On January 23, 1873, one hundred and forty-four years ago, a federal grand jury of men, in Albany, New York, indicted Susan B. Anthony for being a female. It was one moment in a chain of events that led not only to her federal trial and criminal conviction five months later but also to disenfranchisement of African American men nearly two decades later. The prosecution of Miss Anthony by the federal government helped to solidify a reading of the 14th Amendment that excluded voting rights from federal protection.
During that same week in January 1873, Anthony’s lawyer, Henry R. Selden, made a powerful plea for the lack of criminality in her act of casting a ballot for members of Congress at the November election of 1872. On this occasion, on January 21, Selden sought a writ of habeas corpus from the U.S. District Court for the Northern District of New York to release Anthony from the supervision of a federal marshal. (She was not jailed.) The issues were the same as those confronting the grand jurors. Selden had been polishing his argument for two months, and Anthony declared it to be “vastly improved.” In fact, she rushed the text back to Rochester to be reported in local newspapers and soon published 3,000 copies of his text as a pamphlet.
Selden began with a simple statement of facts. He conceded that his client had cast a ballot.
Many men deposited their ballots with the same officers, as well as Miss Anthony and some other women. This act on the part of all the men who thus expressed their choice of rulers, is regarded by law, and by the public voice, not only with approbation, but as the discharge of an important duty. For the same act, performed by the prisoner at the same time, and under exactly similar circumstances, if this proceeding against her shall be sustained, she is to be treated as a criminal, because she is a woman, and on no other ground, and punished by fine and imprisonment.
He proceeded then to demonstrate that “she has done nothing which she had not a legal and constitutional right to do.”’
The twenty white men of the grand jury, residents of Albany County, disagreed with Henry Selden. They were persuaded that, in casting ballots for members of Congress, Susan B. Anthony acted “against the peace of the United States of America and their dignity.” She had voted “without having the legal right to vote in said election district, as she . . . well knew.” The standard form for federal indictments did not provide for the crime. Beneath the printed text, someone penned in the critical fact of the case:
“(Susan B. Anthony being then and there a person of the female sex.)”
What argument were these men rejecting in their decision to indict Susan B. Anthony? Selden constructed his argument not only from extensive conversations with his client but also
from a considerable political and legal literature crafted by lawyers, judges, members of Congress, and intellectuals since 1865. There was a strong argument to be made that the rights referred to in the 14th and 15th Amendments were not restricted to African-American men but applied to all citizens of the United States. The 14th Amendment defines who are citizens of the United States, Selden reminded the court, and was drafted carefully to acknowledge African Americans freed from slavery as citizens. By January 1873, it was assumed for most purposes that women, no matter their race, were inside that boundary of citizenship. (The Supreme Court of the United States would soon make definitive statements on the matter.) As Henry Selden pointed out, the amendment went on to protect citizens; it prohibited states from enacting
any law which shall abridge the privileges or immunities of citizens of the United States.
Entire careers over 150 years have been devoted to parsing that phrase. Selden, like many of his contemporaries, insisted that those words included voting rights.
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.
Echoing a query regularly posed by his client, he asked, how were citizens to secure their rights to life, liberty, property, and so on without a voice in writing laws or choosing who would administer them?
Selden knew the literature from which the U.S. Attorney built his prosecution of Susan B. Anthony, and he tried to cut away some of its pillars. The most important one to remove was a question of states’ rights, and like his client, Selden came down firmly against the right of states to take away a citizen’s right to vote. The 14th Amendment, he proclaimed,
does not give, and was not designed to give to the States any power to deny or to abridge the right of any citizen to exercise the elective franchise.
And he went on to say that whatever authority to deny suffrage might have existed in the states prior to the 14th Amendment, ratification of that amendment “wholly deprive[d] the States of that power.”
That was the crux of the problem. Nothing in the U.S. Constitution barred women or any racial group from voting. The bans came in state constitutions. Federal officials were insisting, at Anthony’s expense, that the 14th Amendment had no effect upon states’ prejudicial exclusions and that the Constitution did not protect a citizen’s right to vote.
Despite her federal marshal, Anthony hopped the train for Washington and a national suffrage convention. There, speaking on January 16, she asked, “Is It a Crime for a U.S. Citizen to Vote?” In a lecture drawn from the same sources she had supplied to her attorney, in a prescient passage she imagined where conceding to states the power to deny voting rights might lead.
It will not always be men combining to disfranchise all women. . . . It will not always be the rich and educated who may combine to cast off the poor and ignorant. . . . Indeed, establish this precedent, admit this right to deny suffrage to the states, and there is no power to foresee the confusion, discord, and disruption that awaits us. There is, and can be, but one safe principle of government–equal rights to all.
At a pivotal moment in interpreting the intentions and ideals of Reconstruction, federal officers were leaning away from that “safe principle.” District Court Judge Nathan K. Hall denied a writ of habeas corpus and left Susan B. Anthony under the eye of her federal marshal. The grand jury issued its indictment and referred the case to the May term of the District Court. Like Susan B., we will await the trial. In the meantime, Elizabeth Cady Stanton sent some comforting words in a letter on January 30, 1873:
It is as you say terribly humiliating to be asking these supercilious boys to consider our rights.
To read all of Henry Selden’s speech: http://editorsnotes.org/projects/ecssba/documents/5070/
For an overview of Anthony’s trial: http://www.fjc.gov/history/home.nsf/page/tu_anthony_background.html
To set the details in context, check out Against an Aristocracy of Sex, 1866 to 1873, vol. 2 of Selected Papers of Elizabeth Cady Stanton and Susan B. Anthony, ed. Ann D. Gordon, et al. (New Brunswick, N.J.: Rutgers University Press, 2000).