The general doctrine laid down in the foregoing sections (i.e., that every man is presumed to know the law, and that ignorance of the law does not excuse), is plain in itself and plain in its application. Still, there are cases, the precise nature and extent of which are not so obvious, wherein ignorance of the law constitutes, in a sort of indirect way, not in itself a defense, but a foundation on which another defense rests. Thus, if the guilt or innocence of a prisoner depends on the fact to be found by the jury, of his having been or not, when he did the act, in some precise mental condition, which mental condition is the gist of the offense, the jury in determining this question of mental condition, may take into consideration his ignorance or misinformation in a matter of law. For example, to constitute larceny, there must be an intent to steal, which involves the knowledge that the property taken does not belong to the taker; yet, if all the facts concerning the title are known to the accused, and so the question is one merely of law whether the property is his or not; still he may show, and the showing will be a defense to him against the criminal proceeding, that he honestly believed it his through a misapprehension of the law.
As it is cepit and asportavit, so it must be felonice, or animo furandi, otherwise it is not felony, for it is the mind that makes the taking of another's goods to be a felony, or a bare trespass only; but because the intention and mind are secret, the intention must be judged of by the circumstances of the fact, and these circumstances are various, and may sometimes deceive, yet regularly and ordinarily these circumstances following direct in the case. If A., thinking he hath a title to the house of B., seizeth it as his own ... this regularly makes no felony, but a trespass only; but yet this may be a trick to color a felony, and the ordinary discovery of a felonious intent is, if the party doth it secretly or being charged with the goods denies it. (1 Hale's P. C, 509.)
[The following cases and authorities were referred to and commented upon by the counsel, as sustaining his positions: U. S. vs. Conover, 3 McLean's Rep., 573; The State vs. McDonald, 4 Harrington, 555; The State vs. Homes, 17 Mo., 379; Rex vs. Hall, 3 C. & P., 409 (S. C. 14 Eng., C. L.); The Queen vs. Reed, 1 C. &. M., 306 (S. C. 41 Eng., C. L.); Lancaster's Case, 3 Leon, 208; Starkie on Ev., Part IV., Vol. 2, p. 828, 3d Am. Ed.]
District Attorney Crowley followed Judge Selden with an argument two hours in length. He stated that, in his view, the case simply presented questions of law, and that his argument, therefore, would be addressed strictly to the court, leaving the court to give such instructions to the jury upon the facts as he might deem proper. He contended that the right to vote was not included in "privileges and immunities," and was only given by State laws and State constitutions. He concluded his argument by saying that an honest mistake of the facts may sometimes excuse, but a mistake of the law never. The Court addressed the jury as follows:
Gentlemen of the Jury: I have given this case such consideration as I have been able to, and, that there might be no misapprehension about my views, I have made a brief statement in writing.
The defendant is indicted under the act of Congress of 1870, for having voted for Representatives in Congress in November, 1872. Among other things, that Act makes it an offense for any person knowingly to vote for such Representatives without having a right to vote. It is charged that the defendant thus voted, she not having a right to vote because she is a woman. The defendant insists that she has a right to vote; that the provision of the Constitution of this State limiting the right to vote to persons of the male sex is in violation of the XIV. Amendment of the Constitution of the United States, and is void.
The XIII., XIV., and XV. Amendments were designed mainly for the protection of the newly emancipated negroes, but full effect must nevertheless be given to the language employed. The XIII. Amendment provided that neither slavery nor involuntary servitude should longer exist in the United States. If honestly received and fairly applied, this provision would have been enough to guard the rights of the colored race. In some States it was attempted to be evaded by enactments cruel and oppressive in their nature; as that colored persons were forbidden to appear in the towns except in a menial capacity; that they should reside on and cultivate the soil without being allowed to own it; that they were not permitted to give testimony in cases where a white man was a party. They were excluded from performing particular kinds of business, profitable and reputable, and they were denied the right of suffrage. To meet the difficulties arising from this state of things, the XIV. and XV. Amendments were enacted.
