History of Woman Suffrage
Chapter 209 : At this time, before any entry had been made by the clerk, your pet.i.tioner's co

At this time, before any entry had been made by the clerk, your pet.i.tioner's counsel asked the judge to submit the case to the jury, and to give to the jury the following several instructions.

[See page 680.]

The judge declined to submit the case to the jury upon any question whatever, and directed them to render a verdict of guilty against your pet.i.tioner. Your pet.i.tioner's counsel excepted to the decision of the judge upon the legal questions, and to his direction to the jury to find a verdict of guilty, insisting that it was a direction which no court had a right to give in any criminal case.

The judge then instructed the clerk to take the verdict, and the clerk said, "Gentlemen of the jury, hearken to your verdict as the court hath recorded it. You say you find the defendant guilty of the offense charged; so say you all." No response whatever was made by the jury, either by word or sign. They had not consulted together in their seats or otherwise. Neither of them had spoken a word, nor had they been asked whether they had or had not agreed upon a verdict. Your pet.i.tioner's counsel then asked that the clerk be requested to poll the jury. The judge said, "That can not be allowed. Gentlemen of the jury, you are discharged;"

and the jurors left the box. No juror spoke a word during the trial, from the time when they were empaneled to the time of their discharge. After denying a motion for a new trial, the judge proceeded upon the conviction thus obtained to pa.s.s sentence upon your pet.i.tioner, imposing upon her a fine of $100 and the costs of the prosecution.

Your pet.i.tioner respectfully submits that, in these proceedings, she has been denied the rights guaranteed by the Const.i.tution to all persons accused of crime, the right of trial by jury, and the right to have the a.s.sistance of counsel for their defense. It is a mockery to call her trial a trial by jury; and unless the a.s.sistance of counsel may be limited to the argument of legal questions, without the privilege of saying a word to the jury upon the question of the guilt or innocence in fact of the party charged, or the privilege of ascertaining from the jury whether they do or do not agree to the verdict p.r.o.nounced by the court in their name, she has been denied the a.s.sistance of counsel for her defense.

Your pet.i.tioner also respectfully insists that the decision of the judge that good faith on the part of your pet.i.tioner in offering her vote did not const.i.tute a defense, was not only a violation of the deepest and most sacred principle of the criminal law, that no one can be guilty of crime unless a criminal intent exists; but was also a palpable violation of the statute under which the conviction was had; not on the ground that good faith could, in this, or in any case, justify a criminal act, but on the ground that bad faith in voting was an indispensable ingredient in the offense with which your pet.i.tioner was charged. Any other interpretation strikes the word "knowingly" out of the statute, the word which alone describes the essence of the offense. The statute means, as your pet.i.tioner is advised, and humbly submits, a knowledge in fact, not a knowledge falsely imputed by law to a party not possessing it in fact, as the judge in this case has held. Crimes can not, either in law or in morals, be established by judicial falsehood. If there be any crime in the case, your pet.i.tioner humbly insists it is to be found in such an adjudication.

To the decision of the judge upon the question of the right of your pet.i.tioner to vote, she makes no complaint. It was a question properly belonging to the court to decide, was fully and fairly submitted to the judge, and of his decision, whether right or wrong, your pet.i.tioner is well aware she can not here complain. But in regard to her conviction of crime, which she insists, for the reasons above given, was in violation of the principles of the common law, of common morality, of the statute under which she was charged, and of the Const.i.tution--a crime of which she was as innocent as the judge by whom she was convicted--she respectfully asks, inasmuch as the law has provided no means of reviewing the decisions of the judge, or of correcting his errors, that the fine imposed upon your pet.i.tioner be remitted, as an expression of the sense of this high tribunal that her conviction was unjust.

Dated January 12, 1874. SUSAN B. ANTHONY.

In the Senate of the United States, June 20, 1874, Mr. Edmunds submitted the following report:

_The Committee on the Judiciary, to whom was referred the bill_ (S. 391) _to enable Susan B. Anthony to pay a fine imposed upon her by the District Court for the Northern District of New York, and a pet.i.tion praying for the remission of said fine, report:_

That they are not satisfied that the action of the Court was such as represented in the pet.i.tion, and that, if it were so, the Senate could not legally take any action in the premises, and move that the Committee be discharged from the further consideration of the pet.i.tion, and that the bill be postponed indefinitely.

