CHAPTER ONE

`The Trial of Susan B. Anthony and the “Rochester Fifteen”`

THE SENECA FALLS CONVENTION holds an iconic place in the history of woman suffrage, even though it was not, as is often asserted, the first convention ever held on the question of women’s rights. On July 19 and 20, 1848, three hundred women and men gathered in the small upstate New York town of Seneca Falls. They came in response to a call issued by Elizabeth Cady Stanton, Lucretia Mott and Martha Coffin Wright—but not Susan B. Anthony, who would only join the movement two years later—to discuss “the social, civil and religious condition of woman.” Acting as their wordsmith, Elizabeth Cady Stanton memorably turned the Declaration of Independence on its head by boldly asserting, in the preamble to the Declaration of Sentiments she drafted for the convention, that “all men and women are created equal.” The only resolution to spark controversy was the call “to secure for themselves their sacred right to elective franchise.”¹

Why was the question of suffrage so fraught? Voting in the nineteenth century was very different from today. Instead of polling places being located in well-ordered settings such as schools, churches, or public buildings, ballots were cast at privately-owned structures, such as warehouses, livery stables, and saloons—literally places where no “respectable lady” would venture. Election days were rowdy and chaotic affairs, often featuring copious amounts of alcohol and incidents of physical intimidation, if not outright violence. No wonder women’s demand for the vote was so hard to process—it struck at the core of nineteenth-century male political culture.

One of the first visual documents to refer to the 1848 Seneca Falls Convention was a color print captioned “Leaders of the Woman’s Rights Convention Taking an Airing,” published the same year by James S. Baillie, the owner of a lithography business in New York City. These women’s rights advocates—none of whom seem to be literal portrayals of actual suffragists—may have been out “taking an airing,” but this print was not going to win many converts to the cause. The print’s main message can be summed up in one word: transgressive. All four women are dressed in outfits that depart from traditional female dress, including helmets and top hats. Instead of modestly riding side-saddle, they mount their steads like men, showing a shocking amount of leg (even a knee!) and featuring appendages that look more like hooves than dainty female feet. Everything seems topsy-turvy: a horse steals a bonnet, two of the women are disheveled, horses bolt out of control from under their riders. The print perfectly depicts a world turned upside down when women challenged their exclusion from politics and public life. And once women boldly—and bodily—entered the public sphere to claim the rights of citizenship for their sex, there was no turning back.

“Leaders of the Woman’s Rights Convention Taking an Airing,” color print by James S. Baillie, 1848. *Courtesy of Schlesinger Library, Radcliffe Institute, Harvard University.*

“WELL I HAVE BEEN & gone & done it!!—positively voted the Republican ticket—strait—this A.M. at 7 Oclock—& swore my vote in at that.” So Susan B. Anthony gloated to her friend and suffrage co-conspirator Elizabeth Cady Stanton in a letter from Rochester dated November 5, 1872. Fully aware of the publicity value of her attempt, she was prepared to go to jail for the cause and relished the legal fight to come. She even dared hope that women all around the country would spontaneously join her by going to the polls: “If only now all the Woman Suffrage Women would work to this end, of enforcing the existing constitution—supremacy of national law over state law—what strides we might make this very winter.” It didn’t work out quite as she planned, but Anthony turned her defiant act of voting into a public relations coup for the nascent suffrage movement.²

The immediate spur for her unprecedented act was an editorial in the Rochester Democrat and Chronicle the previous Friday urging voters to register: “Now register! Today and tomorrow are the only remaining opportunities. If you were not permitted to vote, you would fight for the right, undergo all privations for it, face death for it. You have it now at the cost of five minutes’ time to be spent in seeking your place of registration and having your name entered.… Today and tomorrow are your only opportunities. Register now!” To modern eyes, this language seems remarkably ungendered—applicable to women as well as men, which is how Susan B. Anthony chose to read it. In fact, in 1872, the idea that women would take up the call to register to vote was so far-fetched that it never would have occurred to the editorial writers to limit the wording to men.³

Susan B. Anthony seized the moment. Gathering up her three sisters, the ensemble walked down to their local registration spot, a general store which also doubled as a barbershop, and asked to be allowed to register in advance of the upcoming election. They fully expected to be denied, and they planned to use that refusal to mount a legal challenge to their exclusion from the polls. To their surprise, the three local election inspectors, all relatively young, inexperienced, and clearly in over their heads, did not immediately turn them away. Susan B. Anthony pounced on their hesitation to read aloud from the text of the Fourteenth Amendment in support of her cause. Probably somewhat intimidated by being in the presence of one of Rochester’s most famous public citizens, the two Republican inspectors agreed to enter the women’s names on the voting rolls, overruling the objections of the sole Democratic official. Taking advantage of this unexpected turn of events, Anthony quickly got the word out that other women should register. That day and the next, approximately fifty women answered the call, setting the stage for the election-day drama.⁴