The XIV. Amendment created and defined citizenship of the United States. It had long been contended, and had been held by many learned authorities, and had never been judicially decided to the contrary, that there was no such thing as a citizen of the United States, except as that condition arose from citizenship of some State. No mode existed, it was said, of obtaining a citizenship of the United States except by first becoming a citizen of some State. This question is now at rest. The XIV. Amendment defines and declares who shall be citizens of the United States, to wit: "All persons born or naturalized in the United States and subject to the jurisdiction thereof." The latter qualification was intended to exclude the children of foreign representatives and the like. With this qualification every person born in the United States or naturalized is declared to be a citizen of the United States, and of the State wherein he resides.
After creating and defining citizenship of the United States, the Amendment provides that no State shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the United States. This clause is intended to be a protection, not to all our rights, but to our rights as citizens of the United States only; that is, the rights existing or belonging to that condition or capacity. (The words "or citizen of a State," used in the previous paragraph, are carefully omitted here.) In article 4, paragraph 2, of the Constitution of the United States it had been already provided in this language, viz: "The citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States." The rights of citizens of the States and of citizens of the United States are each guarded by these different provisions. That these rights were separate and distinct, was held in the Slaughter-house Cases recently decided by the United States Supreme Court at Washington.
The rights of citizens of the State, as such, are not under consideration in the XIV. Amendment. They stand as they did before the adoption of the XIV. Amendment, and are fully guaranteed by other provisions. The rights of citizens of the States have been the subject of judicial decision on more than one occasion. (Corfield agt. Coryell, 4 Wash. C. C. R., 371. Ward agt. Maryland, 12 Wall., 430. Paul agt. Virginia, 8 Wall., 140.) These are the fundamental privileges and immunities belonging of right to the citizens of all free governments, such as the right of life and liberty; the right to acquire and possess property, to transact business, to pursue happiness in his own manner, subject to such restraint as the Government may adjudge to be necessary for the general good. In Cromwell agt. Nevada, 6 Wallace, 36, is found a statement of some of the rights of a citizen of the United States, viz:
To come to the seat of the Government to assert any claim he may have upon the Government, to transact any business he may have with it; to seek its protection; to share its offices; to engage in administering its functions. He has the right of free access to its seaports through which all operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.
Another privilege of a citizen of the United States, says Miller, Justice, in the "Slaughter-house" cases, is to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. The right to assemble and petition for a redress of grievances, the privilege of the writ of habeas corpus, he says, are rights of the citizen guaranteed by the Federal Constitution.
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. The qualifications are different in the different States. Citizenship, age, sex, residence, are variously required in the different States, or may be so. If the right belongs to any particular person, it is because such person is entitled to it by the laws of the State where he offers to exercise it, and not because of citizenship of the United States. If the State of New York should provide that no person should vote until he had reached the age of thirty-one years, or after he had reached the age of fifty, or that no person having gray hair, or who had not the use of all his limbs, should be entitled to vote, I do not see how it could be held to be a violation of any right derived or held under the Constitution of the United States. We might say that such regulations were unjust, tyrannical, unfit for the regulation of an intelligent State; but if rights of a citizen are thereby violated, they are of that fundamental class derived from his position as a citizen of the State, and not those limited rights belonging to him as a citizen of the United States, and such was the decision in Corfield agt. Coryell, supra.
The United States rights appertaining to this subject are those first under article 1, paragraph 2, of the United States Constitution, which provides that electors of Representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the State Legislature, and second, under the XV. Amendment, which provides that the right of a citizen 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. If the Legislature of the State of New York should require a higher qualification in a voter for a representative in Congress than is required for a voter for a member of Assembly, this would, I conceive, be a violation of a right belonging to one as a citizen of the United States. That right is in relation to a federal subject or interest, and is guaranteed by the Federal Constitution. The inability of a State to abridge the right of voting on account of race, color, or previous condition of servitude, arises from a federal guaranty. Its violation would be the denial of a federal right—that is, a right belonging to the claimant as a citizen of the United States.