Mr. Carpenter asked, and obtained, leave of the Senate to present the following as the views of the minority:

_The Committee on the Judiciary, to whom was referred the memorial of_ SUSAN B. ANTHONY, _praying to be relieved from a certain judgment, rendered against her by the Circuit Court of the United States for the Northern District of New York:_

The majority of the Committee have determined that inasmuch as the relief prayed for by the memorial can not be granted, the Committee will ask to be discharged from its further consideration, and will not express any opinion as to the correctness or incorrectness of the course pursued on the trial of Miss Anthony.

The House of Lords in England or the Senate of the United States may engage in any investigation looking to legislation, although, as an incident to, or a result of, such investigation, it may appear that some officer who is impeachable has been guilty of conduct for which he might be impeached. Then, surely, in a case like this, where there is neither suggestion nor suspicion of corrupt conduct on the part of the estimable judge before whom the trial was conducted, it can not be improper for a committee of the Senate to inquire whether, in the trial of a citizen for alleged violation of the laws of the United States, a precedent dangerous to the liberties of every citizen has been set. Indeed, the injurious effect of every judicial departure from sound principle is in proportion to the eminence and purity of the judge by whom it is committed. The outrages perpetrated by Scroggs and Jeffreys in the administration of criminal justice were grievous upon the individuals unjustly or illegally convicted, but do no harm as precedents. A vicious precedent, set by an infamous judge, is harmless; while a similar violation of the law by a pure and upright magistrate is attended by far-reaching and detrimental consequences.

It is fas.h.i.+onable, we know, just now to heap contumely upon women who demand to be allowed to enjoy their civil political rights.

Ridicule is the chief weapon employed against them, and is freely applied to all who advocate their cause. Gentlemen who would blush to be thought negligent in the offices of frivolous gallantry lack the manhood to accord to women their substantial rights. And, strange to say, ladies dwelling in luxurious ease join with the fops of society to cast contempt upon the earnest aspirations of woman for the possession of her just rights. We have acted upon the doctrines of the Declaration of Independence, so far as to make all men equal before the law; but women, our mothers, our wives, our sisters, and our daughters, we condemn to inequality--many to servitude. But the cry of women, who, in poverty and want, are driven from the employments of honest industry to indulgence in vice and to the haunts of shame, is rising on every hand, and appeals to the heart with as much power as the wailings of a slave beneath the lash of his master.

The wrongs of Martin Koszta in a foreign land touched the heart of the nation. But the denial of her rights to Miss Susan B.

Anthony in a court of the Union is thought to be unworthy the attention of the American Senate. To those who are indifferent whether a woman be deprived of or be permitted to enjoy even the rights which are secured to her by the Const.i.tution, it may be suggested that a bad precedent set in the trial of a woman who has presumed to express her choice as to those who should make laws for her, laws by which her rights are to be affected and her property be taxed, may stand in the way of some man's rights hereafter. It may yet happen, in the revolutions of time, that some one of the majority of your committee may be subjected to an unjust and false accusation, which must be submitted to the judgment of twelve men in the jury-box or of one man on the bench; twelve men fresh from the people and warmed with the instinctive sympathies of humanity, or one man, separated from the people by his station and by the habits of a life pa.s.sed in seclusion and study. A jury-trial must be the same whether a man or woman be arraigned. And the subject under consideration is important even to men who are regardless of the rights of women.

I shall, therefore, proceed to inquire, as I think the committee ought to have done, whether the memorialist has been deprived, as she alleges, of the right of trial by jury secured to her by the Const.i.tution of the United States. The memorialist claims that the court erred in its ruling, and in taking the case from the jury and directing a verdict against her; and also in refusing to have the jury polled in regard to their verdict; and she prays that her fine may be remitted by act of Congress.

The first question is, whether in a criminal trial, plea not guilty, the jury have a right to render a general verdict involving questions of law as well as fact, under instructions by the court upon matters of law; or whether, when the testimony is not conflicting, the court may take the case from the jury and direct a verdict of guilty to be entered.

It is the practice in civil causes for the court, if there is no conflict in the evidence, to direct a verdict for the plaintiff or for the defendant, because in such case the court may set aside a verdict and grant a new trial in favor of plaintiff or defendant. It would, therefore, be a barren form to require the jury to deliberate and find a verdict in a case where if the verdict was not one way, the court would set it aside and order a new trial, and so on, until a verdict should be found that was satisfactory to the court. So in practice it is usual for the court to direct the jury to acquit the prisoner in a criminal case; because, if the jury find against the prisoner, the court may set the verdict aside and order a new trial, and continue to do so until a verdict of acquittal shall be rendered; though it is doubtful whether, even in a civil cause, the court could refuse to let the jury be polled, or could enter a verdict for the jury to which they did not agree. The court could direct the jury what to do, and set aside the verdict if they did otherwise; but it is not admitted that, even in a civil cause, the court could enter a verdict against the wishes of the jury.

