(Competency of witnesses.) off his ballot by an elector, whenever circumstances exist which, in his judgment, require it to be done; and surely, none more urgent can exist, than when the elector wishes to make such a disclosure of his vote, in order to vindicate it from gross errors or fraudulent practices, which have, in effect, deprived him of it. The only precedents found in the history of the state, show this ever to have been the opinion of Pennsylvania statesmen, legislators and judges. In the case of the contested election of Frederick Wolbert, as sheriff of this county, which occurred in 1807, the testimony was taken by commissioners, among whom was Mr. Reed, the late recorder of this city, and Judge Hallowell, my immediate predecessor as president of this court; some of the witnesses appear to have voluntarily testified for whom they voted for sheriff; but all seem to have been told by the commissioners, that they might answer such a question or not, at their pleasure. The report of these commissioners was submitted to and acted upon by Governor McKean, who had been long chief justice of the state, and was a member of the convention which framed the constitution of 1790, where the existing provision respecting the vote by ballot is to be found. If the statesmen and lawyers of that day had entertained any such idea as that now urged on us, it scarcely would have failed to strike a mind of the keen perceptions possessed by that eminent man.* In the case of the contested election of Thomas S. Bell, senator from Chester and Montgomery counties, which occurred in 1838, the question was suffered to be put to the various witnesses, as to how they voted for senator; the witnesses declined answering, and of course, were not coerced; the senate committee, composed of gentlemen of both political parties, men of distinguished character and great public experience, unanimously reported that it was * Every day's experience shows the utter worthlessness of such sub silentio decisions, as those cited. (Competency of witnesses.) a constitutional privilege of the voter to decline replying to a question as to how he voted, and that he could not be compelled to disclose it, though he might waive the privilege at his own discretion.* And this reasoning is certainly in harmony with the received opinion of the state, before or since. Although the vote by ballot prevails in most states of the union, the industry of counsel has not been able to produce a single authority, legislative or judicial, denying the principles stated in the report of the senate committee in the case of Mr. Bell; the same result has followed all the investigations I have since been able to make. The points adjudged in the two cases, cited from the New York and Michigan reports, do not seem to me, directly to touch the precise question presented by the objection taken to these witnesses, which is, whether a voter can, under any circumstances, prove, of his own free will, how he voted by ballot at a public election. The case of People v. Ferguson, 8 Cow. 102, involved the question whether a citizen could be heard to prove that, in depositing a ballot for H. F. Yates, he meant to vote for Henry F. Yates, one of the candidates at the election. This, the supreme court of New York adjudged him competent to do, considering the oath of the elector higher evidence of what he intended to do, than the opinion of any other person judging merely from the face of the ballot. Of course, the court must have considered him competent to prove how he voted by ballot, otherwise he could not have explained what his ballot meant. The direct question before us seems to have been taken for granted.t * The latter point was not in any shape before the committee, as the witnesses had declined to answer. It is now held, in New York, that a voter may testify for whom he voted; and he may also be asked for whom he intended to vote, as a circum stance tending to prove for whom he did actually vote. People v. Pease, 27 N. Y. 45, 72. His mental purpose, however, in depositing his ballot, is. (Competency of witnesses.) The Michigan case, People v. Tisdale, 1 Doug. 59, arose under similar circumstances, the court ruling directly opposite to the previous decision in New York. The ground, however, on which the decision rests is, that the intention of the voter in giving his ballot is to be collected from the face of the ballot itself, and cannot be proved by parol. It is simply the application of the ordinary rule of the law of evidence, that the intention of a written instrument cannot be explained by parol, but that the instrument must speak for itself.