It was the province of the Court to instruct the jury as to the law, and to point out to them how clearly the law, on its view of the established facts, made out the offence; but it has no authority to instruct them positively on any question of fact, or to order them to find any particular verdict. That must be their spontaneous work.
But there was a question of fact, which constituted the very essence of the offence, and one on which the jury were not only entitled to exercise, but were in duty bound to exercise, their independent judgment. That question of fact was, whether the defendant, at the time when she voted, knew that she had not a right to vote. The statute makes this knowledge the very gist of the offence, without the existence of which, in the mind of the voter, at the time of voting, there is no crime. There is none by the statute and none in morals. The existence of this knowledge, in the mind of the voter, at the time of voting, is under the statute, necessarily a fact and nothing but a fact, and one which the jury was bound to find as a fact, before they could, without violating the statute, find the defendant guilty. The ruling which took that question away from the jury, on the ground that it was a question of law and not of fact, and which declared that as a question of law, the knowledge existed, was, I respectfully submit, a most palpable error, both in law and justice. It was an error in law, because its effect was to deny any force whatever to the most important word which the statute uses in defining the offense—the word "knowingly." It was also unjust, because it makes the law declare a known falsehood as a truth, and then by force of that judicial falsehood condemns the defendant to such punishment as she could only lawfully be subject to, if the falsehood were a truth.
I admit that it is an established legal maxim that every person (judicial officers excepted) is bound, and must be presumed, to know the law. The soundness of this maxim, in all the cases to which it can properly be applied, I have no desire to question; but it has no applicability whatever to this case. It applies in every case where a party does an act which the law pronounces criminal, whether the party knows or does not know that the law has made the act a crime. That maxim would have applied to this case, if the defendant had voted, knowing that she had no legal right to vote; without knowing that the law had made the act of knowingly voting without a right, a crime. In that case she would have done the act which the law made a crime, and could not have shielded herself from the penalty by pleading ignorance of the law. But in the present case the defendant has not done the act which the law pronounces a crime. The law has not made the act of voting without a lawful right to vote, a crime, where it is done by mistake, and in the belief by the party voting that he has the lawful right to vote. The crime consists in voting "knowingly," without lawful right. Unless the knowledge exists in fact, is the very gist of the offence is wanting. To hold that the law presumes conclusively that such knowledge exists in all cases where the legal right is wanting, and to reject all evidence to the contrary, or to deny to such evidence any effect, as has been done on this trial, is to strike the word "knowingly" out of the statute—and to condemn the defendant on the legal fiction that she was acting in bad faith, it being all the while conceded that she was in fact acting in good faith. I admit that there are precedents to sustain such ruling, but they cannot be reconciled with the fundamental principles of criminal law, nor with the most ordinary rules of justice. Such a ruling cannot but shock the moral sense of all right-minded, unprejudiced men.
No doubt the assumption by the defendant of a belief of her right to vote might be made use of by her as a mere cover to secure the privilege of giving a known illegal vote, and of course that false assumption would constitute no defence to the charge of illegal voting. If the defendant had dressed herself in male attire, and had voted as John Anthony, instead of Susan, she would not be able to protect herself against a charge of voting with a knowledge that she had no right to vote, by asserting her belief that she had a right to vote as a woman. The artifice would no doubt effectually overthrow the assertion of good faith. No such question, however, is made here. The decision of which I complain concedes that the defendant voted in good faith, in the most implicit belief that she had a right to vote, and condemns her on the strength of the legal fiction, conceded to be in fact a mere fiction, that she knew the contrary.
But if the facts admitted of a doubt of the defendant's good faith, that was a question for the jury, and it was clear error for the court to assume the decision of it.
Again. The denial of the right to poll the jury was most clearly an error. Under the provisions of the constitution which have been cited, the defendant could only be convicted on the verdict of a jury. The case of Cancemi shows that such jury must consist of twelve men; and it will not be claimed that anything less than the unanimous voice of the jury can be received as their verdict. How then could the defendant be lawfully deprived of the right to ask every juror if the verdict had his assent? I believe this is a right which was never before denied to a party against whom a verdict was rendered in any case, either civil or criminal. The following cases show, and many others might be cited to the same effect, that the right to poll the jury is an absolute right in all cases, civil and criminal. (The People vs. Perkins, 1 Wend. 91. Jackson vs. Hawks, 2 Wend. 619. Fox vs. Smith. 3 Cowen, 23.)
The ground on which the right of the defendant to vote has been denied, is, as I understand the decision of the court, "that the rights of the citizens of the state as such were not under consideration in the fourteenth amendment; that they stand as they did before that amendment.... The right of voting or the privilege of voting is a right or privilege arising under the constitution of the state, and not of the United States. If the right belongs to any particular person, it is because such person is entitled to it as a citizen of the state where he offers to exercise it, and not because of citizenship of the United States.... The regulation of the suffrage is conceded to the states as a state right."
If this position be correct, which I am not now disposed to question, I respectfully insist that the congress of the United States had no power to pass the act in question, that by doing so it has attempted to usurp the rights of the states, and that all proceedings under the act are void.
I claim therefore that the defendant is entitled to a new trial.
First—Because she has been denied her right of trial by jury.