Susan preached militancy to women throughout the presidential campaign of 1872, urging them to claim their rights under the Fourteenth and Fifteenth Amendments by registering and voting in every state in the Union.

Even before Francis Minor had called her attention to the possibilities offered by these amendments, she had followed with great interest a similar effort by Englishwomen who, in 1867 and 1868, had attempted to prove that the "ancient legal rights of females" were still valid and entitled women property holders to vote for representatives in Parliament, and who claimed that the word "man" in Parliamentary statutes should be interpreted to include women. In the case of the 5,346 householders of Manchester, the court held that "every woman is personally incapable" in a legal sense.[288] This legal contest had been fully reported in The Revolution, and disappointing as the verdict was, Susan looked upon this attempt to establish justice as an indication of a great awakening and uprising among women.

There had also been heartening signs in her own country, which she hoped were the preparation for more successful militancy to come. She had exulted in The Revolution in 1868 over the attempt of women to vote in Vineland, New Jersey. Encouraged by the enfranchisement of women in Wyoming in 1869, Mary Olney Brown and Charlotte Olney French had cast their votes in Washington Territory. A young widow, Marilla Ricker, had registered and voted in New Hampshire in 1870, claiming this right as a property holder, but her vote was refused. In 1871, Nannette B. Gardner and Catherine Stebbins in Detroit, Catherine V. White in Illinois, Ellen R. Van Valkenburg in Santa Cruz, California, and Carrie S. Burnham in Philadelphia registered and attempted to vote. Only Mrs. Gardner's vote was accepted. That same year, Sarah Andrews Spencer, Sarah E. Webster, and seventy other women marched to the polls to register and vote in the District of Columbia. Their ballots refused, they brought suit against the Board of Election Inspectors, carrying the case unsuccessfully to the Supreme Court of the United States.[289] Another test case based on the Fourteenth Amendment had also been carried to the Supreme Court by Myra Bradwell, one of the first women lawyers, who had been denied admission to the Illinois bar because she was a woman.

With the spotlight turned on the Fourteenth Amendment by these women, lawyers here and there throughout the country were discussing the legal points involved, many admitting that women had a good case. Even the press was friendly.

Susan had looked forward to claiming her rights under the Fourteenth and Fifteenth Amendments and was ready to act. She had spent the thirty days required of voters in Rochester with her family and as she glanced through the morning paper of November 1, 1872, she read these challenging words, "Now Register!... If you were not permitted to vote you would fight for the right, undergo all privations for it, face death for it...."[290]

This was all the reminder she needed. She would fight for this right. She put on her bonnet and coat, telling her three sisters what she intended to do, asked them to join her, and with them walked briskly to the barber shop where the voters of her ward were registering. Boldly entering this stronghold of men, she asked to be registered. The inspector in charge, Beverly W. Jones, tried to convince her that this was impossible under the laws of New York. She told him she claimed her right to vote not under the New York constitution but under the Fourteenth Amendment, and she read him its pertinent lines. Other election inspectors now joined in the argument, but she persisted until two of them, Beverly W. Jones and Edwin F. Marsh, both Republicans, finally consented to register the four women.

This mission accomplished, Susan rounded up twelve more women willing to register. The evening papers spread the sensational news, and by the end of the registration period, fifty Rochester women had joined the ranks of the militants.

On election day, November 5, 1872, Susan gleefully wrote Elizabeth Stanton, "Well, I have gone and done it!!—positively voted the Republican ticket—Strait—this a.m. at 7 o'clock—& swore my vote in at that.... All my three sisters voted—Rhoda deGarmo too—Amy Post was rejected & she will immediately bring action against the registrars.... Not a jeer not a word—not a look—disrespectful has met a single woman.... I hope the mornings telegrams will tell of many women all over the country trying to vote.... I hope you voted too."[291]

Election day did not bring the general uprising of women for which Susan had hoped. In Michigan, Missouri, Ohio, and Connecticut, as in Rochester, a few women tried to vote. In New York City, Lillie Devereux Blake and in Fayetteville, New York, Matilda Joslyn Gage had courageously gone to the polls only to be turned away. Elizabeth Stanton did not vote on November 5, 1872, and her lack of enthusiasm about a test case in the courts was very disappointing to Susan.

However, the fact that Susan B. Anthony had voted won immediate response from the press in all parts of the country. Newspapers in general were friendly, the New York Times boldly declaring, "The act of Susan B. Anthony should have a place in history," and the Chicago Tribune venturing to suggest that she ought to hold public office. The cartoonists, however, reveling in a new and tempting subject, caricatured her unmercifully, the New York Graphic setting the tone. Some Democratic papers condemned her, following the line of the Rochester Union and Advertiser which flaunted the headline, "Female Lawlessness," and declared that Miss Anthony's lawlessness had proved women unfit for the ballot.

Before she voted, Susan had taken the precaution of consulting Judge Henry R. Selden, a former judge of the Court of Appeals. After listening with interest to her story and examining the arguments of Benjamin Butler, Francis Minor, and Albert G. Riddle in support of the claim that women had a right to vote under the Fourteenth and Fifteenth Amendments, he was convinced that women had a good case and consented to advise her and defend her if necessary. Judge Selden, now retired from the bench because of ill health, was practicing law in Rochester where he was highly respected. A Republican, he had served as lieutenant governor, member of the Assembly, and state senator. Susan had known him as one of the city's active abolitionists, a friend of Frederick Douglass who had warned him to flee the country after the raid on Harper's Ferry and the capture of John Brown. Such a man she felt she could trust.

All was quiet for about two weeks after the election and it looked as if the episode might be forgotten in the jubilation over Grant's election. Then, on November 18, the United States deputy marshal rang the doorbell at 7 Madison Street and asked for Miss Susan B. Anthony. When she greeted him, he announced with embarrassment that he had come to arrest her.

"Is this your usual manner of serving a warrant?" she asked in surprise.[292]

He then handed her papers, charging that she had voted in violation of Section 19 of an Act of Congress, which stipulated that anyone voting knowingly without having the lawful right to vote was guilty of a crime, and on conviction would be punished by a fine not exceeding $500, or by imprisonment not exceeding three years.

This was a serious development. It had never occurred to Susan that this law, passed in 1870 to halt the voting of southern rebels, could actually be applicable to her. In fact, she had expected to bring suit against election inspectors for refusing to accept the ballots of women. Now charged with crime and arrested, she suddenly began to sense the import of what was happening to her.

When the marshal suggested that she report alone to the United States Commissioner, she emphatically refused to go of her own free will and they left the house together, she extending her wrists for the handcuffs and he ignoring her gesture. As they got on the streetcar and the conductor asked for her fare, she further embarrassed the marshal by loudly announcing, "I'm traveling at the expense of the government. This gentleman is escorting me to jail. Ask him for my fare." When they arrived at the commissioner's office, he was not there, but a hearing was set for November 29.

On that day, in the office where a few years before fugitive slaves had been returned to their masters, Susan was questioned and cross-examined, and she felt akin to those slaves. Proudly she admitted that she had voted, that she had conferred with Judge Selden, that with or without his advice she would have attempted to vote to test women's right to the franchise.[293]

"Did you have any doubt yourself of your right to vote?" asked the commissioner.

"Not a particle," she replied.

On December 23, 1872, in Rochester's common council chamber, before a large curious audience, Susan, the other women voters, and the election inspectors were arraigned. People expecting to see bold notoriety-seeking women were surprised by their seriousness and dignity. "The majority of these law-breakers," reported the press, "were elderly, matronly-looking women with thoughtful faces, just the sort one would like to see in charge of one's sick-room, considerate, patient, kindly."[294]

The United States Commissioner fixed their bail at $500 each. All furnished bail but Susan, who through her counsel, Henry R. Selden, applied for a writ of habeas corpus, demanding immediate release and challenging the lawfulness of her arrest. When a writ of habeas corpus was denied and her bail increased to $1,000 by United States District Judge Nathan K. Hall, sitting in Albany, Susan was more than ever determined to resist the interference of the courts in her constitutional right as a citizen to vote. She refused to give bail, emphatically stating that she preferred prison.

Seeing no heroism but only disgrace in a jail term for his client and unwilling to let her bring this ignominy upon herself. Henry Selden chivalrously assured her that this was a time when she must be guided by her lawyer's advice, and he paid her bail. Ignorant of the technicalities of the law, she did not realize the far-reaching implications of this well-intentioned act until they left the courtroom and in the hallway met tall vigorous John Van Voorhis of Rochester who was working on the case with Judge Selden. With the impatience of a younger man, eager to fight to the finish, he exclaimed, "You have lost your chance to get your case before the Supreme Court by writ of habeas corpus!"[295]

Aghast, Susan rushed back to the courtroom, hoping to cancel the bond, but it was too late. Bitterly disappointed, she remonstrated with Henry Selden, but he quietly replied, "I could not see a lady I respected in jail." She never forgave him for this, in spite of her continued appreciation of his keen legal mind, his unfailing kindness, and his willingness to battle for women.

Within a few days she appeared before the Federal Grand Jury in Albany and was indicted on the charge that she "did knowingly, wrongfully and unlawfully vote for a Representative in the Congress of the United States...."[296] Her trial was set for the term of the United States District Court, beginning May 13, 1873, in Rochester, New York.

During these difficult days in Albany, Susan found comfort and courage, as in the past, in the friendliness of Lydia Mott's home. Here she planned the steps by which to win public approval and financial aid for her test case. She addressed the commission which was revising New York's constitution on woman's right to vote under the Fourteenth and Fifteenth Amendments, pointing out that the law limiting suffrage to males was nullified by this new interpretation. Eager to spread the truth about her own legal contest, she distributed printed copies of Judge Selden's argument. Then traveling to New York and Washington, she personally presented copies to newspaper editors and Congressmen. To one of these men she wrote, "It is not for myself—but for all womanhood—yes and all manhood too—that I most rejoice in the appeal to the legal mind of the Nation. It is no longer whether women wish to vote, or men are willing, but it is woman's Constitutional right."[297]

In spite of the fact that Susan was technically in the custody of the United States Marshal, who objected to her leaving Rochester, she managed to carry out a full schedule of lectures in Ohio, Indiana, and Illinois, and also the usual annual Washington and New York woman suffrage conventions at which she told the story of her voting, her arrest, and her pending trial, and where she received enthusiastic support.

Because she wanted the people to understand the legal points on which she based her right to vote, Susan spoke on "The Equal Right of All Citizens to the Ballot" in every district in Monroe County. So thorough and convincing was she that the district attorney asked for a change of venue, fearing that any Monroe County jury, sitting in Rochester, would be prejudiced in her favor. When her case was transferred to the United States Circuit Court in Canandaigua, to be heard a month later, she immediately descended upon Ontario County with her speech, "Is It a Crime for a Citizen of the United States to Vote?" and Matilda Joslyn Gage joined her, speaking on "The United States on Trial, Not Susan B. Anthony."

On the lecture platform Susan wore a gray silk dress with a soft, white lace collar. Her hair, now graying, was smoothed back and twisted neatly into a tight knot. Everything about her indicated refinement and sincerity, and most of her audiences felt this.

"Our democratic-republican government is based on the idea of the natural right of every individual member thereof to a voice and vote in making and executing the laws," she declared as she looked into the faces of the men and women who had gathered to hear her, farmers, storekeepers, lawyers, and housewives, rich and poor, a cross section of America.

Repeating to them salient passages from the Declaration of Independence and the Preamble to the Constitution, she added, "It was we, the people, not we, the white male citizens, nor yet we, the male citizens: but we the whole people, who formed this Union. And we formed it, not to give the blessings of liberty, but to secure them; not to the half of ourselves and the half of our posterity, but to the whole people—women as well as men."[298]

She asked, "Is the right to vote one of the privileges or immunities of citizens? I think the disfranchised ex-rebels, and the ex-state prisoners will agree with me that it is not only one of them, but the one without which all the others are nothing."[299]

Quoting for them the Fifteenth Amendment, she told them it had settled forever the question of the citizen's right to vote. The Fifteenth Amendment, she reasoned, applies to women, first because women are citizens and secondly because of their "previous condition of servitude." Defining a slave as a person robbed of the proceeds of his labor and subject to the will of another, she showed how state laws relating to married women had placed them in the position of slaves.

