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This power, if it exist, must be found in the recent Amendments to the U.S. Constitution.
I assume 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 Constitution 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 Constitution 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 Constitution 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 Constitution relied on to support the legislation of Congress now before this Court. Some features of that legislation may be constitutional 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 pass 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 Constitution, 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 circumstance 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?
A. I did.
Q. And do you now?
A. Yes, sir.
Q. What is it?
A. City Clerk.
Q. Have you any registration lists and poll lists of the 1st Election District, 8th Ward, City of Rochester, in your possession?
A. I have.
Q. Will you produce them?
[Witness produces two books.]
Q. Do you know the defendants, Beverly W. Jones, Edwin T. Marsh, and Wm. B. Hall, or any of them?
A. I know them all.
Q. Do you know their hand-writing?
A. I cannot say that I do.
Q. What are those books you hold in your hand?
A. The register of the Board of Registry, and the poll list kept on election day.
Q. In what district?
A. 1st election district of the 8th Ward.
Q. By whom were those books left in your office, if by any one?
A. To the best of my knowledge, they were left by Beverly W. Jones, Chairman of the Board of Inspectors.
Q. By whom do they purport to be signed?
A. Beverly W. Jones, Wm. B. Hall, and Edwin T. Marsh.
Q. Is there a certificate attached to them, purporting to show what they are?
A. There is a certificate attached to the register, but not to the poll list.
Q. Please read the certificate attached to the registration list.
A. "We, the undersigned, composing the Board of Registry for the first district, 8th Ward, City of Rochester, do certify that the foregoing is a correct list of the voters in said district, so far as the same is known to us. Dated Nov. 2d, 1872."
Q. In what Congressional District was the first election district of the 8th Ward, in November, 1872?
A. 29th.
Q. Was there an election for Members of Congress for that district, and for Members of Congress at Large for the State, held in that ward and election district, last November?
A. Yes, sir.
Q. And candidates voted for both of those officers by those who saw fit to vote for them?
A. Yes, sir.
Q. What day was the election?
A. 5th day of November.
MR. CROWLEY: We offer the poll list and the registration of voters in evidence.
[Poll list marked Ex. "A." Registration list, marked Ex. "B."]
[This witness was not cross-examined.]
SYLVESTER LEWIS, a witness sworn in behalf of the United States, testified as follows:
Examined by MR. CROWLEY:
Q. Where did you live in November, 1872?
A. In the city of Rochester.
Q. Do you know the defendants, Jones, Marsh and Hall?
A. I do.
Q. Do you know whether or not they acted as a Board of Registry for the registration of voters in the first election district, 8th ward, City of Rochester, preceding the last general election?
A. I know they acted at the November election.
Q. Did they act as a Board of Registry preceding the election?
A. Yes, sir.
Q. Was you present on any day when they were registering voters?
A. I was present on Friday mostly, and on Saturday.
Q. Were all three of these defendants there?
A. They were the most of the time.
Q. Receiving the names of persons who claimed to be entitled to vote?
A. Yes, sir.
Q. And taking a registration list?
A. Yes, sir.
Q. Did you see Miss Anthony and other ladies there upon that day?
A. I saw Miss Anthony there on the first day, and other ladies.
Q. Did you see there, upon that day, the following named persons: Susan B. Anthony, Sarah Truesdell, Mary Pulver, Mary Anthony, Ellen S. Baker, Margaret Leyden, Ann S. Mosher, Nancy M. Chapman, Lottie B. Anthony, Susan M. Hough, Hannah Chatfield, Mary S. Hibbard, Rhoda DeGarmo, Jane Cogswell.
A. I saw a number of them; I didn't see the whole of them.
Q. Do you know by sight, any of those persons whose names I have read?
A. I know a number of them.
Q. Did you see a number of them there?
A. I did.
Q. Did you see any of them register on that day?
A. I did.
Q. Have you a list of those that you saw register?
A. I have, (producing a paper.)
Q. Please state to the Jury, those that you saw register on that day.
A. I can hardly recollect which day they registered.
Q. Either of the days preceding the election, when this Board was in session.
A. Rhoda DeGarmo, Mary Anthony, Sarah C. Truesdell, Susan M. Hough, Mrs. M.E. Pulver.
By MR. VAN VOORHIS:
Q. What paper are you reading from?
A. From a memorandum I made at the time—No, it is a paper that was given on the last day of registry.
Q. A paper that you made yourself?
A. The names that I took.
Q. On the last day of registry?
A. Yes, sir.
By MR. CROWLEY:
Q. State them.
A. The names of the parties that I found on the poll list as having registered; I didn't see them all register myself, but I did a good portion of them.
Q. I am asking you to state who you saw register. I don't ask you who were registered before your attention was called to the list.
A. Well, I saw Rhoda DeGarmo register; Miss Mary Anthony, Sarah C. Truesdell, Susan M. Hough; I think I saw Nancy M. Chatfield register; Mrs. Margaret Leyden, Mrs. M.E. Pulver; those I recollect; I was better acquainted with those than with the others.
Q. At the time you saw these ladies register, were the three inspectors, Hall, Jones, and Marsh present?
A. Some of the time I saw all three, I think, there; at other times I saw but two of them; sometimes Hall and Jones, sometimes Marsh and Jones, sometimes Hall and Marsh; I think they took turns when they went to dinner.
Q. On the day of election were you at the polls?
A. I was.
Q. Did you see any of these women vote on the day of election?
A. I did.
Q. Were these defendants present when their votes were received?
A. They were.
Q. And did they receive their votes?
A. They did.
Q. Who did you see vote, or offer their votes upon the day of election?
A. Susan B. Anthony, Mrs. McLean, Rhoda DeGarmo, Mary Anthony, Ellen S. Baker, Sarah C. Truesdell, Mrs. Hough, Mrs. Mosher, Mrs. Leyden, Mrs. Pulver. I recollect seeing those ladies; in fact, I think I saw the whole of them vote with the exception of two, but I will not be positive on that point.
Q. But you saw those whose names you have given?
A. Yes, sir.
Q. Do you know how many tickets they voted, or offered to the inspectors?
A. I think they voted four tickets.
Q. Do you know how these tickets were endorsed, or what they were called?
A. I was not near enough to see the endorsement; I noticed which boxes they went into.
Q. Upon the day of election were the defendants Jones, Marsh, and Hall, acting as inspectors of election?
A. Yes, sir.
Q. Receiving votes?
A. Yes, sir.
Q. And were acting as inspectors of election when these ladies voted?
A. Yes, sir.
Q. About what time in the day, or what time in the morning was it that these ladies voted?
A. I think there had been but a very few votes received in the morning when a number of them voted.
Q. Well, was it about 5 o'clock in the morning—very early?
A. No, sir; not so early as that; the probability is that there was not over 20 or 25 votes received before they presented theirs.
Conceded: That the women named in the indictment were women on the 5th day of November, 1872.
Cross-Examination by MR. VAN VOORHIS:
Q. Which of those persons did you see register?
A. Mrs. Hough, Mrs. Pulver, Mrs. Truesdell, Mrs. Leyden.
Q. Do you swear you saw Mrs. Leyden register?
A. I think I did.
Q. Take a second thought and see if you are willing to say you saw her register—please look off that paper. Do you recollect seeing those persons register, or do you suppose they did, because you find it on a paper there?
A. No, sir; I recollect seeing pretty much all of them on my list with the exception of one or two; I won't be fully positive I saw Mrs. Leyden register; I saw her vote.
Q. Did you go to Mrs. Leyden's house and advise her to go and register?
A. I don't think I did.
THE COURT: That is not important.
Q. Do you recollect seeing any others register except those you have now mentioned?
A. I think I saw Mary Anthony.
Q. Any other?
A. Mrs. Chapman.
Q. Can you recollect this without looking at that paper?
A. Well, the object in looking at that paper is to try to refresh my memory on which day they registered.
Q. Does that paper contain dates?
A. No, sir; it contains the names of all those who registered.
Q. You copied that paper from the registry, didn't you?
A. They were copied by Hall at the time of the election, and handed to me.
Q. What was your business at the registry at that time?
A. I had a poll list; I was checking parties that I supposed had a legal right to vote.
Q. What sort of a poll list?
Objected to as immaterial.