This right, however, exists by virtue of the XV. Amendment. If the XV. Amendment had contained the word "sex," the argument of the defendant would have been potent. She would have said, an attempt by a State to deny the right to vote because one is of a particular sex, is expressly prohibited by that Amendment. The Amendment, however, does not contain that word. It is limited to race, color, or previous condition of servitude. The Legislature of the State of New York has seen fit to say, that the franchise of voting shall be limited to the male sex. In saying this there is, in my judgment, no violation of the letter or of the spirit of the XIV. or of the XV. Amendment.
This view is assumed in the second section of the XIV. Amendment, which enacts that if the right to vote for Federal officers is denied by any State to any of the male inhabitants of such State, except for crime, the basis of representation of such State shall be reduced in proportion specified. Not only does this section assume that the right of male inhabitants to vote was the especial object of its protection, but it assumes and admits the right of a State, notwithstanding the existence of that clause under which the defendant claims to the contrary, to deny to classes or portions of the male inhabitants the right to vote which is allowed to other male inhabitants. The regulation of the suffrage is thereby conceded to the States as a State's right.
The case of Myra Bradwell, decided at a recent term of the Supreme Court of the United States, sustains both the positions above put forth, viz: First, that the rights referred to in the XIV. Amendment are those belonging to a person as a citizen of the United States and not as a citizen of a State; and second, that a right of the character here involved is not one connected with citizenship of the United States. Mrs. Bradwell made application to be admitted to practice as an attorney and counselor-at-law in the Courts of Illinois. Her application was denied, and upon appeal to the Supreme Court of the United States, it was there held that to give jurisdiction under the XIV. Amendment, the claim must be of a right pertaining to citizenship of the United States, and that the claim made by her did not come within that class of cases. Mr. Justice Bradley and Mr. Justice Field held that a woman was not entitled to a license to practice law. It does not appear that the other Judges passed upon that question. The XIV. Amendment gives no right to a woman to vote, and the voting by Miss Anthony was in violation of the law.
If she believed she had a right to vote, and voted in reliance upon that belief, does that relieve her from the penalty? It is argued that the knowledge referred to in the act relates to her knowledge of the illegality of the act, and not to the act of voting; for it is said that she must know that she voted. Two principles apply here: First, ignorance of the law excuses no one; second, every person is presumed to understand and to intend the necessary effects of his own acts. Miss Anthony knew that she was a woman, and that the Constitution of this State prohibits her from voting. She intended to violate that provision—intended to test it, perhaps, but certainly intended to violate it. The necessary effect of her act was to violate it, and this she is presumed to have intended. There was no ignorance of any fact, but all the facts being known, she undertook to settle a principle in her own person. She takes the risk, and she can not escape the consequences. It is said, and authorities are cited to sustain the position, that there can be no crime unless there is a culpable intent; to render one criminally responsible a vicious will must be present. A. commits a trespass on the land of B., and B., thinking and believing that he has a right to shoot an intruder on his premises, kills A. on the spot. Does B.'s misapprehension of his rights justify his act? Would a Judge be justified in charging the jury that if satisfied that B. supposed he had a right to shoot A he was justified, and they should find a verdict of not guilty? No Judge would make such a charge. To constitute a crime, it is true that there must be a criminal intent, but it is equally true that knowledge of the facts of the case is always held to supply this intent. An intentional killing bears with it evidence of malice in law. Whoever, without justifiable cause, intentionally kills his neighbor, is guilty of a crime. The principle is the same in the case before us, and in all criminal cases. The precise question now before me has been several times decided, viz: That one illegally voting was bound and was assumed to know the law, and that a belief that he had a right to vote gave no defense, if there was no mistake of fact. (Hamilton against The People, 57th of Barbour, p. 625; State against Boyet, 10th of Iredell, p. 336; State against Hart, 6th Jones, 389; McGuire against State, 7 Humphrey, 54; 15th of Iowa reports, 404.) No system of criminal jurisprudence can be sustained upon any other principle. Assuming that Miss Anthony believed she had a right to vote, that fact constitutes no defense if in truth she had not the right. She voluntarily gave a vote which was illegal, and thus is subject to the penalty of the law.
