Part 10

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."