On the surface, at least in terms of their goals, the American Woman Suffrage Association – as led by Lucy Stone – and the National Woman Suffrage Association – as led by Susan B. Anthony and Elizabeth Cady Stanton – did tend to be quite similar. Both of them, fundamentally, sought the enfranchisement of American women. But their methods, as they developed over the course of the 1870s and 1880s, showed a marked difference in execution. The AWSA included men and women among its members, drew upon the resources of the abolitionist movement and the Republican Party, employed a decentralized structure that focused on the individual states, and was generally conservative in its character, making use of petitions and public speeches, for example, and evincing orthodox attitudes towards marriage and religion. Broadly incrementalist in its character, it was, in many ways, a reflection of Lucy Stone’s expressed concerns about funding, logistics, and public perception. The NWSA, meanwhile, was staffed almost exclusively by women, prioritized its own organization and financial independence, adopted a centralized structure, and tended towards militancy and explicit confrontation, specifically by favoring litigation and openly questioning aspects of social institutions which its leaders felt were detrimental to women’s independence. More urgent in nature than its rival, the organization founded by Elizabeth Cady Stanton and Susan B. Anthony was aimed at overturning what the former described in an article in the The Revolution in the spring of 1869 as the “aristocracy of sex” that had descended upon the United States with the ratification of the 15th Amendment and the establishment of universal manhood suffrage.
Over the course of the two decades that followed their establishment, the NWSA and the AWSA set about executing their respective programs. The former tended to be the flashier of the pair, risking big and losing big while pushing for wholesale change on the federal level. Initially, this took the form of the so-called “New Departure” strategy, the brainchild of a Missouri activist named Virginia Louisa Minor (1824-1894). Her thesis, which she and her lawyer husband devised between them, was essentially that the Constitution already guaranteed women the right to vote by way of the recently ratified 14th Amendment. Said amendment, recall, stated plainly that,
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 [.]
Arguing that
citizenship necessarily entailed the right to vote, Minor accordingly asserted
that American women came into possession of the franchise with the ratification
the amendment in question on July 9th, 1868. Bearing this in mind,
all women need to have done in order to affirm said right was attempt to vote
in a state or federal election and then allow the resulting legal process to
play itself out to completion. Ideally, in a number of years, the Supreme Court
itself would affirm Minor’s premise and women’s suffrage would be secured
without the need to further amend the Constitution.
No doubt because it seemed at once
to be both dramatic and cunning – a strategy which sought to overturn
established assumptions while also promising to terminate in a dramatic
showdown – the NWSA embraced the New Departure with undisguised enthusiasm. Beginning
in 1871, hundreds of women began attempting to vote in jurisdictions across the
country, with the organization footing their legal bills when they were denied
the franchise and opted to sue. The results, as predicted, were at once
frustrating and encouraging. On the one hand, not a single woman was permitted
to successfully cast a ballot. And as the resulting suits were filed and the
relevant judicial authorities began to weigh in, it very soon became clear the
extent to which the NWSA was fighting an uphill battle. The Supreme Court of the
District of Columbia – now the United States District Court for the District of
Columbia – provided a particularly memorable ruling in October of the
aforementioned year. After discoursing, at length, as to the applicability of
“natural law” to the political and social realities of the late-19th
century United States – the result of which was an extended digression on the
supposed chaos which would result from granting an absolute right to vote to
the citizen inhabitants of major American urban centers – the majority ruled
summarily that, “The right to vote ought not to be, and is not, an absolute
right. The fact that the practical working of the assumed right would be
destructive of civilization is decisive that the right does not exist.”
Disheartening though such a ruling may have been, however, it was also exactly
according to the plan. The New Departure required the lower courts to reject
the NWSA’s cases, thus allowing the organization to make appeals to the next
tier in the American judicial hierarchy. So long as the Supreme Court saw the
light of day when the climactic moment finally came, all the frustrations and
reversals would have proven to be worthwhile.