This was far from a spontaneous action. Susan B. Anthony had been contemplating a legal case to test federal and state voting regulations for several years. The post–Civil War political and legal landscape, specifically the Reconstruction-era amendments to the Constitution passed in response to the end of slavery, made such a test case possible, indeed necessary. Two aspects of these amendments had huge implications for the woman suffrage movement: the introduction of the modifier “male” when defining voters in the Fourteenth Amendment (1868) and the decision not to include “sex” alongside the prohibited categories of “race, color, or previous condition of servitude” in the Fifteenth Amendment (1870).⁵

Before the Civil War, the women’s rights movement and abolitionism had been closely connected, but when the war ended, the old coalition linking race and gender split irrevocably. The dispute was about who had priority: African-American men facing new political terrain after slavery was abolished or white women, who also wanted to be included in the post–Civil War expansion of political liberties. Prominent reformers like Frederick Douglass and Wendell Phillips believed that this was “the Negro’s hour,” and that African American rights were the most pressing issue. Suffragists such as Lucy Stone, Henry Blackwell, and Julia Ward Howe had hoped for universal suffrage, but once the amendments were drafted, they supported ratification despite the exclusion of women. Susan B. Anthony and Elizabeth Cady Stanton adamantly refused to support the amendments, often employing racist language to imply that white women were just as deserving of the vote as African American men, if not more so. Even though African American women prominently participated in this debate, their rights and interests were often left out of the equation.

By 1869, the suffrage movement had split in two over this question, which was both strategic and philosophical. Stone, Blackwell, and Howe founded the Boston-based American Woman Suffrage Association, and the Stanton-Anthony wing set up the rival National Woman Suffrage Association, which was centered in New York. So heated were the underlying divisions that the two wings would not reunite until 1890, when the older generation of suffragists began to cede power to a rising generation that had not been so traumatically marked by the Reconstruction-era schism.

Even though the Fourteenth Amendment added new hurdles for the woman suffrage movement, as Elizabeth Cady Stanton had predicted in 1866—“If the word ‘male’ be inserted … it will take us a century at least to get it out”—in the short term, suffragists used the amendment to make a novel case for women’s voting rights. Asserting that the Fourteenth Amendment conferred broad rights of citizenship without reference to gender, they argued that women already had the right to vote because it was a right of citizenship, one which states could not take away. If the courts had accepted that reasoning, then the next five decades of suffrage agitation would have been unnecessary.⁶

One of the first articulations of this intriguing idea came in 1869 from a St. Louis attorney named Francis Minor, whose wife Virginia was active in the Missouri woman suffrage movement. A widely circulated pamphlet making the Minors’ case that women already had the right to vote and merely needed to exercise it spurred hundreds of direct actions at local polling places. By 1872, the National Woman Suffrage Association formally embraced this strategy, which it called the “New Departure.” Now it only needed a test case to take to the Supreme Court. In fact, Susan B. Anthony expected such a test case to happen when she registered to vote in Rochester in 1872. When events proved different, she rose to the challenge and changed her strategy.

After Susan B. Anthony and fourteen other Rochester women committed the “crime” of casting ballots in their local Rochester wards on Tuesday, November 5, 1872, the legal wheels were set in motion. First, the local US commissioner invited the women to come into his office for an interview. Clearly enjoying the moment, Anthony “sent word to him that I had no social acquaintance with him and didn’t wish to call on him. If he wanted to see me on official business he must come and see me.” Two weeks later, a US marshal knocked on Anthony’s door. He soon found himself sitting in the parlor making small talk with the formidable suffrage leader. Finally, the clearly embarrassed emissary admitted he was there to serve a warrant for her arrest. After asking permission to change her clothes (granted) and presenting her wrists for handcuffing (declined, and probably a wise decision), the marshal escorted Anthony and two of her sisters to the federal offices, paying their trolley fare as was the custom for all criminals facing arrest. They were not arrested, however, and they did not spend time in jail.⁷

The next day, all fifteen women appeared at a preliminary hearing, now represented by counsel, Henry R. Selden. The proceedings rehashed the events of the fateful day, including such comical questions as whether Anthony had dressed as a woman (no one had suggested the female voters were cross-dressing in order to vote), while Selden tried to establish that, because they believed they had a right to vote, the women had committed no crime. Various preliminary hearings continued into December and January. During this time, Anthony was technically under arrest and had refused to pay bail. Under more normal circumstances, this might have landed her in jail. But the authorities were unwilling to take her into custody. At the very least they seemed to assume she would stay put in Rochester. Instead, she defiantly set off on a trip to Washington, DC and New York City. Her lawyer posted her bail.

