Section 2. the Congress Shall Have Power to Enforce This

article by appropriate legislation.

By reference to the provisions of the original Constitution, here recited, it appears that prior to the XIII., if not until the XIV. Amendment, the whole power over the elective franchise, even in the choice of Federal officers, rested with the States. The Constitution contains no definition of the term "citizen," either of the United States, or of the several States, but contents itself with the provision that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." The States were thus left free to place such restrictions and limitations upon the "privileges and immunities" of citizens as they saw fit, so far as is consistent with a republican form of government, subject only to the condition that no State could place restrictions upon the "privileges or immunities" of the citizens of any other State, which would not be applicable to its own citizens under like circumstances. It will be seen, therefore, that the whole subject, as to what should constitute the "privileges and immunities" of the citizen being left to the States, no question, such as we now present, could have arisen under the original Constitution of the United States.

But now, by the XIV. Amendment, the United States have not only declared what constitutes citizenship, both in the United States and in the several States, securing the rights of citizens to "all persons born or naturalized in the United States"; but have absolutely prohibited the States from making or enforcing "any law which shall abridge the privileges or immunities of citizens of the United States." By virtue of this provision, I insist that the act of Miss Anthony in voting was lawful. It has never, since the adoption of the XIV. Amendment, been questioned, and can not be questioned, that women as well as men are included in the terms of its first section, nor that the same "privileges and immunities of citizens" are equally secured to both.

What, then, are the "privileges and immunities of citizens of the United States" which are secured against such abridgment, by this section? I claim that these terms not only include the right of voting for public officers, but that they include that right as pre-eminently the most important of all the privileges and immunities to which the section refers. Among these privileges and immunities may doubtless be classed the right to life and liberty, to the acquisition and enjoyment of property, and to the free pursuit of one's own welfare, so far as such pursuit does not interfere with the rights and welfare of others; but what security has any one for the enjoyment of these rights when denied any voice in the making of the laws, or in the choice of those who make, and those who administer them? The possession of this voice, in the making and administration of the laws--this political right--is what gives security and value to the other rights, which are merely personal, not political. A person deprived of political rights is essentially a slave, because he holds his personal rights subject to the will of those who possess the political power. This principle constitutes the very corner-stone of our Government--indeed, of all republican government. Upon that basis our separation from Great Britain was justified. "Taxation without representation is tyranny." This famous aphorism of James Otis, although sufficient for the occasion when it was put forth, expresses but a fragment of the principle, because government can be oppressive through means of many appliances besides that of taxation. The true principle is, that all government over persons deprived of any voice in such government, is tyranny. That is the principle of the Declaration of Independence. We were slow in allowing its application to the African race, and have been still slower in allowing its application to women; but it has been done by the XIV. Amendment, rightly construed, by a definition of "citizenship," which includes women as well as men, and in the declaration that "the privileges and immunities of citizens shall not be abridged."

If there is any privilege of the citizen which is paramount to all others, it is the right of suffrage; and in a constitutional provision, designed to secure the most valuable rights of the citizen, the declaration that the privileges and immunities of the citizen shall not be abridged must, as I conceive, be held to secure that right before all others. It is obvious, when the entire language of the section is examined, not only that this declaration was designed to secure to the citizen this political right, but that such was its principal, if not its sole object, those provisions of the section which follow it being devoted to securing the personal rights of "life, liberty, property, and the equal protection of the laws." The clause on which we rely, to wit: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," might be stricken out of the section, and the residue would secure to the citizen every right which is now secured, excepting the political rights of voting and holding office. If the clause in question does not secure those political rights, it is entirely nugatory, and might as well have been omitted.

If we go to the lexicographers and to the writers upon law, to learn what are the privileges and immunities of the "citizen" in a republican government, we shall find that the leading feature of citizenship is the enjoyment of the right of suffrage. The definition of the term "citizen" by Bouvier is:

One who under the Constitution and laws of the United States, has a right to vote for Representatives in Congress, and other public officers, and who is qualified to fill offices in the gift of the people.

By Worcester:

An inhabitant of a republic who enjoys the rights of a freeman, and has a right to vote for public officers.

By Webster:

In the United States, a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate.

The meaning of the word "citizen" is directly and plainly recognized by the latest Amendment of the Constitution, the XV.:

The right of the citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.

This clause assumes that the right of citizens, as such, to vote, is an existing right. Mr. Richard Grant White, in his late work on "Words and their Uses," says of the word citizen:

A citizen is a person who has certain political rights, and the word is properly used to imply or suggest the possession of these rights.

Mr. Justice Washington, in the case of Corfield vs. Coryell (4 Wash. C. C. Rep. 380), speaking of the "privileges and immunities" of the citizen, as mentioned in Sec. 2, Art. 4, of the Constitution, after enumerating the personal rights mentioned above, and some others, as embraced by those terms, says,

To which may be added the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised.

At that time the States had entire control of the subject, and could abridge this privilege of the citizen at its pleasure; but the judge recognizes the "elective franchise" as among the "privileges and immunities" secured, to a qualified extent, to the citizens of every State by the provisions of the Constitution last referred to. When, therefore, the States were, by the XIV. Amendment, absolutely prohibited from abridging the privileges of the citizen, either by enforcing existing laws, or by the making of new laws, the right of every "citizen" to the full exercise of this privilege, as against State action, was absolutely secured.

