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At all events, it is for
the jury.

THE COURT.--I can not charge these propositions of course. The
question, gentlemen of the jury, in the form it finally takes, is
wholly a question or questions of law, and I have decided as a
question of law, in the first place, that under the XIV.
Amendment, which Miss Anthony claims protects her, she was not
protected in a right to vote. And I have decided also that her
belief and the advice which she took do not protect her in the
act which she committed. If I am right in this, the result must
be a verdict on your part of guilty, and I therefore direct that
you find a verdict of guilty.

JUDGE SELDEN.--That is a direction no Court has power to make in
a criminal case.

THE COURT.--Take the verdict, Mr. Clerk.

THE CLERK.--Gentlemen of the jury, hearken to your verdict as the
Court has recorded it. You say you find the defendant guilty of
the offense whereof she stands indicted, and so say you all?

JUDGE SELDEN.--I don't know whether an exception is available,
but I certainly must except to the refusal of the Court to submit
those propositions, and especially to the direction of the Court
that the jury should find a verdict of guilty. I claim that it is
a power that is not given to any Court in a criminal case. Will
the Clerk poll the jury? THE COURT.--No. Gentlemen of the jury,
you are discharged.

On the next day a motion for a new trial was made and argued by Judge
Selden, as follows:

_May it please the Court:_--The trial of this case commenced with
a question of very great magnitude--whether by the Constitution
of the United States the right of suffrage was secured to female
equally with male citizens. It is likely to close with a question
of much greater magnitude--whether the right of trial by jury is
absolutely secured by the Federal Constitution to persons charged
with crime before the Federal Courts.

I assume, without attempting to produce any authority on the
subject, that this Court has power to grant to the defendant a
new trial in case it should appear that in the haste and in the
lack of opportunity for examination which necessarily attend a
jury trial, any material error should have been committed
prejudicial to the defendant, as otherwise no means whatever are
provided by the law for the correction of such errors.

The defendant was indicted under the nineteenth section of the
act of Congress of May 31, 1870, entitled, "An act to enforce the
right of citizens of the United States to vote in the several
States of this Union, and for other purposes," and was charged
with having knowingly voted, without having a lawful right to
vote, at the Congressional election in the Eighth Ward of the
City of Rochester, in November last; the only ground of
illegality being that the defendant was a woman.

The provisions of the act of Congress, so far as they bear upon
the present case, are as follows:

Section 19. If at any election for representative or
delegate in the Congress of the United States, any person
shall knowingly personate and vote, or attempt to vote, in
the name of any other person, whether living, dead, or
fictitious, or vote more than once at the same election for
any candidate for the same office, or vote at a place where
he may not be lawfully entitled to vote, or vote without
having a lawful right to vote, ... every such person shall
be deemed guilty of a crime, and shall for such crime be
liable to prosecution in any court of the United States, of
competent jurisdiction, and on conviction thereof, shall be
punished by a fine not exceeding $500 or by imprisonment for
a term not exceeding three years, or both, in the discretion
of the Court, and shall pay the costs of prosecution.

It appeared on the trial that before voting the defendant called
upon a respectable lawyer, and asked his opinion whether she had
a right to vote, and he advised her that she had such right, and
the lawyer was examined as a witness in her behalf, and testified
that he gave her such advice, and that he gave it in good faith,
believing that she had such right.

It also appeared that when she offered to vote, the question
whether as a woman she had a right to vote, was raised by the
inspectors, and considered by them in her presence, and they
decided that she had a right to vote, and received her vote
accordingly.

It was also shown on the part of the Government, that on the
examination of the defendant before the commissioner on whose
warrant she was arrested, she stated that she should have voted,
if allowed to vote, without reference to the advice she had
received from the attorney whose opinion she had asked; that she
was not influenced to vote by that opinion; that she had before
determined to offer her vote, and had no doubt about her right to
vote.

At the close of the testimony the defendant's counsel proceeded
to address the jury, and stated that he desired to present for
consideration three propositions, two of law and one of fact:

First.--That the defendant had a lawful right to vote.

Second.--That whether she had a lawful right to vote or not, if
she honestly believed that she had that right and voted in good
faith in that belief, she was guilty of no crime.

Third.--That when she gave her vote she gave it in good faith,
believing that it was her right to do so.

That the first two propositions presented questions for the Court
to decide, and the last for the jury.

When the counsel had proceeded thus far, the Court suggested that
the counsel had better discuss in the first place the questions
of law; which the counsel proceeded to do, and having discussed
the two legal questions at length, asked leave then to say a few
words to the jury on the question of fact. The Court then said to
the counsel that he thought that had better be left until the
views of the Court upon the legal question should be made known.

The District Attorney thereupon addressed the Court at length
upon the legal questions, and at the close of his argument the
Court delivered an opinion adverse to the positions of the
defendant's counsel upon both of the legal questions presented,
holding that the defendant was not entitled to vote; and that if
she voted in good faith in the belief in fact that she had a
right to vote, it would constitute no defense--the grounds of the
decision on the last point being that she was bound to know that
by law she was not a legal voter, and that even if she voted in
good faith in the contrary belief, it constituted no defense to
the crime with which she was charged. The decision of the court
upon these questions was read from a written document.

At the close of the reading, the Court said that the decision of
these questions disposed of the case and left no question of fact
for the jury, and that he should therefore direct the jury to
find a verdict of guilty, and proceeded to say to the jury that
the decision of the Court had disposed of all there was in the
case, and that he directed them to find a verdict of guilty, and
he instructed the clerk to enter a verdict of guilty.

At this point, before any entry had been made by the clerk, the
defendant's counsel asked the Court to submit the case to the
jury, and to give to the jury the following several instructions:
[Here Judge Selden repeated the instructions. See page 665.]

The Court declined to submit the case to the jury upon any
question whatever, and directed them to render a verdict of
guilty against the defendant. The defendant's counsel excepted to
the decision of the Court upon the legal questions--to its
refusal to submit the case to the jury; to its refusal to give
the instructions asked; and to its direction to the jury to find
a verdict of guilty against the defendant--the counsel insisting
that it was a direction which no Court had a right to give in a
criminal case.

The Court then instructed the clerk to take the verdict, and the
clerk said, "Gentlemen of the jury, hearken to the 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. None of them had spoken a
word. Nor had they been asked whether they had or had not agreed
upon a verdict. The defendant's counsel then asked that the clerk
be requested to poll the jury. The Court 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 they were impaneled to the time of their discharge.

Now I respectfully submit, that in these proceedings the
defendant has been substantially denied her constitutional right
of trial by jury. The jurors composing the panel have been merely
silent spectators of the conviction of the defendant by the
Court. They have had no more share in her trial and conviction
than any other twelve members of the jury summoned to attend this
Court, or any twelve spectators who have sat by during the trial.
If such course is allowable in this case, it must be equally
allowable in all criminal cases, whether the charge be for
treason, murder, or any minor grade of offense which can come
under the jurisdiction of a United States Court; and as I
understand it, if correct, substantially abolishes the right of
trial by jury.

It certainly does so in all those cases where the judge shall be
of the opinion that the facts which he may regard as clearly
proved, lead necessarily to the guilt of the defendant.



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