On Tuesday, January 21, 1873, a grand jury indicted Anthony. The other women of what today might be called “the Rochester Fifteen” were not indicted; the expectation was that Anthony’s case was sufficient to address all the legal issues at stake. What crime had Anthony actually committed? Here the intricacies of state versus federal jurisdiction over voting came into play. Although it was not specifically mentioned in the indictment, she was charged with violating the Enforcement Act of 1870, a federal law designed to cut down on voter fraud in the post–Civil War South. But the law only applied to voting for federal offices, so even though Anthony had voted the straight Republican ticket, she was singled out only for voting for a representative to the US Congress. Her votes for local candidates, indeed for the President of the United States, were of no matter in the proceedings. The next step was a trial before an all-male jury. While awaiting trial, Anthony had the cheek to vote again in March, but since it was a local election, no charges were brought.⁸

In the months between her indictment and the trial, Susan B. Anthony took to the hustings, undertaking an extensive speaking tour in upstate New York to convince potential male jurors of the rightness of her cause. In effect, she was asking them to consider engaging in jury nullification. That is, even if she were guilty on the facts, they should find her not guilty because they believed the law she was charged under to be unconstitutional. This may sound like a longshot, but it was a known strategy. Northern juries in the 1850s occasionally refused to convict those who helped slaves to escape, because they disagreed with the highly punitive provisions of the Fugitive Slave Act of 1850. For a time Anthony’s friend Matilda Joslyn Gage, a much more charismatic public speaker, joined her on the lecture circuit with a talk provocatively titled “The United States on Trial, Not Susan B. Anthony.”⁹

Finally the trial—and the public venue in which Anthony so fervently desired to present her case—got underway in the Canandaigua courthouse, in June 1873. The presiding federal judge, Ward Hunt, had recently been appointed by President Ulysses S. Grant to the US Supreme Court. Like other Supreme Court justices, he also heard cases in a designated region—in his case, Western New York. Despite these credentials, Anthony was not impressed. “On the bench sat Judge Hunt, a small-brained, pale-faced, prim-looking man, enveloped in a faultless suit of black broadcloth, and a snowy white tie. This was the first criminal case he had been called on to try since his appointment, and with remarkable forethought, he had penned his decision before hearing it.” She was not being sarcastic: that is exactly what happened.¹⁰

After the prosecution and defense had presented their cases, Judge Hunt turned to the jury and began to read from a prepared statement. Perhaps if the Fifteenth Amendment had included the word sex, he admitted, the argument might have had merit, but in his opinion the Fourteenth Amendment did not give women the right to vote. Therefore Anthony was in violation of the law. “Upon this evidence I suppose there is no question for the jury and that the jury should be directed to find a verdict of guilty.” His instructions clearly violated the Sixth Amendment’s guarantee of trial by jury. Some quick legal skirmishes by Anthony’s lawyer failed to change the outcome, and the jurors were discharged without ever having a chance to discuss the case or be polled about their opinions. Writing later in her journal, Anthony called this “the greatest judicial outrage history ever recorded!”¹¹

That was Judge Hunt’s first mistake. The second was when he said at the sentencing hearing, “Has the prisoner anything to say why sentence shall not be pronounced?” Already standing as she awaited her fate, Anthony lashed out at the judge and the proceedings: “Yes, your honor, I have many things to say; for in your ordered verdict of guilty, you have trampled under foot every vital principle of our government. My natural rights, my civil rights, my political rights, my judicial rights, are all alike ignored.” Despite the judge’s repeated admonishment to sit down and stop talking, Anthony continued to press her case. “When I was brought before your honor for trial, I hoped for a broad and liberal interpretation of the Constitution and its recent amendments, that should declare all United States citizens under its protecting aegis.… But failing to get this justice—failing, even, to get a trial by a jury not of my peers—I ask not leniency at your hands—but rather the full rigors of the law.” With that she finally sat down, only to be told to rise again while he pronounced her sentence: a fine of one hundred dollars and court costs. “I shall never pay a dollar of your unjust penalty,” Anthony announced, and she never did.¹²