Chancellor Kent and Judge Story both refer to the opinion of Mr. Justice Washington, above quoted, with approbation. The Supreme Court of Kentucky, in the case of Amy, a woman of color, vs. Smith (1 Littell's Rep. 326), discussed with great ability the questions as to what constituted citizenship, and what were the "privileges and immunities of citizens" which were secured by Sec. 2, Art. 4, of the Constitution, and they showed, by an unanswerable argument, that the term "citizens," as there used, was confined to those who were entitled to the enjoyment of the elective franchise, and that that was among the highest of the "privileges and immunities" secured to the citizen by that section. The court say that,

To be a citizen it is necessary that he should be entitled to the enjoyment of these privileges and immunities, upon the same terms upon which they are conferred upon other citizens; and unless he is so entitled he can not, in the proper sense of the term, be a citizen.

In the case of Scott vs. Sanford (19 How. 404), Chief-Justice Taney says:

The words "people of the United States," and "citizens," are synonymous terms, and mean the same thing; they describe the political body, who according to our republican institutions, form the sovereignty and hold the power, and conduct the government through their representatives. They are what we familiarly call the sovereign people, and every citizen is one of this people, and a constituent member of this sovereignty.

Mr. Justice Daniel, in the same case (p. 476), says:

Upon the principles of etymology alone, the term citizen, as derived from civitas, conveys the idea of connection or identification with the State or Government, and a participation in its functions. But beyond this, there is not, it is believed, to be found in the theories of writers on government, or in any actual experiment heretofore tried, an exposition of the term citizen, which has not been understood as conferring the actual possession and enjoyment, or the perfect right of acquisition and enjoyment of an entire equality of privileges, civil and political.

Similar references might be made to an indefinite extent, but enough has been said to show that the term citizen, in the language of Justice Daniel, conveys the idea "of identification with the State or Government, and a participation in its functions." Beyond question, therefore, the first section of the XIV. Amendment, by placing the citizenship of women upon a par with that of men, and declaring that the "privileges and immunities" of the citizen shall not be abridged, has secured to women, equally with men, the right of suffrage, unless that conclusion is overthrown by some other provision of the Constitution.

It is not necessary for the purposes of this argument to claim that this Amendment prohibits a State from making or enforcing any law whatever, regulating the elective franchise, or prescribing the conditions upon which it may be exercised. But we do claim that in every republic the right of suffrage, in some form and to some extent, is not only one of the privileges of its citizens, but is the first, most obvious and most important of all the privileges they enjoy; that in this respect all citizens are equal, and that the effect of this Amendment is, to prohibit the States from enforcing any law which denies this right to any of its citizens, or which imposes any restrictions upon it, which are inconsistent with a republican form of government. Within this limit, it is unnecessary for us to deny that the States may still regulate and control the exercise of the right.

The only provisions of the Constitution which it can be contended conflict with the construction which has here been put upon the first section of the XIV. Amendment, are the XV. Amendment, and the second section of the XIV. In regard to the XV. Amendment, I shall only say, that if my interpretation of the XIV. is correct, there was still an object to be accomplished and which was accomplished by the XV. The prohibition of any action abridging the privileges and immunities of citizens, contained in the XIV. Amendment, applies only to the States, and leaves the United States Government free to abridge the political privileges and immunities of citizens of the United States, as such, at its pleasure. By the XV. Amendment both the United States and the State governments are prohibited from exercising this power, "on account of race, color, or previous condition of servitude" of the citizen.

The first remark to be made upon the second section of the XIV. Amendment is, that it does not give, and was not designed to give to the States any power to deny or abridge the right of any citizen to exercise the elective franchise. So far as it touches that subject, it was designed to be restrictive upon the States. It gives to them no power whatever. It takes away no power, and it gives none; but if the States possess the power to deny or abridge the right of citizens to vote, it must be derived from some other provision of the Constitution. I believe none such can be found, which was not necessarily abrogated by the first section of this Amendment. It may be conceded that the persons who prepared this section supposed that, by other parts of the Constitution, or in some other way, the States would still be authorized, notwithstanding the provisions of the first section, to deny to the citizens the privilege of voting, as mentioned in the second section; but their mistake can not be held to add to, or to take from the other provisions of the Constitution. It is very clear that they did not intend, by this section, to give to the States any such power, but, believing that the States possessed it, they designed to hold the prospect of a reduction of their representation in Congress in terrorem over them to prevent them from exercising it. They seem not to have been able to emancipate themselves from the influence of the original Constitution which conceded this power to the States, or to have realized the fact that the first section of the Amendment, when adopted, would wholly deprive the States of that power.

But those who prepare constitutions are never those who adopt them, and consequently the views of those who frame them have little or no bearing upon their interpretation. The question for consideration here is, what the people, who, through their representatives in the legislatures, adopted the Amendments, understood, or must be presumed to have understood, from their language. They must be presumed to have known that the "privileges and immunities" of citizens which were secured to them by the first section beyond the power of abridgment by the States, gave them the right to exercise the elective franchise, and they certainly can not be presumed to have understood that the second section, which was also designed to be restrictive upon the States, would be held to confer by implication a power upon them, which the first section in the most express terms prohibited.

