THACHER, J. The defendants are on trial for several violations of the law of 1813,1 which was intended effectually to secure to the people of this Commonwealth the right of suffrage. The accusation against Francis Aglar is, that he knowingly, designedly, willfully 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, Lieutenantgovernor, Counselors 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 against Ralph Huntington is contained in the same indictment, and accuses him of the offense 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 1813,2 which is in these words: "If any person, knowing himself to be legally qualified to vote at any meeting for the choice of Governor, Lieutenant-governor, Senators and Counsellors, Representatives to the General Court, or Representatives to Congress, shall willfully 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 willfully 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 offense." 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 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 gives in a vote, or attempts to vote, with this knowledge at the time, his offence is consummated; it is done willfully, and he incurs the penalty. To constitute a willful aider and abettor in such an act, he too must know at the time, that the person was an unqualified voter, and bad 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 willful intent to do the unlawful act. Therefore it is, that knowledge is not to be presumed in such a 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.

1 ch. 68.

2 ch. 68.

"By willful," says Wilson, J. (1 East's Rep. 563, note a), “I understand contrary to a man's conviction."

I consider that a free people ought to be jealous of their rights. It is the only way to preserve them. Foreigners not naturalized, who shall presume to intrude into elections should be indignantly resisted. For the sovereign power actually resides in the people. They elect their rulers to administer the government according to the Constitution. When an alien not naturalized presumes to vote in an election of our rulers, it is a wrong done to every citizen. It is the nature, perhaps the life of free governments to generate parties. But when a foreigner, or other unqualified voter, gives in a ballot at an election, it is wrong to the voters of every party, without reference to the candidate for whom he votes. If one party should, by such means, gain an unlawful victory at an election, their antagonists will prevail by like means at the next. The State will become corrupt, and gradually lose its free character, elections will come to be decided by illegal voters, and the people will in time find themselves governed by rulers not of their choice. I say, therefore, that it is a common injury; and I hope that, while any virtue remains in the people, they will be watchful over each other, and so preserve the foundation of the free body politic. If any citizen should become so recreant to duty, and to the principles of a free government, as willfully to aid and abet foreigners in attempting to vote in our elections, before they shall have been naturalized, he ought to be made to suffer the penalty of the law. But I am bound to add, that there has been, I believe, a neglect of caution in times past, which may have led many well disposed foreigners to consider themselves legal voters, when they were not, in fact, entitled to that privilege. Having resided here for years, and.paid taxes; finding also their names on the list of voters, they have been permitted to vote and serve as jurors without distrusting their own right, or having it questioned by others. But until an alien has been naturalized, he is not a citizen; and is not entitled either to vote in an election of rulers, or to serve on a jury. The payment of taxes is in return for the protection of the government. Neither length of residence nor payment of taxes will constitute citizenship. If he was not born in the country, or if born abroad, if his parents were not citizens of the United States, not having renounced or forfeited their allegiance, he is a foreigner, and he must conform to the laws which regulate naturalization, before he can hold real estate, or exercise the freedom of election, as a citizen of the country.

It follows from these views of the law, that if a foreigner who has not been naturalized, should vote at an election, his vote not being legal; yet if he honestly believed at the time, that he had a right to vote, it would not amount to that willful act which is forbidden in the statute. And so, also, if a person should aid and abet such foreigner in attempting to vote; if it should appear to the jury, that he honestly believed, that the foreigner had a right to vote, they ought to acquit him of the offense. Whether a person is a qualified voter, is a question compounded of law and fact. Those who prepare the lists may inadvertently err in their judgment, and lead others into error. If an alien, having resided in the country for many years, and finding his name on the list of voters, should use the privilege without question, it would be for the jury to consider, whether he might not naturally be led to believe that he was a qualified voter. But if presenting himself at the polls, and being interrogated, he should falsely assert that he had comformed to the law of naturalization; a jury might reasonably infer from that falsehood, that he knew at the time that he was not a legally qualified voter. Even a citizen may be ignorant of the law, and may innocently believe, that if the mayor and aldermen have placed the name of the

person on the list of voters, it is conclusive evidence of his right, not to be questioned by the ward officers. Whether such citizen acted willfully, in aiding and encouraging an unqualified alien to vote, or to attempt to vote, must be decided by the jury under all the circumstances of the case.

It has been argued, that the ward inspectors in this city may not question the right of one whose name is borne on the list of qualified voters, nor refuse to receive his vote. On this point I have been requested to state my view of the law. No person, although a qualified voter, is permitted to vote at an election, unless his name is borne on the list. Although the name of an unqualified voter may be borne on the list by mistake, it will not authorize him to vote — he would do so at his peril. The name on the list will justify the inspectors to receive his vote, because it is not declared to be their duty to institute an inquiry. They may, however, lawfully refuse the vote of one who is not a legal voter, though his name is borne on the list, when that fact has come to their knowledge, by the confession of the individual himself or otherwise. In refusing to receive an illegal vote from an unqualified person, they do no injury to him, they prevent fraud, and they perform a meritorious act to the public, since it tends to keep elections pure, and to perpetuate our government and law in pristine health and vigor. It is part of the ministerial office of the inspectors, to prevent "all frauds and mistakes in elections," and to place a check against the name of each voter. In refusing the vote of one whose name is on the list, they would act upon their own risk, and would undoubtedly be liable to the action of the party, if he was a legal voter; just as the mayor and aldermen would be liable to the action of a qualified citizen, whose name they should wrongfully refuse to insert on the list, whereby he should lose his privilege. Still, if the party had no right to vote at the time, he would sustain no wrong in either case, and therefore, he would be entitled to no redress.

