History of the Federal Judiciary

History of the Federal Judiciary

  The Trial of Susan B. Anthony
A Short Narrative


United States v. Susan B. Anthony was a criminal trial in the federal courts. In the federal election in November 1872, Anthony, the best-known advocate of woman suffrage, registered to vote and then voted. The government charged her with the crime of voting without “the legal right to vote in said election district”—she, in the words of the indictment, “being then and there a person of the female sex.” Her trial revealed the complexity of federalism in the post-Civil War years. She was convicted in federal court under federal law for violating state law about who was eligible to vote. New York state law prohibited women from voting, and a recent federal law provided for the criminal prosecution of anyone who voted in congressional elections “without having a lawful right to vote.”

Primarily a case about woman suffrage and sexual discrimination,
United States v. Susan B. Anthony is also a case about Reconstruction and the balance of federal and state authority. Prior to the Civil War, the demand for woman suffrage was directed to state governments, each of which set the qualifications of voters in the respective states. Reconstruction redirected the demand. The federal government assumed some authority over the voting qualifications enacted by the states, and woman suffragists saw in that change an opportunity to extend voting rights not only to black men but also to black and white women. They called for universal suffrage.

Anthony and the members of the National Woman Suffrage Association, after failing to gain explicit reference to the voting rights of women in the Fourteenth and Fifteenth Amendments, set about testing the meaning of what those amendments did say and how the amendments might have changed the rights of women. Anthony was among a group of women in the country trying to establish, through test cases in the federal courts, that the amendments had so redefined citizenship and rights that women were protected by the federal government in their right to vote.

The crime

On November 5, 1872, in the first district of the Eighth Ward of Rochester, New York, Susan B. Anthony and fourteen other women voted in the United States election, which included the election for members of Congress. The women had successfully registered to vote several days earlier. A poll watcher challenged Anthony’s qualification as a voter. The inspectors of election took the steps required by state law when a challenge occurred: they asked Anthony under oath if she was a citizen, if she lived in the district, and if she had accepted bribes for her vote. Following her satisfactory answers to these questions, the inspectors placed her ballots in the boxes.

The individuals at the polling place revealed the state and federal aspects of Anthony’s crime. Three inspectors of election, local men who also served as a board of registration for voters, enforced the election laws of New York, which allowed all white males and some black males to vote. Since ratification of the Fifteenth Amendment in 1870, Congress had provided for new federal oversight of elections through several Enforcement Acts, primarily to ensure that all black men be allowed to vote despite state laws, but also to stop fraud and corruption in federal elections. Two federal supervisors of election oversaw the inspectors.

The strategy

Susan B. Anthony did not expect to vote. Pursuing a strategy adopted by the National Woman Suffrage Association in 1871, she expected to be denied registration as a voter and subsequently to sue for her right to vote in federal court. Women elsewhere in the country were stopped in their attempts to vote at the point of registration. Anthony’s success at registering as a voter raised the possibility of voting, and again, when she returned on election day, the officials at the polls decided that she was an eligible voter. Anthony and members of the Association believed that the Fourteenth Amendment, which defined U.S. citizenship, protected a woman’s right to vote. The women reasoned that the rights of U.S. citizenship, or, in constitutional language, “the privileges and immunities of citizens of the United States,” included the right to vote. If the Fourteenth Amendment’s definition of U.S. citizenship included women, and the states were barred from depriving U.S. citizens of the privileges and immunities of citizenship, it followed that states could not exclude women from the electorate. The Fifteenth Amendment’s reference to the “right of citizens of the United States to vote” implicitly acknowledged women’s right as citizens to vote. Woman suffragists sought to validate their interpretation either through a declaratory act of Congress that would enforce their interpretation of the Reconstruction Amendments or through a favorable decision in federal courts.


Nine days after the election, U.S. Commissioner William Storrs, an officer of the federal courts, issued warrants for the arrest of Anthony and the fourteen other women who voted in Rochester. Based on the complaint of Sylvester Lewis, a poll watcher who challenged Anthony’s vote, the women were charged with voting for members of the U.S. House of Representatives “without having a lawful right to vote,” in violation of section 19 of the Enforcement Act of 1870.

