Mackreth and the Online Distributed Proofreading Team at http://www.pgdp.net (This file was made using scans of public domain works from the University of Michigan Digital Libraries.) Thank you. The full title of the booklet is: AN ACCOUNT OF THE PROCEEDINGS ON THE TRIAL OF SUSAN B. ANTHONY, ON THE Charge of Illegal Voting, AT THE PRESIDENTIAL ELECTION IN NOV., 1872, AND ON THE
TRIAL OF BEVERLY W. JONES, EDWIN T. MARSH AND WILLIAM B. HALL, THE INSPECTORS OF ELECTION BY WHOM HER VOTE WAS RECEIVED. The other names are those of the poll inspectors, the three who agreed to let her vote. Back then, Beverly was a man's name too. They were all pursued in criminal indictments. The other women who voted with Anthony that day never went to trial. Those indicted were charged under the 19th Section of the Act of Congress of May 30th, 1870, (16 St. at L. 144.) charging them with "knowingly voting without having a lawful right to vote" and the inspectors with "knowingly and wilfully received the votes of persons not entitled to vote." They potentially faced jail time, as well as fines. Here's the full wording of the Act she was charged with violating:
"If at any election for representative or delegate in the Congress of the United States, any person shall knowingly ... vote without having a lawful right to vote ... every such person shall be deemed guilty of a crime, ... and on conviction thereof shall be punished by a fine not exceeding $500, or by imprisonment for a term not exceeding three years, or by both, in the discretion of the court, and shall pay the costs of prosecution." Someone at the time, probably a female, I'm guessing, or possibly her lawyer, Judge H. R. Selden (not the judge on the case, kind of like Judge Edward Cahn isn't the judge in SCO v. Novell), took the trouble at the time to publish everything that was said at the trial or at least describe it, much like Groklaw does today, and some Project Gutenberg volunteers made sure the book of Anthony's trial was available online for everyone to enjoy and study.
Here's why the book was originally published, according to its anonymous author:
To preserve a full record of so important a judicial determination, and to enable the friends of the convicted parties to understand precisely the degree of criminality which attaches to them in consequence of these convictions, the following pamphlet has been prepared--giving a more full and accurate statement of the proceedings than can elsewhere be found. Someday perhaps there will be those who will study our work on Groklaw in the same way. We did it for very much the same motives. Now that Groklaw will be in the Library of Congress's collection, I hope people will stumble across it someday and find it a treasure, just as I found the Anthony booklet one, because we have been chronicling a very turbulent and significant time in computer history. I enjoy thinking about it. It was a lot of work by a lot of volunteers.
Why was this work about the Anthony trial published anonymously? Keep in mind, as you'll see if you read her lawyer's opening statement, women back then had almost no legal rights. Not being able to vote was one part of a slew of other things women couldn't do, like sue people. If her husband joined her in the litigation, then she could sue via her husband, but if they won any damages, they belonged exclusively to him, even if the litigation was about a wrong done to her. The ramifications of that lack of legal personhood are disturbingly presented by her lawyer, who was, of course, of necessity at the time, a man. Women were not supposed to be lawyers or much of anything back then.
It makes one's blood boil a bit, or it does mine. But that is my point. Law is a process. That's what I keep explaining. It is a human process, so it will never be perfect, but there can be, and there has been, progress. It's just people, so if enough people are persuaded, change can occur, for good or for ill.
The Library of Congress is developing an expanded Online Division, and here are the Online Resources, digital versions of precious manuscripts and books that normally you could only access if you travelled to Washington, DC and went to the research room. Now you can view some exhibits, too, like Abraham Lincoln's Gettysburg Address in digital form. And here's the American Treasures page, an exhibit that closed in 2007 but will now live to time indefinite online, where you can find treasures like Thomas Jefferson's handwritten draft of the Declaration of Independence (more foundational documents here), and Jelly Roll Morton's early compositions. It was Jefferson's library that formed the foundational core of the Library of Congress, I just learned. I am saddened to see that they are using Silverlight for some interactive displays, but they have HTML there too. The Library of Congress has done some very lovely work.
