Susan B. Anthony Cast Her Ballot For Ulysses S. Grant

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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 twenty-one and sixty 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 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.’ ”