Anthony, of course, did her part for
the cause as well. On November 1st, 1872, she and her sisters
entered a voter registration office located in a barber shop in the city of
Rochester, New York and convinced the attending inspectors – thanks to the
timely aid of local attorney John Van Voorhis (1926-1905) – to allow her to
place her name on the local electoral roll. Four days later, on November 5th,
Anthony accordingly cast her ballot in the ward where she resided after once
again successfully arguing in her own favor with the attending poll watchers.
The officials, it seemed, found themselves in something of a bind. While on the
one hand, under pain of imprisonment, it was a crime to allow an ineligible
voter to cast a ballot, it was also a crime to refuse to allow an eligible
voter to do the same. And since Anthony willingly took the prescribed oath of
affirmation, the poll watchers were not in a position to claim that she was, in
fact, ineligible. Doubtless eager to avoid accusations that they had refused
anyone the right to the franchise – in the event that Anthony did have
the right to vote – the officials allowed her to carry on and she successfully
cast her ballot. Nine days later, on November 14th, warrants were
issued for the arrest of Anthony, the various women she had convinced to vote
alongside her, and all of the poll watchers who had allowed their votes to be
cast. On November 18th, Anthony was arrested at her home by a deputy
U.S. Marshal. Fifteen women were arrested in all, only one of which, Anthony,
refused to post bail. In lieu of holding her in the Albany County jail, she was
permitted to go free before her trial the following summer.
Over the course of the next several
months, Anthony proceeded to go on a well-publicized speaking tour throughout
Monroe County, New York, where her trial was to be held and from which the
relevant jurors would be drawn. And in the standard speech she gave during her
various appearances, she drew particular attention to two logical
inconsistences which she observed in the behavior of the United States
government and its various institutions and representatives. First, she questioned
the extent to which the American government paid heed to the specifics of legal
language. According to the cited ruling of the Supreme Court of the District of
Columbia, something like the right to vote could not possibly be inferred by
reference to such a nebulous concept as “natural law.” On the contrary, the
presiding judge stated, either such a right was expressly affirmed in terms of
“positive law” or it could not be said to exist. At the same time, however,
most law in a state like New York was written in expressly gendered language.
Tax laws, for example, exclusively used the pronouns “he” and “him,” as did the
federal Enforcement Act (1870) which Anthony was accused of violating. If
affirmative language was so essential to the functioning of government in the
American republic as to deny, by its absence, female citizens the right to
vote, then why was it that a similar lack of specific language failed to stop
female citizens from being taxed, or tried, or executed? Anthony’s response was
very simple: such a contradiction should not be permitted. “I insist [,]” she
said, “If government officials may thus manipulate the pronouns to tax, fine,
imprison and hang women, women may take the same liberty with them to secure to
themselves their right to a voice in the government.”
Anthony’s other central thesis was a
fair bit more fundamental. Referring, as had Virginia Minor, to the text of the
14th Amendment, she asked her audience to consider the broader
implications of what the United States government was attempting. “The only
question left to be settled now, is: Are women persons?” she said. “And I
hardly believe any of our opponents will have the hardihood to say they are
not. Being persons, then, women are citizens; and no State has a right to make
any new law, or to enforce any old law, that shall abridge their privileges or
immunities.” It was a bold argument, to be sure, but far from an unreasonable
one. If all persons born in the United States were indeed citizens of the same,
and if the 14th Amendment did indeed ensure that no state was able
to “Make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States,” then what other conclusion might a sensible
person draw from official efforts to prevent female citizens from voting other
than that they must not be citizens – and following on that, persons – at all? As
her trial date neared, Anthony sought to ensure that her own views and the
arguments of her defensive team were as widely distributed as possible. To that
end, she had the pretrial arguments of her lawyer, Henry Selden (1805-1885),
printed and distributed and requested the assistance of local and out-of-state
newspaper editors in spreading her message. Her intention, as she stated to the
publisher of the Rochester Evening Express, was really a very simple
one. “We must get the men of Rochester so enlightened [,]” she said, “That no
jury of twelve can be found to convict us.”