To come to the seat of the Government to assert any claim he may have upon the Government, to transact any business he may have with it; to seek its protection; to share its offices; to engage in administering its functions. He has the right of free access to its seaports through which all operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.
The Judge directed the jury to find a verdict of guilty.
Judge Selden: I submit that on the view which your honor has taken, that the right to vote and the regulation of it is solely a State matter. That this whole law is out of the jurisdiction of the United States Courts and of Congress. The whole law upon that basis, as I understand it, is not within the constitutional power of the General Government, but is one which applies to the States. I suppose that it is for the jury to determine whether the defendant is guilty of a crime or not. And I therefore ask your honor to submit to the jury these propositions:
First.—If the defendant, at the time of voting, believed that she had a right to vote and voted in good faith in that belief, she is not guilty of the offense charged.
Second.—In determining the question whether she did or did not believe that she had a right to vote, the jury may take into consideration, as bearing upon that question, the advice which she received from the counsel to whom she applied.
Third.—That they may also take into consideration, as bearing upon the same question, the fact that the inspectors considered the question and came to the conclusion that she had a right to vote.
Fourth.—That the jury have a right to find a general verdict of guilty or not guilty as they shall believe that she has or has not committed the offense described in the statute.
A professional friend sitting by has made this suggestion which I take leave to avail myself of as bearing upon this question: "The Court has listened for many hours to an argument in order to decide whether the defendant has a right to vote. The arguments show the same question has engaged the best minds of the country as an open question. Can it be possible that the defendant is to be convicted for acting upon such advice as she could obtain while the question is an open and undecided one?"
The Court.—You have made a much better argument than that, sir.
Judge Selden.—As long as it is an open question, I submit that she has not been guilty of an offense. At all events, it is for the jury.
The Court.—I can not charge these propositions of course. The question, gentlemen of the jury, in the form it finally takes, is wholly a question or questions of law, and I have decided as a question of law, in the first place, that under the XIV. Amendment, which Miss Anthony claims protects her, she was not protected in a right to vote. And I have decided also that her belief and the advice which she took do not protect her in the act which she committed. If I am right in this, the result must be a verdict on your part of guilty, and I therefore direct that you find a verdict of guilty.
Judge Selden.—That is a direction no Court has power to make in a criminal case.
The Court.—Take the verdict, Mr. Clerk.
The Clerk.—Gentlemen of the jury, hearken to your verdict as the Court has recorded it. You say you find the defendant guilty of the offense whereof she stands indicted, and so say you all?
Judge Selden.—I don't know whether an exception is available, but I certainly must except to the refusal of the Court to submit those propositions, and especially to the direction of the Court that the jury should find a verdict of guilty. I claim that it is a power that is not given to any Court in a criminal case. Will the Clerk poll the jury? The Court.—No. Gentlemen of the jury, you are discharged.
On the next day a motion for a new trial was made and argued by Judge Selden, as follows:
May it please the Court:—The trial of this case commenced with a question of very great magnitude—whether by the Constitution of the United States the right of suffrage was secured to female equally with male citizens. It is likely to close with a question of much greater magnitude—whether the right of trial by jury is absolutely secured by the Federal Constitution to persons charged with crime before the Federal Courts.
I assume, without attempting to produce any authority on the subject, that this Court has power to grant to the defendant a new trial in case it should appear that in the haste and in the lack of opportunity for examination which necessarily attend a jury trial, any material error should have been committed prejudicial to the defendant, as otherwise no means whatever are provided by the law for the correction of such errors.
The defendant was indicted under the nineteenth section of the act of Congress of May 31, 1870, entitled, "An act to enforce the right of citizens of the United States to vote in the several States of this Union, and for other purposes," and was charged with having knowingly voted, without having a lawful right to vote, at the Congressional election in the Eighth Ward of the City of Rochester, in November last; the only ground of illegality being that the defendant was a woman.
