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you to judge whether the defendant mistakenly supposed they could, and thus distinguished this case from Pavitt's; and in this connection, you will remember the statement of Pavitt, made here, that he also produced to the defendant, an individual (not known to the defendant, however) who offered to be qualified that he was present in court and saw Pavitt naturalized; and you will then judge whether there was any distinction between Pavitt's case and the others; and what weight the circumstance here referred to, should have, if there was not. It does not appear how the individual referred to, voted, nor how Mr. Pavitt designed to vote; but there is some evidence that those who took an interest in having Pavitt vote, had aided the other also; you will judge whether the decision in the one case, was in favor of the political party with which the defendant is identified, and the other against it; if it was, the fact referred to is important; otherwise, it may not be.
We have now called your attention to the principles of law, and the substance of the evidence, upon which this case should be decided; you will take it, consider it impartially, and seek to do justice between the commonwealth and the defendant; remembering that if the defendant is guilty, has prostituted the public trust reposed in him to partisan or other corrupt purposes, the public is deeply interested in his conviction; while, if he is innocent, or the evidence fails to show his guilt, the public is equally interested in his acquittal.
Verdict for defendant.
The facts which led to Lee's prosecution for knowingly rejecting the vote of a qualified citizen, at the general election of 1868, present a curious episode in the political history of Pennsylvania. In that year, Mr. Justice Sharswood, one of the ablest jurists and purest men that ever adorned the bench of the supreme court, was assigned to hold the court of nisi prius, during the months of September and October; it was the year of the presidential election, when the number of applications for
naturalization is always much greater than at other periods; during the civil war, naturalization had almost ceased, in consequence of the liability to military conscription thereby incurred; and as might have been expected, under all the circumstances, the number of naturalizations was unusually large. As Col. James Ross Snowden, the prothonotary of the supreme court, was the only officer of a similar grade in Philadelphia who was attached to the democratic party, it was to be expected that a majority of these applications would be made to the court of which he was the officer; and such was the fact. The petitions were acted upon by Judge Sharswood, in the manner that had prevailed in all the courts of Philadelphia for a period of upwards of thirty years, with a modification that had been introduced into the court of nisi prius, and had received the sanction of all the judges of the supreme court, which was, to refer the examination of the regularity of the papers to the prothonotary, who was a lawyer of mature age and experience, appointed by the court itself, and possessing its entire confidence, with directions, however, that if any doubt or question arose in his mind, in any case, to report it for the opinion of the judge.
There was no evidence of any fraud having been practised in the issuing of certificates of naturalization, though a most searching investigation was made before Mr. Justice Sharswood, in the case of Commonwealth v. Snowden, 1 Brewst. 218. But it was shown that twelve forged certificates, purporting to have issued from the court of nisi prius, were found, as was alleged, upon the person of one John Devine, a prisoner in one of the police stations, who had been arrested for drunkenness and disorderly behavior, and whilst at the door of the station-house had been struck on the head with some blunt instrument and stunned, and who remained in an insensible condition until the following morning, when the forged certificates were said to have been found upon his person. The learned judge, after a full and searching examination, Devine himself being examined as a witness, and no person having been called or produced to contradict or explain his statements, came to the conclusion, that Devine neither stole the blanks nor forged the names, and that they were not given to him for election purposes. No man, said the learned judge, who would commit the crime of purloining or forging them, would select such an agent to consummate it. I have come to the conclusion, added he, after full consideration and weighing all the circumstances, that John Devine, on the night or early
morning of his arrest, fell among his enemies, personal or political, and that he had not possession of these papers knowingly, and for a fraudu
Under these circumstances, Mr. Justice Read, on the eve of the election, issued a pronunciamento, in the shape of an extra-judicial opinion, which he said was concurred in by Mr. Justice Agnew, and by Judge Williams (who had been appointed by the governor to fill a vacancy on the bench, but had not at that time signified his acceptance of the appointment), in which he declared, that the practice of naturalization pursued in the nisi prius, however old, or by whatever judges sanctioned, was contrary to the plain words of the acts of congress, and was therefore illegal. The consequence of this extraordinary proceeding on the part of a high judicial functionary, was, that the republican election officers were furnished with a convenient pretext for rejecting all certificates of naturalization issued from the court of nisi prius, some thousands of qualified electors were disfranchised, and the election was carried by the republican party.