THE COURT: It is only competent as a test of his knowledge.
A. I had canvassed the ward and taken a list of all the voters in the first district; all those that I supposed would be entitled to vote.
Q. You had canvassed the ward in the employment of somebody?
Objected to as immaterial.
Q. How many of these people did you see vote?
A. I think I saw the whole of them vote, with the exception of Mrs. Hough and Mrs. Cogswell.
Q. Who took Miss Anthony's vote?
A. Mr. Jones.
Q. Were both the other inspectors present when he took it?
A. I believe they were.
Q. Did Jones take all of the votes of those persons whose names you have on your list?
A. I don't think he did.
Q. Who took any others that you saw?
A. I saw Mr. Hall take some of the ballots.
Q. How many?
A. I couldn't tell how many.
Q. Did you see him take more than one?
A. I don't know as I did.
Q. Do you know whose it was?
A. If I recollect right, it was Mrs. DeGarmo's.
Q. At that time was Jones there?
A. No, I believe Jones had stepped out.
Q. Hall received the vote on account of Jones being absent?
A. I believe so.
Q. Jones' position was at the window receiving votes?
A. Yes, sir.
Q. Who put them in the boxes?
A. Jones and Hall.
Q. You were not near enough to see what these ballots were?
A. No, sir.
Q. How many ballot boxes were there?
A. Six, if I recollect right.
Q. And six tickets voted at that poll?
A. Six tickets altogether; there was the Constitutional Amendment voted at that election.
Q. Did you observe which boxes the tickets of these persons were put into?
A. I did.
Q. Which were they?
A. I think that the ballots that these ladies voted.
Q. I don't want what you think; I want what you know.
A. Well, they went into those boxes; Member of Congress, Member at Large.
Q. Were there two boxes for Congressmen?
A. I think there was; I am not quite positive; I rather think I am mistaken about that.
Q. Well, give us what you know about the boxes?
A. The most that I know about is, that the remark was made by the inspector that they voted the four tickets.
Q. You heard the remark made that they voted four tickets; who made that remark?
A. Mr. Jones or Mr. Hall; when they passed their ballots they would say, "They vote all four tickets; no Constitutional Amendment voted."
Q. That was the practice of the inspector, no matter who voted?
A. Yes, sir.
Q. Then you didn't see the tickets as they went into the boxes?
A. No, sir.
Q. You can't swear which boxes they went into?
A. I understood from the inspectors that they voted all the tickets with the exception of the Constitutional Amendment.
Q. I don't ask for any conversation; I ask for what you know by what you saw.
A. Well, I wasn't near enough to read the tickets.
Q. Did you hear either of the inspectors say anything about it?
A. I did.
Q. Which one?
A. I heard the inspector that would be at the window where the ballots would be received.
Q. Name him.
A. I heard Mr. Jones say that they voted the four tickets.
Q. Was that all he said?
A. Well, he would declare it in this way; sometimes he would say, "They vote all the tickets with the exception of the Amendment;" that is the way he generally declared it.
Q. I want to get at what he said when these votes were taken?
A. He didn't at all times declare the ticket voted.
Q. Are you willing to testify that you recollect distinctly, anything that was said by either of the inspectors when these ladies voted?
A. Most decidedly; I heard Jones say that they voted the Congressional ticket; I heard him say that they voted all the tickets.
Q. At the time they voted?
A. The question would be asked what tickets they voted, and he would say, "All the tickets with the exception of the Amendment."
Q. Did he mention the Congressional ticket?
A. I think he did.
Q. Do you recollect that he did?
A. My impression is that he said so; I can't say positively.
Q. Did you say anything there, about getting twenty women to vote?
Objected to as immaterial.
MR. VAN VOORHIS: I propose to show that this witness said to parties there that he would go and get twenty Irish women to vote, to offset these votes.
Objected to as immaterial.
Objection sustained.
WILLIAM F. MORRISON recalled.
Examined by MR. CROWLEY:
Q. Please point out the following names, if you find them in the registration list: Susan B. Anthony?
A. I find it.
Q. Sarah Truesdell?
A. Sarah C. Truesdell.
Q. Mary Pulver?
A. M.P. Pulver.
Q. Mary Anthony?
A. I find it.
Q. Ellen S. Baker?
A. Yes, sir; I have it.
Q. Margaret Leyden?
A. Margaret L. Leyden.
Q. Ann S. Mosher?
A. Hannah L. Mosher.
Q. Nancy M. Chapman?
A. Nancy M. Chapman.
Q. Lottie B. Anthony?
A. Lottie B. Anthony.
Q. Susan M. Hough?
A. Susan M. Hough.
Q. Hannah Chatfield?
A. Hannah Chatfield.
Q. Mary S. Hibbard?
A. Mary S. Hibbard.
Q. Rhoda DeGarmo?
A. I don't find any such name; I find Robert DeGarmo and Elias DeGarmo.
Q. Jane Cogswell?
A. Jane Cogswell.
Q. Now turn to the names of voters contained in the list copied upon election day; do you find the name of Susan B. Anthony upon that list?
A. I do.
Q. Sarah Truesdell?
A. Yes, sir.
Q. Mary Pulver?
A. Yes, sir.
Q. Mary Anthony?
A. Yes, sir.
Q. Mary S. Baker?
A. Yes, sir.
Q. Margaret Leyden?
A. Yes, sir.
Q. Ann S. Mosher?
A. Hannah L. Mosher.
Q. Nancy Chapman?
A. Yes, sir.
Q. Lottie B. Anthony?
A. Yes, sir.
Q. Susan M. Hough?
A. Yes, sir.
Q. Hannah Chatfield?
A. Yes, sir.
Q. Mary S. Hibbard?
A. Yes, sir.
Q. Rhoda DeGarmo?
A. I find Mrs. Rosa DeGarmo.
Q. Jane Cogswell?
A. Yes, sir.
Q. Upon the list copied by the inspectors upon the day of election, is there any heading purporting to show what tickets these people voted?
A. Yes, sir.
Q. Please state from the heading what tickets it purports to show they voted?
A. The first column is Electoral; the second, State; the third, Congress; the fourth, Assembly; the fifth, Constitutional Amendment.
Q. Please look and see which of those tickets the list purports to show that they voted?
MR. VAN VOORHIS: I object to any marks upon that book which the witness didn't make, as any evidence that these persons voted for members of Congress.
By THE COURT:
Q. What is the statement there?
A. After the name of Miss Susan B. Anthony in the column of electors there is a small, straight mark.
MR. VAN VOORHIS: I object to that, as not evidence of what these votes were.
THE COURT: I think it is competent.
By MR. CROWLEY:
Q. State, Mr. Morrison?
A. Opposite each of the names that I have read there are checks, showing that they voted Electoral, State, Congressional and Assembly tickets—four tickets.
Q. There are a large number of the inspectors' books of the last election filed with you as City Clerk, are there not?
A. Yes, sir.
Q. Do you know what the custom or habit is of copying these books when people vote?
Objected to.
Q. What custom the inspectors have of indicating what tickets a person votes when he offers his vote?
Objected to. Question withdrawn.
Cross-Examination by MR. VAN VOORHIS.
