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the amended state constitution, and because the constitution of the United States grants no power to the general government in any way to regulate the right of suffrage. And the same doctrine was held in Maryland, in Anderson v. Baker, 21 Md. 531 (ante 27).


In the Quarter Sessions of Chester County, Pennsylvania.




A certificate of naturalization establishes a primâ facie right to vote; the election officers cannot go behind it.

The court of nisi prius, in Philadelphia, being a court of record of common law jurisdiction, and having a seal and a prothonotary, has power, under the acts of congress, to naturalize aliens.

An election officer is not criminally liable for a mere mistake of judgment, but only for a wilful disregard of duty; when indicted for rejecting a vote, the presumptions are in his favor.

Indictment for knowingly rejecting the vote of a qualified elector, as judge of the election. The facts are fully stated in the charge of the court.

Hemphill and Monaghan, for the prosecution.

Me Veagh and Smith, for the defendant.

BUTLER, P. J., delivered the following charge to the jury. By the 103d section of the act of 2d July 1839, it is provided, that "if any inspector or judge of an election shall knowingly reject the vote of any qualified citizen, or knowingly receive the vote of any person not qualified, or conceal from his fellow-officers any fact in the knowledge


of which such vote should by law be received or rejected, each of the persons so offending shall, on conviction, be punished in the manner prescribed in the 107th section of this act." At the election in October last, Edwin Pavitt presented himself at the polls, in Tredyffrin township in this county, and offered to vote; the inspectors disagreeing in regard to his right, the subject was referred to the defendant, as judge of the election, and on his decision, the vote was rejected; for so deciding, and rejecting the vote, the defendant is indicted.

The case presents two questions: 1. Was Edwin Pavitt a "qualified citizen?" and if he was, then-2. Did the defendant "knowingly reject" his vote, that is to say, knowingly reject the vote of a "qualified citizen."

1. As evidence of his qualification, Mr. Pavitt presented a certificate of naturalization, issued out of the court of nisi prius, in Philadelphia; this certificate is before us, accompanied by the record of the court. On behalf of the defendant, it is urged, that the court of nisi prius is without authority to naturalize aliens, and that its judgments, in this respect, are void. The act of congress of 14th April 1802, § 3, provides that "every court of record in any individual state, having common law jurisdiction, and a seal and clerk or prothonotary, shall be considered a district court within the meaning of this act; and any alien who may have been naturalized in any such court, shall enjoy, from and after the passage of this act, the same rights and privileges as if he had been naturalized in a district or circuit court of the United States." The nisi prius is a "court of record," has "common law jurisdiction," and in our judgment, a "seal and clerk or prothonotary." It is true, that the seal and prothonotary are the same as those of the supreme court; but inasmuch as the court may adopt any device it sees fit for its seal, and may select its own prothonotary, we do not regard this as important. Almost from time immemorial, the court of nisi prius has exercised "common law jurisdiction," and


its "records," attested and authenticated by a seal and prothonotary, precisely as the certificate before us, have everywhere been respected and received as of binding force; and at all times has this court exercised jurisdiction in cases of naturalization; every one of the long list of eminent judges who have occupied seats in the supreme court of the state, has, in his turn, when sitting in the nisi prius, exercised such jurisdiction, and without question from any quarter of their authority to do so, until just prior to the recent election. We must, therefore, with our present impressions, charge that the certificate and record before us show Mr. Pavitt to have been a "qualified citizen," at the time he offered to vote. The question, as presented here, is entirely for the court; and inasmuch as the opportunity for its examination has necessarily been very slight, we will give to the defendant the benefit of a more deliberate and thorough consideration of it hereafter, if it shall become important to do so.

2. Having disposed of the first question, we now pass to the second: did the defendant "knowingly reject the vote" of this "qualified citizen?" What is meant by the language "knowingly reject the vote of any qualified citizen?" Not, of course, that he knowingly reject the vote, but that he do so, knowing it to be the vote of a "qualified citizen;" in other words, rejecting a vote that he knows to be qualified. The officer is not made responsible for a mistake of judgment; if he reject the vote of one whom he believes not qualified, he is not liable to the penalties of the statute, although the individual may have been qualified and entitled to vote. It is for a wilful disregard of his duty, that he is made liable to punishment, and not for error of judgment; the statute did not, in this respect, create a new offence; the rule of the common law was the same; a public officer, required to exercise judgment, must do so conscientiously; nothing more is required; to punish for an honest mistake, would be



If the law were otherwise, no sensible man would

be found willing to occupy such an office.

Then, did the defendant, when he rejected Pavitt's vote, know him to be a qualified citizen? If he did, he is guilty of the offence with which he is charged; if he did not, he is not guilty; and this inquiry, whether the defendant knew Pavitt to be a qualified citizen, when he rejected his vote, is entirely for the jury. In starting out upon it, you must bear in mind, however, that the presumptions are in the defendant's favor; in the first instance, the law presumes a public officer to have honestly performed his duty; when called upon to exercise discretion, judgment, he is regarded as having exercised it honestly; and those who allege the contrary (that he disregarded his duty, did not judge honestly, but acted corruptly), must show it. You thus perceive that, in the case before us, the burden is upon the commonwealth to show that the defendant, in rejecting the vote, was not governed by an honest judgment, did not act conscientiously, but wilfully, intentionally disregarded his duty. It is not necessary, however, that this shall be shown by direct or positive proof; it may be inferred from circumstances, if there be any out of which such an inference naturally arises.

Then, starting with the presumption in the defendant's favor, does the evidence show, that he knew, when he rejected Pavitt's vote, that he was a qualified citizen; in other words, that he decided corruptly and not conscientiously? In passing upon this, it is necessary to look at the character of the question the defendant was called upon to decide, and the manner in which he conducted himself in hearing and disposing of it. It was not, whether a native of the district, accustomed to vote therein, should be permitted to vote on this occasion, about which men of ordinary intelligence would be likely to agree; but whether a foreigner, presenting a certificate from the court of nisi prius, and especially, a certificate


of the date which Pavitt's bore, was a qualified citizen within the meaning of the act of assembly. Had this been a plain question, about which there was no diversity of opinion in the public mind, and about which a man of ordinary intelligence could not well get astray, the mere circumstance that the defendant's decision was wrong, might give rise to an inference against the honesty of his act. The question, however, was not a plain one; there was a difference of opinion among intelligent men, in regard to it, and the evidence shows that judges of the supreme court expressed conflicting judgments about it; such was the question to be decided. Now, how did the defendant act or conduct himself in relation to it? like one who desired to discharge his duty, or one who had made up his mind to disregard it? When the vote was challenged and referred to him, the evidence shows, that he listened to argument on both sides; heard the opinion of counsel, that had been obtained by one of the inspectors; examined the paper promulgated as the "Opinion of Judge Read;" postponed the decision until a later hour in the day, with a view, as he expressed it, to obtaining further advice of counsel; and subsequently decided, after a rehearing, and upon a demand of Mr. Pavitt or his friends, that the question should then be determined without further delay.

It is shown, however, that at an earlier hour in the day, a vote was offered under somewhat similar circumstances, and upon objection being made, and the question referred to the defendant, it was decided differently, and the vote received; in this instance, it appears, that Mr. Evans, a well-known citizen in the neighborhood, assured the defendant, that he had been present in the court-house, and had seen the individual naturalized. This should have made no difference; the certificate, until its genuineness was disproved, was sufficient evidence that Pavitt was in court, and his case duly passed upon; the officers could not go behind it, and demand additional proof. Still it is for

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