Volume II Part 93 (1/2)
These points were amplified by the counsel at some length, who closed by saying, ”The defendants should be discharged by the 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 when corruption is not 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 ent.i.tled to vote, then it would be a subject of examination. If a female over the age of twenty-one was ent.i.tled 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 ent.i.tled to vote, or if a married woman was not ent.i.tled to vote, and a single woman was ent.i.tled 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 circ.u.mstances is a woman ent.i.tled 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 s.e.x--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 s.e.x. If a man offers his vote, there is a question whether he is a minor--whether he is twenty-one 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 Was.h.i.+ngton, 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 pa.s.s 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 willfully and maliciously.
The COURT: It is too plain to argue that. Mr. VAN VOORHIS: There is nothing but circ.u.mstantial 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 can not 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 Const.i.tution--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, and 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 can not 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. 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.
The COURT: Is there anything upon which I can give you any advice gentlemen, or any information? A JUROR: We stand eleven for conviction, and one 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 doubts 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.
The CLERK: Gentlemen, have you agreed upon your verdict? The FOREMAN: We have.