It has been, and may be again asserted, that the position which I have taken in regard to the second section is inadmissible, because it renders the section nugatory. That is, as I hold, an entire mistake. The leading object of the second section was the readjustment of the representation of the States in Congress, rendered necessary by the abolition of chattel slavery [not of political slavery], effected by the XIII. Amendment. This object the section accomplishes, and in this respect it remains wholly untouched, by my construction of it. Neither do I think the position tenable which has been taken by one tribunal, to which the consideration of this subject was presented, that the constitutional provision does not execute itself. The provisions on which we rely were negative merely, and were designed to nullify existing as well as any future State legislation interfering with our rights. This result was accomplished by the constitution itself. Undoubtedly before we could exercise our right, it was necessary that there should be a time and place appointed for holding the election and proper officers to hold it, with suitable arrangements for receiving and counting the votes. All this was properly done by existing laws, and our right being made complete by the Constitution, no further legislation was required in our behalf. When the State officers attempted to interpose between us and the ballot-box the State Constitution or State law, whether ancient or recent, abridging or denying our equal right to vote with other citizens, we had but to refer to the United States Constitution, prohibiting the States from enforcing any such constitutional provision or law, and our rights were complete; we needed neither Congressional nor State legislation in aid of them. The opinion of Mr. Justice Bradley, in a case in the United States Circuit Court in New Orleans (1 Abb. U. S. Rep., 402) would seem to be decisive of this question, although the right involved in that case was not that of the elective franchise. The learned Justice says:

It was very ably contended on the part of the defendants that the XIV. Amendment was intended only to secure to all citizens equal capacities before the law. That was at first our view of it. But it does not so read. The language is: "No State shall abridge the privileges or immunities of citizens of the United States." What are the privileges and immunities of citizens? Are they capacities merely? Are they not also rights?

Senator Carpenter, who took part in the discussion of the XIV. Amendment in the Senate, and aided in its passage, says:

The XIV. Amendment executes itself in every State of the Union.... It is thus the will of the United States in every State, and silences every State Constitution, usage, or law which conflicts with it.... And if this provision does protect the colored citizen, then it protects every citizen, black or white, male or female.... And all the privileges and immunities which I vindicate to a colored citizen, I vindicate to our mothers, our sisters, and our daughters.--Chicago Legal News, vol. IV., No. 15.

It has been said, with how much or how little truth I do not know, that the subject of securing to women the elective franchise was not considered in the preparation or in the adoption of these Amendments. It is wholly immaterial whether that was so or not. It is never possible to arrive at the intention of the people in adopting constitutions, except by referring to the language used. As is said by Mr. Cooley, "the intent is to be found in the instrument itself" (p. 55), and to that I have confined my remarks. It is not a new thing for constitutional and legislative acts to have an effect beyond the anticipation of those who framed them. It is undoubtedly true, that in exacting Magna Charta from King John, the Barons of England provided better securities for the rights of the common people than they were aware of at the time, although the rights of the common people were neither forgotten nor neglected by them. It has also been said, perhaps with some truth, that the framers of the original Constitution of the United States "builded better than they knew;" and it is quite possible that in framing the Amendments under consideration, those engaged in doing it have accomplished a much greater work than they were at the time, aware of. I am quite sure that it will be fortunate for the country, if this great question of female suffrage, than which few greater were ever presented for the consideration of any people, shall be found, almost unexpectedly, to have been put at rest. The opinion of Mr. Justice Bradley, in regard to this Amendment, in the case above referred to, if I understand it, corresponds very nearly with what I have here said. The learned Judge, in one part of his opinion, says:

It is possible that those who framed the article were not themselves aware of the far-reaching character of its terms. They may have had in mind but one particular phase of social and political wrong, which they desired to redress--yet, if the Amendment, as framed and expressed, does, in fact, have a broader meaning, and does extend its protecting shield over those who were never thought of when it was conceived and put in form, and does reach such social evils which were never before prohibited by constitutional amendment, it is to be presumed that the American people, in giving it their imprimatur, understood what they were doing, and meant to decree what has, in fact, been done.... It embraces much more. The "privileges and immunities" secured by the original Constitution were only such as each State gave its own citizens. Each was prohibited from discriminating in favor of its own citizens, and against the citizens of other States. But the XIV. Amendment prohibits any State from abridging the privileges or immunities of the citizens of the United States, whether its own citizens or any others. It not merely requires equality of privileges, but it demands that the privileges and immunities of all citizens shall be absolutely unabridged, unimpaired. (1 Abbott's U. S. Rep., 397).

It will doubtless be urged as an objection to my position (that citizenship carries with it the right to vote) that it would, in that case, follow that infants and lunatics, who, as well as adults and persons of sound mind, are citizens, would also have that right. This objection, which appears to have great weight with certain classes of persons, is entirely without force. It takes no note of the familiar fact, that every legislative provision, whether constitutional or statutory, which confers any discretionary power, is always confined in its operation to persons who are compos mentis. It is wholly unnecessary to except idiots and lunatics out of any such statute. They are excluded from the very nature of the case. The contrary supposition would be simply absurd. And, in respect to every such law, infants, during their minority, are in the same class. But are women, who are not infants, ever included in this category? Does any such principle of exclusion apply to them? Not at all. On the contrary, they stand, in this respect, upon the same footing as men, with the sole exception of the right to vote and the right to hold office. In every other respect, whatever rights and powers are conferred upon persons by law may be exercised by women as well as by men. They may transact any kind of business for themselves, or as agents or trustees for others; may be executors and administrators, with the same powers and responsibilities as men; and it ought not to be a matter of surprise or regret that they are now placed, by the XIV. Amendment, in other respects upon a footing of perfect equality.

Although not directly connected with the argument as to the right secured to women by the Constitution, I deem it not improper to allude briefly to some of the popular objections against the propriety of allowing females the privilege of voting. I do this because I know from past experience that these popular objections, having no logical bearing upon the subject, are yet, practically, among the most potent arguments against the interpretation of the XIV. Amendment, which I consider the only one that its language fairly admits of.

