The only alleged ground of illegality of the defendant’s vote is that she is a woman. If the same act had been done by her brother under the same circumstances, the act would have been not only innocent, but honorable and laudable; but having been done by a woman it is said to be a crime. The crime therefore consists not in the act done, but in the simple fact that the person doing it was a woman and not a man. I believe this is the first instance in which a woman has been arraigned in a criminal court, merely on account of her sex.
If the advocates of female suffrage had been allowed to choose the point of attack to be made upon their position, they could not have chosen it more favorably for themselves; and I am disposed to thank those who have been instrumental in this proceeding, for presenting it in the form of a criminal prosecution.
Women have the same interest that men have in the establishment and maintenance of good government; they are to the same extent as men bound to obey the laws; they suffer to the same extent by bad laws, and profit to the same extent by good laws; and upon principles of equal justice, as it would seem, should be allowed equally with men, to express their preference in the choice of law-makers and rulers. But however that may be, no greater absurdity, to use no harsher term, could be presented, than that of rewarding men and punishing women, for the same act, without giving to women any voice in the question which should be rewarded, and which punished.
I am aware, however, that we are here to be governed by the Constitution and laws as they are, and that if the defendant has been guilty of violating the law, she must submit to the penalty, however unjust or absurd the law may be. But courts are not required to so interpret laws or constitutions as to produce either absurdity or injustice, so long as they are open to a more reasonable interpretation. This must be my excuse for what I design to say in regard to the propriety of female suffrage, because with that propriety established there is very little difficulty in finding sufficient warrant in the constitution for its exercise.
This case, in its legal aspects, presents three questions, which I purpose to discuss.
1. Was the defendant legally entitled to vote at the election in question?
2. If she was not entitled to vote, but believed that she was, and voted in good faith in that belief, did such voting constitute a crime under the statute before referred to?
3. Did the defendant vote in good faith in that belief?
If the first question be decided in accordance with my views, the other questions become immaterial; if the second be decided adversely to my views, the first and third become immaterial. The two first are questions of law to be decided by the court, the other is a question for the jury.
[The Judge here suggested that the argument should be confined to the legal questions, and the argument on the other question suspended, until his opinion on those questions should be made known. This suggestion was assented to, and the counsel proceeded.]