History of the Federal Judiciary

History of the Federal Judiciary

  The Trial of Susan B. Anthony
Historical Documents related to the trial of Susan B. Anthony

Henry Selden’s trial arguments for the defendant

Henry Selden argued that the Fourteenth Amendment, by defining U.S. citizenship, protected the right of women to vote. Everyone agreed, Selden said, that women were citizens under the meaning of the Fourteenth Amendment and that voting was the most important liberty guaranteed to citizens. Selden cited the Declaration of Independence and many political writers to establish that the consent of the governed, as expressed through the vote, had long been recognized as the fundamental right that gave meaning to all other political rights. The Fourteenth Amendment’s protection of the “privileges and immunities” of citizens must therefore extend to the right to vote or all other liberties, such as the right to life, liberty, and property, would be left unprotected. Selden’s argument, like that of Anthony and the other members of the National Woman Suffrage Association, was based on the belief that the right to vote was a natural right that arose with citizenship and that served as the foundation of republican political society.

Selden also offered a lengthy discussion of the moral justice of extending the vote to women. He recounted numerous examples of the great wrongs suffered by women in many cultures, in part because they did not play a role in choosing the governments under which they lived. Finally, Selden argued that Anthony could not be convicted of the crime of voting without the right to vote if she had voted in good faith with the belief that she had a valid right to vote.

The selection here is the summary of Selden’s argument that the Fourteenth Amendment protected Anthony’s right to vote in the congressional elections of 1872.

[Document Source:
An Account of the Proceedings on the Trial of Susan B. Anthony, on the Charge of Illegal Voting, at the Presidential Election in Nov., 1872, and on the Trial of Beverly W. Jones, Edwin T. Marsh and William B. Hall, the Inspectors of Election by whom her Vote was Received (Rochester, N.Y.: Daily Democrat and Chronicle Book Print, 1874), 35–38.]

By reference to the provisions of the original Constitution, here recited, it appears that prior to the thirteenth, if not until the fourteenth, amendment, the whole power over the elective franchise, even in the choice of Federal officers, rested with the States. The Constitution contains no definition of the term “citizen,” either of the United States, or of the several States, but contents itself with the provision that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” The States were thus left free to place such restrictions and limitations upon the “privileges and immunities” of citizens as they saw fit, so far as is consistent with a republican form of government, subject only to the condition that no State could place restrictions upon the “privileges or immunities” of the citizens of any other State, which would not be applicable to its own citizens under like circumstances.

It will be seen, therefore, that the whole subject, as to what should constitute the “privileges and immunities” of the citizen being left to the States, no question, such as we now present, could have arisen under the original constitution of the United States.

But now, by the fourteenth amendment, the United States have not only declared what constitutes citizenship, both in the United States and in the several States, securing the rights of citizens to “all persons born or naturalized in the United States;” but have absolutely prohibited the States from making or enforcing “
any law which shall abridge the privileges or immunities of citizens of the United States.”

By virtue of this provision, I insist that the act of Miss Anthony in voting was lawful.

It has never, since the adoption of the fourteenth amendment, been questioned, and cannot be questioned, that women as well as men are included in the terms of its first section, nor that the same “privilges [sic] and immunities of citizens” are equally secured to both.

What, then, are the “privileges and immunities of citizens of the United States” which are secured against such abridgement, by this section? 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. Among these privileges and immunities may doubtless be classed the right to life and liberty, to the acquisition and enjoyment of property, and to the free pursuit of one's own welfare, so far as such pursuit does not interfere with the rights and welfare of others; but what security has any one for the enjoyment of these rights when denied any voice in the making of the laws, or in the choice of those who make, and those who administer them? The possession of this voice, in the making and administration of the laws—this
political right—is what gives security and value to the other rights, which are merely personal, not political. A person deprived of political rights is essentially a slave, because he holds his personal rights subject to the will of those who possess the political power. This principle constitutes the very corner-stone of our government—indeed, of all republican government. Upon that basis our separation from Great Britain was justified. “Taxation without representation is tyranny.” This famous aphorism of James Otis, although sufficient for the occasion when it was put forth, expresses but a fragment of the principle, because government can be oppressive through means of many appliances besides that of taxation. The true principle is, that all government over persons deprived of any voice in such government, is tyranny. That is the principle of the declaration of independence. We were slow in allowing its application to the African race, and have been still slower in allowing its application to women; but it has been done by the fourteenth amendment, rightly construed, by a definition of “citizenship,” which includes women as well as men, and in the declaration that “the privileges and immunities of citizens shall not be abridged.” If there is any privilege of the citizen which is paramount to all others, it is the right of suffrage; and in a constitutional provision, designed to secure the most valuable rights of the citizen, the declaration that the privileges and immunities of the citizen shall not be abridged, must, as I conceive, be held to secure that right before all others. It is obvious, when the entire language of the section is examined, not only that this declaration was designed to secure to the citizen this political right, but that such was its principal, if not its sole object, those provisions of the section which follow it being devoted to securing the personal rights of “life, liberty, property, and the equal protection of the laws.” The clause on which we rely, to wit:—“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” might be stricken out of the section, and the residue would secure to the citizen every right which is now secured, excepting the political rights of voting and holding office. If the clause in question does not secure those political rights, it is entirely nugatory, and might as well have been omitted.


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