formation concerning the votes cast are carefully guarded against judicial exploration, it seems exceedingly dangerous to permit any question to be raised upon this subject. For the evidence. voluntarily given upon any such question will usually come from those least worthy of credit, who, if they have voted without legal right in order to elect particular candidates, will be equally ready to testify falsely, if their testimony can be made to help the same candidates; especially when, if they give evidence that they voted the opposing ticket, there can usually be no means, as they will well know, of showing the evidence to be untrue. Moreover, to allow such scrutiny is to hold out strong temptation to usurpation of office, without pretence or color of right; since the nature of the case, and the forms and proceedings necessary to a trial, are such that, if an issue may be made on the right of every individual voter, it will be easy, in the case of important elections, to prolong a contest for the major part if not the whole of an official term, and to keep perpetually before the courts the same excitements, strifes, and animosities which characterize the hustings, and which ought, for the peace of the community, and the safety and stability of our institutions, to terminate with the close of the polls.2 Upon this subject there is very little judicial authority, though legislative bodies, deriving their precedents from England, where the system of open voting prevailed, have always been accustomed to receive such evidence, and have indeed allowed a latitude of inquiry which makes more to depend upon the conscience of the witnesses, and of legislative committees, in some cases, than upon the legitimate action of the voters. The question of the right to inquire into the qualifications of those who had voted at an election, on a proceeding in the nature of a quo warranto, was directly presented in one case to the Supreme Court of New York, and the court was equally divided upon it.3 On error to the Court of Appeals, a decision in favor of the right was rendered with the concurrence of five judges, against three dissentients. The same question afterwards came before the Supreme Court of Michigan, and was decided the same way, though it appears from 1 It has been decided in Wisconsin that where an unqualified person is called to prove that he voted at an election, and declines to testify, the fact of his having voted may be proved, and then his declarations may be put in evidence to show how he voted. State v. Olin, 23 Wis. 309. This may give the incompetent voter a double vote. First, he votes for the ticket of his choice, and then, on a con test, he declares he voted the other way, and a deduction is made from the opposite vote accordingly. See Beardstown v. Virginia, 76 Ill. 34. 2 This is one reason, perhaps, why in the case of State officers a statutory tribunal is sometimes provided with powers of summary and final decision. People v. Pease, 30 Barb. 588. 4 People v. Pease, 29 N. Y. 45. the opinions that the court were equally divided in their views.1 To these cases we must refer for the full discussion of the reasons influencing the several judges; but future decisions alone can give the question authoritative settlement.2 1 People v. Cicott, 16 Mich. 283. See further the case of State v. Hilmantel, 23 Wis. 422, where it was decided that those who had voted illegally might be compelled to testify for whom they voted. The question was discussed but briefly, and as one of privilege merely. 2 Considerable stress was laid by the majority of the New York Court of Appeals on the legislative practice, which, as it seems to us, is quite too loose in these cases to constitute a safe guide. Some other rulings in that case also seem more latitudinarian than is warranted by sound principle and a due regard to the secret ballot system which we justly esteem so important. Thus, Selden, J., says: "When a voter refuses to disclose or fails to remember for whom he voted, I think it is competent to resort to circumstantial evidence to raise a presumption in regard to that fact. Such is the established rule in election cases before legislative committees, which assume to be governed by legal rules of evidence (Cush. Leg. Assem. §§ 199 and 200); and within that rule it was proper, in connection with the other circumstances stated by the witness Loftis, to ask him for whom he intended to vote; not, however, on the ground that his intention, as an independent fact, could be material, but on the ground that it was a circumstance tending to raise a presumption for whom he did vote." Now as, in the absence of fraud or mistake, you have arrived at a knowledge of how the man voted, when you have ascertained how, at the time, he intended to vote, it is difficult to dis cover much value in the elector's privilege of secrecy under this ruling. And if "circumstances" may be shown to determine how he probably voted, in cases where he insists upon his constitutional right to secrecy, then, as it appears to us, it would be better to abolish altogether the secret ballot than to continue longer a system which falsely promises secrecy, at the same time that it gives to party spies and informers full license to invade the voter's privilege in secret and surreptitious ways, and which leaves jurors, in the absence of any definite information, to act upon their guesses, surmises, and vague conjectures as to the contents of a ballot. Upon the right to inquire into the qualifications of those who have voted, in a proceeding by quo warranto to test the right to a public office, reference is made to the very full discussions by Justices Christiancy and Campbell, taking different views, in People v. Cicott, 16 Mich. 283, 294, 311. INDEX. THE FIGURES REFER TO THE TOP PAGING. ABBREVIATIONS, A. when ballots rendered ineffectual by, 766-768. AB INCONVENIENTI, doctrine of, in construction, 73, 82-85. ACCUSATIONS OF CRIME, are actionable per se, 518. self, not to be compelled, 379–386. how made with a view to investigation and trial, 374. See PERSONAL LIBERTY. varying form of, cannot subject party to second trial, 401. ACCUSED PARTIES, testimony of, in their own behalf, 384-386. confessions of, 380–383. ACQUIESCENCE, See PERSONAL LIBERTY. in irregular organization of corporations, 309, 310. ACTION, against States, 17. against election officers for refusing to receive votes, 776. for negligent or improper construction of public works, 308, 309, 703. for property taken under right of eminent domain, 691-703. See EMINENT DOMAIN. for exercise of legislative power by municipal bodies, 253-257. for slander and libel, rules for, 518–525. modification of, by statute, 528. See LIBERTY OF SPEECH AND OF THE PRESS. rights in, cannot be created by mere legislative enactment, 452. nor taken away by legislature, 444-446. nor appropriated under right of eminent domain, 648. nor forfeited, except by judicial proceedings, 444-446. statutory penalties may be taken away before recovery of judgment, 414, n. ACTION-continued. limitation to suits, 447-450. statutes for, are unobjectionable in principle, 447. cannot apply against a party not in default, 449. must give parties an opportunity for trial, 449, 450. ACTS OF PARLIAMENT, how far in force in America, 34-36. ACTS OF THE LEGISLATURE. See STATUTES. from regard to religious scruples of party, 585, n. on its own motion, 157. by the governor, 157. conclusiveness of, though supposed intestate living, 61, n. exercise of, by the Revolutionary Congress, 8. notice to foreign parties by, 497–500. not effectual to warrant a personal judgment, 498, 499. not to be taxed, 28, 590-594. strict construction of, 231-234. States not liable for acts of, 17. divorces not to be granted by legislature, 129, n. exercise of the pardoning power restrained, 135, n. revenue bills to originate in lower house, 157, n. bills, how to be signed, 163, n. legislative journals to be signed by presiding officer, 163 n. no law to embrace more than one object, to be expressed in title, 169, n. liberty of speech and the press in, 513, n. persons conscientiously opposed to bearing arms excused, 586, n. |