As she analyzed the Thirteenth, Fourteenth, and Fifteenth Amendments and cited authorities for her conclusions, she left little doubt in the minds of those who heard her that women were persons and citizens whose privileges and immunities could not be abridged.

On this note she concluded: "We ask the juries to fail to return verdicts of 'guilty' against honest, law-abiding, tax-paying United States citizens for offering their votes at our elections ... We ask the judges to render true and unprejudiced opinions of the law, and wherever there is room for doubt to give its benefit on the side of liberty and equal rights to women, remembering that 'the true rule of interpretation under our national constitution, especially since its amendments, is that anything for human rights is constitutional, everything against human rights unconstitutional.' And it is on this line that we propose to fight our battle for the ballot—all peaceably, but nevertheless persistently through to complete triumph, when all United States citizens shall be recognized as equals before the law."

Speaking twenty-one nights in succession was arduous. "So few see or feel any special importance in the impending trial," she jotted down in her diary. In towns, such as Geneva, where she had old friends, like Elizabeth Smith Miller, she was assured of a friendly welcome and a good audience.[300]

As the collections, taken up after her lectures, were too small to pay her expenses, her financial problems weighed heavily. The notes she had signed for The Revolution were in the main still unpaid, and one of her creditors was growing impatient. She had recently paid her counsel, Judge Selden, $200 and John Van Voorhis, $75, leaving only $3.45 in her defense fund, but as usual a few of her loyal friends came to her aid, and both Judge Selden and John Van Voorhis, deeply interested in her courageous fight, gave most of their time without charge.[301]

If this campaign was a problem financially, it was a success in the matter of nation-wide publicity. The New York Herald exulted in hostile gibes at women suffrage and published fictitious interviews, ridiculing Susan as a homely aggressive old maid, but the New York Evening Post prophesied that the court decision would likely be in her favor. The Rochester Express championed her warmly: "All Rochester will assert—at least all of it worth heeding—that Miss Anthony holds here the position of a refined and estimable woman, thoroughly respected and beloved by the large circle of staunch friends who swear by her common sense and loyalty, if not by her peculiar views." In fact the consensus of opinion in Rochester was much like that of the woman who remarked, "No, I am not converted to what these women advocate. I am too cowardly for that; but I am converted to Susan B. Anthony."[302]

This, however, was far from the attitude of Lucy Stone's Woman's Journal, which had ignored Susan's voting in November 1872 because it was out of sympathy with this militant move and with her interpretation of the Fourteenth and Fifteenth Amendments. Later, as her case progressed in the courts, the Journal did give it brief notice as a news item, but in 1873 when it listed as a mark of honor the women who had worked wisely for the cause, Susan B. Anthony's name was not among them, and this did not pass unnoticed by Susan; nor did the fact that she was snubbed by the Congress of Women, meeting in New York and sponsored by Mary A. Livermore, Julia Ward Howe, and Maria Mitchell. This drawing away of women hurt her far more than newspaper gibes. In fact she was sadly disappointed in women's response to the herculean effort she was making for them.

Even more disconcerting was the adverse decision of the Supreme Court on the Myra Bradwell case, which at once shattered the confidence of most of her legal advisors. The court held that Illinois had violated no provision of the federal Constitution in refusing to allow Myra Bradwell to practice law because she was a woman and declared that the right to practice law in state courts is not a privilege or an immunity of a citizen of the United States, nor is the power of a state to prescribe qualifications for admission to the bar affected by the Fourteenth Amendment. Chief Justice Salmon P. Chase, filing a dissenting opinion, lived up to Susan's faith in him, but Benjamin Butler wrote her, "I do not believe anybody in Congress doubts that the Constitution authorizes the right of women to vote, precisely as it authorizes trial by jury and many other like rights guaranteed to citizens. But the difficulty is, the courts long since decided that the constitutional provisions do not act upon the citizens, except as guarantees, ex proprio vigore, and in order to give force to them there must be legislation.... Therefore, the point is for the friends of woman suffrage to get congressional legislation."[303]

Susan, however, never wavered in her conviction that she as a citizen had a constitutional right to vote and that it was her duty to test this right in the courts.