Q. All you know about these tickets or that book, is what appears on the face of it, is it not?
A. Yes, sir; that is all.
Q. You don't know who made those straight marks?
A. I don't.
Q. Or why they were made, so far as you have any knowledge?
A. No, sir.
Q. Do you know what those letters are? [Pointing on the book.]
A. Preliminary oath and general oath, I should say.
Q. You would say that to each of these persons the preliminary oath was administered, and also the general oath?
A. Yes, sir; it so shows here.
MRS. MARGARET LEYDEN, a witness called in behalf of the United States, having been duly affirmed, testified as follows:
Examined by MR. CROWLEY:
Q. Did you reside in the City of Rochester in the month of November, 1872?
A. Yes, sir.
Q. Did you reside in the 8th ward?
A. I did.
Q. In the first election district of that ward?
A. I did.
Q. Was your name registered before the election which took place on the 5th of November, 1872?
A. It was.
Q. By whom?
A. I think Mr. Jones; in fact, all three of the inspectors were there.
Q. Did you, upon the 5th day of November, vote?
A. I did.
Q. Who received your vote?
A. Mr. Jones.
Q. Were the other inspectors there at the time?
A. Yes, sir.
Q. Did you vote for a candidate for Congress?
A. I did.
Cross-Examination by MR. VAN VOORHIS:
Q. Was Mr. Lewis there when you registered?
A. Mr. Lewis was not there.
Q. Do you recollect who took your vote?
A. I think Mr. Jones took it; I know he did.
Q. Was your ballot folded up?
A. It was.
Q. Could any person read it, or see what you voted, or who you voted for?
A. No one but my husband.
Q. He saw it before you voted?
A. Yes, sir.
Q. Was your husband present when you voted?
Objected to as immaterial.
A. He was.
Q. No one had seen your ballot except your husband before you handed it in?
A. No, sir.
Q. And when you handed it in it was folded, so that no one could see it?
A. It was.
THE COURT: What is the object of this?
MR. VAN VOORHIS: The District Attorney inquired if she voted a certain ticket, and assumes to charge these inspectors with knowing what she voted. It is to show that the ticket being folded, the inspector could not see what was in it.
Q. In voting, did you believe that you had a right to vote, and vote in good faith?
Objected to as immaterial.
Objection sustained.
Re-Direct Examination by MR. CROWLEY:
Q. You have heard me name the different persons, have you not, when I asked Mr. Morrison questions?
A. Yes, sir.
Q. Were these people, or any of them, present, and were they registered at the same time you were?
A. Some of them were present.
Q. Who?
A. Mrs. Lottie B. Anthony; there was one lady that registered who didn't vote; I think Mrs. Anthony was the only lady that was present that voted; I can't recollect any more names.
Q. Who of these ladies were present when you voted and voted with you, if any?
A. Miss Susan B. Anthony, Mrs. Pulver, Mrs. Mosher, Mrs. Lottie B. Anthony, Miss Mary Anthony, Miss Baker, Mrs. Chapman.
Q. Did they all vote on that occasion?
A. They did.
Re-Cross Examination by MR. VAN VOORHIS.
Q. Mrs. Lottie B. Anthony is the wife of Alderman Anthony?
A. Yes, sir.
United States rests.
Case opened in behalf of the defendants by MR. VAN VOORHIS.
BEVERLY W. JONES, one of the defendants, having been duly sworn as a witness in his own behalf, testified as follows:
Examined by MR. VAN VOORHIS.
Q. Mr. Jones, where do you reside?
A. Eighth ward, city of Rochester.
Q. What is your age?
A. Twenty-five last spring.
Q. Are you one of the defendants in this indictment?
A. Yes, sir.
Q. Were you inspector of election in the 8th ward?
A. Yes, sir.
Q. Which district?
A. First district.
Q. Were you elected or appointed?
A. Elected.
Q. By the people of the ward?
A. Yes, sir.
Q. Were you present at the Board of Registry when Miss Anthony and others appeared there and demanded to be registered?
A. I was.
Q. Won't you state what occurred there?
A. Miss Anthony and two other ladies came into the room; Miss Anthony asked if this was the place where they registered the names of voters; I told her it was; she said she would like to have her name registered; I told her I didn't think we could register her name; it was contrary to the Constitution of the State of New York; she said she didn't claim any rights under the Constitution of the State of New York; she claimed her rights under the Constitution of the United States; under an amendment to the Constitution; she asked me if I was conversant with the 14th amendment; I told her I had read it and heard of it several times.
Q. Before you go further, state who was present at that time?
A. William B. Hall and myself were the only inspectors; Mr. Marsh was not there; Daniel J. Warner, the United States Supervisor, Silas J. Wagner, another United States Supervisor, and a United States Marshal.
Q. State which one of these was Republican, and which one Democratic.
A. Silas J. Wagner, Republican; Daniel J. Warner, Democratic.
Q. Now go on.
A. She read the 14th amendment to the Constitution of the United States; while she was reading the amendment and discussing different points, Mr. Daniel J. Warner said—
MR. CROWLEY: I submit to the Court that it is entirely immaterial what either Warner or Wagner said.
THE COURT: I don't see that that is competent in any view of the case.
Q. (By the Court). Was your objection to registering Miss Anthony on the ground that she was a woman?
A. I said it was contrary to the Constitution of the State of New York, and I didn't think that we could register her.
Q. (By the Court.) On what ground was that?
A. Well, on the ground that she was a woman.
By MR. VAN VOORHIS:
Q. You may proceed and state what occurred there?
A. Mr. Warner said—
Objected to.
THE COURT: I don't think that is competent, what Warner said:
MR. VAN VOORHIS: The district attorney has gone into what occurred at that time, and I ask to be permitted to show all that occurred at the time of the registry; this offense was committed there; it is a part of the Res Gesta; all that occurred at the moment Miss Anthony presented herself and had her name put upon the registry.
THE COURT: I don't think that is competent.
MR. VAN VOORHIS: I ask to show what occurred at the time of registry.
THE COURT: I don't think it is competent to state what Warner or Wagner advised.
MR. VAN VOORHIS: So that the question may appear squarely in the case I offer to show what was said and done at the time Miss Anthony and the other ladies registered, by them, the inspectors, and the federal Supervisors, Warner and Wagner, in their presence, in regard to that subject.
THE COURT: I exclude it.
MR. VAN VOORHIS: Does that exclude all conversations that occurred there with any persons?
THE COURT: It excludes anything of that character on the subject of advising them. Your case is just as good without it as with it.
MR. VAN VOORHIS: I didn't offer it in view of the advice, but to show precisely what the operation of the minds of these inspectors was at that time, and what the facts are.
THE COURT: It is not competent.
By MR. VAN VOORHIS:
Q. Were you present on the day of election?
A. Yes, sir.
Q. Did you receive the votes of these persons?
A. I did.
Q. How many ballot boxes were there there?
A. Six.
Q. What position did you occupy during the day?
A. Chairman of the Board.
Q. Did you stand at the window and receive the votes?
A. Most of the time I did.
Q. Were those ballots which you received from them folded?
A. They were.
Q. Did you or any of the inspectors see or know the contents of any of the ballots?
MR. CROWLEY: If your Honor please, I submit it is entirely immaterial whether these inspectors saw the names upon the ballots.
THE COURT: I have excluded that already. It is not competent. It is proved that they put in votes, and it is proved by one of the ladies that she did vote for a candidate for Congress.
MR. VAN VOORHIS: I propose to show by the witness that he didn't know the contents of any ballot, and didn't see it.
THE COURT: That will be assumed. He could not do it with any propriety.
By MR. VAN VOORHIS:
Q. Did either one of the inspectors object to receiving the votes of the women at the polls?
A. Yes, sir.
Q. Which one?
A. William B. Hall.
Q. Did he take any part in receiving votes, and, if so, state what part?
A. I believe that he took the ballot of one lady, and placed it in the box. I stepped out, I believe, for a few moments.
Q. Did it to accommodate you while you stepped out?
A. Yes, sir.
Q. On the day of registry did the inspectors as a board decide unanimously to register these votes, all three of you consenting?
A. We did.
Q. When you came to receive the votes, Hall dissented?
A. He did, sir.
Q. But the other two were a majority, and he was overruled; was this the way it was, or wasn't there anything in form said about it?
A. He was overruled; I felt it my duty to take the ballots.
Q. In receiving those ballots did you act honestly in accordance with your sense of duty, and in accordance with your best judgment?
A. I did.
By MR. CROWLEY:
Q. All three of the inspectors agreed in receiving these names for registration, did they not?
A. Yes, sir.
By MR. VAN VOORHIS:
Q. I meant to have asked you in reference to the challenges; state whether or not challenges were entered against these voters prior to the day of election?
A. There was.
Q. On their presenting their votes, what was done?
A. I told Miss Anthony, when she offered her vote, that she was challenged; she would have to swear her ballot in if she insisted upon voting; she said she insisted upon voting, and I presented her the Bible and administered to her the preliminary oath, which she took. I turned to the gentleman that challenged her, and asked him if he still insisted upon her taking the general oath.
Q. Were questions asked her?
A. There were, after taking the preliminary oath.
Q. In accordance with the instruction?
A. Yes, sir.
Q. Go on.
A. I turned to the gentleman that challenged her, and asked him if he still insisted on his challenge; he said he did; I told her she would have to take the general oath; I administered the general oath, and she took it.
Q. Was that done in each case of the women who voted?
A. It was.
By MR. CROWLEY:
Q. As I understand you, all three of the inspectors agreed in permitting these people to be registered?
A. They didn't at first.
Q. Well, they did before they were registered, did they not?
A. They did before their names were put upon the book.
Q. And when they voted, yourself and Mr. Marsh were in favor of receiving the votes, and Hall was opposed to receiving the votes?
A. Yes, sir.
By MR. VAN VOORHIS:
Q. Did you suppose at that time that the law required you to take their votes?
Objected to. Sustained.
By MR. CROWLEY:
Q. Did you have two meetings for the purpose of registration prior to election?
A. Yes, sir.
Q. Upon the days fixed by the laws of the State of New York?
A. Yes, sir.
Q. You made a list or registry, did you not, upon those days?
A. We did.
Q. Upon the day of election you had a list of voters?
A. Yes, sir.
Q. Those produced here to-day are the lists kept upon that occasion, are they not?
A. (After looking at Exhibits A. and B.) Those are the books.
By THE COURT:
Q. Did these ladies vote the Congressional ticket, all of them?
A. I couldn't swear to that.
Q. Look at the book as to that.
A. It does not tell for certain; the clerks may have made a mistake in making these marks; they do very often.
Q. Did you make any of the entries in that book?
A. No, sir; a clerk appointed by me did it.
By MR. CROWLEY:
Q. When you counted up your votes at night, when the polls closed, did you compare your votes with the list?
A. Yes, sir.
Q. Did you find it correct?
A. We found it fell short of the poll list several ballots; I can't tell how many.
Q. Do you know whether it fell short on members of Congress?
A. Yes, sir, it did.
Q. Did you make a certificate and return of that fact?
A. Yes, sir; the certificate was filed in the Clerk's office.
EDWIN T. MARSH, one of the defendants, having been duly affirmed as a witness in his own behalf, testified as follows:
Examined by MR. VAN VOORHIS:
Q. Were you one of the inspectors of the 8th ward?
A. I was.
Q. How was you appointed?
A. I was appointed by the Common Council just before the first meeting of the board.
Q. What is your age?
A. I am 33.
Q. Did you hear the statement of Mr. Jones?
A. I did.
Q. To save time, I will ask you whether that was substantially correct as you understand it?
A. Yes, sir.
Q. Now, I will ask you the question if, in registering and receiving these votes, you believed that the law required you to do it, and you acted conscientiously and honestly?
Objected to.
THE COURT: Put the question as you did to the other witness—whether in receiving these votes he acted honestly and according to the best of his judgment.
By MR. VAN VOORHIS:
Q. Answer that question, please?
A. I most assuredly did.
[This witness was not cross-examined.]
WILLIAM C. STORRS, a witness sworn in behalf of the defendants, testified as follows:
Examined by MR. VAN VOORHIS:
Q. Where do you reside?
A. City of Rochester.
Q. What office do you hold?
A. United States Commissioner.
Q. How long have you held that office?
A. Fifteen years.
Q. Do you know these defendants, Jones and Marsh?
A. I do, sir.
Q. Was any application made to you, by any person, at any time, for a warrant against them for this offence?
Objected to.
MR. VAN VOORHIS: If the counsel objects I will not insist upon the evidence.
[This witness was not cross-examined.]
SUSAN B. ANTHONY, called as a witness in behalf of the defendants.
MISS ANTHONY: I would like to know if the testimony of a person who has been convicted of a crime, can be taken?
THE COURT: They call you as a witness, madam.
The witness, having been duly affirmed, testified as follows:
Examined by MR. VAN VOORHIS:
Q. Miss Anthony, I want you to state what occurred at the Board of Registry, when your name was registered?
A. That would be very tedious, for it was full an hour.
Q. State generally what was done, or what occupied that hour's time?
Objected to.
Q. Well, was the question of your right to be registered a subject of discussion there?
A. It was.
Q. By and between whom?
A. Between the supervisors, the inspectors, and myself.
Q. State, if you please, what occurred when you presented yourself at the polls on election day?
A. Mr. Hall decidedly objected—
MR. CROWLEY: I submit to the Court that unless the counsel expects to change the version given by the other witnesses, it is not necessary to take up time.
THE COURT: As a matter of discretion, I don't see how it will be of any benefit. It was fully related by the others, and doubtless correctly.
MR. CROWLEY: It is not disputed.
THE WITNESS: I would like to say, if I might be allowed by the Court, that the general impression that I swore I was a male citizen, is an erroneous one.
By MR. VAN VOORHIS:
Q. You took the two oaths there, did you?
A. Yes, sir.
By THE COURT:
Q. You presented yourself as a female, claiming that you had a right to vote?
A. I presented myself not as a female at all, sir; I presented myself as a citizen of the United States. I was called to the United States ballot box by the 14th amendment, not as a female, but as a citizen, and I went there.
MR. VAN VOORHIS: We have a number of witnesses to prove what occurred at the time of registry, and what advice was given by these federal supervisors, but under your Honor's ruling it is not necessary for us to call them. Inasmuch as Mr. Hall is absent, I ask permission to put in his evidence as he gave it before the Commissioners.
MR. CROWLEY: I have not read it, your Honor, but I am willing they should use so much of it as is competent under your Honor's ruling.
THE COURT: Will it change the case at all, Mr. Van Voorhis?
MR. VAN VOORHIS: It only varies it a little as to Hall. He stated that he depended in consenting to the registry, upon the advice of Mr. Warner, who was his friend, and upon whom he looked as a political father.
THE COURT: I think you have all the question that any evidence could give you in the case. These men have sworn that they acted honestly, and in accordance with their best judgment. Now, if that is a defense, you have it, and it will not make it any stronger to multiply evidence.
MR. VAN VOORHIS: I suppose it will be conceded that Hall stands in the same position as to his motives?
MR. CROWLEY: Yes; we have no evidence to offer upon that question at all.
Evidence closed.
* * *
Mr. Van Voorhis addressed the Court at some length, as follows:
May it please the Court, I submit that there is no ground whatever to charge these defendants with any criminal offense.
1. Because the women who voted were legal voters.
2. Because they were challenged and took the oaths which the statute requires of Electors, and the Inspectors had no right, after such oath, to reject their votes.
1 R.S. Edmonds Ed., 126-127.
The duty of Inspectors of Election is defined by the Statute as follows: "Sec. 13. If any person offering to vote at any election shall be challenged in relation to his right to vote at that election, by an Inspector, or by any other person entitled to vote at the same poll, one of the Inspectors shall tender to him the following preliminary oath: 'You do swear (or affirm) that you will truly and fully answer all such questions as shall be put to you touching your place of residence and qualifications as an Elector.'"
"Sec. 14. The Inspectors or one of them shall then proceed to question the person challenged in relation to his name; his then place of residence; how long he has resided in the town or ward where the vote is offered; what was the last place of his residence before he came into that town or ward, and also as to his citizenship, and whether a native or a naturalized citizen, and if the latter, when, where, and in what court, or before what officer, he was naturalized; whether he came into the town or ward for the purpose of voting at that election; how long he contemplates residing in the town or ward; and all such other questions as may tend to test his qualifications as a resident of the town or ward, citizenship and right to vote at that poll."