The provisions of the act of Congress, so far as they bear upon the present case, are as follows:
Section 19. If at any election for representative or delegate in the Congress of the United States, any person shall knowingly personate and vote, or attempt to vote, in the name of any other person, whether living, dead, or fictitious, or vote more than once at the same election for any candidate for the same office, or vote at a place where he may not be lawfully entitled to vote, or vote without having a lawful right to vote, ... every such person shall be deemed guilty of a crime, and shall for such crime be liable to prosecution in any court of the United States, of competent jurisdiction, and on conviction thereof, shall be punished by a fine not exceeding $500 or by imprisonment for a term not exceeding three years, or both, in the discretion of the Court, and shall pay the costs of prosecution.
It appeared on the trial that before voting the defendant called upon a respectable lawyer, and asked his opinion whether she had a right to vote, and he advised her that she had such right, and the lawyer was examined as a witness in her behalf, and testified that he gave her such advice, and that he gave it in good faith, believing that she had such right.
It also appeared that when she offered to vote, the question whether as a woman she had a right to vote, was raised by the inspectors, and considered by them in her presence, and they decided that she had a right to vote, and received her vote accordingly.
It was also shown on the part of the Government, that on the examination of the defendant before the commissioner on whose warrant she was arrested, she stated that she should have voted, if allowed to vote, without reference to the advice she had received from the attorney whose opinion she had asked; that she was not influenced to vote by that opinion; that she had before determined to offer her vote, and had no doubt about her right to vote.
At the close of the testimony the defendant's counsel proceeded to address the jury, and stated that he desired to present for consideration three propositions, two of law and one of fact:
First.—That the defendant had a lawful right to vote.
Second.—That whether she had a lawful right to vote or not, if she honestly believed that she had that right and voted in good faith in that belief, she was guilty of no crime.
Third.—That when she gave her vote she gave it in good faith, believing that it was her right to do so.
That the first two propositions presented questions for the Court to decide, and the last for the jury.
When the counsel had proceeded thus far, the Court suggested that the counsel had better discuss in the first place the questions of law; which the counsel proceeded to do, and having discussed the two legal questions at length, asked leave then to say a few words to the jury on the question of fact. The Court then said to the counsel that he thought that had better be left until the views of the Court upon the legal question should be made known.
The District Attorney thereupon addressed the Court at length upon the legal questions, and at the close of his argument the Court delivered an opinion adverse to the positions of the defendant's counsel upon both of the legal questions presented, holding that the defendant was not entitled to vote; and that if she voted in good faith in the belief in fact that she had a right to vote, it would constitute no defense—the grounds of the decision on the last point being that she was bound to know that by law she was not a legal voter, and that even if she voted in good faith in the contrary belief, it constituted no defense to the crime with which she was charged. The decision of the court upon these questions was read from a written document.
At the close of the reading, the Court said that the decision of these questions disposed of the case and left no question of fact for the jury, and that he should therefore direct the jury to find a verdict of guilty, and proceeded to say to the jury that the decision of the Court had disposed of all there was in the case, and that he directed them to find a verdict of guilty, and he instructed the clerk to enter a verdict of guilty.
At this point, before any entry had been made by the clerk, the defendant's counsel asked the Court to submit the case to the jury, and to give to the jury the following several instructions: [Here Judge Selden repeated the instructions. See page 665.]
The Court declined to submit the case to the jury upon any question whatever, and directed them to render a verdict of guilty against the defendant. The defendant's counsel excepted to the decision of the Court upon the legal questions—to its refusal to submit the case to the jury; to its refusal to give the instructions asked; and to its direction to the jury to find a verdict of guilty against the defendant—the counsel insisting that it was a direction which no Court had a right to give in a criminal case.