Three days later, on November 18, 1872, a deputy federal marshal called on Anthony. He asked her to accompany him downtown to see the commissioner. She later told audiences, “‘What for?’ I asked. ‘To arrest you,’ he said. ‘Is that the way you arrest men?’ ‘No.’ Then I demanded that I should be arrested properly.” Anthony was taken at government expense on the streetcar to the commissioner’s office, where she met her attorney, Henry Selden, and an assistant U.S. attorney, John Pound. When Pound asked for Anthony’s plea, Selden refused to enter one before an indictment. This obliged the commissioner to conduct an examination, which would determine if there were sufficient grounds to detain Anthony.


In what became a pattern of singling out Anthony, all the women voters were arrested, but only Anthony’s actions were examined for evidence of a crime. An examination on November 29, 1872, reviewed the evidence against Anthony to determine if all the women should be held in federal custody and referred to a grand jury for possible indictment. John Pound presented the government’s witnesses to establish the facts in the case. Was Anthony a woman? Did she cast ballots? How many ballots did she cast? Was she challenged? Did she take the oaths? The two Republican inspectors of election, already under arrest themselves for allowing the women to vote, were the principal witnesses, followed by Sylvester Lewis and a clerk who kept the register of voters. Although the defense conceded that Anthony was a woman, Pound insisted on examining witnesses on this point: “Was Miss Anthony dressed in the apparel of a woman and had she the appearance of a woman?” he asked the inspectors, over the objections of Anthony’s attorney.

The defense emphasized the lack of any evidence that Anthony knowingly violated the law as they claimed was required for conviction under the Enforcement Act, but Commissioner Storrs refused to drop the charges. Storrs did, however, overrule the objections of the prosecutor and agree that evidence about Anthony’s intent should be heard. The examination was adjourned until late December to allow the attorneys to prepare.

The arguments

When the hearing resumed on December 23, 1872, the commissioner moved it from his office to the city council chambers to accommodate a large audience. Henry Selden spoke first. He argued that Anthony had the right to vote, since voting was an essential ingredient of citizenship. States retained their right to regulate voting, but the Reconstruction amendments took away states’ right to exclude a class of citizens from voting. Even if Anthony did not have that right, yet believed she did, her action lacked “the indispensible ingredient of all crime, a corrupt intention.” Assistant U.S. Attorney John Pound countered by turning to the report on the amendments written by Representative John Bingham of the House of Representatives Committee on the Judiciary. This report, prepared in response to a petition from woman suffragists, asserted that the amendments left untouched the women’s exclusion from suffrage because they in no way altered the authority of states to determine qualifications for voters. To Pound, the very existence of Bingham’s report, and a similar one written by Senator Matthew Carpenter in 1872, proved that Anthony must have known she lacked the right.

Commissioner Storrs on December 26 announced his decision that Anthony “must give bail to appear and answer to indictments, if bills be found by the Grand Jury,” and he signed a record of commitment sending her to Albany County jail. On December 30, the fourteen other defendants posted bail, leaving Anthony alone in the custody of the federal marshal. He did not jail her.

A writ of habeas corpus

Anthony’s attorneys combed the law through November and December in search of a way to appeal her arrest and detention to the Supreme Court of the United States. As Selden put it, the “contingencies” of doing so through criminal proceedings were great. At the time, a conviction could not be appealed to the Supreme Court unless the case was heard by two judges who disagreed on a matter of law and certified their disagreement to the Court. Anthony’s attorneys decided that the surest route to the Supreme Court began with a petition to the district court for a writ of habeas corpus, even though Congress in 1868 had repealed the provision for appeals on writs of habeas corpus from the lower federal courts to the Supreme Court.

Attorney John Van Voorhis, arguing that Anthony had a right to vote and that there was no evidence that she knowingly violated the Enforcement Act, petitioned the district court on January 2, 1873, for a writ of habeas corpus that would bring Anthony before the court so that the judge could decide if she were rightly held in custody. Judge Nathan Hall of the U.S. District Court for the Northern District of New York granted the petition and ordered the federal marshal to file by January 10 in Buffalo a return on the writ, explaining Anthony’s examination and the order to commit her to the marshal’s custody. With all parties in the courtroom on that day, the U.S. attorney announced that he was unprepared for argument, and the judge rescheduled the hearing for January 21 in Albany.

