Part 11

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.

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