The Court then instructed the clerk to take the verdict, and the clerk said, "Gentlemen of the jury, hearken to the verdict as the Court hath recorded it. You say you find the defendant guilty of the offense charged. So say you all." No response whatever was made by the jury, either by word or sign. They had not consulted together in their seats or otherwise. None of them had spoken a word. Nor had they been asked whether they had or had not agreed upon a verdict. The defendant's counsel then asked that the clerk be requested to poll the jury. The Court said, "That can not be allowed. Gentlemen of the jury, you are discharged," and the jurors left the box. No juror spoke a word during the trial, from the time they were impaneled to the time of their discharge.
Now I respectfully submit, that in these proceedings the defendant has been substantially denied her constitutional right of trial by jury. The jurors composing the panel have been merely silent spectators of the conviction of the defendant by the Court. They have had no more share in her trial and conviction than any other twelve members of the jury summoned to attend this Court, or any twelve spectators who have sat by during the trial. If such course is allowable in this case, it must be equally allowable in all criminal cases, whether the charge be for treason, murder, or any minor grade of offense which can come under the jurisdiction of a United States Court; and as I understand it, if correct, substantially abolishes the right of trial by jury.
It certainly does so in all those cases where the judge shall be of the opinion that the facts which he may regard as clearly proved, lead necessarily to the guilt of the defendant. Of course by refusing to submit any question to the jury, the judge refuses to allow counsel to address the jury in the defendant's behalf. The constitutional provisions which I insist are violated by this proceeding are the following:
Constitution of the United States, article 3, section 2. The trial of all crimes, except in cases of impeachment, shall be by jury.
Amendments to Constitution, article 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
In accordance with these provisions, I insist that in every criminal case, where the party has pleaded not guilty, whether upon the trial the guilt of such party appears to the judge to be clear or not, the response to the question, guilty or not guilty, must come from the jury, must be their voluntary act, and can not be imposed upon them by the Court.
No opportunity has been given me to consult precedents on this subject, but a friend has referred me to an authority strongly supporting my position, from which I will quote, though I deem a reference to precedents unnecessary to sustain the plain declarations of the Constitution: I refer to the case of the State vs. Shule (10 Iredell, 153), the substance of which is stated in 2 Graham & Waterman on New Trials, page 363. Before stating that case I quote from the text of G. & W.
The verdict is to be the result of the deliberation of the jury upon all the evidence in the case. The Court has no right to anticipate the verdict by an expression of opinion calculated so to influence the jury as to take from them their independence of action.
In the State vs. Shule two defendants were indicted for an affray. The jury remaining out a considerable time, at the request of the prosecuting attorney they were sent for by the Court. The Court then charged them that although Jones (the other defendant) had first commenced a battery on Shule, yet, if the jury believed the evidence, the defendant, Shule, was also guilty. Thereupon, one of the jurors remarked that they had agreed to convict Jones, but were about to acquit Shule. The Court then charged the jury again, and told them that they could retire if they thought proper to do so. The jury consulted together a few minutes in the court room. The prosecuting attorney directed the clerk to enter a verdict of guilty as to both defendants. When the clerk had entered the verdict, the jury were asked to attend to it, as it was about to be read by the clerk. The clerk then read the verdict in the hearing of the jury. The jury, upon being requested, if any of them disagreed to the verdict to make it known by a nod, seemed to express their unanimous assent; and no juror expressed his dissent.
In reviewing the case the Court say:
The error complained of is, that before the jury had announced their verdict, and in fact after they had intimated an intention to acquit the defendant, Shule, the Court allowed the clerk to be directed to enter a verdict finding him guilty, and after the verdict was so entered, allowing the jury to be asked if any of them disagreed to the verdict which had been recorded by the clerk. No juror expressed his dissent; but by a nod which appeared to be made by each juror, expressed their unanimous assent. The innovation is, that instead of permitting the jury to give their verdict, the Court allows a verdict to be entered for them, such as it is to be presumed the Court thinks they ought to render, and then they are asked if any of them disagree to it; thus making a verdict for them, unless they are bold enough to stand out against a plain intimation of the opinion of the Court.