Although Anthony was thwarted in her desire to be handcuffed and hauled off to jail, she knew a good publicity moment when she saw one, and she began moving forward immediately with plans to circulate the transcript of the trial. (It isn’t much of an exaggeration to say that reading the transcript today brings to mind a treatment for a play or even a Hollywood movie.) Published barely nine months after the conclusion of the trial, this “instant” book of more than two hundred pages let the transcript of the proceedings make the case both for the rightfulness of Anthony’s argument and the wrongfulness of the trial that she received. Anthony raised enough money to print three thousand copies of the book for distribution to key allies and friends. The public could also buy the volume for fifty cents.

An editorial in the local County Post cogently summarized all that had happened: “If it is a mere question of who has got the best of it, Miss Anthony is still ahead; she has voted and the American Constitution has survived the shock. Fining her one hundred dollars does not rub out the fact that fourteen women voted, and went home, and the world jogged on as before.” But even though the case was a public relations bonanza, it had little if any legal impact. Fulfilling suffragists’ desire to win a definitive Supreme Court ruling was left to another test case working its way through the courts.¹³

The St. Louis attorney Francis Minor and his wife, who had raised the legal argument about women’s voting rights being subsumed under citizenship back in 1869, pursued the legal case that Anthony originally thought would be hers. In October 1872, Virginia Minor sued Reese Happersett, the registrar who had rejected her application to register to vote, claiming that the Fourteenth Amendment guaranteed her right to vote even though the state constitution limited voting to males. Ironically, because married women in Missouri could not bring suit on their own behalf until 1889, her husband sued for them both. Their argument found no traction in the state courts, but the Supreme Court agreed to take the case because it addressed a constitutional question about federal versus state power. The case was argued in February 1875 and the decision announced seven weeks later. The unanimous outcome was definitive and devastating, handing the suffrage movement a defeat from which it took decades to recover.¹⁴

Chief Justice C. J. Waite began his opinion by restating the plaintiff’s argument “that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.” The court found this reasoning without merit, drawing a fundamental distinction between citizenship and voting rights. Women qualify as citizens, the court admitted, but the right to vote was not one of the “privileges or immunities of citizens of the United States” guaranteed by the Constitution. Here the court followed the country’s long tradition, especially at the state and local levels, of imposing limitations on voting: property restrictions were widespread until the 1830s, and groups such as Native Americans, slaves, and Chinese immigrants, in addition to women, were barred from voting altogether in the nineteenth century. The Supreme Court was in no mood to condone universal suffrage for all citizens.¹⁵

Susan B. Anthony and Francis and Virginia Minor really thought they had found a creative legal strategy to enfranchise women, but Minor v. Happersett stopped the “New Departure” strategy dead in its tracks. As Anthony’s co-counsel John Van Voorhis pointed out later, “if Miss Anthony had won her case on the merits, it would have revolutionized the suffrage of the country and enfranchised every woman in the United States.” Unfortunately, the unanimous ruling was so definitive that legal recourse was no longer an option. It is always extremely difficult to get the Supreme Court to reverse itself on major decisions—it took fifty-eight years before Brown v. Board of Education set aside Plessy v. Ferguson’s separate-but-equal doctrine—and the conservative political and legal climate of the late nineteenth century made such a change in attitude highly unlikely.¹⁶

With legal challenges off the table, only two options remained to the suffrage movement. The first was to try to amend state constitutions to include female voters alongside male. The second was to work for a federal amendment to the Constitution that would ensure women’s right to vote. Those two strategies basically defined the next half century of suffrage activism, with significant early victories at the state level, but a constitutional amendment still necessary at the end to ensure women’s voting rights across the nation.

Susan B. Anthony relished a good fight, and she gave this one her all. The story of her attempt to vote and her defiance of the government prosecutors who tried to silence her added to her celebrity in nineteenth-century America. Indeed, the incident has become one of the most widely recognized deeds of her long and active life. She was always clear about her intent, which had implications far beyond a polling place in Rochester, New York. Challenged in one of the court proceedings as to whether she had presented herself as a female claiming the right to vote, she spiritedly replied, “I presented myself not as a female at all, sir. I presented myself as a citizen of the United States.”¹⁷ With her defiant act, Susan B. Anthony was claiming citizenship.