An Account of the Proceedings on the Trial of Susan B. Anthony Part 11

First.

Congress has no power to pa.s.s laws for the punishment of Inspectors of Elections, elected or appointed under the laws of the State of New York, for receiving illegal votes, or registering as voters, persons who have no right to be registered.

No law of Congress defines the qualifications of voters in the several States. These are found only in the State Const.i.tutions and Statutes.

The offenses charged in the indictment are, that the defendants, being State officers, have violated the laws of the State. If it be so, they may be tried and punished in accordance with the State laws. No proposition can be clearer. If the United States can also punish them for the same offense, it follows that they may be twice indicted, tried, convicted and punished for one offense. A plea in a State Court, of a conviction and sentence, in a United States Court would const.i.tute no bar or defense, (_12 Metcalf_, _387_, _Commonwealth v. Peters_,) and the defendants might be punished twice for the same offense. This cannot be, and if the act in question be valid, the State of New York is ousted of jurisdiction. And where does Congress derive the power to pa.s.s laws to punish offenders against the laws of a State? This case must be tried under the laws of the United States. Against those laws, no offense is charged to have been committed. Such power, if it exist, must be somewhere expressly granted, or it must be necessary in order to execute some power that is expressly granted.

The Act of Congress in question, became a law on May 31st, 1870. It is ent.i.tled--

"AN ACT TO ENFORCE THE RIGHT OF CITIZENS OF THE UNITED STATES TO VOTE IN THE SEVERAL STATES, AND FOR OTHER PURPOSE."

The indictment is found under the 19th section of the Act as it pa.s.sed originally, and the 20th section as amended by the Act of February 28th, 1871.

The 19th Section, so far as it is necessary to quote it here, is as follows:

"_That if at any election for representatives or delegates 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 or dead, or fict.i.tious; 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 ent.i.tled to vote; _or vote without having a lawful right to vote, ... or knowingly and wilfully receives the vote of any person not ent.i.tled to vote_, or refuses to receive the vote of any person ent.i.tled 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 five hundred dollars, 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."

Section 20, as amended, so far as pertinent, reads as follows:

"That if at any registration of voters for an election for representatives or delegates in the Congress of the United States, any person shall _knowingly_ ... hinder any person having a lawful right to register, from duly exercising that right; or compel or induce by any of such means, or other unlawful means, ANY OFFICER OF REGISTRATION to admit to registration any person not legally ent.i.tled thereto; ... _or if any such officer shall knowingly and wilfully register as a voter any person not ent.i.tled to be registered_, or refuse so to register any person ent.i.tled to be registered, ... _every such person shall be deemed guilty of a crime, and shall be liable to prosecution and punishment therefor, as provided in section 19 of said Act of May 31, 1870, for persons guilty of the crimes therein specified_."

No law of Congress describes the qualifications of voters in this State, or in any State.

Congress has provided no registry law. Therefore, what const.i.tutes the offenses charged in this indictment, must be looked for in the laws of the State. By no Act of Congress can it be determined in what case a person votes, "_without having a right to vote_." By no Act of Congress can it be determined when an Inspector of Election has received the vote of "_any person not ent.i.tled to vote_," or has registered "_as a voter, any person not ent.i.tled to be registered_." These are the offenses alleged in this indictment. They are penal offenses by the Statutes of New York. The jurisdiction of the State Courts over them is complete, and cannot be questioned.

By the Act of May 31, 1870, above cited, Congress has ordained, in legal effect, that if any person violates the penal Code of the State of New York, or any State, in respect of voting, he may be punished by the United States. And the offense is a variable quant.i.ty; what is a crime in one State under this Act, is a legal right and duty in another. A citizen of Rhode Island, for instance, who votes when not possessed in his own right, of an estate in fee simple--in fee tail, for life, or in reversion or remainder, of the value of $134 or up-wards, may be convicted of a crime under this Act, and imprisoned in a State Prison.

He voted in violation of the laws of his State. A citizen of New York votes under precisely similar circ.u.mstances, and with the same qualifications, and his act is a legal one, and he performs a simple duty. Any State may, by its Const.i.tution and laws, permit women to vote.

Had these defendants been acting as Inspectors of Elections in such State, their act would be no crime, and this indictment could not be sustained, for the only illegality alleged is, that the citizens whose votes were received were women, and therefore not ent.i.tled to vote.

The Act of Congress thus, is simply an Act to enforce the diverse penal statutes of the various States in relation to voting. In order to make a case, the United States must combine the federal law with the statutes of the State where the _venue_ of the prosecution is laid.

Before the enactment of the 13th, 14th and 15th Amendments, it is not, and never was pretended, that Congress possessed any such power.

Subdivision 1 of Section 2, of Article one of the Const.i.tution, provides as follows:

"The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature."

By this provision, what shall qualify a person to be an elector, is left entirely to the States. Whoever, in any State, is permitted to vote for members of the most numerous branch of its legislature, is also competent to vote for Representatives in Congress. The State might require a property qualification, or it might dispense with it. It might permit negroes to vote, or it might exclude them. It might permit women to vote, or even foreigners, and the federal const.i.tution would not be infringed. If a State had provided a different qualification for an elector of Representatives in Congress, from that required of an elector of the most numerous branch of its Legislature, the power of the federal const.i.tution might be invoked, and the law annuled. But never was the idea entertained, that this provision of the Const.i.tution authorizes Congress to pa.s.s laws for the punishment of individuals in the States for illegal voting, or State returning officers for receiving illegal votes.