It is said that women do not desire to vote. Certainly many women do not but that furnishes no reason for denying the right to those who do desire to vote. Many men decline to vote. Is that a reason for denying the right to those who would vote? I believe, however, that the public mind is greatly in error in regard to the proportion of female citizens who would vote if their right to do so were recognized. In England there has been to some extent a test of that question, with the following result, as given in the newspapers, the correctness of which, in this respect, I think there is no reason to doubt:

Woman suffrage is, to a certain extent, established in England, with the result as detailed in the London Examiner, that in 66 municipal elections, out of every 1,000 women who enjoy equal rights with men on the register, 516 went to the poll, which is but 48 less than the proportionate number of men. And out of 27,949 women registered, where a contest occurred, 14,416 voted. Of men there were 166,781 on the register, and 90,080 at the poll. The Examiner thereupon draws this conclusion: "Making allowance for the reluctance of old spinsters to change their habits, and the more frequent illness of the sex, it is manifest that women, if they had opportunity, would exercise the franchise as freely as men. There is an end, therefore, of the argument that women would not vote if they had the power."

Our law books furnish, perhaps, more satisfactory evidence of the earnestness with which women in England are claiming the right to vote, under the reform act of 1867, aided by Lord Brougham's act of 1850. The case of Chorlton, appellant, vs. Lings, respondent, came before the Court of Common Pleas in England in 1869. It was an appeal from the decision of the revising barrister, for the borough of Manchester, to the effect "that Mary Abbott, being a woman, was not entitled to be placed on the register." Her right was perfect in all respects excepting that of sex. The court, after a very full and able discussion of the subject, sustained the decision of the revising barrister, denying to women the right to be placed on the register, and consequently denying their right to vote. The decision rested upon the peculiar phraseology of several Acts of Parliament, and the point decided has no applicability here. My object in referring to the case has been to call attention to the fact stated by the reporter, that appeals of 5,436 other women were consolidated and decided with this. No better evidence could be furnished of the extent and earnestness of the claim of women in England to exercise the elective franchise.--Law Rep. Com. Pleas, 4-374. I infer, without being able to say how the fact is, that the votes given by women, as mentioned in the newspapers, were given at municipal elections merely, and that the cases decided by the Court of Common Pleas relate to elections for members of Parliament.

Another objection is, that the right to hold office must attend the right to vote, and that women are not qualified to discharge the duties of responsible offices. I beg leave to answer this objection by asking one or more questions. How many of the male bipeds who do our voting are qualified to hold high offices? How many of the large class to whom the right of voting is supposed to have been secured by the XV. Amendment, are qualified to hold office? Whenever the qualifications of persons to discharge the duties of responsible offices is made the test of their right to vote, and we are to have a competitive examination on that subject, open to all claimants, my client will be content to enter the lists, and take her chances among the candidates for such honors.

But the practice of the world, and our own practice, give the lie to this objection. Compare the administration of female sovereigns of great kingdoms, from Semiramis to Victoria, with the average administration of male sovereigns, and which will suffer by the comparison? How often have mothers governed large kingdoms, as regents, during the minority of their sons, and governed them well? Such offices as the "sovereigns" who rule them in this country have allowed women to hold (they having no voice on the subject), they have discharged the duties of with ever-increasing satisfaction to the public; and Congress has lately passed an act, making the official bonds of married women valid, so that they could be appointed to the office of postmaster.

The case of Olive vs. Ingraham (7 Modern Rep. 263) was an action brought to try the title to an office. On the death of the sexton of the parish of St. Butolph, the place was to be filled by election, the voters being the housekeepers who "paid Scot and lot" in the parish. The widow of the deceased sexton (Sarah Bly) entered the lists against Olive, the plaintiff in the suit, and received 169 indisputable votes, and 40 votes given by women who were "housekeepers, and paid to church and poor." The plaintiff had 174 indisputable votes, and 22 votes given by such women as voted for Mrs. Bly. Mrs. Bly was declared elected. The action was brought to test two questions: 1. Whether women were legal voters; and 2. Whether a woman was capable of holding the office. The case was four times argued in the King's Bench, and all the Judges delivered opinions, holding that the women were competent voters; that the widow was properly elected, and could hold the office. In the course of the discussion it was shown that women had held many offices, those of constable, church warden, overseer of the poor, keeper of the "gate house" (a public prison), governess of a house of correction, keeper of castles, sheriffs of counties, and high constable of England. If women are legally competent to hold minor offices, I would be glad to have the rule of law, or of propriety, shown which should exclude them from higher offices, and which marks the line between those which they may and those which they may not hold.

Another objection is that women can not serve as soldiers. To this I answer that capacity for military service has never been made a test of the right to vote. If it were, young men from sixteen to twenty-one would be entitled to vote, and old men from sixty and upward would not. If that were the test, some women would present much stronger claims than many of the male sex.

Another objection is that engaging in political controversies is not consistent with the feminine character. Upon that subject, women themselves are the best judges, and if political duties should be found inconsistent with female delicacy, we may rest assured that women will either effect a change in the character of political contests, or decline to engage in them. This subject may be safely left to their sense of delicacy and propriety. If any difficulty on this account should occur, it may not be impossible to receive the votes of women at their places of residence. This method of voting was practiced in ancient Rome under the republic; and it will be remembered that when the votes of the soldiers who were fighting our battles in the Southern States were needed to sustain their friends at home, no difficulty was found in the way of taking their votes at their respective camps.