These intrigues on the part of
Anthony unfortunately did not go unnoticed. At an arraignment on May 22nd,
1873, the prosecutor, U.S. Attorney Richard Crowley (1836-1908), successfully
requested the case be transferred from the United States District Court for the
Northern District of New York to the concurrent United States Circuit Court for
the Second Circuit. As the latter was set to meet in June in Ontario County,
New York, this would serve to remove Anthony’s trial from Rochester, where
she’d endeavored to prepare the ground, to the comparatively ambivalent city of
Canandaigua, where she’d have to make her case all over again. It was also a
significant development because of who was now set to preside. Circa 1873, all
Justices of the United States Supreme Court were required, along with assigned
District Court judges, to hear cases in the federal Circuit Courts to which
they were formally attached. This meant, upon his arrival in June, that
Anthony’s case would be heard by Associate Justice Ward Hunt (1810-1886), a
Grant appointee who had previously been a member of the New York Republican
political machine and who had no experience as a trial judge whatsoever. The
resulting proceedings, unsurprisingly, were something of a farce.
For one thing, Justice Hunt had
apparently determined in advance to hear Anthony’s case while presiding alone.
This went against the standard practice of the time for the Circuit Courts,
wherein federal criminal cases were customarily heard by two judges, the relevant
Supreme Court Justice and one of the assigned District Court judges. The reason
for this was almost certainly because Hunt wished to cut off the possibility of
an appeal to a higher court. Such an appeal could only be made if the presiding
judges disagreed on the final verdict. By removing the possibility of
disagreement, Hunt thus removed the possibility of an appeal. The presiding
justice also repeatedly refused to allow Anthony to testify on her own behalf
and denied her, by his conduct of the case, the right to a legitimate trial by
jury. Having listened, over the course of two days, to the arguments of Selden
– that the 14th Amendment granted citizenship to all person born in
the United States, that citizenship was meaningless without the franchise, and
that Anthony had accordingly sought to exercise a right which she legitimately
believed she possessed – and Crowley – that the “privileges and immunities”
protected by the 14th Amendment did not include the right to vote,
that children were an example of citizens who did not possess this particular
privilege, and that a number of federal court decisions left it to the states
to define the parameters of the franchise – Hunt then proceeded to deliver a
ruling which he freely admitted had been written in advance.
As if this was not already a fairly
stunning admission, the substance of Hunt’s finding was doubly so, and then
some. “The right of voting,” he declared,
Or the privilege of voting, is a
right or privilege arising under the constitution of the state, and not under
the constitution 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
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 […] If the fifteenth
amendment had contained the word ‘sex,’ the argument of the defendant
would have been potent […] The amendment, however, does not contain that word.
It is limited to race, color, or previous condition of servitude.
Putting aside his
contention that a state like New York would have been within its rights to
restrict the franchise based on something as frivolous as hair color – a claim
so ludicrous in its implications it almost beggars’ belief – Hunt’s assertion
that there effectively existed no federal right to vote amounted to a fairly
breathtaking interpretation of contemporary law and precedent. None of this is
to say, mind you, that the Justice’s claims weren’t factually accurate. Indeed,
it is that fact that they were accurate that makes them to difficult to
fathom. By the explicit terms of the Constitution, the various states were
responsible for determining who could and could not vote in all federal
elections held within their respective jurisdictions. It was accordingly also
the case that a state like New York, if its elected legislators so desired, could
restrict the franchise to all but those possessed of blue eyes and straight
teeth. Such was the state of federal law and jurisprudence that the 15th
Amendment was then the sole federal determinant of whether a person could vote
or not. That is, of course, unless one starts to reflect upon certain passages
of that selfsame 14th Amendment to which Anthony had clung so resolutely
up to this point.
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States [,]” it says, “Nor shall any State deprive any person of life, liberty, or property, without due process of law [.]” Granting, circa 1873, that the right to vote was not widely considered to be a fundamental privilege or immunity of citizenship – thus seemingly opening the door for state legislatures to restrict the franchise based on any criteria other than “race, color, or previous condition of servitude” – the dual concepts of “liberty” and “due process of law” would nonetheless seem to carry a good deal of weight between them. What is liberty, after all, if one lacks the ability to vote? How can one be at liberty when they are actively denied a voice in shaping the laws to which they are bound? Justice Hunt, no doubt, as well as those of his ilk, would doubtless have answered that refusing certain people the franchise was quite simply a necessity. As the U.S. Attorney, Richard Crowley, pointed out, denying the franchise to children was nothing more than common sense; they couldn’t be trusted with it, wouldn’t know what to do with it. So, then, seemed to be Hunt’s attitude toward women. Barring some explicit guarantee of their enfranchisement, he was inclined to determine that granting the franchise to female citizens was not conducive to the public good.