Yes, I love this kind of thing. I could go on for days, but let's get to the Anthony case, because it's about some things you are more interested in, or at least some things I really want to explain to you that I hope you will be interested in.
Here are the legal issues that were argued at her trial in 1873, in US District Court in and for the Northern District of New York, as the book describes them:
I. That she was legally entitled to vote. Here's where the prosecution's lawyer begins his opening statement:
II. That if she was not so entitled, but voted in good faith in the belief that it was her right, she was guilty of no crime.
III. That she did vote in such good faith, and with such belief.
May it please the Court and Gentlemen of the Jury: High crime, indeed, m'lords. But the testimony was that she registered to vote prior to the election, and objections were raised but ultimately she was allowed to register:
On the 5th of November, 1872, there was held in this State, as well as in other States of the Union, a general election for different officers, and among those, for candidates to represent several districts of this State in the Congress of the United States. The defendant, Miss Susan B. Anthony, at that time resided in the city of Rochester, in the county of Monroe, Northern District of New York, and upon the 5th day of November, 1872, she voted for a representative in the Congress of the United States, to represent the 29th Congressional District of this State, and also for a representative at large for the State of New York, to represent the State in the Congress of the United States. At that time she was a woman....
I suppose there will be no question about that. The question in this case, if there be a question of fact about it at all, will, in my judgment, be rather a question of law than one of fact. I suppose that there will be no question of fact, substantially, in the case when all of the evidence is out, and it will be for you to decide under the charge of his honor, the Judge, whether or not the defendant committed the offence of voting for a representative in Congress upon that occasion. We think, on the part of the Government, that there is no question about it either one way or the other, neither a question of fact, nor a question of law, and that whatever Miss Anthony's intentions may have been--whether they were good or otherwise--she did not have a right to vote upon that question, and if she did vote without having a lawful right to vote, then there is no question but what she is guilty of violating a law of the United States in that behalf enacted by the Congress of the United States.
We don't claim in this case, gentlemen, that Miss Anthony is of that class of people who go about "repeating." We don't claim that she went from place to place for the purpose of offering her vote. But we do claim that upon the 5th of November, 1872, she voted, and whether she believed that she had a right to vote or not, it being a question of law, that she is within the Statute.
Congress in 1870 passed the following statute: (Reads 19th Section of the Act of 1870, page 144, 16th statutes at large.)
It is not necessary for me, gentlemen, at this stage of the case, to state all the facts which will be proven on the part of the Government. I shall leave that to be shown by the evidence and by the witnesses, and if any question of law shall arise his Honor will undoubtedly give you instructions as he shall deem proper.
Conceded, that on the 5th day of November, 1872, Miss Susan B. Anthony was a woman.
Cross-Examination by Judge Selden: Simple people like me might think that if they let her register, she wasn't breaking the law by following through, or that the "crime" was registering, if there was one, and if they let her, it was no crime, but the law then was what it was. And the truth is, it was a time period when the law was against her and what she wanted to do. She tried to assert the 14th Amendment to the US Constitution as giving not just former slaves but women too the rights of citizenship, and that was brought out:
Q. Prior to the election, was there a registry of voters in that district made?
A. Yes, sir.
Q. Was you one of the officers engaged in making that registry?
A. Yes, sir.
Q. When the registry was being made did Miss Anthony appear before the Board of Registry and claim to be registered as a voter?
A. She did.
Q. Was there any objection made, or any doubt raised as to her right to vote?
A. There was.
Q. On what ground?
A. On the ground that the Constitution of the State of New York did not allow women to vote.
Q. What was the defect in her right to vote as a citizen?
A. She was not a male citizen.
Q. That she was a woman?
A. Yes, sir.
Q. Did the Board consider that and decide that she was entitled to register?
Objected to. Objection overruled.