I humbly submit to your honor, therefore, that on the Constitutional grounds to which I have referred, Miss Anthony had a lawful right to vote; that her vote was properly received and counted; that the first section of the XIV. Amendment secured to her that right, and did not need the aid of any further legislation. But conceding that I may be in error in supposing that Miss Anthony had a right to vote, she has been guilty of no crime, if she voted in good faith believing that she had such right. This proposition appears to me so obvious, that were it not for the severity to my client of the consequences which may follow a conviction, I should not deem it necessary to discuss it.

To make out the offense, it is incumbent on the prosecution to show affirmatively, not only that the defendant knowingly voted, but that she so voted knowing that she had no right to vote. That is, the term "knowingly" applies, not to the fact of voting, but to the fact of want of right. Any other interpretation of the language would be absurd. We can not conceive of a case where a party could vote without knowledge of the fact of voting, and to apply the term "knowingly" to the mere act of voting, would make nonsense of the statute. This word was inserted as defining the essence of the offense, and it limits the criminality to cases where the voting is not only without right, but where it is done willfully, with a knowledge that it is without right. Short of that there is no offense within the statute. This would be so upon well-established principles, even if the word "knowingly" had been omitted, but that word was inserted to prevent the possibility of doubt on the subject, and to furnish security against the inability of stupid or prejudiced judges or jurors, to distinguish between willful wrong and innocent mistake. If the statute had been merely that "if at any election for representative in Congress any person shall vote without having a lawful right to vote, such person shall be deemed guilty of a crime," there could have been justly no conviction under it without proof that the party voted knowing that he had not a right to vote. If he voted innocently supposing he had the right to vote, but had not, it would not be an offense within the statute. An innocent mistake is not a crime, and no amount of judicial decisions can make it such. Mr. Bishop says, (I Cr. Law, § 205),

There can be no crime unless a culpable intent accompanies the criminal act. The same author (1 Cr. Prac. § 521), repeated in other words, the same idea: In order to render a party criminally responsible, a vicious will must concur with a wrongful act.

I quote from a more distinguished author:

Felony is always accompanied with an evil intention, and therefore shall not be imputed to a mere mistake or misanimadversion, as where persons break open a door, in order to execute a warrant, which will not justify such proceeding: Affectio enim tua nomen imponit operi tuo: item crimen non contrahitur nisi nocendi, voluntas intercedat, which, as I understand, may read: For your violation puts the name upon your act; and a crime is not committed unless the will of the offender takes part in it. (1 Hawk. P. C., p. 99, Ch. 25, § 3.)

This quotation by Hawkins is, I believe, from Bracton, which carries the principle back to a very early period in the existence of the common law. It is a principle, however, which underlies all law, and must have been recognized at all times, wherever criminal law has been administered, with even the slightest reference to the principles of common morality and justice. I quote again on this subject from Mr. Bishop:

The doctrine of the intent as it prevails in the criminal law, is necessarily one of the foundation principles of public justice. There is only one criterion by which the guilt of man is to be tested. It is whether the mind is criminal. Criminal law relates only to crime. And neither in philosophical speculation, nor in religious or moral sentiment, would any people in any age allow that a man should be deemed guilty unless his mind was so. It is, therefore, a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent without which it can not exist. (1 Bishop's Crim. Law, § 287.)

Again, the same author, writing on the subject of knowledge, as necessary to establish the intent, says:

It is absolutely necessary to constitute guilt, as in indictments for uttering forged tokens, or other attempts to defraud, or for receiving stolen goods, and offenses of a similar description. (1 Crim. Prac. § 504.)

In regard to the offense of obtaining property by false pretenses, the author says:

The indictment must allege that the defendant knew the pretenses to be false. This is necessary upon the general principles of the law, in order to show an offense, even though the statute does not contain the word "knowingly." (2 Id. § 172.)

As to a presumed knowledge of the law, where the fact involves a question of law, the same author says:

The general doctrine laid down in the foregoing sections (i.e., that every man is presumed to know the law, and that ignorance of the law does not excuse), is plain in itself and plain in its application. Still, there are cases, the precise nature and extent of which are not so obvious, wherein ignorance of the law constitutes, in a sort of indirect way, not in itself a defense, but a foundation on which another defense rests. Thus, if the guilt or innocence of a prisoner depends on the fact to be found by the jury, of his having been or not, when he did the act, in some precise mental condition, which mental condition is the gist of the offense, the jury in determining this question of mental condition, may take into consideration his ignorance or misinformation in a matter of law. For example, to constitute larceny, there must be an intent to steal, which involves the knowledge that the property taken does not belong to the taker; yet, if all the facts concerning the title are known to the accused, and so the question is one merely of law whether the property is his or not; still he may show, and the showing will be a defense to him against the criminal proceeding, that he honestly believed it his through a misapprehension of the law.

