Many influential newspapers, however, spoke in the highest terms of her courage and ability and the justice of her cause.[71]
The trial[72] opened the afternoon of June 17, at the lovely village of Canandaigua, Associate-Justice Ward Hunt on the bench, U.S. District-Attorney Richard Crowley prosecuting, Hon. Henry R. Selden and John Van Voorhis, Esq., defending. Miss Anthony, most of the ladies who had voted with her, and also Mrs. Gage, were seated within the bar. On the right sat the jury. The courtroom was crowded, many prominent men being present, among them ex-President Fillmore. Judge Hall, of Buffalo, was an interested spectator and Miss Anthony's counsel endeavored to have him try the case with Judge Hunt in order that, if necessary, it might go to the Supreme Court, which was not possible with only one judge, but he refused.
C S Lozier
It was conceded that Miss Anthony was a woman and that she voted on November 5, 1872. Judge Selden, for the second time in all his practice, offered himself as a witness, and testified that he advised her to vote, believing that the laws and Constitution of the United States gave her full authority. He then proposed to call Miss Anthony to testify as to the intention or belief under which she voted, but the Court held she was not competent as a witness in her own behalf. After making this decision, the Court then admitted all the testimony, as reported, which she gave on the preliminary examination before the commissioner, in spite of her counsel's protest against accepting the version which that officer took of her evidence. The prosecution simply alleged the fact of her having voted. Mr. Selden then addressed the judge and jury in a masterly argument of over three hours' duration, beginning:
The defendant is indicted under the 19th Section of the Act of Congress of May 31, 1870 (16th St. at L., 144), for "voting without having a lawful right to vote." The words of the statute, so far as they are material in this case, are as follows:
"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."
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....
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 he 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. This case, in its legal aspects, presents three questions which I propose to discuss.
1. Was the defendant legally entitled to vote at the election in question?
2. If she was 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 in that belief?
He argued the case from a legal, constitutional and moral standpoint and concluded:
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 as a criminal, she must abide the consequences. 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.
The district-attorney followed with a two hours' speech. Then Judge Hunt, without leaving the bench, delivered a written opinion[73] to the effect that the Fourteenth Amendment, under which Miss Anthony claimed the authority to vote, "was 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." At its conclusion he directed the jury to bring in a verdict of guilty.
Miss Anthony's counsel insisted that the Court had no power to make such a direction in a criminal case and demanded that the jury be permitted to bring in its own verdict. The judge made no reply except to order the clerk to take the verdict. Mr. Selden demanded that the jury be polled. Judge Hunt refused, and at once discharged the jury without allowing them any consultation or asking if they agreed upon a verdict. Not one of them had spoken a word. After being discharged, the jurymen talked freely and several declared they should have brought in a verdict of "not guilty."