A venire de novo was ordered. The principal difference between this case and the one under consideration is, that in the latter the Court directed the clerk to enter the verdict, and in the former he was allowed to do so, and in the latter the Court denied liberty to the jurors to dissent from the verdict, and in the former the Court allowed such dissent.
With what jealous care the right of trial by jury in criminal cases has been guarded by every English-speaking people from the days of King John, indeed from the days of King Alfred, is known to every lawyer and to every intelligent layman, and it does not seem to me that such a limitation of that right as is presented by the proceedings in this case, can be reconciled either with constitutional provisions, with the practice of courts, with public sentiment on the subject, or with safety in the administration of justice. How the question would be regarded by the highest Court of this State may fairly be gathered from its decision in the case of Cancemi, 18 N. Y., 128, where, on a trial for murder, one juror, some time after the trial commenced, being necessarily withdrawn, a stipulation was entered into, signed by the District Attorney, and by the defendant and his council, to the effect that the trial should proceed before the remaining eleven jurors, and that their verdict should have the same effect as the verdict of a full panel would have. A verdict of guilty having been rendered by the eleven jurors, was set aside and a new trial ordered by the Court of Appeals, on the ground that the defendant could not, even by his own consent, be lawfully tried by a less number of jurors than twelve. It would seem to follow that he could not waive the entire panel, and effectually consent to be tried by the Court alone, and still less could the Court, against his protest, assume the duties of the jury, and effectually pronounce the verdict of guilty or not guilty in their stead.
It will doubtless be insisted that there was no disputed question of fact upon which the jury were required to pass. In regard to that, I insist that however clear and conclusive the proof of the facts might appear to be, the response to the question, guilty or not guilty, must under the Constitution come from the jury and could not be supplied by the judgment of the court, unless, indeed, the jury should see fit to render a special verdict, which they always may, but can never be required to do. 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 offense; 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 offense, 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 offense, 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, the very gist of the offense 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 can not be reconciled with the fundamental principles of criminal law, nor with the most ordinary rules of justice. Such a ruling can not 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 defense 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 understood the decision of the Court,
That the rights of the citizens of the State as such were not under consideration in the XIV. 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 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.
Second—Because she has been denied the right to ask the jury severally whether they assented to the verdict which the Court had recorded for them.
Third—Because the Court erroneously held, that the defendant had not a lawful right to vote.
Fourth—Because the Court erroneously held, that if the defendant, when she voted, did so in good faith, believing that she had a right to vote, that fact constituted no defense.
Fifth—Because the Court erroneously held that the question, whether the defendant at the time of voting knew that she had not a right to vote, was a question of law to be decided by the Court, and not a question of fact to be decided by the jury.
Sixth—Because the Court erred in holding that it was a presumption of law that the defendant knew that she was not a legal voter, although in fact she had not that knowledge.
Seventh—Because Congress had no Constitutional right to pass the act under which the defendant was indicted, and the act and all proceedings under it are void.
Sir, so far as my information in regard to legal proceedings extends, this is the only court in any country where trial by jury exists, in which the decisions that are made in the haste and sometimes confusion of such trials, are not subject to review before any other tribunal. I believe that to the decisions of this court, in criminal cases, no review is allowed, except in the same court in the informal way in which I now ask your honor to review the decisions made on this trial. This is therefore the court of last resort, and I hope your honor will give to these, as they appear to me, grave questions, such careful and deliberate consideration as is due to them from such final tribunal.
If a new trial shall be denied to the defendant, it will be no consolation to her to be dismissed with a slight penalty, leaving the stigma resting upon her name, of conviction for an offense of which she claims to be, and I believe is, an innocent as the purest of the millions of male voters who voted at the same election, are innocent of crime in so voting. If she is in fact guilty of the crime with which she stands charged, and of which she has been convicted by the court, she deserves the utmost penalty which the court under the law has power to impose; if she is not guilty she should be acquitted, and not declared upon the records of this high court guilty of a crime she never committed.