The conclusions of the writer here are correct, but in a part of the statement the learned author has thrown some obscurity over his own principles. The doctrines elsewhere enunciated by him, show with great clearness, that in such cases the state of the mind constitutes the essence of the offense, and if the state of the mind which the law condemns does not exist, in connection with the act, there is no offense. It is immaterial whether its non-existence be owing to ignorance of law or ignorance of fact, in either case the fact which the law condemns, the criminal intent, is wanting. It is not, therefore, in an "indirect way," that ignorance of the law in such cases constitutes a defense, but in the most direct way possible. It is not a fact which jurors "may take into consideration" or not, at their pleasure, but which they must take into consideration, because, in case the ignorance exists, no matter from what cause, the offense which the statute describes is not committed. In such case, ignorance of the law is not interposed as a shield to one committing a criminal act, but merely to show, as it does show, that no criminal act has been committed. I quote from Sir Matthew Hale on the subject. Speaking of larceny, the learned author says:

As it is cepit and asportavit, so it must be felonice, or animo furandi, otherwise it is not felony, for it is the mind that makes the taking of another's goods to be a felony, or a bare trespass only; but because the intention and mind are secret, the intention must be judged of by the circumstances of the fact, and these circumstances are various, and may sometimes deceive, yet regularly and ordinarily these circumstances following direct in the case. If A., thinking he hath a title to the house of B., seizeth it as his own ... this regularly makes no felony, but a trespass only; but yet this may be a trick to color a felony, and the ordinary discovery of a felonious intent is, if the party doth it secretly or being charged with the goods denies it. (1 Hale's P. C, 509.)

I concede, that if Miss Anthony voted, knowing that as a woman she had no right to vote, she may properly be convicted, and that if she had dressed herself in men's apparel, and assumed a man's name, or resorted to any other artifice to deceive the board of inspectors, the jury might properly regard her claim of right to be merely colorable, and might, in their judgment, pronounce her guilty of the offense charged, in case the constitution has not secured to her the right she claimed. All I claim is, that if she voted in perfect good faith, believing that it was her right, she has committed no crime. An innocent mistake, whether of law or fact, though a wrongful act may be done in pursuance of it, can not constitute a crime.

The counsel then said, there are some cases which I concede can not be reconciled with the position which I have endeavored to maintain, and I am sorry to say that one of them is found in the reports of this State. As the cases are referred to in that, and the principle, if they can be said to stand on any principle, is in all of them the same, it will only be incumbent on me to notice that one. That case is not only irreconcilable with the numerous authorities and the fundamental principles of criminal law to which I have referred, but the enormity of its injustice is sufficient alone to condemn it. I refer to the case of Hamilton vs. The People (57 Barb., 725). In that case Hamilton had been convicted of a misdemeanor, in having voted at a general election, after having been previously convicted of a felony, and sentenced to two years imprisonment in the State prison, and not having been pardoned; the conviction having by law deprived him of citizenship and right to vote, unless pardoned and restored to citizenship. The case came up before the General Term of the Supreme Court, on writ of error. It appeared that on the trial evidence was offered, that before the prisoner was discharged from the State prison, he and his father applied to the Governor for a pardon, and that the Governor replied in writing, that on the ground of the prisoner's being a minor at the time of his discharge from prison, a pardon would not be necessary, and that he would be entitled to all the rights of a citizen on his coming of age. They also applied to two respectable counselors of the Supreme Court, and they confirmed the Governor's opinion. All this evidence was rejected. It appeared that the prisoner was seventeen years old when convicted of the felony, and was nineteen when discharged from prison. The rejection of the evidence was approved by the Supreme Court on the ground that the prisoner was bound to know the law, and was presumed to do so, and his conviction was accordingly confirmed.

Here a young man, innocent so far as his conduct in this case was involved, was condemned for acting in good faith upon the advice (mistaken advice it may be conceded), of one governor and two lawyers to whom he applied for information as to his rights; and this condemnation has proceeded upon the assumed ground, conceded to be false in fact, that he knew the advice given to him was wrong. On this judicial fiction the young man, in the name of justice, is sent to prison, punished for a mere mistake, and a mistake made in pursuance of such advice. It can not be, consistently with the radical principles of criminal law to which I have referred, and the numerous authorities which I have quoted, that this man was guilty of a crime, that his mistake was a crime, and I think the judges who pronounced his condemnation, upon their own principles, better than their victim, deserved the punishment which they inflicted. The condemnation of Miss Anthony, her good faith being conceded, would do no less violence to any fair administration of justice.

One other matter will close what I have to say. Miss Anthony believed, and was advised that she had a right to vote. She may also have been advised, as was clearly the fact, that the question as to her right could not be brought before the courts for trial, without her voting or offering to vote, and if either was criminal, the one was as much so as the other. Therefore she stands now arraigned as a criminal, for taking the only step by which it was possible to bring the great constitutional question as to her right, before the tribunals of the country for adjudication. If for thus acting, in the most perfect good faith, with motives as pure and impulses as noble as any which can find place in your honor's breast in the administration of justice, she is by the laws of her country to be condemned a a criminal. Her condemnation, however, under such circumstances, would only add another most weighty reason to those which I have already advanced, to show that women need the aid of the ballot for their protection.

Upon the remaining question, of the good faith of the defendant, it is not necessary for me to speak. That she acted in the most perfect good faith stands conceded.

Thanking your honor for the great patience with which you have listened to my too extended remarks, I submit the legal questions which the case involves for your honor's consideration.

District Attorney Crowley followed Judge Selden with an argument two hours in length. He stated that, in his view, the case simply presented questions of law, and that his argument, therefore, would be addressed strictly to the court, leaving the court to give such instructions to the jury upon the facts as he might deem proper. He contended that the right to vote was not included in "privileges and immunities," and was only given by State laws and State constitutions. He concluded his argument by saying that an honest mistake of the facts may sometimes excuse, but a mistake of the law never. The COURT addressed the jury as follows:

Gentlemen of the Jury: I have given this case such consideration as I have been able to, and, that there might be no misapprehension about my views, I have made a brief statement in writing.

The defendant is indicted under the act of Congress of 1870, for having voted for Representatives in Congress in November, 1872. Among other things, that Act makes it an offense for any person knowingly to vote for such Representatives without having a right to vote. It is charged that the defendant thus voted, she not having a right to vote because she is a woman. The defendant insists that she has a right to vote; that the provision of the Constitution of this State limiting the right to vote to persons of the male sex is in violation of the XIV. Amendment of the Constitution of the United States, and is void.

The XIII., XIV., and XV. Amendments were designed mainly for the protection of the newly emancipated negroes, but full effect must nevertheless be given to the language employed. The XIII. Amendment provided that neither slavery nor involuntary servitude should longer exist in the United States. If honestly received and fairly applied, this provision would have been enough to guard the rights of the colored race. In some States it was attempted to be evaded by enactments cruel and oppressive in their nature; as that colored persons were forbidden to appear in the towns except in a menial capacity; that they should reside on and cultivate the soil without being allowed to own it; that they were not permitted to give testimony in cases where a white man was a party. They were excluded from performing particular kinds of business, profitable and reputable, and they were denied the right of suffrage. To meet the difficulties arising from this state of things, the XIV. and XV. Amendments were enacted.

The XIV. Amendment created and defined citizenship of the United States. It had long been contended, and had been held by many learned authorities, and had never been judicially decided to the contrary, that there was no such thing as a citizen of the United States, except as that condition arose from citizenship of some State. No mode existed, it was said, of obtaining a citizenship of the United States except by first becoming a citizen of some State. This question is now at rest. The XIV. Amendment defines and declares who shall be citizens of the United States, to wit: "All persons born or naturalized in the United States and subject to the jurisdiction thereof." The latter qualification was intended to exclude the children of foreign representatives and the like. With this qualification every person born in the United States or naturalized is declared to be a citizen of the United States, and of the State wherein he resides.

After creating and defining citizenship of the United States, the Amendment provides that no State shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the United States. This clause is intended to be a protection, not to all our rights, but to our rights as citizens of the United States only; that is, the rights existing or belonging to that condition or capacity. (The words "or citizen of a State," used in the previous paragraph, are carefully omitted here.) In article 4, paragraph 2, of the Constitution of the United States it had been already provided in this language, viz: "The citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States." The rights of citizens of the States and of citizens of the United States are each guarded by these different provisions. That these rights were separate and distinct, was held in the Slaughter-house Cases recently decided by the United States Supreme Court at Washington.

The rights of citizens of the State, as such, are not under consideration in the XIV. Amendment. They stand as they did before the adoption of the XIV. Amendment, and are fully guaranteed by other provisions. The rights of citizens of the States have been the subject of judicial decision on more than one occasion. (Corfield agt. Coryell, 4 Wash. C. C. R., 371. Ward agt. Maryland, 12 Wall., 430. Paul agt. Virginia, 8 Wall., 140.) These are the fundamental privileges and immunities belonging of right to the citizens of all free governments, such as the right of life and liberty; the right to acquire and possess property, to transact business, to pursue happiness in his own manner, subject to such restraint as the Government may adjudge to be necessary for the general good. In Cromwell agt. Nevada, 6 Wallace, 36, is found a statement of some of the rights of a citizen of the United States, viz:

To come to the seat of the Government to assert any claim he may have upon the Government, to transact any business he may have with it; to seek its protection; to share its offices; to engage in administering its functions. He has the right of free access to its seaports through which all operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.

Another privilege of a citizen of the United States, says Miller, Justice, in the "Slaughter-house" cases, is to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. The right to assemble and petition for a redress of grievances, the privilege of the writ of habeas corpus, he says, are rights of the citizen guaranteed by the Federal Constitution.

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. The qualifications are different in the different States. Citizenship, age, sex, residence, are variously required in the different States, or may be so. If the right belongs to any particular person, it is because such person is entitled to it by the laws of the State where he offers to exercise it, and not because of citizenship 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 be a violation of any right derived or held under the Constitution of the United States. We might say that such regulations were unjust, tyrannical, unfit for the regulation of an intelligent State; but if rights of a citizen are thereby violated, they are of that fundamental class derived from his position as a citizen of the State, and not those limited rights belonging to him as a citizen of the United States, and such was the decision in Corfield agt. Coryell, supra.

The United States rights appertaining to this subject are those first under article 1, paragraph 2, of the United States Constitution, which provides that electors of Representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the State Legislature, and second, under the XV. Amendment, which provides that the right of a citizen of the United States to vote shall not be denied or abridged by the United States or by any State, on account of race, color, or previous condition of servitude. If the Legislature of the State of New York should require a higher qualification in a voter for a representative in Congress than is required for a voter for a member of Assembly, this would, I conceive, be a violation of a right belonging to one as a citizen of the United States. That right is in relation to a federal subject or interest, and is guaranteed by the Federal Constitution. The inability of a State to abridge the right of voting on account of race, color, or previous condition of servitude, arises from a federal guaranty. Its violation would be the denial of a federal right--that is, a right belonging to the claimant as a citizen of the United States.

This right, however, exists by virtue of the XV. Amendment. If the XV. Amendment had contained the word "sex," the argument of the defendant would have been potent. She would have said, an attempt by a State to deny the right to vote because one is of a particular sex, is expressly prohibited by that Amendment. The Amendment, however, does not contain that word. It is limited to race, color, or previous condition of servitude. The Legislature of the State of New York has seen fit to say, that the franchise of voting shall be limited to the male sex. In saying this there is, in my judgment, no violation of the letter or of the spirit of the XIV. or of the XV. Amendment.