At the district court session in Albany, Henry Selden expanded the argument he had made previously; it was “vastly improved,” Anthony observed. Selden insisted Anthony had a right to vote, but acknowledged that the question of women’s right to vote was as yet unsettled and awaited definitive adjudication. In the meantime, the government had no basis for holding her as a criminal defendant. Judge Hall stopped U.S. Attorney Richard Crowley from making the government’s case and denied the application for Anthony’s release from custody.

Anthony mentioned in several letters that Henry Selden appealed the district court ruling to U.S. Circuit Court Judge Lewis B. Woodruff, but there is otherwise no record of the appeal or Woodruff’s action. It must be assumed, since Anthony remained in custody, that Woodruff either refused to hear the appeal or decided not to release her.


Commissioner Storrs sent the cases of the women voters to the U.S. district court sitting in Albany, and U.S. Attorney Richard Crowley presented the grand jury with the proposed indictments. The jury indicted the voters on January 24, 1873. Anthony entered a plea of not guilty, and she was again held to bail, this time for $1,000. Selden gave her bail.

Preparing for trial

Prior to 1878, the federal courts followed the common law rule that prohibited criminal defendants from testifying or addressing the jury in their own trials. Anthony could, however, as one reporter wrote, “educate the people from whom this jury is to be selected.” During March and April 1873, Anthony spoke in twenty-nine villages and towns of Monroe County, asking “Is It a Crime for a U.S. Citizen to Vote?” When she delivered her lecture in Rochester, the county’s principal city, a daily newspaper printed her speech in full, circulating it further.

From the district to the circuit court

After several delays, the prosecutors, on May 22, 1873, summoned Anthony’s codefendants for arraignment. All pleaded not guilty and were released on their own recognizance, pending Anthony’s trial.

On the same day, U.S. Attorney Richard Crowley asked that the case be transferred from the district court to the circuit court, sitting in June in Ontario County. Because the district and circuit courts had concurrent jurisdiction over the offense, federal law allowed a U.S. attorney to request transfer as a matter of course and without stating reasons. Nonetheless, observers were quick to attribute motives to Crowley’s request. By taking the case to the June term of the circuit court, Crowley would try it before Ward Hunt, the associate justice of the U.S. Supreme Court assigned to the circuit. This would give the verdict greater weight, and it followed a practice in federal courts of holding important cases until the arrival of the Supreme Court justice.

In addition, the Supreme Court’s rulings in mid-April on the Fourteenth Amendment in the
Slaughter-House cases and Bradwell v. Illinois narrowly defined the rights of U.S. citizenship and changed the legal landscape for United States v. Susan B. Anthony. Crowley could anticipate that Justice Hunt would bring the Court’s deliberations to bear on this case, and he gained time himself to reframe his argument in light of the Court’s opinions.

Moving the trial out of Monroe County also removed the trial from the potential jurors to whom Anthony had presented her argument in the case, but any advantage for Crowley soon slipped away. As one local newspaper noted, Crowley had met his match in Anthony. She laid out a schedule to speak in every village in Ontario County.


Anthony’s trial began in Canandaigua, New York, on June 17, 1873. Before a jury of twelve men, Richard Crowley stated the government’s case and called an inspector of election as a witness to establish that Anthony cast a ballot for congressional candidates. Henry Selden had himself sworn in as a witness and testified that he advised Anthony that the Constitution authorized her to vote. The government called Assistant U.S. Attorney John Pound to testify that in the preliminary examination Anthony indicated that she would have voted with or without Selden’s advice.

The rest of the afternoon was taken up by Selden’s principal argument in the case. Selden devoted most of his time to his argument in favor of a constitutional right of women to vote. Selden then addressed the other question of law: Could voting constitute a crime under the Enforcement Act if a defendant voted in good faith in the belief that he or she was entitled to vote? At the direction of Justice Hunt, who suggested that Selden limit himself to questions of law until the court ruled on them, Selden did not offer his planned discussion of the question of fact regarding whether Anthony voted in the good faith that she had a right to vote.

On the second day of the trial, U.S. Attorney Crowley presented the government’s case, noting that the recent decisions of the Supreme Court only strengthened the argument that states still controlled the right to vote except in the categories protected by the Fifteenth Amendment. After saying that the case presented no question of fact, Crowley offered his view of the facts: that the term “knowingly” in the Enforcement Act meant only that a person knew she was engaged in the act of voting.