But where, in this determination of his, was the “due process of law” which the 14th Amendment guaranteed? Surely, if the state of New York did as Justice Hunt suggested was their right and restricted the franchise to those fifty years of age or older, legal proceedings would follow requiring the government of that state to justify the law in question. Such a fundamental denial of one of the basic rights of citizenship could not be taken on account, after all. Rather, it would need to be demonstrated, beyond a shadow of a doubt, why people under the age of fifty were not adequately qualified to cast a ballot. It would be hard to believe that a man like Ward Hunt – an Associate Justice of the Supreme Court of the United States – could deny the necessity of just such a requirement. All the same, this is exactly what he was doing in the ruling cited above. If push came to shove – notwithstanding his own conjecture – he almost certainly would have agreed that people denied the right to vote on account of some immutable physical characteristic were entitled to the due process of law before said denial was permitted to be carried out. Except, of course, if those people happened to be women. If they were women, to Hunt’s thinking, then no explanation was necessary.
Amazingly enough, Justice Hunt’s narrow-minded ruling on the nature of the federal franchise was not even the most astonishing thing he delivered at the conclusion of Susan B. Anthony’s trial. Having thus determined, to his own satisfaction, that women could not vote under the terms of the United States Constitution, and that the fact of their ineligibility was an entirely settled thing, he accordingly declared that Anthony knowingly broke the law when she cast a ballot in the Election of 1872. In consequence, as Anthony did not dispute having thus broken a federal law, there was no need to poll the jury as to whether she was guilty or innocent. Hunt thus directed the assembled jury to deliver a verdict of guilty. Overriding Selden’s objections, and in preparation to move immediately to sentencing, the presiding justice then asked of Anthony if she had anything to add to the record. But while this was intended as little more than a routine courtesy on Hunt’s part, Anthony seized on the opportunity to speak by delivering one of the most searing speeches in the history of the American movement for women’s rights. “In your ordered verdict of guilty,” she began,
You have trampled under foot every
vital principle of our government. My natural rights, my civil rights, my
political rights, my judicial rights, are all alike ignored. Robbed of the
fundamental privilege of citizenship, I am degraded from the status of a
citizen to that of a subject; and not only myself individually, but all of my
sex, are, by your honor’s verdict, doomed to political subjection under this, so-called,
form of government.
But while Justice
Hunt at this pointed attempted to silence the condemned, asserting that, “The
Court cannot listen to a rehearsal of arguments the prisoner’s counsel has
already consumed three hours in presenting [.]” Anthony was not to be so easily
dissuaded.
“All of my
prosecutors,” she continued,
From the 8th ward corner grocery
politician, who entered the complaint, to the United States Marshal,
Commissioner, District Attorney, District Judge, your honor on the bench, not
one is my peer, but each and all are my political sovereigns; and had your
honor submitted my case to the jury, as was clearly your duty, even then I
should have had just cause of protest for not one of those men was my peer;
but, native or foreign born, white or black, rich or poor, educated or
ignorant, awake or asleep, sober or drunk, each and every man of them was my
political superior; hence, in no sense, my peer. Even, under such
circumstances, a commoner of England, tried before a jury of Lords, would have
far less cause to complain than should I, a woman, tried before a jury of men. Even
my counsel, the Hon. Henry R. Selden, who has argued my cause so ably, so earnestly,
so unanswerably before your honor, is my political sovereign. Precisely as no
disfranchised person is entitled to sit upon a jury, and no woman is entitled
to the franchise, so, none but a regularly admitted lawyer is allowed to
practice in the courts, and no woman can gain admission to the bar—hence, jury,
judge, counsel, must all be of the superior class.
This constituted, inarguably,
a fairly stunning indictment of the very concept of equality under the American
system of government and the legal principles upon which it was supposedly grounded.