This view is assumed in the second section of the XIV. Amendment, which enacts that if the right to vote for Federal officers is denied by any State to any of the male inhabitants of such State, except for crime, the basis of representation of such State shall be reduced in proportion specified. Not only does this section assume that the right of male inhabitants to vote was the especial object of its protection, but it assumes and admits the right of a State, notwithstanding the existence of that clause under which the defendant claims to the contrary, to deny to classes or portions of the male inhabitants the right to vote which is allowed to other male inhabitants. The regulation of the suffrage is thereby conceded to the States as a State's right.

The case of Myra Bradwell, decided at a recent term of the Supreme Court of the United States, sustains both the positions above put forth, viz: First, that the rights referred to in the XIV. Amendment are those belonging to a person as a citizen of the United States and not as a citizen of a State; and second, that a right of the character here involved is not one connected with citizenship of the United States. Mrs. Bradwell made application to be admitted to practice as an attorney and counselor-at-law in the Courts of Illinois. Her application was denied, and upon appeal to the Supreme Court of the United States, it was there held that to give jurisdiction under the XIV. Amendment, the claim must be of a right pertaining to citizenship of the United States, and that the claim made by her did not come within that class of cases. Mr. Justice Bradley and Mr. Justice Field held that a woman was not entitled to a license to practice law. It does not appear that the other Judges passed upon that question. The XIV. Amendment gives no right to a woman to vote, and the voting by Miss Anthony was in violation of the law.

If she believed she had a right to vote, and voted in reliance upon that belief, does that relieve her from the penalty? It is argued that the knowledge referred to in the act relates to her knowledge of the illegality of the act, and not to the act of voting; for it is said that she must know that she voted. Two principles apply here: First, ignorance of the law excuses no one; second, every person is presumed to understand and to intend the necessary effects of his own acts. 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. The necessary effect of her act was to violate it, and this she is presumed to have intended. 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 can not escape the consequences. It is said, and authorities are cited to sustain the position, that there can be no crime unless there is a culpable intent; to render one criminally responsible a vicious will must be present. A. commits a trespass on the land of B., and B., thinking and believing that he has a right to shoot an intruder on his premises, kills A. on the spot. Does B.'s misapprehension of his rights justify his act? Would a Judge be justified in charging the jury that if satisfied that B. supposed he had a right to shoot A he was justified, and they should find a verdict of not guilty? No Judge would make such a charge. To constitute a crime, it is true that there must be a criminal intent, but it is equally true that knowledge of the facts of the case is always held to supply this intent. An intentional killing bears with it evidence of malice in law. Whoever, without justifiable cause, intentionally kills his neighbor, is guilty of a crime. The principle is the same in the case before us, and in all criminal cases. The precise question now before me has been several times decided, viz: That one illegally voting was bound and was assumed to know the law, and that a belief that he had a right to vote gave no defense, if there was no mistake of fact. (Hamilton against The People, 57th of Barbour, p. 625; State against Boyet, 10th of Iredell, p. 336; State against Hart, 6th Jones, 389; McGuire against State, 7 Humphrey, 54; 15th of Iowa reports, 404.) No system of criminal jurisprudence can be sustained upon any other principle. Assuming that Miss Anthony believed she had a right to vote, that fact constitutes no defense if in truth she had not the right. She voluntarily gave a vote which was illegal, and thus is subject to the penalty of the law.

The Judge directed the jury to find a verdict of guilty.

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:

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.

A professional friend sitting by has made this suggestion which I take leave to avail myself of as bearing upon this question: "The Court has listened for many hours to an argument in order to decide whether the defendant has a right to vote. The arguments show the same question has engaged the best minds of the country as an open question. Can it be possible that the defendant is to be convicted for acting upon such advice as she could obtain while the question is an open and undecided one?"

THE COURT.--You have made a much better argument than that, sir.

JUDGE SELDEN.--As long as it is an open question, I submit that she has not been guilty of an offense. At all events, it is for the jury.

THE COURT.--I can not 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 XIV. 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 do 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.

JUDGE SELDEN.--That is a direction no Court has power to make in a criminal case.

THE COURT.--Take the verdict, Mr. Clerk.

THE CLERK.--Gentlemen of 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?

JUDGE SELDEN.--I don't know whether an exception is available, but I certainly must except to the refusal of the Court to submit those propositions, and especially to the direction of the Court that the jury should find a verdict of guilty. I claim that it is a power that is not given to any Court in a criminal case. Will the Clerk poll the jury? THE COURT.--No. Gentlemen of the jury, you are discharged.

On the next day a motion for a new trial was made and argued by Judge Selden, as follows:

May it please the Court:--The trial of this case commenced with a question of very great magnitude--whether by the Constitution of the United States the right of suffrage was secured to female equally with male citizens. It is likely to close with a question of much greater magnitude--whether the right of trial by jury is absolutely secured by the Federal Constitution to persons charged with crime before the Federal Courts.

I assume, without attempting to produce any authority on the subject, that this Court has power to grant to the defendant a new trial in case it should appear that in the haste and in the lack of opportunity for examination which necessarily attend a jury trial, any material error should have been committed prejudicial to the defendant, as otherwise no means whatever are provided by the law for the correction of such errors.

The defendant was indicted under the nineteenth section of the act of Congress of May 31, 1870, entitled, "An act to enforce the right of citizens of the United States to vote in the several States of this Union, and for other purposes," and was charged with having knowingly voted, without having a lawful right to vote, at the Congressional election in the Eighth Ward of the City of Rochester, in November last; the only ground of illegality being that the defendant was a woman.

The provisions of the act of Congress, so far as they bear upon the present case, are as follows: