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right. This proposition appears to me so obvious, that were it not for the severity to my client of the consequences which may follow a conviction, I should not deem it necessary to discuss it.
To make out the offense, it is incumbent on the prosecution to show affirmatively, not only that the defendant knowingly voted, but that she so voted knowing that she had no right to vote. That is, the term “knowingly” applies, not to the fact of voting, but to the fact of want of right. Any other interpretation of the language would be absurd. We cannot conceive of a case where a party could vote without knowledge of the fact of voting, and to apply the term “knowingly” to the mere act of voting, would make nonsense of the statute. This word was inserted as defining the essence of the offense, and it limits the criminality to cases where the voting is not only without right, but where it is done wilfully, with a knowledge that it is without right. Short of that there is no offense within the statute. This would be so upon well established principles, even if the word “knowingly” had been omitted, but that word was inserted to prevent the possibility of doubt on the subject, and to furnish security against the inability of stupid or prejudiced judges or jurors, to distinguish between wilful wrong and innocent mistake. If the statute had been merely, that "if at any election for representative in Congress any person shall vote without having a lawful right to vote, such person shall be deemed guilty of a crime,” there could have been justly no conviction under it, without proof that the party voted knowing that he had not a right to vote. If he voted innocently supposing he had the right to vote, but had not, it would not be an offense within the statute. An innocent mistake is not a crime, and no amount of judicial decisions can make it such.15
I concede, that if Miss Anthony voted, knowing that as a woman she had no right to vote, she may properly be convicted, and that if she had dressed herself in men's apparel, and assumed a man's name, or resorted to any artifice to deceive the board of inspectors, the jury might properly regard her claim of right, to be merely colorable, and might, in their judgment, pronounce her guilty of the offense charged, in case the Constitution has not secured to her the right she claimed. All I claim is, that if she voted in perfect good faith, believing that it was her right, she has committed no crime. An innocent mistake, whether of law or fact, though a wrongful act may be done in pursuance of it, cannot constitute a crime.
15 Then Mr. Selden cited numerous legal authorities to show that wrongful intent was essential to crime. Bishop on Crim. Law; Hawkins Pleas of the Crown and others.
There are some cases which I concede cannot be reconciled with the position which I have endeavored to maintain, and I am sorry to say that one of them is found in the reports of this state. As the other cases are referred to in that, and the principle, if they can be said to stand on any principle, is in all of them the same, it will only be incumbent on me to notice that one. That case is not only irreconcilable with the numerous authorities and the fundamental principles of criminal law to which I have referred, but the enormity of its injustice is sufficient alone to condemn it. I refer to the case of Hamilton v. The People.16 In that case Hamilton had been convicted of a misdemeanor, in having voted at a general election, after having been previously convicted of a felony and sentenced to two years' imprisonment in the state prison, and not having been pardoned; the conviction having by law deprived him of citizenship and right to vote, unless pardoned and restored to citizenship. The case came up before the General Term of the Supreme Court, on writ of error. It appeared that on the trial evidence was offered, that before the prisoner was discharged from the state prison, he and his father applied to the Governor for a pardon, and that the Governor replied in writing, that on the ground of the prisoner's being a minor at the time of his discharge
16 57 Barb. 725.
from prison, a pardon would not be necessary, and that he would be entitled to all the rights of a citizen on his coming of age. They also applied to two respectable counsellors of the Supreme Court, and they confirmed the Governor's opinion. All this evidence was rejected. It appeared that the prisoner was seventeen years old when convicted of the felony, and was nineteen when discharged from prison. The rejection of the evidence was approved by the Supreme Court on the ground that the prisoner was bound to know the law, and was presumed to do so, and his conviction was accordingly confirmed.
Here a young man, innocent so far as his conduct in this case was involved, was condemned, for acting in good faith upon the advice, (mistaken advice it may be conceded,) of one governor and two lawyers to whom he applied for information as to his rights; and this condemnation has proceeded upon the assumed ground conceded to be false in fact, that he knew the advice given him was wrong. On this judicial fiction the young man, in the name of justice, is sent to prison, punished for a mere mistake, and a mistake made in pursuance of such advice. It cannot be, consistently with the radical principles of criminal law to which I have referred, and the numerous authorities which I have quoted, that this man was guilty of a crime, that his mistake was a crime, and I think the judges who pronounced his condemnation, upon their own principles, better than their victim, deserved the punishment which they inflicted.
The condemnation of Miss Anthony, her good faith being conceded, would do no less violence to any fair administration of justice.
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 steps 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.
Upon the remaining question, of the good faith of the defendant, it is not necessary for me to speak. That she acted in the most perfect good faith stands conceded.
Thanking your Honor for the great patience with which you have listened to my too extended remarks, I submit the legal questions which the case involves for your Honor's consideration.
Mr. Justice HUNT. Gentlemen of the Jury: I have given this case such consideration as I have been able to, and, that there might be no misapprehension about my views, I have made a brief statement in writing.
The defendant is indicted under the Act of Congress of 1870, for having voted for Representatives in Congress in November, 1872. Among other things, that Act makes it an offense for any person knowingly to vote for such Representatives without having a right to vote. It is charged that the defendant thus voted, she not having a right to vote because she is a woman. The defendant insists that she has a right to vote; that the provisions of the Constitution of this state limiting the right to vote to persons of the male sex is in violation of the Fourteenth Amendment of the Constitution of the United States, and is void. The Thirteenth, Fourteenth and Fifteenth Amendments were designed mainly for the protection of the newly emancipated negroes, but full effect must nevertheless be given to the language em
ployed. The Thirteenth Amendment provided that neither slavery nor involuntary servitude should longer exist in the United States. If honestly received and fairly applied, this provision would have been enough to guard the rights of the colored race. In some states it was attempted to be evaded by enactments cruel and oppressive in their nature, as that colored persons were forbidden to appear in the towns except in a menial capacity; that they should reside on and cultivate the soil without being allowed to own it; that they were not permitted to give testimony in cases where a white man was a party. They were excluded from performing particular kinds of business, profitable and reputable, and they were denied the right of suffrage. To meet the difficulties arising from this state of things, the Fourteenth and Fifteenth Amendments were enacted.
The Fourteenth Amendment created and defined citizenship of the United States. It had long been contended, and had been held by many learned authorities, and had never been judicially decided to the contrary, that there was no such thing as a citizen of the United States, except as that condition arose from citizenship of some state. No mode existed, it was said, of obtaining a citizenship of the United States except by first becoming a citizen of some state. This question is now at rest. The Fourteenth Amendment defines and declares who should be citizens of the United States, to wit: “All persons born or naturalized in the United States and subject to the jurisdiction thereof." The latter qualification was intended to exclude the children of foreign representatives and the like. With this qualification every person born in the United States or naturalized is declared to be a citizen of the United States, and of the state wherein he resides. After creating and defining citizenship of the United States, the Amendment provides that no state shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the United States. This clause is intended to be a protection, not to all our rights, but to our rights as citizens of the United States only; that is,