At the close of Crowley’s presentation, Justice Hunt read his opinion in the case. Citing the recent Supreme Court decisions narrowly defining the rights of U.S. citizenship, Hunt declared that the right to vote was not among the “privileges and immunities” protected by the Fourteenth Amendment. States retained their full rights to bar citizens from voting, he said, with the exception of barriers based on “race, color, or previous condition of servitude,” as set forth in the Fifteenth Amendment. Because Susan B. Anthony knew that New York enfranchised only males, she knew she lacked the right to vote. She acted knowingly to violate the law. Hunt concluded that there was no question for the jury to decide and that it should be directed to return a verdict of guilty.

Reaching a verdict

Selden insisted the jury had a right to decide the guilt or innocence of Anthony, and he again submitted his argument that she was innocent because she believed she had a legal right to vote and that the jury needed to determine this question of her intent. Hunt then directed the jury to deliver a guilty verdict, and the clerk refused Selden’s request to poll the jury.

A motion for a new trial

Henry Selden returned to court on June 19, 1873, after working through the night on a motion for a new trial. In the circuit courts, such a motion was heard by the same judge whose actions gave rise to the motion. Justice Hunt would decide whether he had himself violated the Constitution, as Selden claimed, by denying Anthony a trial by jury. In a lengthy argument, Selden insisted that no sound precedent existed for directing a verdict of guilty in a criminal trial. Nowhere was a jury trial more important, he continued, than in a criminal case not subject to review. Hunt was unmoved. He denied the motion, claiming that the right to a trial by jury “exists only in respect of a disputed fact,” and no facts were in dispute.

Before pronouncing the sentence for her crime, Justice Hunt asked Anthony if she had anything to say. She did. In the most famous speech in the history of the agitation for woman suffrage, she condemned a proceeding that had “trampled under foot every vital principle of our government.” She had not received justice under “forms of law all made by men,” “failing, even, to get a trial by a jury not of my peers.” Sentenced to pay a fine of $100 and the costs of the prosecution, she swore to “never pay a dollar of your unjust penalty.” Justice Hunt said Anthony would not be held in custody awaiting payment of her fine.

Trial of the inspectors

At the close of Anthony’s trial, the court opened the trial of the three inspectors of election, who were indicted for allowing the women to register as voters and to vote in the congressional elections. The jury convicted all three, and Justice Hunt imposed a fine of $25 on each of the inspectors, who also refused to pay.


In July 1873, the clerk of the circuit court dispatched the deputy federal marshal to collect the fine and court costs still owed by Anthony. The marshal reported back, “I have made diligent search and can find no goods or chattles [sic] land or tenements” to seize, and the government took no further action.

The inspectors of election met a different fate. On February 3, 1874, Richard Crowley signed a writ for their arrest for their refusal to pay their fines, and on February 25, the marshal jailed them. While their champions in Rochester brought food, coffee, and a stream of visitors to the jail, Anthony telegraphed Representative Benjamin Butler and Senator Aaron Sargent for help. On March 3, at their request, President Grant pardoned the men. On the same day, voters in the Eighth Ward reelected the inspectors to their posts.

In January 1874, Anthony petitioned Congress for a remission of her fine because of the unjust character of her trial. Her congressional allies introduced her petition in the House and the Senate, and the judiciary committees of both houses debated the matter. Benjamin Butler, who thought Congress should defend the right to a trial by jury, brought to the floor of the House a bill to remit Anthony’s fine, but it failed to pass. In the Senate, Matthew Carpenter thought Congress lacked the authority to reverse a federal court, but he submitted a report condemning Justice Hunt’s action. It was “altogether a departure from, and a most dangerous innovation upon, the well-settled method of jury-trial in criminal cases. Such a doctrine renders the trial by jury a farce. [Anthony] had no jury-trial, within the meaning of the Constitution, and her conviction was, therefore, erroneous.”

A change in strategy

The hope of gaining woman suffrage through the federal courts lingered for another year, until in the spring of 1875 the Supreme Court ruled, in the case of Virginia Minor of St. Louis, Missouri, that woman suffrage was not guaranteed by the Fourteenth Amendment or any other part of the Constitution. In 1876, during the celebrations of the centennial of the Declaration of Independence, the National Woman Suffrage Association announced its new strategy to seek a constitutional amendment that would guarantee voting rights to all U.S. citizens and bar states from qualifying voters on the basis of sex. The Nineteenth Amendment, which prohibits states from restricting, on the basis of sex, the right of citizens to vote, was ratified in 1920.


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