But at the common law and in the Federal courts it is certain that where the jury render a verdict of acquittal, even against the evidence and the instructions of the court on propositions of law, the court can not set aside the verdict and order another trial. From this it follows that the court can not take from the jury this power of acquittal in a criminal case, by directing and compelling a verdict against the prisoner, and refusing to have the jury polled. But the importance of this question requires its examination not only in the light of reason, but of authority.

The Const.i.tution of the United States provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and a public trial by an impartial jury of the State and district wherein the crime shall have been committed, etc.

The Const.i.tution does not define or regulate the trial by jury, but secures it as it was then known to the common law. This is a proposition so well settled by judicial determination that I shall spend no time upon it beyond citing the following authorities: Norval _vs._ Rice, 2 Wis., 22; May _vs._ R. R. Co., 3 Wis., 219; Byers & Davis _vs._ Com., 42 Penn. St., 89; United States _vs._ Lorenzo Dow, Taney Decis., 35; Lamb _et al._ _vs._ Lane, 4 Ohio Stat., 167.

Therefore, if it can be shown that, at the time the Const.i.tution was adopted, it was well settled that the jury in a criminal cause might find a general verdict, including both law and fact, then this right is secured to juries in the Federal courts by the Const.i.tution itself; and not even an act of Congress could take it away. What the law was at that time, is mere matter of historical inquiry, wholly different from another question, which is so often mistaken for it, whether juries ought to possess the right.

What, then, was the law upon this subject when the Const.i.tution was adopted? Mr. Hargrave, in one of his annotations upon Lord c.o.ke's first Inst.i.tute, declares that, inasmuch as the jury may, as often as they think fit, find a general verdict, it was unquestionable that they might so far decide upon the law as well as fact, such a verdict necessarily involving both.

In this opinion, says Mr. Hargrave, I have the authority of Littleton himself, who writes, "that if the inquest will take upon them the knowledge of the law upon the matter, they may give their verdict generally."

In People _vs._ Croswell, 3 Johnson's Cases, 336, Chief-Justice Kent reviewed all the preceding authorities with great care, and discussed the philosophy of the doctrine under consideration, with the ability which characterizes his most celebrated opinions; and his decision in this case stands to this day as one of the landmarks upon this subject. After reciting the authorities, he says:

To meet and resist directly this stream of authority is impossible. But while the power of the jury is admitted, it is denied that they can rightfully or lawfully exercise it without compromitting their consciences, and that they are bound implicitly in all cases to receive the law from the court. The law must, however, have intended, in granting this power to a jury, to grant them a lawful and rightful power, or it would have provided a remedy against the undue exercise of it. The true criterion of a legal power is its capacity to produce a definitive effect, liable to neither censure nor review. And the verdict of not guilty in a criminal case is, in every respect, absolute and final. The jury are not liable to punishment, nor the verdict to control. No attaint lies, nor can a new trial be awarded.

The exercise of this power in the jury has been sanctioned and upheld in constant activity from the earliest ages. It was made a question by Bracton (fol. 119, a. b.), who was to sit in judgment and decide upon points of law on appeals in capital cases. It could not be the king, he says, for then he would be both prosecutor and judge; nor his justices, for they represented him. He thinks, therefore, the _curia_ and _pares_ were to be judges in all cases of life and limb, or disherison of heir, where the crown was the prosecutor. And, indeed, it is probable that in the earliest stages of the English juridical history the jury, instead of deciding causes under the direction of the judge, decided all causes without the a.s.sistance of the judge. (Barrington on the Statutes, 18, 26, 311.)