"Sec. 15. If any person shall refuse to take the said preliminary oath when so tendered, or to answer fully any questions which shall be so put to him, his vote shall be rejected."
"Sec. 16. After receiving the answers of the person so challenged, the board of inspectors shall point out to him the qualifications, if any, in respect to which he shall appear to them deficient."
"Sec. 17. If the person so offering shall persist in his claim to vote, and the challenge shall not be withdrawn, one of the inspectors shall then administer the following oath: 'You do swear (or affirm as the case may be) that you have been a citizen of the United States for ten days, and are now of the age of twenty one years; that you have been an inhabitant of this State for one year next preceding this election, and for the last four months a resident of this County; that you have been for thirty days next preceding this election a resident of this Assembly district (or Senate or Congressional district or districts, ward, town, village or city from which the officer is to be chosen for whom said person offers to vote); that you are now a resident of this town (or ward, as the case may be) and of the election district in which you now offer to vote, and that you have not made any bet or wager, and are not directly or indirectly interested in any bet or wager depending upon the result of this election, and that you have not voted at this election.'"
"Sec. 18. Prescribes the form of oath to be administered to colored men."
"Sec. 19. If any person shall refuse to take the oath so tendered, his vote shall be rejected."
The defendants performed their duty strictly and fully according to the statute.
The persons offering to vote were challenged; the defendants administered the preliminary oath to them; all the questions required by the statute were answered fully and truly; the challenge was still insisted on; the general oath was administered by the defendants to them; they took that oath, and every word contained in it was true in their case. The inspectors had no alternative. They could not reject the votes.
This statute has been construed by the Court of Appeals of this State in the case of The People vs. Pease, 27 N.Y. 45.
In that case it is held, that inspectors of election have no authority by statute to reject a vote except in three cases: (1) after a refusal to take the preliminary oath, or (2) fully to answer any questions put, or (3) on refusal to take the general oath.
Davies J., in his opinion after an examination of the provisions of the statute says:
"It is seen, therefore, that the inspectors have no authority, by statute, to reject a vote except in the three cases: after refusal to take the preliminary oath, or fully to answer any questions put, or on refusal to take the general oath. And the only judicial discretion vested in them is, to determine whether any question put to the person offering to vote, has or has not, been fully answered. If the questions put have been fully answered, and such answers discover the fact, that the person offering to vote is not a qualified voter, yet if he persists in his claim to vote it is imperative upon the inspectors to administer to him the general oath, and if taken, to receive the vote and deposit the same in the ballot box."
Selden, J., who wrote in the same case, examines this question with great care and reaches the same conclusion. He says:
"The course required by the statute, to be pursued where the right of any person to vote is challenged, cannot be reconciled with any discretionary power of rejection vested in the inspectors. (Citing the statute as above quoted.) The inspectors are, first, to administer what is called the preliminary oath, requiring the person offering the vote to answer such questions as shall be put to him touching his place of residence and qualifications as an elector. The statute then mentions several questions which are to be addressed to him by the inspectors, and authorizes such other questions as may tend to test his qualifications as a voter. If he refuse to take the oath, or to answer fully, his vote is to be rejected; but if he answers fully, the inspectors are required to point out to him the qualifications, if any, in which he shall appear to them to be deficient. If he still persists in his right to vote, and the challenge is not withdrawn, the inspectors are required to administer to him the general oath, in which he states in detail, and swears, that he possesses all the qualifications the Constitution and laws require the voter to possess. If he refuse to take the oath, his vote shall be rejected. Is not the inference irresistible, that, if he take the oath, it shall be received? If his vote is to be rejected after he takes the oath, why not reject it before? As I construe the statute, the inspectors have no discretion left them in such a case (where the person offering to vote is not shown by a record to have been convicted of a crime, or by his own oath to be interested in a bet upon the election,) but must deposit the ballot in the box, whatever they may believe or know of the want of qualifications of the voter. They are required to act upon the evidence which the statute prescribes, and have no judicial power to pass upon the question of its truth or falsehood; nor can they act upon their own opinion or knowledge."
These views were concurred in by all the Judges. Denio, J., who wrote a dissenting opinion in the case, concurred with the other Judges as to the powers and duties of inspectors.
The defendants, then, have not in the least violated any law of the State of New York. They performed their duty according to the statute and in accordance with the decision of the highest court of the State, and in accordance with the printed instructions furnished them by the Secretary of State. What further can be demanded of them? No United States statute prescribes or attempts to prescribe their duties. They cannot legally be convicted and should be discharged.
3. Because no malice is shown. Whether the women were entitled to have their names registered and to vote, or not, the defendants believed they had such right, and acted in good faith, according to their best judgment, in allowing the registry of their names—and in receiving their votes—and whether they decided right or wrong in point of law, they are not guilty of any criminal offense.
The substance of the statute is, as to registration:
"If any such officer shall ... knowingly and wilfully register as a voter any person not entitled to be registered, or refuse to so register any person entitled to be registered ... every such person shall be deemed guilty of a crime."
Act of May 31, 1870, Sec. 20, As Amended by Act of Feb. 28, 1871, Sec. 1.
And as to voting:
"If any person shall ... knowingly and wilfully receive the vote of any person not entitled to vote, or refuse to receive the vote of any person entitled to vote ... every such person shall be deemed guilty of a crime."
Act of May 31, 1870, Sec. 19.
To bring an inspector within either of these sections he must know as matter of fact, that the person offering to vote, or to be registered, is not entitled to be registered or to vote.
The inspectors were compelled to decide the question, and to decide it instantly, with no chance for examination or even consultation—and if they decided in good faith, according to the best of their ability, they are excused, whether they decided correctly or not in point of law.
This is too well settled to admit of dispute—settled by authority as well as by the plainest principles of justice and common sense.
The law never yet placed a public officer in a position where he would be compelled to decide a doubtful legal question, and to act upon his decision, subject to the penalty of fine or imprisonment if he chanced to err in his decision.
All that is ever required of an officer, so placed, whether a judicial or ministerial officer, so far as is necessary to escape any imputations of crime, is good faith.
Ministerial officers may be required, in some cases to act at their peril as to civil responsibilities, but as to criminal responsibilities never.
Inspectors of elections, however, acting in good faith, incur neither civil nor criminal responsibilities.
In Jenkins vs. Waldron (11 John 114), which was an action on the case against inspectors of election for refusing to receive the vote of the plaintiff, a duly qualified voter, it was held, that the action would not lie without proving malice. Spencer, J., delivering the opinion of the Court, closes as follows: "It would in our opinion be opposed to all the principles of law, justice and sound policy, to hold that officers called upon to exercise their deliberate judgments, are answerable for a mistake in law, either civilly or criminally, where their motives are pure and untainted with fraud or malice."
The same point precisely was decided in a like case, in the Supreme Court of this State recently and Jenkins vs. Waldron approved.
Goetchens vs. Mathewson, 5 Lansing, 214.
In Harman v. Tappenden and fifteen others (1 East 555) the plaintiff was a freeman of the company of free fishermen and dredgermen of the manor and hundred of Faversham in Kent, and the defendants, as officers of the company, caused him "wrongfully, unlawfully and unjustly" to be disfranchised, and removed from his said office of freeman. He was restored by mandamus, and brought his action on the case against the defendants who removed him, to recover his damages.
On the trial before Lord Kenyon, C.J., a verdict was taken for the plaintiff for nominal damages, with leave to the defendant to move to enter a non-suit.
On that motion Lord Kenyon, C.J., said:
"Have you any precedent to show that an action of this sort will lie, without proof of malice in the defendants, or that the act of disfranchisement was done on purpose to deprive the plaintiff of the particular advantage which resulted to him from his corporate character? I believe this is a case of the first impression, where an action of this kind had been brought, upon a mere mistake, or error in judgment. The plaintiff had broken a by-law, for which he had incurred certain penalties, and happening to be personally present in the court, he was called upon to show cause why he should not pay the forfeitures; to which not making any answer, but refusing to pay them, the court proceeded, taking the offense pro confesso, without any proof, to call on him to show cause why he should not be disfranchised; and they accordingly made the order. This was undoubtedly irregular, but it was nothing more than a mistake, and there was no ground to impute any malicious motives to the persons making the order."
Lawrence, J., said: "There is no instance of an action of this sort maintained for an act merely from error of judgment. Perhaps the action might have been maintained, if it had been proved that the defendants' contriving and intending to injure and prejudice the plaintiff, and to deprive him of the benefit of his profits from the fishery, which as a member of this body he was entitled to, according to the custom, had wilfully and maliciously procured him to be disfranchised, in consequence of which he was deprived of such profits. But here there was no evidence of any wilful and malicious intention to deprive the plaintiff of his profits, or that they had disfranchised him with that intent, which is necessary to maintain this action. They were indeed guilty of an error in their proceedings to disfranchise him, in not going into any proof of the offence charged against him, but taking his silence as a confession. In the case of Drewe v. Coulton, where the action was against the Mayor of Saltash, who was returning officer, for refusing the plaintiff's vote at an election, which was claimed in right of a burgage tenement; Wilson, J., nonsuited the plaintiff because malice was not proved; and he observed, that though Lord Holt, in the case of Ashby v. White, endeavored to show that the action lay for the obstruction of the right, yet the House of Lords, in the justification of their conduct, supposed to be written by the Chief Justice, puts it upon a different principle, the wilfulness of the act. The declaration in that case was copied from the precedent in Milward v. Sargeant, which came on in this court on a writ of error, Hill 26, Geo. 3, for refusing the plaintiff's vote for the borough of Hastings. There the charge was 'that the defendant contriving and wrongfully intending to injure and prejudice the plaintiff, and to hinder and deprive him of his privilege of voting, did not take or allow his vote.' All which allegations Mr. Justice Wilson, in the case above alluded to, thought were essential to be proved in order to sustain the action."
"Per Curiam. Rule discharged."
The Reporter's head note is: "An action does not lie against individuals for acts erroneously done by them in a corporate capacity from which detriment has happened to the plaintiff. At least, not without proof of malice."
The case of Drewe v. Coulton is given at length in a note to Harman v. Tappenden and others 1 East 563, and fully sustains what is said of it by Mr. Justice Lawrence.
The election was for member to serve in Parliament for the borough of SALTASH. The defendant was Mayor and returning officer. The question presented to him was "whether the owners of burgage tenements in the borough, had a right of voting, or whether that right was confined to the freemen of the corporation." The defendant had rejected the vote offered by the plaintiff, he claiming the right as a burgage tenant.
The action was for that refusal, charging the defendant with "contriving and wrongfully intending to deprive the plaintiff &c., obstructed and hindered him from giving his vote."
Wilson, J., among other things, says: "This is in the nature of it, an action for misbehavior by a public officer in his duty. Now I think, that it cannot be called a misbehavior, unless maliciously and wilfully done, and that the action will not lie for a mistake in law. The case of the bridge master is in point [Bul N.P. 64.]. It is there said, that an action on the case lies against a ministerial officer for wilful misbehavior, as denying a poll for one who is a candidate for an elective office, such as bridge master &c." "In all the cases put, the misbehavior must be wilful and by wilful I understand contrary to a man's own conviction. Therefore I think from the opening of counsel, this is not a wilful refusal of the vote.... In very few instances is an officer answerable for what he does to the best of his judgment, in cases where he is compelled to act. But the action lies where the officer has an option whether he will act or not. Besides, I think, that if an action were to be brought upon every occasion of this kind by every person whose vote was refused, it would be such an inconvenience as the law would not endure. A returning officer in such a case would be in a most perilous situation. This gentleman was put in a situation where he was bound to act; and if he acted to the best of his judgment it would be a great hardship that he should be answerable for the consequences, even though he is mistaken in a point of law. It was a very material observation of Mr. Gibbs, that the words of the resolution of the House of Lords in Ashby v. White followed the words of the statute of William III. For if that statute were declaratory of the common law, as it purports to be ['Be it enacted and declared that all false returns wilfully made' &c.] and an action would not lie at common law for a false return, unless the return be proved to have been made maliciously, as well as falsely, it should seem, by a parity of reasoning, that a person whose vote is refused by a returning officer, cannot maintain an action against him, unless the refusal be proved to have been wilful and malicious. And if malice were necessary before the statute by the common law, and since by the statute which is declaratory thereof, to sustain an action for a false return which includes perhaps the votes of all, it seems equally necessary in an action like the present where the injury complained of is to one only.
"I do not mean to say, that in this kind of action, it is necessary to prove express malice. It is sufficient if malice may be implied from the conduct of the officer; as if he had decided contrary to a last resolution of the House of Commons. There I should leave it to the jury to imply malice. But taking all the circumstances of this case together, malice can in no shape be imputed to the defendant. The plaintiff may have a right to vote, but that depends upon an intricate question of law, with respect to burgage tenures; the right itself founded on ancient documents and usages, and not acted upon for many years....
"From these grounds, therefore, it cannot be inferred that the defendant has acted wilfully and maliciously in refusing the plaintiff's vote; and unless that be so he is not liable in this action.
... "But without determining whether the statute be declaratory of the common law, or not; if not, the case rests on that of Ashby v. White. Now all the debates and arguments in that case go upon the malice; and all those who have acted on that determination since have considered that the refusal must be wilful and malicious in order to support the action....
"And in my opinion, it cannot be said, that because an officer is mistaken in a point of law, this action will lie against him.... It has also been said, that this is not like a case where a burdensome office is thrown upon a man, without his consent, wherein he is compellable to act; for that here the defendant has chosen to become a member of a corporation by which he had put himself in a situation to become a returning officer, and therefore that he is bound to understand the whole law as far as it relates to his public situation, and is answerable for any determination he may make contrary to that law. But I much doubt whether that rule be generally true; and in the present instance I am clearly of opinion that the want of malice is a full defense."
Lawrence, J., sat with Wilson.
The plaintiff was nonsuited and no new trial was moved for.
Bernardiston v. Some (2 Lev. 114, 1 East. 586, note b.) was an action against the sheriff of Suffolk, charging that the defendant, intending to deprive him of the office of Knight of the Shire, made a double return. Upon a trial at bar, Twysden, Rainsford, and Wylie Js. held, and so directed the jury, that if the return was made maliciously, they ought to find for the plaintiff, which they did and gave him L800. On motion in arrest of judgment, Hale, C.J., being in court; he, Twysden & Wylie, Js. held that for as much as the return was laid to be falso et malitiose et ea intentione, to put the plaintiff to charge and expense, and so found by the jury, the action lay. Rainsford, J., doubted. But notwithstanding this charge of malice, judgment was reversed in Cam scacc (vide 3 Lev. 30) and that judgment of reversal was affirmed in Parliament. Lord Chief justice North's first reason against the action was, because the sheriff as to declaring the Mayoralty is judge and no action will lie against a judge for what he does judicially, though it should be laid falso malitiose et scienter. This reversal occasioned the passage of the statute (7 and 8 W. III c. 7) which gives an action against the returning officer, for all false returns "wilfully made, and for double returns falsely, wilfully and maliciously made."
Groenvelt v. Burwell & al (1 Salk. 396, S.C. 2 Ld Ray. 230, Comyns 76.) In this case, the Censors of the College of Physicians and Surgeons, in London, were empowered to inspect, govern and censure, all practices of physic in London—and to punish by fine and imprisonment. They convicted the plaintiff of administering noxious medicines, and fined him L20, and imprisonment 12 months. Being taken in execution, he brought trespass against the Censors. It was held
1. That the Censors had judicial power.
2. That being judges of the matter, what they had adjudged was not traversable. That the plaintiff could not be permitted to gainsay, what the Censors had said by their judgment—that the medicines were noxious.
3. Though the medicines were really good, yet no action lies against the Censors, because it is a wrong judgment in a matter within the limits of their jurisdiction; and a judge is not answerable, either to the King or the party, for the mistakes or errors of his judgment in a matter of which he has jurisdiction; It would expose the justice of the nation, and no man would execute the office upon peril of being arraigned by action or indictment for every judgment he pronounces.