By the terms of the 6th Amendment, “In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed [.]”
And in accordance with the essential significance of jury trials as lodged
within the English Common law tradition – from which the American tradition draws
most of its fundamental principles – the only means by which a person might be convicted
of a crime is by the “lawful judgement of their peers.” Bearing these basic
facts in mind, Anthony’s assertion would seem to be next to impossible to refute.
How could it be said that she had been tried by an impartial jury if in truth
she had been tried by no jury at all? In what sense were any of the people involved
in her trial and conviction her peers if, under the laws and customs of the
contemporary United States, every one of them possessed rights and privileges
which she was forbidden from ever attaining? Indeed, under these circumstances,
what was the purpose of even holding a trial? Why bother pretending Anthony was
entitled, by her citizenship, to a fair and impartial trial if no presiding
authority could be found who was capable of delivering just that?
Susan B. Anthony, in short, had been
railroaded. And while she had little in the way of legal recourse at her
disposal – Justice Hunt, as aforementioned, had earlier ensured that an appeal
to the Supreme Court would be impossible – she could at the very least refuse
to cooperate with the efforts of her persecutors to reinforce their
understanding of her legal inferiority. When, at long last, given the chance to
speak, she figuratively spat in the eye of those who claimed to uphold such
vaunted principles as liberty, equality, and justice. And when Justice Hunt
ordered, by way of punishment, that Anthony pay, “A fine of one hundred dollars
and the costs of the prosecution [,]” she likewise made plain her categorical
refusal to oblige. “May it please your honor,” she said,
I shall never pay a dollar of your
unjust penalty. All the stock in trade I possess is a $10,000 debt, incurred by
publishing my paper—Th e Revolution—four years ago, the sole object of which
was to educate all women to do precisely as I have done, rebel against your
man-made, unjust, unconstitutional forms of law, that tax, fine, imprison and
hang women, while they deny them the right of representation in the government;
and I shall work on with might and main to pay every dollar of that honest
debt, but not a penny shall go to this unjust claim.
Anthony, history
would prove, was as good as her word. To her dying day in 1906, she did not, in
fact, pay a single cent of the fine laid upon her in 1873. And while this arguably
amounted to a victory on its own merits – for she was never punished for her
refusal – it also stood as something of a failure. To be sure, Anthony was being
sincere when he asserted her refusal to pay the assigned penalty on the grounds
that it was fundamentally unjust. At the same time, however, she was almost
certainly attempting to maneuver around the legal blockade that Justice Hunt
had sought to erect. In refusing to pay the damages, Anthony doubtless hoped
that Hunt would order her imprisonment, at which point she could have filed for
a habeas corpus writ with the Supreme Court of the United States. By declining
to have Anthony imprisoned, the presiding justice thus closed off her last
opportunity to appeal her sentence and have her right to the franchise potentially
confirmed.
None of this is to say that Anthony’s attempt
to enact the New Departure strategy in 1872 was of no effect or significance whatsoever.
The details of her trial garnered widespread media attention the likes of which
no event connected to the movement for women’s rights had ever before been able
to achieve. No small amount of this coverage was negative, of course, with
editors and pundits from across the country actively denigrating the very
notion of women’s suffrage and drawing particular attention to Anthony herself
as some kind of ridiculous, unbalanced, self-proclaimed revolutionary. And while
Justice Hunt also received his fair share of public excoriation – the New York
Sun called for his impeachment; the Trenton State Sentinel and Capital asked, “Why
have juries at all if Judges can find verdicts [?]” – the resulting outrage had
little, if anything, to do with his recorded treatment of Anthony. The contemporary
American public may have been disturbed by the deeds of a particularly imperious
and overreaching judge, but the plight of his female victim was apparently cause
for little more than ridicule. All that being said, the mere fact of the
coverage itself might have been worth its generally mocking tone. For the first
time, people living all throughout the United States were being made aware of
the existence of a movement for women’s rights and being exposed to the moral
suasions of one of the most prominent figures therein. Anthony’s closing speech
was widely reprinted – and at no cost to the NWSA – allowing American women and
American men to decide for themselves whether the continued refusal of female
suffrage was truly necessary or unjust.
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