"That if at any registration of voters for an election for
representatives or delegates in the Congress of the United States,
any person shall _knowingly_ ... hinder any person having a lawful
right to register, from duly exercising that right; or compel or
induce by any of such means, or other unlawful means, ANY OFFICER
OF REGISTRATION to admit to registration any person not legally
entitled thereto; ... _or if any such officer shall knowingly and
wilfully register as a voter any person not entitled to be
registered_, or refuse so to register any person entitled to be
registered, ... _every such person shall be deemed guilty of a
crime, and shall be liable to prosecution and punishment therefor,
as provided in section 19 of said Act of May 31, 1870, for persons
guilty of the crimes therein specified_."
No law of Congress describes the qualifications of voters in this State,
or in any State.
Congress has provided no registry law. Therefore, what constitutes the
offenses charged in this indictment, must be looked for in the laws of
the State. By no Act of Congress can it be determined in what case a
person votes, "_without having a right to vote_." By no Act of Congress
can it be determined when an Inspector of Election has received the vote
of "_any person not entitled to vote_," or has registered "_as a voter,
any person not entitled to be registered_." These are the offenses
alleged in this indictment. They are penal offenses by the Statutes of
New York. The jurisdiction of the State Courts over them is complete,
and cannot be questioned.
By the Act of May 31, 1870, above cited, Congress has ordained, in legal
effect, that if any person violates the penal Code of the State of New
York, or any State, in respect of voting, he may be punished by the
United States. And the offense is a variable quantity; what is a crime
in one State under this Act, is a legal right and duty in another. A
citizen of Rhode Island, for instance, who votes when not possessed in
his own right, of an estate in fee simple--in fee tail, for life, or in
reversion or remainder, of the value of $134 or up-wards, may be
convicted of a crime under this Act, and imprisoned in a State Prison.
He voted in violation of the laws of his State. A citizen of New York
votes under precisely similar circumstances, and with the same
qualifications, and his act is a legal one, and he performs a simple
duty. Any State may, by its Constitution and laws, permit women to vote.
Had these defendants been acting as Inspectors of Elections in such
State, their act would be no crime, and this indictment could not be
sustained, for the only illegality alleged is, that the citizens whose
votes were received were women, and therefore not entitled to vote.
The Act of Congress thus, is simply an Act to enforce the diverse penal
statutes of the various States in relation to voting. In order to make a
case, the United States must combine the federal law with the statutes
of the State where the _venue_ of the prosecution is laid.
Before the enactment of the 13th, 14th and 15th Amendments, it is not,
and never was pretended, that Congress possessed any such power.
Subdivision 1 of Section 2, of Article one of the Constitution, provides
as follows:
"The House of Representatives shall be composed of members chosen
every second year by the people of the several States; and the
electors in each State shall have the qualifications requisite for
electors of the most numerous branch of the State Legislature."
By this provision, what shall qualify a person to be an elector, is left
entirely to the States. Whoever, in any State, is permitted to vote for
members of the most numerous branch of its legislature, is also
competent to vote for Representatives in Congress. The State might
require a property qualification, or it might dispense with it. It might
permit negroes to vote, or it might exclude them. It might permit women
to vote, or even foreigners, and the federal constitution would not be
infringed. If a State had provided a different qualification for an
elector of Representatives in Congress, from that required of an elector
of the most numerous branch of its Legislature, the power of the federal
constitution might be invoked, and the law annuled. But never was the
idea entertained, that this provision of the Constitution authorizes
Congress to pass laws for the punishment of individuals in the States
for illegal voting, or State returning officers for receiving illegal
votes.
This power, if it exist, must be found in the recent Amendments to the
U.S. 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:
"§ 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.'"
"§ 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."
"§ 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."
"§ 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."
"§ 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.'"
"§ 18. Prescribes the form of oath to be administered to colored
men."
"§ 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, § 20, As Amended by Act of Feb. 28, 1871, § 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, § 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 £800. 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 £20, 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."