All that I have quoted from the English cases and our own to show that malice must be proven to make out the offense, is expressly contained in the statute under which this indictment is framed. The words are (Sec. 19) "shall knowingly and wilfully receive the vote of any person not entitled to vote." (And Section 20 as amended) "If any such officer shall knowingly and wilfully register, as a voter any person not entitled to vote."
And wilfully means, to use the language of Mr. Justice Wilson, "contrary to a man's own conviction."
If it be said that the defendants must be presumed to know the law, that is answered above by the quotations from the opinion of Mr. Justice Wilson.
Besides when the statute speaks of "knowledge," aside from the expression "wilfully" it means knowledge as a fact—not any forced presumption of knowledge against the clear facts of the case.
To this extent and to this extent only, does the presumption that defendants were bound to know the law go, viz: They were bound to know that if they as a fact "knowingly and wilfully registered as a voter any person not entitled to be registered" or "knowingly and wilfully received the vote of any person not entitled to vote," in either case they were liable to the penalty; and they could not be allowed to urge in their defense any ignorance that the law made those facts criminal.
Here is a total absence of any pretence of malice. The defendants acted honestly and according to their best judgment. This is conceded. The most that can be said against them is, that they have erred in judgment. They are not lawyers, nor skilled in the law. They had presented to them a legal question which, to say the least, has puzzled some of the ablest legal minds of the nation. The penalty is the same, on which ever side they err. If they can be convicted of crime, a test must be imposed upon them, which no judge in the land could stand.
The defendants should be discharged by this Court.
Mr. Crowley then rose to make his argument, when the Court said:
THE COURT: I don't think it is necessary for you to spend time in argument, Mr. Crowley. I think upon the last authority cited by the counsel there is no defense in this case. It is entirely clear that where there is a distinct judicial act, the party performing the judicial act is not responsible, civilly or criminally, unless corruption is proven, and in many cases not when corruption is proven. But where the act is not judicial in its character—where there is no discretion—then there is no legal protection. That is the law, as laid down in the authority last quoted, and the authority quoted by Judge Selden in his opinion. It is undoubtedly good law. They hold expressly in that case that the inspectors are administrative officers, and not judicial officers.
Now, this is the point in the case, in my view of it: If there was any case in which a female was entitled to vote, then it would be a subject of examination. If a female over the age of 21 was entitled to vote, then it would be within the judicial authority of the inspectors to examine and determine whether in the given case the female came within that provision. If a married woman was entitled to vote, or if a married woman was not entitled to vote, and a single woman was entitled to vote, I think the inspectors would have a right in a case before them, to judge upon the evidence whether the person before them was married or single. If they decided erroneously, their judicial character would protect them. But under the law of this state, as it stands, under no circumstances is a woman entitled to vote. When Miss Anthony, Mrs. Leyden and the other ladies came there and presented themselves for registry, and presented themselves to offer their votes, when it appeared that they were women—that they were of the female sex—the power and authority of the inspectors was at an end. When they act upon a subject upon which they have no discretion, I think there is no judicial authority. There is a large range of discretion in regard to the votes offered by the male sex. If a man offers his vote, there is a question whether he is a minor—whether he is 21 years of age. The subject is within their jurisdiction. If they decide correctly, it is well; if they decide erroneously, they act judicially, and are not liable. If the question is whether the person presenting his vote is a foreigner or naturalized, or whether he has been a resident of the state or district for a sufficient length of time, the subject is all within their jurisdiction, and they have a right to decide, and are protected if they decide wrong.
But upon the view which has been taken of this question of the right of females to vote, by the United States Court at Washington, and by the adjudication which was made this morning, upon this subject there is no discretion, and therefore I must hold that it affords no protection.
In that view of the case, is there anything to go to the jury?
MR. VAN VOORHIS: Yes, your Honor.
THE COURT: What?
MR. VAN VOORHIS: The jury must pass upon the whole case, and particularly as to whether any ballots were received for representative in Congress, or candidates for representative in Congress, and whether the defendants acted wilfully and maliciously.
THE COURT: It is too plain to argue that.
MR. VAN VOORHIS: There is nothing but circumstantial evidence.
THE COURT: Your own witness testified to it.
MR. VAN VOORHIS: But "knowingly," your Honor, implies knowing that it is a vote for representative in Congress.
THE COURT: That comes within the decision of the question of law. I don't see that there is anything to go to the jury.
MR. VAN VOORHIS: I cannot take your Honor's view of the case, but of course must submit to it. We ask to go to the jury upon this whole case, and claim that in this case, as in all criminal cases, the right of trial by jury is made inviolate by the constitution—that the Court has no power to take it from the jury.
THE COURT: I am going to submit it to the jury.
Gentlemen of the Jury:
This case is now before you upon the evidence as it stands, and I shall leave the case with you to decide—
MR. VAN VOORHIS: I claim the right to address the jury.
THE COURT: I don't think there is anything upon which you can legitimately address the jury.
Gentlemen, the defendants are charged with knowingly, willfully and wrongfully receiving the votes of the ladies whose names are mentioned, in November last, in the City of Rochester. They are charged in the same indictment with willfully and improperly registering those ladies. I decided in the case this morning, which many of you heard, probably, that under the law as it stands the ladies who offered their votes had no right to vote whatever. I repeat that decision, and I charge you that they had no right to offer their votes. They having no right to offer their votes, the inspectors of election ought not to receive them. The additional question exists in this case whether the fact that they acted as inspectors will relieve them from the charge in this case. You have heard the views which I have given upon that. I think they are administrative officers. I charge you that they are administrative and ministerial officers in this respect, that they are not judicial officers whose action protects them, and that therefore they are liable in this case. But, instead of doing as I did in the case this morning—directing a verdict—I submit the case to you with these instructions, and you can decide it here, or you may go out.
MR. VAN VOORHIS: I ask your Honor to instruct the jury that if they find these inspectors acted honestly, in accordance with their best judgment, they should be acquitted.
THE COURT: I have expressly ruled to the contrary of that, gentlemen; that that makes no difference.
MR. VAN VOORHIS: And that in this country—under the laws of this country—
THE COURT: That is enough—you need not argue it, Mr. Van Voorhis.
MR. VAN VOORHIS: Then I ask your Honor to charge the jury that they must find the fact that these inspectors received the votes of these persons knowingly, and that such votes were votes for some person for member of Congress, there being in the case no evidence that any man was voted for, for member of Congress, and there being no evidence except that secret ballots were received; that the jury have a right to find for the defendants, if they choose.
THE COURT: I charge the jury that there is sufficient evidence to sustain the indictment, upon this point.
MR. VAN VOORHIS: I ask your Honor also to charge the jury that there is sufficient evidence to sustain a verdict of not guilty.
THE COURT: I cannot charge that.
MR. VAN VOORHIS: Then why should it go to the jury?
THE COURT: As a matter of form.
MR. VAN VOORHIS: If the jury should find a verdict of not guilty, could your Honor set it aside?
THE COURT: I will debate that with you when the occasion arises.
Gentlemen, you may deliberate here, or retire, as you choose.
The jury retired for consultation, and the Court took a recess until 7 P.M.
The Court re-convened at 7 o'clock, when the clerk called the jury, and asked them if they had agreed upon their verdict.
The foreman replied in the negative, whereupon the Court said:
THE COURT: Is there anything upon which I can give you any advice, gentlemen, or any information?
A JUROR: We stand 11 for conviction, and 1 opposed.
THE COURT: If that gentleman desires to ask any questions in respect to the questions of law, or the facts in the case, I will give him any information he desires. (No response from the jury.) It is quite proper, if any gentleman has any doubt about anything, either as to the law or the facts, that he should state it to the Court. Counsel are both present, and I can give such information as is correct.
A JUROR: I don't wish to ask any questions.
THE COURT: Then you may retire again, gentlemen. The Court will adjourn until to-morrow morning.
The jury retired, and after an absence of about ten minutes returned into court.
The clerk called the names of the jury and then said:
THE CLERK: Gentlemen, have you agreed upon your verdict?
THE FOREMAN: We have.
THE CLERK: How say you, do you find the prisoners at the bar guilty of the offense whereof they stand indicted, or not guilty?
THE FOREMAN: Guilty.
THE CLERK: Hearken to your verdict as it stands recorded by the Court. You say you find the prisoners at the bar guilty of the offense whereof they stand indicted, and so say you all.
MR. VAN VOORHIS: I ask that the jury be polled.
The clerk polled the jury, each juror answering in the affirmative to the question, "Is this your verdict?"
On the next day, June 19, 1873, the counsel for the defendants, Mr. John Van Voorhis, made a motion to the Court, for a new trial in behalf of Beverly W. Jones, Edwin T. Marsh and William B. Hall. The argument was oral and is not given, but the following are the grounds of the motion:
1. The indictment contains no sufficient statement of any crime under the Acts of Congress, upon which it is framed.
2. The Court has no jurisdiction of the subject matter of the offense.
3. It was an error, for which a new trial should be granted, to refuse the defendants the fundamental right to address the jury, through their counsel. This is a right guaranteed by the United States Constitution. (See Article VI. of the amendments to the U.S. Constitution. 1 Graham & Waterman on New Trials, pages 682, 683 and 684.)
4. The defendants were substantially deprived of the right of jury trial. The instructions of the Court to the jury were imperative. They were equivalent to a direction to find a verdict of guilty. It was said by the Court in the hearing of the jury, that the case was submitted to the jury "as a matter of form." The jury was not at liberty to exercise its own judgment upon the evidence, and without committing a gross discourtesy to the Court, could render no verdict except that of guilty.
5. Admitting that the defendants acted without malice, or any corrupt motive, and in accordance with their best judgments, and in perfect good faith, it was error to charge that that was no defense.
6. The defendants are admitted to have acted in accordance with their duty as defined by the laws of New York (1 R.S., Edmond's Ed., pp. 126-127, sections 13, 14, 15, 16, 17, 18 and 19) as construed by the Court of Appeals. (People vs. Pease, 27 N.Y. 45.)
They are administrative officers and bound to regard only the evidence which the Statute prescribes. They are not clothed with the power, to reject the vote of a person who has furnished the evidence, which the law requires, of right to vote, on what they or either of them might know, as to the truth or falsity of such evidences. They have no discretion, and must perform their duty, as it is defined by the laws of New York and the decisions of her Courts.
7. The defendant, William B. Hall, has been tried and convicted in his absence from the Court. This is an error fatal to the conviction in his case.
The Court denied the motion.
The Court then asked the defendants if they had anything to say why sentence should not be pronounced, in response to which Beverly W. Jones said:
"Your honor has pronounced me guilty of crime; the jury had but little to do with it. In the performance of my duties as an inspector of election, which position I have held for the last four years, I acted conscientiously, faithfully and according to the best of my judgment and ability. I did not believe that I had a right to reject the ballot of a citizen who offered to vote, and who took the preliminary and general oaths; and answered all questions prescribed by law. The instructions furnished me by the State authorities declared that I had no such right. As far as the registry of the names is concerned, they would never have been placed upon the registry, if it had not been for Daniel Warner, the Democratic federal Supervisor of elections, appointed by this Court, who not only advised the registry, but addressed us, saying, 'Young men, do you know the penalty of the law if you refuse to register these names?' And after discharging my duties faithfully and honestly and to the best of my ability, if it is to vindicate the law that I am to be imprisoned, I willingly submit to the penalty."
And Edwin T. Marsh said:
"In October last, just previous to the time fixed for the sitting of the Board of Registrars in the first district of the eighth ward of Rochester, a vacancy occurred. I was solicited to act, and consenting, was duly appointed by the Common council.
"I had never given the matter a thought until called to the position, and as a consequence knew nothing of the law. On the morning of the first day of the last session of the Board, Miss Anthony and other women presented themselves and claimed the right to be registered. So far as I knew, the question of woman suffrage had never come up in that shape before. We were in a position where we could take no middle course.
"Decide which way we might, we were liable to prosecution. We devoted all the time to acquiring information on the subject, that our duties as Registrars would allow.
"We were expected, it seems, to make an infallible decision, inside of two days, of a question in regard to which some of the best minds of the country are divided. The influences by which we were surrounded, were nearly all in unison with the course we took. I believed then, and believe now, that we acted lawfully.
"I faithfully discharged the duties of my office, according to the best of my ability, in strict compliance with the oath administered to me. I consider the argument of our counsel unanswered and unanswerable."
"The verdict is not the verdict of the jury.
"I am NOT GUILTY of the charge."
The Court then sentenced the defendants to pay a fine of $25 each, and the costs of the prosecution.
APPENDIX.
ADDRESS OF
SUSAN B. ANTHONY,
Delivered in twenty-nine of the Post Office Districts of Monroe, and twenty-one of Ontario, in her canvass of those Counties, prior to her trial in June, 1873.
* * *
Friends and Fellow-citizens: I stand before you to-night, under indictment for the alleged crime of having voted at the last Presidential election, without having a lawful right to vote. It shall be my work this evening to prove to you that in thus voting, I not only committed no crime, but, instead, simply exercised my citizen's right, guaranteed to me and all United States citizens by the National Constitution, beyond the power of any State to deny.
Our democratic-republican government is based on the idea of the natural right of every individual member thereof to a voice and a vote in making and executing the laws. We assert the province of government to be to secure the people in the enjoyment of their unalienable rights. We throw to the winds the old dogma that governments can give rights. Before governments were organized, no one denies that each individual possessed the right to protect his own life, liberty and property. And when 100 or 1,000,000 people enter into a free government, they do not barter away their natural rights; they simply pledge themselves to protect each other in the enjoyment of them, through prescribed judicial and legislative tribunals. They agree to abandon the methods of brute force in the adjustment of their differences, and adopt those of civilization.
Nor can you find a word in any of the grand documents left us by the fathers that assumes for government the power to create or to confer rights. The Declaration of Independence, the United States Constitution, the constitutions of the several states and the organic laws of the territories, all alike propose to protect the people in the exercise of their God-given rights. Not one of them pretends to bestow rights.
"All men are created equal, and endowed by their Creator with certain unalienable rights. Among these are life, liberty and the pursuit of happiness. That to secure these, governments are instituted among men, deriving their just powers from the consent of the governed."
Here is no shadow of government authority over rights, nor exclusion of any class from their full and equal enjoyment. Here is pronounced the right of all men, and "consequently," as the Quaker preacher said, "of all women," to a voice in the government. And here, in this very first paragraph of the declaration, is the assertion of the natural right of all to the ballot; for, how can "the consent of the governed" be given, if the right to vote be denied. Again:
"That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such forms as to them shall seem most likely to effect their safety and happiness."
Surely, the right of the whole people to vote is here clearly implied. For however destructive to their happiness this government might become, a disfranchised class could neither alter nor abolish it, nor institute a new one, except by the old brute force method of insurrection and rebellion. One-half of the people of this nation to-day are utterly powerless to blot from the statute books an unjust law, or to write there a new and a just one. The women, dissatisfied as they are with this form of government, that enforces taxation without representation,—that compels them to obey laws to which they have never given their consent,—that imprisons and hangs them without a trial by a jury of their peers, that robs them, in marriage, of the custody of their own persons, wages and children,—are this half of the people left wholly at the mercy of the other half, in direct violation of the spirit and letter of the declarations of the framers of this government, every one of which was based on the immutable principle of equal rights to all. By those declarations, kings, priests, popes, aristocrats, were all alike dethroned, and placed on a common level, politically, with the lowliest born subject or serf. By them, too, men, as such, were deprived of their divine right to rule, and placed on a political level with women. By the practice of those declarations all class and caste distinction will be abolished; and slave, serf, plebeian, wife, woman, all alike, bound from their subject position to the proud platform of equality. |
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