Q. Did the Board consider the question of her right to registry, and decide that she was entitled to registry as a voter?
A. Yes, sir.
Q. And she was registered accordingly?
A. Yes, sir.
Q. Won't you state what Miss Anthony said, if she said anything, when she came there and offered her name for registration? Ah, the left-the-room solution to conflict. Some things are eternal.
A. She stated that she did not claim any rights under the constitution of the State of New York; she claimed her right under the constitution of the United States.
Q. Did she name any particular amendment?
A. Yes, sir; she cited the 14th amendment.
Q. Under that she claimed her right to vote?
A. Yes, sir.
Q. Did the other Federal Supervisor who was present, state it as his opinion that she was entitled to vote under that amendment, or did he protest, claiming that she did not have the right to vote?
A. One of them said that there was no way for the inspectors to get around placing the name upon the register; the other one, when she came in, left the room.
Here's where her lawyer begins his opening statement, and here's just a bit of it on the nature of her "crime":
The only alleged ground of illegality of the defendant's vote is that she is a woman. If the same act had been done by her brother under the same circumstances, the act would have been not only innocent, but honorable and laudable; but having been done by a woman it is said to be a crime. The crime therefore consists not in the act done, but in the simple fact that the person doing it was a woman and not a man. I believe this is the first instance in which a woman has been arraigned in a criminal court, merely on account of her sex. At that time, many argued that women *were* represented, albeit indirectly, by their fathers and husbands. And surely they knew what was best. Selden addressed that assertion by telling some stories of clients he'd tried to help in the past:
If the advocates of female suffrage had been allowed to choose the point of attack to be made upon their position, they could not have chosen it more favorably for themselves; and I am disposed to thank those who have been instrumental in this proceeding, for presenting it in the form of a criminal prosecution.
Women have the same interest that men have in the establishment and maintenance of good government; they are to the same extent as men bound to obey the laws; they suffer to the same extent by bad laws, and profit to the same extent by good laws; and upon principles of equal justice, as it would seem, should be allowed equally with men, to express their preference in the choice of law-makers and rulers. But however that may be, no greater absurdity, to use no harsher term, could be presented, than that of rewarding men and punishing women, for the same act, without giving to women any voice in the question which should be rewarded, and which punished.
I am aware, however, that we are here to be governed by the Constitution and laws as they are, and that if the defendant has been guilty of violating the law, she must submit to the penalty, however unjust or absurd the law may be. But courts are not required to so interpret laws or constitutions as to produce either absurdity or injustice, so long as they are open to a more reasonable interpretation. This must be my excuse for what I design to say in regard to the propriety of female suffrage, because with that propriety established there is very little difficulty in finding sufficient warrant in the constitution for its exercise....
Miss Anthony, and those united with her in demanding the right of suffrage, claim, and with a strong appearance of justice, that upon the principles upon which our government is founded, and which lie at the basis of all just government, every citizen has a right to take part, upon equal terms with every other citizen, in the formation and administration of government. This claim on the part of the female sex presents a question the magnitude of which is not well appreciated by the writers and speakers who treat it with ridicule. Those engaged in the movement are able, sincere and earnest women, and they will not be silenced by such ridicule, nor even by the villainous caricatures of Nast. On the contrary, they justly place all those things to the account of the wrongs which they think their sex has suffered. They believe, with an intensity of feeling which men who have not associated with them have not yet learned, that their sex has not had, and has not now, its just and true position in the organization of government and society. They may be wrong in their position, but they will not be content until their arguments are fairly, truthfully and candidly answered.
In the most celebrated document which has been put forth on this side of the Atlantic, our ancestors declared that "governments derive their just powers from the consent of the governed."
Blackstone says, "The lawfulness of punishing such criminals (i.e., persons offending merely against the laws of society) is founded upon this principle: that the law by which they suffer was made by their own consent; it is a part of the original contract into which they entered when first they engaged in society; it was calculated for and has long contributed to their own security."...
The mastery which this doctrine, whether right or wrong, has acquired over the public mind, has produced as its natural fruit, the extension of the right of suffrage to all the adult male population in nearly all the states of the Union; a result which was well epitomized by President Lincoln, in the expression, "government by the people for the people."
This extension of the suffrage is regarded by many as a source of danger to the stability of free government. I believe it furnishes the greatest security for free government, as it deprives the mass of the people of all motive for revolution; and that government so based is most safe,not because the whole people are less liable to make mistakes in government than a select few, but because they have no interest which can lead them to such mistakes, or to prevent their correction when made. On the contrary, the world has never seen an aristocracy, whether composed of few or many, powerful enough to control a government, who did not honestly believe that their interest was identical with the public interest, and who did not act persistently in accordance with such belief; and, unfortunately, an aristocracy of sex has not proved an exception to the rule. The only method yet discovered of overcoming this tendency to the selfish use of power, whether consciously or unconsciously, by those possessing it, is the distribution of the power among all who are its subjects. Short of this the name free government is a misnomer.
This principle, after long strife, not yet entirely ended has been, practically at least, very generally recognized on this side of the Atlantic, as far as relates to men; but when the attempt is made to extend it to women, political philosophers and practical politicians, those "inside of politics," two classes not often found acting in concert, join in denouncing it. It remains to be determined whether the reasons which have produced the extension of the franchise to all adult men, do not equally demand its extension to all adult women. If it be necessary for men that each should have a share in the administration of government for his security, and to exclude partiality, as alleged by Godwin, it would seem to be equally, if not more, necessary for women, on account of their inferior physical power: and if, as is persistently alleged by those who sneer at their claims, they are also inferior in mental power, that fact only gives additional weight to the argument in their behalf, as one of the primary objects of government, as acknowledged on all hands, is the protection of the weak against the power of the strong.
The teachings of history in regard to the condition of women under the care of these self-constituted protectors, to which I can only briefly allude, show the value of this argument as applied to past ages; and in demonstration of its value as applied to more recent times, even at the risk of being tedious, I will give some examples from my own professional experience. I do this because nothing adds more to the efficacy of truth than the translation of the abstract into the concrete. Withholding names, I will state the facts with fullness and accuracy. He acknowledged that there had, in the prior 25 years, been some improvements in the law, but how long it had taken for even the smallest change:
An educated and refined woman, who had been many years before deserted by her drunken husband, was living in a small village of Western New York, securing, by great economy and intense labor in fine needle work, the means of living, and of supporting her two daughters at an academy, the object of her life being to give them such an education as would enable them to become teachers, and thus secure to them some degree of independence when she could no longer provide for them. The daughters were good scholars, and favorites in the school, so long as the mother was able to maintain them there. A young man, the nephew and clerk of a wealthy but miserly merchant, became acquainted with the daughters, and was specially attentive to the older one. The uncle disapproved of the conduct of his nephew, and failing to control it by honorable means, resorted to the circulation of the vilest slanders against mother and daughters. He was a man of wealth and influence. They were almost unknown. The mother had but recently come to the village, her object having been to secure to her daughters the educational advantages which the academy afforded. Poverty, as well as perhaps an excusable if not laudable pride, compelled her to live in obscurity, and consequently the assault upon their characters fell upon her and her daughters with crushing force. Her employment mainly ceased, her daughters were of necessity withdrawn from school, and all were deprived of the means, from their own exertions, of sustaining life. Had they been in fact the harlots which the miserly scoundrel represented them to be, they would not have been so utterly powerless to resist his assault. The mother in her despair naturally sought legal redress. But how was it to be obtained? By the law the wife's rights were merged in those of the husband. She had in law no individual existence, and consequently no action could be brought by her to redress the grievous wrong; indeed according to the law she had suffered no wrong, but the husband had suffered all, and was entitled to all the redress. Where he was the lady did not know; she had not heard from him for many years. Her counsel, however, ventured to bring an action in her behalf, joining the husband's name with hers, as the law required. When the cause came to trial the defendant made no attempt to sustain the charges which he had made, well knowing that they were as groundless as they were cruel; but he introduced and proved a release of the cause of action, signed by the husband, reciting a consideration of fifty dollars paid to him. The defendant's counsel had some difficulty in proving the execution of the release, and was compelled to introduce as a witness, the constable who had been employed to find the vagabond husband and obtain his signature. His testimony disclosed the facts that he found the husband in the forest in one of our north-eastern counties, engaged in making shingles, (presumably stealing timber from the public lands and converting it into the means of indulging his habits of drunkenness,) and only five dollars of the fifty mentioned in the release had in fact been paid. The Court held, was compelled to hold, that the party injured in view of the law, had received full compensation for the wrong--and the mother and daughters with no means of redress were left to starve. This was the act of the representative of the wife and daughters to whom we are referred, as a better protector of their rights than they themselves could be.
It may properly be added, that if the action had proceeded to judgment without interference from the husband, and such amount of damages had been recovered as a jury might have thought it proper to award, the money would have belonged to the husband, and the wife could not lawfully have touched a cent of it. Her attorney might, and doubtless would have paid it to her, but he could only have done so at the peril of being compelled to pay it again to the drunken husband if he had demanded it.
In another case, two ladies, mother and daughter, some time prior to 1860 came from an eastern county of New York to Rochester, where a habeas corpus was obtained for a child of the daughter, less than two years of age. It appeared on the return of the writ, that the mother of the child had been previously abandoned by her husband, who had gone to a western state to reside, and his wife had returned with the child to her mother's house, and had resided there after her desertion. The husband had recently returned from the west, had succeeded in getting the child into his custody, and was stopping over night with it in Rochester on the way to his western home. No misconduct on the part of the wife was pretended, and none on the part of the husband, excepting that he had gone to the west leaving his wife and child behind, no cause appearing, and had returned, and somewhat clandestinely obtained possession of the child. The Judge, following Blackstone's views of husband's rights, remanded the infant to the custody of the father. He thought the law required it, and perhaps it did; but if mothers had had a voice, either in making or in administering the law, I think the result would have been different. The distress of the mother on being thus separated from her child can be better imagined than described. The separation proved a final one, as in less than a year neither father nor mother had any child on earth to love or care for. Whether the loss to the little one of a mother's love and watchfulness had any effect upon the result, cannot, of course, be known.
The state of the law a short time since, in other respects, in regard to the rights of married women, shows what kind of security had been provided for them by their assumed representatives. Prior to 1848, all the personal property of every woman on marriage became the absolute property of the husband--the use of all her real estate became his during coverture, and on the birth of a living child, it became his during his life. He could squander it in dissipation or bestow it upon harlots, and the wife could not touch or interfere with it. Prior to 1860, the husband could by will take the custody of his infant children away from the surviving mother, and give it to whom he pleased--and he could in like manner dispose of the control of the children's property, after his death, during their minority, without the mother's consent.
These are certainly great ameliorations of the law; but how have they been produced? Mainly as the result of the exertions of a few heroic women, one of the foremost of whom is her who stands arraigned as a criminal before this Court to-day. For a thousand years the absurdities and cruelties to which I have alluded have been embedded in the common law, and in the statute books, and men have not touched them, and would not until the end of time, had they not been goaded to it by the persistent efforts of the noble women to whom I have alluded. He speaks for over 3 hours, but this gives you the feel of the day's events, and you can read it all.
Much has been done, but much more remains to be done by women. If they had possessed the elective franchise, the reforms which have cost them a quarter of a century of labor would have been accomplished in a year. They are still subject to taxation upon their property, without any voice as to the levying or destination of the tax; and are still subject to laws made by men, which subject them to fine and imprisonment for the same acts which men do with honor and reward--and when brought to trial no woman is allowed a place on the bench or in the jury box, or a voice in her behalf at the bar. They are bound to suffer the penalty of such laws, made and administered solely by men, and to be silent under the infliction. Give them the ballot, and, although I do not suppose that any great revolution will be produced, or that all political evils will be removed, (I am not a believer in political panaceas,) but if I mistake not, valuable reforms will be introduced which are not now thought of.
Her lawyer was apparently a VC kind of guy, in addition to being a lawyer and judge, an in this account of the history of the city of Rochester, NY, we find him funding and then representing Henry O'Rielly, an entrepreneur in the early development of the telegraph in litigation against S.F.B. Morse:
BEFORE the perfecting of the Morse system in 1844 there was little confi-
dence felt that the electric telegraph would ever be of any practical im-
portance for business purposes ; in fact, it was impossible to get capitalists to
purchase stock in an enterprise so novel and extraordinary as the telegraph
was then considered to be. Now, when the entire globe is encircled by tele-
graphic lines, which bring into intimate relations the Old and New. worlds, it is
curious to note that forty years ago there was but one lightning line in opera-
tion by which the important news of the day was flashed from the Atlantic
coast to the Alleghany mountains, to the far-away Mississippi valley. This
line, which ultimately connected all sections of the United States within a radius
of 8,000 miles, was projected, organised and constructed by Henry O'Rielly,
of this city, to whose earnest and untiring efforts is largely due the success of
modern telegraphy. The lines which he then built, one after another, and
which were in their continuity the longest range of lines in the world, were
styled by him the "Atlantic, Lake and Mississippi range," but were popularly
known as the "O'Rielly lines," a name originally given in derision, but gener-
erally accepted in good faith. By that term they are alluded to in the south-
ern newspapers of 1846 and 1847. In the construction of these lines Mr.
O'Rielly was pecuniarily assisted by a few friends in Rochester arid elsewhere,
prominent among whom were Samuel L. Selden and Henry R. Selden, both
of whom were afterward his counsel in successfully resisting the attempts of
the Morse patentees to violate the contract which they had made with him,
and to obtain an injunction against him. These lines were afterward
consolidated, and, with the addition of some others, formed the basis of that gigantic
monopoly, the Western Union telegraph company.
H.R. Selden seems like the last lawyer on earth I'd expect to be representing Anthony, but he did, and with heart. In fact, it was he who advised her, when she asked him, that she was free to vote:
Before the registration, and before this election, Miss Anthony called upon me for advice upon the question whether, under the 14th Amendment of the Constitution of the United States, she had a right to vote. I had not examined the question. I told her I would examine it and give her my opinion upon the question of her legal right.
O'Reilly v. Morse is a famous case, appealed to the US Supreme Court, and the case established that you can't patent a law of nature, while upholding some other patents of Morse's.
Here's the decision in that famous case, known simply as the Telegraph Case. And Google Books has a
biography of Morse. If you recall, Microsoft referenced this case in its amicus brief in In Re Bilski, which might be decided and announced tomorrow. Small world, isn't it? I see also that there is nothing new about the USPTO issuing stupid patents. And the remedy hasn't changed much either.
She went away and came again after I had made the examination. I advised her that she was as lawful a voter as I am, or as any other man is, and advised her to go and offer her vote. I may have been mistaken in that, and if I was mistaken, I believe she acted in good faith. I believe she acted according to her right as the law and Constitution gave it to her. But whether she did or not, she acted in the most perfect good faith, and if she made a mistake, or if I made one, that is not a reason for committing her to a felon's cell.
But getting back to Susan B. Anthony, what happened to her? Despite her excellent lawyer, and the rather obvious ridiculousness of her arrest, the judge wouldn't let a case go to the jury at all, directing the verdict of guilty as a matter of law. He wouldn't let them be polled or to say a single word, which is rather odd, in that one right US citizens have in criminal trials is the right to trial by jury. It was, I read, his first criminal case, so that may be the explanation.
So, guilty as charged. From the booklet:
The court held that the defendant had no right to vote--that good faith constituted no defence--that there was nothing in the case for the jury to decide, and directed them to find a verdict of guilty; refusing to submit, at the request of the defendant's counsel, any question to the jury, or to allow the clerk to ask the jurors, severally, whether they assented to the verdict which the court had directed to be entered. The verdict of guilty was entered by the clerk, as directed by the court, without any express assent or dissent on the part of the jury. A fine of $100, and costs, was imposed upon the defendant. One problem judges have, if it's a problem, is that they only go by the current law in the lower courts, or they are supposed to. Anthony's lawyer tried to use the 14th Amendment and stretch it to apply to women too, but the judge wasn't buying that legal theory.
Her lawyer asked the judge to at least let the jury resolve the following, as was her right:
Miss ANTHONY insists that in these proceedings, the fundamental principle of criminal law, that no person can be a criminal unless the mind be so--that an honest mistake is not a crime, has been disregarded; that she has been denied her constitutional right of trial by jury, the jury having had no voice in her conviction; that she has been denied her right to have the response of every juror to the question, whether he did or did not assent to the verdict which the court directed the clerk to enter.
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: His request was denied:
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.
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. The Library of Congress tells us that this was this judge's first criminal case, and it is remarkable that he thought he could deny her the right to trial by jury. But it happened. If you were there, what would you be thinking?
JUDGE SELDEN: That is a direction no Court has power to make in a criminal case.
THE COURT: Take the verdict, Mr. Clerk.
The inspectors were found guilty too, by the way, which they thought was a bit much:
The trial of the three inspectors followed that of Miss ANTHONY, and all were convicted,
the court holding, as in the case of Miss ANTHONY, that good faith on their part in receiving the votes was not a protection; which they think a somewhat severe rule of law, inasmuch as the statute provides the same penalty, and in the same sentence, "for knowingly and wilfully receiving the vote of any person not entitled to vote, or refusing to receive the vote of any person entitled to vote." The inspectors claim, that according to this exposition of the law, they were placed in a position which required them, without any opportunity to investigate or take advice in regard to the right of any voter whose right was questioned, to decide the question correctly, at the peril of a term in the state's prison if they made a mistake; and, though this may be a correct exposition of the law in their case, they would be sorry to see it applied to the decisions of any court, not excepting the tribunal by which they were convicted. In other words, they thought the law was wrong, or at least not correctly drafted, and anyway how were they supposed to know who was allowed to vote and who wasn't, and when they'd get in trouble no matter what they did, in that refusing to let someone vote if they turned out to be entitled to do so carried the same punishment as letting someone vote if they were not supposed to let them.
The defendant, HALL, is at a loss to know how he could have avoided the penalty, inasmuch as he did all that he could in the way of rejecting the votes, without throttling his co-inspectors, and forcing them to desist from the wrong of receiving them. He is of opinion that by the ruling of the Court, he would have been equally guilty, if he had tried his strength in that direction, and had failed of success.
The judge eventually then decided that matters of law were his, and if there were no issues of fact, there was no need for a jury. Was it fair? Constitutional, even? As Anthony's lawyer told the court:
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."... So, something was way off. Was there collusion, even? I don't know, but you don't have to collude if your world view is the same. Here's a postcard the Library of Congress has preserved, showing women asking for the vote and "George Washington" responding, Did I save my country for this! That was the mood.
Again. The denial of the right to poll the jury was most clearly an error. Under the provisions of the constitution which have been cited, the defendant could only be convicted on the verdict of a jury.
By deciding that nothing could go to the jury, it also meant that her lawyer couldn't address the jury on her behalf. And as you see, when he asked if the jurors agreed with the judge's verdict, that request was denied as well, as was the motion for a new trial.
When her lawyer tried to call Ms. Anthony to the stand, here's what happened:
JUDGE SELDEN: I propose to call Miss Anthony as to the fact of her voting--on the question of the intention or belief under which she voted.
Blood boiling yet? She is on trial, accused of a crime, her defense includes that she thought she had the legal right to vote, and the court won't let her speak, because women were not legally viewed as competent to be a witness on their own behalf. But it gets worse. Immediately, the prosecution puts on the stand a man who is asked to tell the court what Anthony said in another trial. Her lawyer objects:
MR. CROWLEY: She is not competent as a witness in her own behalf.
[The Court so held.]
Q. Turn to the evidence of Susan B. Anthony! Imagine you are Ms. Anthony. How are you feeling? You are not allowed to defend yourself under oath, because you are deemed incompetent as a witness, being a woman, but illogically your words under oath in another trial are allowed to be presented by the prosecution, not by asking you about it but from notes taken and presented by a man. In short, the trial was farcical, but it seemed just right to the judge and most of the folks in the US at the time.
A. I have it.
Q. Did she, upon that occasion, state that she consulted or talked with Judge Henry R. Selden, of Rochester, in relation to her right to vote?
JUDGE SELDEN: I object to that upon the ground that it is incompetent, that if they refuse to allow her to be sworn here, they should be excluded from producing any evidence that she gave elsewhere, especially when they want to give the version which the United States officer took of her evidence.
THE COURT: Go on.
By MR. CROWLEY:
Q. State whether she stated on that examination, under oath, that she had talked or consulted with Judge Henry R. Selden in relation to her right to vote?
A. She did.
After Anthony was found guilty and ordered to pay a fine of $100, the judge asked her at that point if she had anything to say. She certainly did, and off she went telling him that he had violated her rights, an experience he didn't enjoy very much, I think, because he tries to cut her off several times, but she was used to forcing her way onward, I gather, and just kept on going until she was forced to sit down. The judge then reads her sentence and off she goes again. The Library of Congress highlights this little bit of it:
"Yes, your honor," seethed Anthony, "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 sex, are, by your honor's verdict, doomed to political subjection under this, so-called, form of government." But if you keep reading, it is fascinating. She knew the trial was a joke, and that she was being denied her rights. She also declined to pay the fine. Here's what happened immediately after the part the LOC quotes:
JUDGE HUNT--The Court cannot listen to a rehearsal of arguments the prisoner's counsel has already consumed three hours in presenting. She never paid it, either.
She next petitioned Congress, asking them to undo what had been done, and they refused to help her at all, believe it or not. The law was the law. One might conclude that the legal system didn't work very well. If you were commenting on the case back then on Groklaw, if such had been possible at the time, some of you'd tell me that I was a dope to put any confidence or trust in the legal system, which clearly wasn't fair or working well at all.
MISS ANTHONY--May it please your honor, 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, 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 class 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 circumstances, 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 entitled to sit upon a jury, and no woman is entitled 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 class.
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 Constitution and its recent amendments, that should declare all United States citizens under its protecting ęgis--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.
Or one might notice that in the end, 14 years after Anthony died, women won the right to vote despite it all and you might realize that what happened in this case no doubt contributed to that end result. That's why they published the pamphlet, after all, and included in the book a speech by Ms. Anthony she gave prior to the trial on this very topic of women's suffrage. After her death, Wikipedia notes, the New York State Senate passed a resolution remembering her "unceasing labor, undaunted courage and unselfish devotion to many philanthropic purposes and to the cause of equal political rights for women." In 1936, they put her on a stamp.
You can look at it either way. I'll leave it up to you. But I went to the trouble to write all this because there are two cases before the courts, where we are awaiting decisions, SCO v. Novell and In re Bilski. I wanted you to know, no matter what happens in either, that even when courts mess up, are egregiously unfair, or even reach results in an unConstitutional process, in the end, it can still come out right. It did here. It's why nothing that has happened in the SCO saga ever throws me for a loop.
Law is a process, not a day's event, a marathon, not a sprint. Hopefully, both cases will be decided as you think they should be, but if not, I hope you will remember Ms. Anthony's peculiar trial on the crime of voting "while she was a woman".