* The point before us is of quite a different character; it is not, whether an elector can be permitted to prove how he intended to vote by a particular ballot, deposited by him, but what ballot he actually deposited; the testimony is offered, not to prove an intention, but to establish a fact. It is not pretended, that there is any direct constitutional injunction, legal provision, or judicial decision of Pennsylvania, which excludes the testimony of electors offered under the circumstances of this case. The propriety of excluding them is supposed to flow from public policy; because of the danger of perjury; and because permission being given an elector to prove his ballot, might be used as a means of extracting from him how he voted, and thus affect the principle of the secret ballot. I do not deny, that obvious considerations of public policy might justify a construction of a law or a constitution to an extent not necessarily required by the letter of either; but such considerations must be manifest and convincing; this, I suppose, will be admitted. I will first test the reasons urged in favor of the proposed construction of the constitution by this rule; I will then examine whether there not admissible, as an independent fact; his intention is to be inferred from his acts. People v. Saxton, 22 N.Y. 309. The point stated in the text was re-affirmed in People v. Cook, 8 N. Y. 67. * This point was re-affirmed, in Michigan, in People v. Higgins, 3 Mich. 233, and People v. Cicott, 16 Mich. 283. And see State v. The Judge, 13 Ala. 805. (Competency of witnesses.) are not political considerations of infinitely greater force, which demand an exactly opposite construction of the clause. If either or both tests show the position of the respondent to be unsound, it must necessarily be rejected. The apprehension of perjury, if a legitimate objection, in itself, to a witness, might exclude every witness, in every cause, inasmuch as there is none in which a witness, if he be sufficiently profligate, may not swear falsely; such an apprehension can never operate to exclude a witness otherwise competent. I grant, that when the temptations to perjury are manifestly great, the tribunal called upon to give credit to a witness so circumstanced, should examine his testimony closely; in such cases, the exception goes to the credibility rather than the competency of the testimony. This reason, in my opinion, forms no adequate objection to the admission of these electors as witnesses. As to the effect of such a disclosure, made by an elector, on the principle of the secret ballot: if the elector could be compelled to disclose his vote under any circumstances, the danger deprecated is readily appreciable; but when an elector comes into a court of justice ready, willing and anxious to testify as to his vote, in a proceeding instituted for its vindication, it is difficult to extract from such a state of things the idea of putting in peril the sanctity of his ballot. An ingenious mind may, indeed, be able to fancy instances in which permitting a voter to be interrogated as to his ballot, with his own consent, might be used to his injury; but the possibility of such a result cannot, certainly, deprive him of the right to disclose his ballot, when the direct object of that disclosure is to protect it. Assuredly, such speculative dangers bear no comparison with the real ones which might arise from the falsification of a voter's ballot, and the impunity which would follow, if courts or legislatures should refuse to suffer an elector to prove how he voted, in an inquiry like the present. Let the doctrine be once established as constitutional law, that an elector cannot be heard, in such a case, to prove (Competency of witnesses.) how he voted, in order to establish the falsity of an election return, and the suffrage of every man in the commonwealth is placed under the control of the election officers, who may make him appear to have voted exactly as they please. According to this doctrine, if five out of six hundred voters, in a given district, should vote for one candidate, and their votes should all be returned as given to another, no adequate means exist in any body, legislative or judicial, in the commonwealth, to relieve against so crying a wrong; for, by refusing to hear the testimony of the electors to prove how they voted, the establishment of the fraud, in such case, would be impossible; and yet this doctrine is seriously urged upon us as a preservative of the sanctity and security of the vote by ballot. This would be a mode of guarding the elective franchise of the good people of the commonwealth, which their straightforward common sense would surely reject and repudiate. So far from this construction of the constitution tending to preserve and perpetuate the vote by ballot, it would inevitably lead to its extirpation from our political system; for what independent and reflecting man would rest satisfied with a system which subjected his most precious political rights to such abuses, without means being afforded him to detect and redress them? What tempting facilities would be afforded, under such a system, to unscrupulous partisans, to deal with the ballot-boxes so as to make them express their own rather than the sentiments of the true and honest electors! We have been admonished as to the danger which might result from the influences of wealth and power, operating on the cupidity or the fears of electors, so as to induce them to misrepresent the manner in which their votes were actually given, if permitted to testify in a proceeding like this; but is not the peril infinitely more imminent, that wealth and power may operate on four or five election officers, so as to induce them to falsify a return, which the construction proposed would render, in effect, conclusive? One of the strong arguments |