He then proceeds to review the trial of Lilburn for high treason in 1549; Bush.e.l.l's case, Vaughan, 135, and Sir T. Jones, 113; Algernon Sidney's case, 3 State Trials, 817; Tuchin's case, 5 State Trials, 542, and other cases. Again, he says:

To deny to the jury the right of judging of the intent and tendency of the act, is to take away the substance, and with it the value and security of this mode of trial. It is to transfer the exclusive cognizance of crimes from the jury to the court, and to give the judge the absolute control of the press. There is nothing peculiar in the law of libels to withdraw it from the jurisdiction of the jury. The twelve judges in their opinion in the House of Lords (April, 1792), admitted that the general criminal law of England was the law of libel. And by the general criminal law of England, the office of the jury is judicial. "They only are the judges," as Lord Somers observes (Essay on the Power and Duty of Grand Juries, p. 7), "from whose sentence the indicted are to expect life or death. Upon their integrity and understanding the lives of all that are brought into judgment do ultimately depend. From their verdict there lies no appeal. They resolve both law and fact, and this has always been their practice."

And, after referring to the case of Franklin, and other cases holding a contrary doctrine, he denounces them as innovations, and adding that the subject underwent a patient investigation and severe scrutiny upon principle and precedent in Parliament, says:

And a bill declaratory of the right of the jury to give a general verdict upon the whole matter put in issue, without being required or directed to find the defendant guilty merely on the proof of publication and the truth of the innuendoes, was at length agreed to, and pa.s.sed with uncommon unanimity. It is ent.i.tled "An act to remove doubts respecting the functions of juries in cases of libel"; and, although I admit that a declaratory statute is not to be received as conclusive evidence of the common law, yet it must be considered as a very respectable authority in the case, and especially as the circ.u.mstances attending the pa.s.sage of this bill reflect the highest honor on the moderation, the good sense, and the free and independent spirit of the British Parliament.

And again he says: The result, from this view, is, to my mind, a firm conviction that this court is not bound by the decisions of Lord Raymond and his successors. By withdrawing from the jury the consideration of the essence of the charge, they render their function nugatory and contemptible. Those opinions are repugnant to the more ancient authorities which had given to the jury the power, and with it the right, to judge of the law and the fact, when they were blended by the issue, and which rendered their decisions, in criminal cases, final and conclusive.

The English bar steadily resisted those decisions as usurpations on the rights of the jury. Some of the judges treated the doctrine as erroneous, and the Parliament at last declared it an innovation by restoring the trial by jury, in cases of libel, to that ancient vigor and independence by which it had grown so precious to the nation as the guardian of liberty and life, against the power of the court, the vindictive persecution of the prosecutor, and the oppression of the government.

This celebrated opinion may safely be relied upon as a correct statement of the law as it stood when it was delivered in 1804.

But still more conclusive authority remains to be considered. The sedition act of 1798, after defining what should be a criminal libel, and declaring that the defendant might give the truth of the matter in evidence, provides as follows:

And the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases. (1 Stat. at L., 507.)

The language of this act, "as in other cases," recognizes the right here contended for. In the celebrated Callender trial, in 1800, which was a prosecution under this statute, Mr. Justice Chase, whose general bearing was so unfriendly to the defendant as to secure his impeachment by the House of Representatives, admitted this right of the jury. He said:

We all know that juries have the right to decide the law as well as the fact. (Wharton's State Trials, 710.) And again he says:

I admit that the jury are to compare the statute with the facts proved, and then to decide whether the acts done are prohibited by the law, and whether they amount to the offense described in the indictment. (_Ib._, p. 713.)

Though, with seeming want of logic, he held that the jury could not decide whether the statute was const.i.tutional or not. But the full admission that the jury were judges of the law as well as the fact, shows the general understanding upon this subject, though the judge may have erred in applying the principle in the case before him. In Fries's case, who was tried for treason, 1799-1800, the jury were instructed by Judge Peters as follows:

It is the duty of the court to declare the law; though both facts and law, which, I fear, are too plain to admit a reasonable doubt, are subject to your consideration.

(Wharton's State Trials, 587.)

And, in the second trial of Fries, Judge Chase instructed the jury as follows:

It is the duty of the court in this case, and in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide in the present, and in all criminal cases, both the law and the facts, on their consideration of the whole case. (2 Chase's Trial, Appendix 1.)

In the answer of Judge Chase to articles of impeachment against him, he says:

He well knows that it is the right of juries, in criminal cases, to give a general verdict of acquittal, which can not be set aside on account of its being contrary to law, and that hence results the power of juries to decide on the law as well as on the facts in all criminal cases. This power he holds to be a sacred part of our legal privileges, which he has never attempted, and never will attempt to abridge or obstruct. (1 Chase's Trial, pp. 5, 34, 35.)

In Georgia _vs._ Brailsford, 3 Dallas, 4, in 1794, Chief-Justice Jay charged the jury as follows: