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(Election of judges.)
educated pretender, who knows just enough law to try a quarter sessions case, in a decent manner, and who has little enough self-respect to play the demagogue, and court the suffrages of the dear people, who is chosen to administer our laws in the courts of justice.
We do not expect superhuman acts of heroic virtue from frail men, but so unmitigated have become the evils of the present system, that men of sense have ceased to expect honesty or impartiality in our judges in the decision of political questions. Indeed, so far has this spirit of partisanship been carried upon the bench, that we have seen grave constitutional questions, involving the most sacred rights of the people, after having been solemnly decided by courts of last resort, deliberately overruled on a change in the political complexion of the court, resulting from a popular election. The system has degraded the judiciary, rendered them the slaves of party, and lost for them that respect which was, in happier times, cheerfully accorded by the people.
The decision in Commonwealth v. Conyngham, clearly renders unconstitutional the holding of the mayor's court of Carbondale; Purd. Dig. 703; and its effect upon the recorder of the city of Philadelphia, is a subject of grave consideration; though not now a judge of a court of record, he is still a judge, with power to issue the writ of habeas corpus; and above all, he is a justice of the peace, ex officio, and the constitution is as explicit in regard to the election of justices of the peace, as it is with respect to the election of judges; its evident purpose was, that no man should pass upon the rights of his fellow-citizens, either civilly or criminally, who did not derive his authority from the votes of the people of his district. It is to be hoped that the attorney-general will test the right of this officer, as he has done that of Judge Conyngham. See Rhoads v. Commonwealth, 15 Penn. St. R. 277; Schumann v. Schumann, 6 Phila. 318; Gibbons . Sheppard, 65 Penn. St. R. 32. These cases do not settle the question, as it is evident that the validity of the recorder's commission could not be brought into question collaterally.
The point decided in Commonwealth v. Conyngham, has been before the supreme court of California on several occasions; in People v. Hastings, 29 Cal. 449, it was decided that, under a constitutional provision, that assessors and collectors of town, county and state taxes should be elected by the qualified electors of the district, county or town in which the property taxed for state, county or town purposes is situated, a tax was invalid which had been assessed by an officer
(Election of judges.)
elected for a district embracing a more extended area of territory than that in which the property in question was located. In People v. Kelsey, 34 Cal. 470, the same court determined, that it was not competent for the legislature to transfer the powers of an office which the constitution requires to be filled by election, to the incumbent of another office. And in Christy v. Supervisors of Sacramento County, 39 Cal. 3, that when the constitution declares an office to be elective, it cannot be filled in any other manner. But in this last case it was determined, that where an office has been filled by election, it is competent for the legislature, to extend the term of the incumbent, provided the whole term, when extended, do not exceed the time limited by the constitution.
A similar question arose in Connecticut, in the case of Brown . O'Connell, 36 Conn. 432. The constitution of that state provides that judges "shall be appointed by the general assembly, in such manner as shall, by law, be prescribed;" the legislature erected a police court for the city of Hartford, and provided for the appointment of a judge of that court by the common council of the city; but it was held by the supreme court of errors, that such appointment was void, that the power of appointment was in the general assembly, required for its exercise the direct action of that body, and that its functions could not be delegated to the common council. And the doctrine is fully recognised in New York, in People v. Raymond, 37 N. Y. 428; People v. Acton, 48 Barb. 524; and People v. Blake, 49 Barb. 9.
COMMONWEALTH V. AGLAR.
In the Municipal Court of the City of Boston.
JANUARY TERM 1835.
(REPORTED THACHER'S CRIMINAL CASES 412.)
[Criminal prosecutions for illegal voting.]
A defendant is not liable, criminally, for illegal voting, unless he knew, at the time, that he was not a qualified voter, and that he was doing or attempting to do an illegal act; if he honestly believed that he had a right to vote, it is not a wilful act, punishable by indictment.
To constitute a wilful aider and abettor of such offence, the party must have known, at the time, that the principal was not a qualified voter; and with such knowledge, must have said or done something designed and calculated to encourage him to vote.
The inspectors may refuse the vote of a disqualified person, though his name be on the registry list.
This was an indictment charging Francis Aglar with having illegally attempted to vote at an election in the city of Boston, on the second Monday of November 1834, and Ralph Huntingdon with having aided and abetted him in so doing. The defence of Aglar rested on the ground, that he acted innocently, and under a mistake of right; that of Huntingdon, that he assisted Aglar, and encouraged him to vote, finding his name on the list of qualified voters, and supposing that to be conclusive evidence of his right.
Parker, for the commonwealth.
Hallett, James and Park, for the defendants.
THACHER, J., delivered the following charge to the jury. The defendants are on trial for several violations of the law of 1813, ch. 68, which was intended effectually to secure to the people of this commonwealth the right of
(Criminal prosecutions for illegal voting.)
suffrage. The accusation against Francis Aglar is, that he, knowingly, designedly, wilfully and fraudulently attempted to vote, and give in a ballot of persons voted for, at the election of a representative to the congress of the United States from the first district, and for governor, lieutenant-governor, counsellors and senators, and for representatives to the general court of this commonwealth, on the second Monday of November 1834, in the city of Boston, said Aglar being an alien born, and not having been naturalized, and so not having a right to vote at that election, and well knowing himself not to be legally qualified to vote at said meeting. The charge as to Ralph Huntingdon is contained in the same indictment, and accuses him of the offence of wilfully aiding and abetting the said Francis Aglar in attempting so to vote illegally as aforesaid. As the case relates to the freedom and purity of elections, the court has deemed it important, and has not felt disposed to restrain the counsel in the examination of witnesses, or in their arguments.
The indictment is founded on the third section of the act of 1813, ch. 68, which is in these words: "If any person, knowing himself not to be legally qualified to vote, at any meeting for the choice of governor, lieutenantgovernor, senators and counsellors, representatives to the general court, or representatives to congress, shall wilfully give in, or attempt to give in, a vote or ballot for any of the same, then voted for at any such meeting, every person so offending shall forfeit and pay a fine therefor, not exceeding the sum of fifty dollars; and any person who shall wilfully aid or abet any person, not legally qualified as aforesaid, in voting or attempting to vote, contrary to the provisions of this act, shall forfeit and pay a fine, not exceeding thirty dollars, for each and every such offence."
Upon you rests the responsibility of the verdict; and that you may correctly perform your duty, you should understand the nature of the offence. The party voting
(Criminal prosecutions for illegal voting.)
or attempting to vote, must know, at the time, that he is not a qualified voter, and that he is doing or attempting to do an unlawful act; if he voluntarily give in a vote, with this knowledge, at the time, his offence is consummated; it is done wilfully, and he incurs the penalty.* To constitute a wilful aider and abettor in such an act, he too must know, at the time, that the person was an unqualified voter, and had no right to vote; and with such full knowledge, he must have done or said something which, in the opinion of the jury, was designed and calculated to encourage the party to vote or to attempt to vote. If the person charged as an abettor should honestly, though erroneously, believe, at the time, that the party voting or attempting to vote, had a right to do so, he will not be within the statute; for the offence, both of the principal and the abettor, is made, by the statute, to consist in having the guilty knowledge of the lack of legal qualifications, and the wilful intent to do the unlawful act; therefore it is, that knowledge is not to be presumed in such case, but is to be alleged and proved like any other fact. To make a person guilty of harboring a traitor or a felon, he must have, at the time, a full knowledge that the treason or felony has been committed; without this knowledge, no guilt can possibly be imputed to an individual who shall extend to the traitor or felon the common offices of humanity.
I consider that a free people ought to be jealous of their rights; it is the only way to preserve them.† Foreigners,
"By wilful," says Wilson, J., 1 East 563, n., "I understand, contrary to a man's conviction."
†The American people appear to have lost much of that sturdy spirit of freedom that animated their ancestors, at the period of the Revolution; they were then, in the main, a nation of unmixed blood, and imbued with all that jealousy of any encroachment on their rights, that ever pervaded the ranks of their Anglo-Saxon forefathers; now they appear to be almost a different race of people, and the true idea of political freedom is fast disappearing from among them; but unless this be revived, the inevitable result must be anarchy or despotism. Even their dread of a bastard public opinion, and the readiness with which they submit to encroach