This power, if it exist, must be found in the recent Amendments to the U.S. Const.i.tution.

I a.s.sume that your Honor will hold, as you did yesterday in Miss Anthony's case, that these amendments do not confer the right to vote upon citizens of the United States, and therefore not upon women. That decision is the law of this case. It follows necessarily from that decision, that these amendments have nothing to do with the right of voting, except so far as that right "_is denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude_."

The thirteenth article of the Amendments to the Const.i.tution of the United States, in Section 1, ordains that "_neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction_."

Section 2, ordains that "_Congress shall have power to enforce this Article by appropriate legislation_."

The fourteenth article of the Amendments to the Const.i.tution of the United States, ordains in Section 1, "_All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State where they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction, the equal protection of the laws._"

Section five enacts, "_The Congress shall have power to enforce by appropriate legislation, the provisions of this Article._"

The fifteenth article of Amendment to the Const.i.tution ordains in its first section, that "That the right of citizens of the United States to vote, shall not be denied or abridged by the United States or by any State, on account of race, color or previous condition of servitude."

Section two enacts, that "_The Congress shall have power to enforce this Article by appropriate legislation._"

These are the provisions of the Const.i.tution relied on to support the legislation of Congress now before this Court. Some features of that legislation may be const.i.tutional and valid. Whether this be so or not, it is not necessary now to determine. The question here is, has Congress, by either of these amendments, been clothed with the power, to pa.s.s laws to punish inspectors of elections in this State for receiving the votes of women?

The thirteenth amendment simply abolishes slavery, and authorizes such legislation as shall be necessary to make that enactment effectual.

The power in question is not found there.

The fourteenth amendment defines who are citizens of the United States, and prohibits the States from making or enforcing "_any law which shall abridge the privileges or immunities_" of such citizens.

Either the right to vote is one of the "_privileges or immunities_" of the United States citizen, which the states are forbidden to abridge, or it is not. If it is, then the women whose votes these defendants received, being citizens of the United States, and in every other way qualified to vote, possessed the right to vote, and their votes were rightfully received. If it is not, then the fourteenth amendment confers no power upon Congress, to legislate, on the subject of voting in the States. There is no other clause or provision of that amendment which can by any possibility confer such power--a power which cannot be implied, but which, if it exist, must be expressly given in some part of the Const.i.tution, or clearly needed to carry into effect some power that is expressly given.

No such power is conferred by the fifteenth amendment. That amendment operates upon the States and upon the United States, and not upon the citizen. "The right of citizens of the United States to vote, shall not be denied or abridged by 'THE UNITED STATES OR BY ANY STATE.'" The terms "_United States_" and "State," as here used, mean the government of the United States and of the States. They do not apply to individuals or to offenses committed by individuals, but only to acts done by the State or the United States.

But at any rate, the operation of this amendment, and the power given to Congress to enforce it, is limited to offenses committed in respect of depriving persons of the right to vote because of their "_race, color, or previous condition of servitude_."

This is not such a case. There is no ground for saying that these defendants have committed any offense against the spirit or the letter of the fifteenth amendment, or any legitimate legislation for its enforcement.

Congress cannot make laws to regulate the duties of Inspectors, and it cannot inflict a penalty.

Second.

_No offense is stated in the indictment._

The first count in the indictment is for knowingly and wilfully registering as a voter, Susan B. Anthony. This count is under Section 26 of the Act of May 31, 1870, as amended by the Act of February 28, 1871.

The indictment contains no averment that the defendants were "_officers of registration_," and charged with the duty of making a correct registry of voters. It simply alleges that they were _Inspectors of Elections_. What that means, the indictment does not inform us. It is not an office defined by the Acts of Congress upon which this indictment was found, nor has the Court any information of which it can take notice as to what are the duties of such officers. In the absence of any claim in the indictment to that effect, the Court will not presume the existence of so important a circ.u.mstance against the defendants, and therefore this count of the indictment must fail.

2. The second count is for the same offense, and obnoxious to the same objection. The only variation being that the first count charges the illegal registry of one woman, and the second, fourteen.

3. The third count charges that the defendants, being inspectors of elections, received the votes of fourteen women who had no right to vote, wrongfully.

This count does not allege that it was the duty of the defendants to receive or count the votes. It simply alleges that they were Inspectors of Election. Their duties as such are not stated. It is not alleged that as such inspectors they were charged with the duty of receiving and counting votes. It is not claimed by the indictment that these votes were counted or put into the ballot box--or affected the result. The defendants simply received the votes. What they did with them, does not appear. Any bystander, who had received these votes, could be convicted under this indictment as well as they.

WILLIAM F. MORRISON, a witness called in behalf of the United States, testified as follows:

_Examined_ by Mr. Crowley:

Q. Where did you live, in November, 1872?

A. City of Rochester.

Q. Where do you live now?

A. Same place.

Q. Did you occupy any official position in the month of November, 1872?