Mr. Justice Read took his seat in the court of nisi prius on the 2d November 1868, and immediately made an order that no more aliens should be naturalized in that court; and that no indorsement of any kind, nor any certificate whatever, should be made by the prothonotary, or any person in his office, upon or in relation to any certificates of naturalization issued between the 13th of September and the 13th of October 1868. The validity of these orders came up before the Chief Justice, in April 1869, when it was decided, that they were extra-judicial in their character, neither resting on proceedings by parties, nor sustained by process or pleadings; that they stood as obstructions in the way of the exercise of a settled jurisdiction, and must be set aside and annulled. Ex parte Barron, 1 Brewst. 383.
That it is not in the power of the election officers to go behind a regular certificate of naturalization, was also decided by the court of quarter sessions of Philadelphia, in Commonwealth v. Sheriff, 1 Brewst. 183. And in Commonwealth v. Leary, Ibid. 270, it was held, in the court of quarter sessions of Delaware county, that a certificate of naturalization, in due form and properly attested, is sufficient evidence, in the first place, that the individual named in it was duly examined and sworn in open court, in the presence of some of the judges, and that the certificate was regularly and lawfully issued; that it could not be collaterally attacked, and that those who asserted that it was not issued
according to law, must prove their allegation. The seal of the court is conclusive, unless the certificate has been obtained by fraud. Commonwealth v. Paper, 1 Brewst. 263. And see Gibbons v. Sheppard, 2 Ibid. 130; and The Acorn, 2 Abbott U. S. Rep. 434; in the latter case, Longyear, J., said, "If every naturalized citizen must always be prepared with his proofs to maintain the grounds upon which he obtained his papers, in all courts and places in which they may be brought in question, the boon of citizenship, which is so liberally bestowed, would be barely worth possessing." And see the authorities cited by the learned judge in that
If a party claim to be a qualified elector by reason of his parent's naturalization, he must produce to the election officers his father's certificate of naturalization; he is incompetent to prove it by his own oath. Price v. Barber, 13 Leg. Int. 140. That when a person who is alien born has voted at an election, his vote is presumed to be a legal one, until at least prima facie evidence be given of the want of naturalization, was decided in People v. Pease, 30 Barb. 588; s. c. 27 N. Y. 45. And this, on the principle that no man is presumed to have committed a crime, until some affirmative evidence be given to raise the presumption.
The jurisdiction of the court of nisi prius to naturalize aliens was sustained by Chief Justice Thompson in a learned argument, citing numerous precedents from the 17th June 1799, when Henry Leiper was naturalized before Chief Justice McKean, until the present day; during a period of upwards of seventy years, he shows that at least 24,000 persons had been naturalized in that court, without a question of the right, even in the most exciting periods; and he adds, "if these thousands of precedents, running through a period of seventy years, do not sufficiently test and prove the accuracy of the exercise of the jurisdiction in this court, under the acts of congress, seventy times seventy years of equally uniform practice would have no more conclusive effect on those, whose wishes, not judgment, may seek to arrive at a different conclusion." Ex parte Barron, 1 Brewst. 383.
A naturalized citizen, lawfully assessed, paying the tax, and in other respects qualified, is entitled to vote, though naturalized within ten days of the election; aliens are taxable, and obliged to contribute to the support of the government that protects them; it is lawful, therefore, to receive the tax so assessed upon them, as soon as it is lawfully assessed; and as soon as they are naturalized they are entitled to all the rights of citizenship, including that of suffrage. Anon., 1 Brewst. 158.
WILLIAMS v. WHITING.
In the Supreme Judicial Court of Massachusetts.
OCTOBER TERM 1814.
(REPORTED 11 MASSACHUSETTS 424.)
To entitle an elector to vote for a representative in congress, he must have resided, for one whole year previous to the election, in the town where he offers to vote.
This was an action on the case against the selectmen of the town of Dedham, for refusing to receive the plaintiff's vote for a representative in congress, at an election held for that purpose, on the 2d of November 1812. The declaration contained two counts; in the first, the plaintiff alleged his residence in Dedham for one year preceding the election, an undue rejection of his vote by the defendants, and their refusal to put his name on the list of qualified voters; the second contained the same gravamen, with an averment that the plaintiff was a qualified voter within the said district.
The case was submitted upon an agreed statement of facts, from which it appeared that the defendants, at an election for a representative in congress for the district of Norfolk, held on the 2d November 1812, at which they presided, were requested by the plaintiff to place his name on the list of qualified voters of the said town of Dedham, and also to receive his vote for such representative, and that he offered the defendants his vote at said election; but the defendants refused to place his name on the list, or to receive his vote, or to permit him to vote thereat. That the plaintiff was a native-born citizen, of the age of twenty-one years and upwards, and possessed of property of greater value than $200. That on the 28th October