The United States Commissioner fixed their bail at $500 each. All furnished bail but Susan, who through her counsel, Henry R. Selden, applied for a writ of habeas corpus, demanding immediate release and challenging the lawfulness of her arrest. When a writ of habeas corpus was denied and her bail increased to $1,000 by United States District Judge Nathan K. Hall, sitting in Albany, Susan was more than ever determined to resist the interference of the courts in her constitutional right as a citizen to vote. She refused to give bail, emphatically stating that she preferred prison.
Seeing no heroism but only disgrace in a jail term for his client and unwilling to let her bring this ignominy upon herself. Henry Selden chivalrously assured her that this was a time when she must be guided by her lawyer's advice, and he paid her bail. Ignorant of the technicalities of the law, she did not realize the far-reaching implications of this well-intentioned act until they left the courtroom and in the hallway met tall vigorous John Van Voorhis of Rochester who was working on the case with Judge Selden. With the impatience of a younger man, eager to fight to the finish, he exclaimed, "You have lost your chance to get your case before the Supreme Court by writ of habeas corpus!"[295]
Aghast, Susan rushed back to the courtroom, hoping to cancel the bond, but it was too late. Bitterly disappointed, she remonstrated with Henry Selden, but he quietly replied, "I could not see a lady I respected in jail." She never forgave him for this, in spite of her continued appreciation of his keen legal mind, his unfailing kindness, and his willingness to battle for women.
Within a few days she appeared before the Federal Grand Jury in Albany and was indicted on the charge that she "did knowingly, wrongfully and unlawfully vote for a Representative in the Congress of the United States...."[296] Her trial was set for the term of the United States District Court, beginning May 13, 1873, in Rochester, New York.
Judge Henry R. Selden
During these difficult days in Albany, Susan found comfort and courage, as in the past, in the friendliness of Lydia Mott's home. Here she planned the steps by which to win public approval and financial aid for her test case. She addressed the commission which was revising New York's constitution on woman's right to vote under the Fourteenth and Fifteenth Amendments, pointing out that the law limiting suffrage to males was nullified by this new interpretation. Eager to spread the truth about her own legal contest, she distributed printed copies of Judge Selden's argument. Then traveling to New York and Washington, she personally presented copies to newspaper editors and Congressmen. To one of these men she wrote, "It is not for myself—but for all womanhood—yes and all manhood too—that I most rejoice in the appeal to the legal mind of the Nation. It is no longer whether women wish to vote, or men are willing, but it is woman's Constitutional right."[297]
In spite of the fact that Susan was technically in the custody of the United States Marshal, who objected to her leaving Rochester, she managed to carry out a full schedule of lectures in Ohio, Indiana, and Illinois, and also the usual annual Washington and New York woman suffrage conventions at which she told the story of her voting, her arrest, and her pending trial, and where she received enthusiastic support.
Because she wanted the people to understand the legal points on which she based her right to vote, Susan spoke on "The Equal Right of All Citizens to the Ballot" in every district in Monroe County. So thorough and convincing was she that the district attorney asked for a change of venue, fearing that any Monroe County jury, sitting in Rochester, would be prejudiced in her favor. When her case was transferred to the United States Circuit Court in Canandaigua, to be heard a month later, she immediately descended upon Ontario County with her speech, "Is It a Crime for a Citizen of the United States to Vote?" and Matilda Joslyn Gage joined her, speaking on "The United States on Trial, Not Susan B. Anthony."