U.S. v. Susan B. Anthony: 1873

Defendant: Susan B. Anthony
Crime Charged: Unlawful Voting
Chief Defense Lawyers: Henry R. Selden and John Van Voorhis
Chief Prosecutor: Richard Crowley
Judge: Ward Hunt
Place: Canandaigua, New York
Dates of Trial: June 17-18, 1873
Verdict: Guilty

SIGNIFICANCE: This was one of the first in a series of decisions—including two rendered by the Supreme Court—which found that Section 1 of the Fourteenth Amendment to the U.S. Constitution did not expand or protect women's rights, an interpretation which remained unchanged for almost 100 years.

Several cases in the 1870s, including U.S. v. Susan B. Anthony, grew out of women's attempts to gain full rights of citizenship through the judicial system. Had this strategy worked, women would have been spared what followed: a 60-year-long, state-by-state legislative campaign for suffrage and 100 years in which the Fourteenth Amendment's equal protection clause was not applied to sex discrimination cases.

In July 1868, exactly 20 years after the Seneca Falls Convention and American women's first public demand for suffrage, the Fourteenth Amendment was adopted. Section 2, intended to encourage states to grant suffrage to African-American men, angered women's rights leaders because it introduced the word "male" into the Constitution and, some thought, called into question the citizenship of females. Francis Minor, an attorney and husband of Virginia Minor, the Woman Suffrage Association of Missouri's president, thought women were looking at the wrong clause. Section 1, he pointed out in 1869, declared:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Minor wrote that this clause confirmed the citizenship of women and concluded, "provisions of the several State Constitutions that exclude women from the franchise on account of sex, are violative alike of the spirit and letter of the Federal Constitution."

Susan B. Anthony and Elizabeth Cady Stanton published Minor's analysis in their newspaper, the Revolution, and urged women to go to the polls. In 1871 and 1872, in at least 10 states, women did so. Most were turned away, but a few actually managed to vote.

"I Have Been & Gone & Done it!"

One of those who voted in 1872 was Susan B. Anthony. Before registering in Rochester, New York, she had consulted Judge Henry R. Selden, who agreed that Section 1 of the Fourteenth Amendment should entitle women to suffrage; she carried his written opinion with her and threatened to sue the registrars if they failed to take her oath. They complied. Anthony and 14 female companions were registered and, on November 5, they voted. On November 28, Susan B. Anthony, the other 14 women, and the inspectors who had registered them were arrested.

All parties were offered release upon payment of $500 bail; Anthony alone refused to pay. Henry Selden, acting as her attorney, applied for a writ of habeas corpus, and Anthony was temporarily released. A U.S. district judge denied the writ and reset her bail at $1,000 on January 21, 1873. Anthony refused to pay, but Selden—who would later explain that he "could not see a lady I respected put in jail"—paid the bail. Anthony was released and immediately lost her right to appeal to the Supreme Court on the basis of the writ of habeas corpus.

Stumping Before the Trial

Anthony tried to present her side of the story to prospective jurors before the scheduled May 13 trial began. She gave the same speech in all 29 postal districts of her county:

"Friends and Fellow-Citizens, I stand before you under indictment for the alleged crime of having voted at the last presidential election, without having a lawful right to vote.… We no longer petition legislature or Congress to give of the right to vote, but appeal to women everywhere to exercise their too long neglected 'citizen's right'.… we throw to the wind the old dogma that governments can give rights. The Declaration of Independence, the United States Constitution the constitutions of the several states … propose to protect the people in the exercise of their God-given rights. Not one of them pretends to bestow rights.…One half of the people of this Nation today are utterly powerless to blot from the statute books an unjust law, or to write a new and just one. The women, dissatisfied as they are with this form of government, that enforces taxation without representation—that compels them to obey laws to which they have never given their consent—that imprisons and hangs them without a trial by a jury of their peers—that robs them, in marriage of the custody of their own persons, wages, and children—are this half of the people left wholly at the mercy of the other half."

Because Anthony had "prejudiced any possible jury," her trial was moved out of her own Monroe County to Canandaigua, a town in Ontario County,New York, and rescheduled for June 17. By June 16, Anthony had spoken in every Ontario village.

Trial Begins June 17

The trial opened before Judge Ward Hunt on June 17, 1873. U.S. District Attorney Richard Crowley presented the government's case: "Miss Susan B. Anthony … upon the 5th day of November, 1872,… voted … At that time she was a woman.

Beverly W. Jones, one of the inspectors under indictment for registering Anthonv, testified that he had indeed registered her and that he had received ballots from her on November 5.

Crowley introduced the poll list bearing the name of Susan B. Anthony as proof that the woman voted, and the government rested its case.

Henry Selden then tried to call Anthony to the stand. Crowley objected: "She is not competent as a witness in her own behalf." (Women were not permitted to testify in federal court in the 19th century.)

The judge "so held" that Anthony could not testify.

Selden then took the stand and testified that he concurred with Anthony's reading of the Fourteenth Amendment and that he had advised her to cast her ballot. Selden argued: "The only alleged ground of illegality of the defendant's vote is that she is a woman. If the same act has been done by her brother tinder 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."

At the conclusion of argument, Judge Hunt read a statement—prepared before he had heard testimony—to the "Gentlemen of the Jury":

The right of voting, or the privilege of voting, is a right or privilege arising under the Constitution of the State, and not of the United States … If the State of New York should provide that no person should vote until he had reached the age of thirty-one years, or after he had reached the age of fifty, or that no person having gray hair, or who had not the use of all his limbs, should be entitled to vote, I do not see how it could be held to he a violation of any right derived or held tinder the Constitution of the United States.

Judge Hunt directed the jury to deliver a guilty verdict.

Selden objected, saying, "it is for the jury [to decide]."

Hunt addressed the jury again: "I have decided as a question of law … that under the Fourteenth Amendment, which Miss Anthony claims protects her, she was not protected in a right to vote.… I therefore direct you to find a verdict of guilty."

Hunt then asked the clerk to record the jury's verdict. The next day, Selden presented a motion and arguments for a new trial, which Hunt denied. Hunt then asked Anthony to stand. "The sentence of the Court is that you pay a fine of $100.00 and the costs of prosecution."

Anthony replied: "May it please your honor, I will never pay a dollar of your unjust penalty.… 'Resistance to tyranny is obedience to God.'"

Hunt released her, saying, "Madam, the Court will not order to stand committed until the fine is paid."

Anthony never paid the fine.

Supreme Court Reviews Women and the Fourteenth
Amendment

In 1873, the Supreme Court heard the case of Myra Bradwell, who claimed that her Fourteenth Amendment rights were abridged by Illinois' law prohibiting women from the practice of law. The Court found that her rights had not been violated since "the right of females to pursue any lawful employment for a livelihood [the practice of law included]" was not "one of the privileges and immunities of women as citizens." Justice Samuel F. Miller, writing for the majority, explained: "The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things."

In its decision on Minor v. Happersett, the Supreme Court's unanimous opinion was that the right of suffrage was not one of the privileges and immunities of citizenship, and women—although citizens of the United States—could be denied the vote by their respective states.

The first successful Fourteenth Amendment challenge to a sex-biased law was brought by Sally Reed in 1971. Reed's son died intestate (having made no valid will), and the Idaho court automatically appointed Reed's estranged husband Cecil as administrator of the estate, because of his sex, and denied Reed's own petition, because of hers. More than 100 years after the adoption of the Fourteenth Amendment, Chief Justice Warren E. Burger delivered the following opinion for the court: "We have concluded that the arbitrary preference established in favor of males by the Idaho Code cannot stand in the face of the Fourteenth Amendment's command that no State deny the equal protection of the laws to any person within its jurisdiction."

—Kathryn Cullen-DuPont

Suggestions for Further Reading

Barry, Kathleen. Susan B. Anthony: A Biography. New York: New York University Press, 1988.

Flexner, Eleanor. Century of Struggle. Cambridge, Mass.: Belknap Press of Harvard University Press, 1959, revised 1975.

Frost, Elizabeth and Kathryn Cullen-DuPont. Women's Suffrage in America: An Eyewvitness History. New York: Facts On File, 1992.

Harper, Ida Husted. Life and Work of Susan B. Anthony. 1898. Reprint. Salem, N.H.: Ayer Co., 1983.

Stanton, Elizabeth Cady, Susan B. Anthony, and Matilda Joslyn Gage. History of Woman Suffrage, Vol.I1. 1882. Reprint. Salem, N.H.: Ayer Co., 1985.