The first fact to be settled by you is, whether Francis Aglar willfully attempted to give in a vote at the election held on the second Monday of November, 1834. If they should not be satisfied that he made this attempt, he must be acquitted; and it will then follow, that Ralph Huntington must be acquitted also, because his offence is charged as accessory to that of Aglar. But it may be that Aglar did attempt to vote at that meeting, in which case it will be necessary for the jury to inquire further, whether it was done willfully, he having at the time the knowledge that he was not a qualified voter. If they are not satisfied that he acted willfully, he must be acquitted. But even if Aglar should be acquitted for this cause, if he made the attempt to vote through the willful persuasion of Huntington, knowing at the time that Aglar was not qualified to vote, then, though Aglar should be acquitted, it would be the duty of the jury to find Huntington guilty. It would amount to a substantive offence in Huntington; and it is not necessary like the case of an accessory in the commission of a felony at common law, that the conviction of the principal should precede that of the accessory. Therefore, if Aglar did not attempt to vote, Huntington must also be acquitted, whatever feeling or zeal he may have manifested at the time. If Huntington advised Aglar to vote, and promised to stand by him in case he would vote; still, if Aglar did nothing in consequence of this advice and tender of protection, the offence was not consummated. It is not made an offence under this statute to advise an unqualified voter to give in a ballot, not even if such advice is accompanied with an offer of protection. It may have been very improper, and contrary to the duty of a good citizen to give such ad

vice to an unqualified vote; but that is not declared to be an offence, and that is not the charge for which Huntington is on trial.

It does not appear that there was any previous concert between Aglar and Huntington, they were strangers to each other, — all occurred in the wardroom, during the heat of the election. Aglar came to the polls, with a vote in his hand, undoubtedly intending to vote. As soon as he appeared, and before he tendered his vote, one of the inspectors asked him whether he was a naturalized citizen. He immediately answered that he was not. He was then told that an alien not naturalized, was not a legal voter, and that if he voted, it would be at his peril. He said he had been in the country for twenty-four years, had paid taxes, his name was on the list of qualified voters, and that he had voted at former elections without question. He was told by the inspectors that his name was indeed on the list, and that they would receive his vote; but that if he was not a naturalized citizen, he would be liable to prosecution.

While this conversation was proceeding, Huntington came forward, and having learnt that Aglar's name was on the list, insisted that that was conclusive evidence of his right and qualification, and urged him to vote, promising at the time to hold him harmless from the consequences. Aglar said, that if he was entitled to vote, he should be glad to do so; but if he was not authorized he would not vote. After a very animated contest, in which the inspectors offered the ballot-box to Aglar to receive his vote, but without any attempt on his part to give it in, he and Huntington left the room, in order to obtain legal advice on the subject. They went to Samuel Dexter, Esq., and from him to Andrew Dunlap, Esq., by whom they were advised that, an alien not naturalized could not lawfully vote at that election. Aglar did not return to the polls, but Huntington came back, asked the names of the inspectors, and threatened to institute a prosecution against them for refusing the vote. The warmth on both sides led to further inquiry, and resulted in this prosecution. It is not politic to attempt to restrain by severe regulation the freedom of elections.. It is well, that the people should be alive on these occasions. It is proof that they love their country, and take an interest in the government. Apathy is the worst state into which a free people can fall. All parties should stand for their rights. Errors committed by individuals in the fervor of the moment, ought not to be severely criticised. But it is for the best interests of the people, that willful violations of the law should be punished.

The jury returned a verdict of acquittal.

§ 157. Elections - Right to Vote-Distinction as to Ignorance of Law and Fact. In McGuire v. State,1 this distinction is well pointed out by REESE, J., thus: "If the voter believe himself to be twenty-one years of age when he is not and vote, he does not know the existence of the disqualifying fact, and may on that ground be excused. But if he know that he is only twenty years of age, yet believes he is old enough in point of law to vote, such ignorance of the law will not excuse him. If the voter honestly believe that he has resided six months in the county before the election, and the fact turns out otherwise, he may be excused. But if he know that he has been only four months in the county before the election, yet he believes that to reside four months is in point of law residence enough, he shall not be excused. If a voter believes that he was born in the United States and it turns out that he was born in a foreign

17 Humph. 54 (1846).

country he may be excused. But if he know that he is a foreigner, and has not taken the oath of allegiance to the United States, but has only made his declaration of renunciation, etc., and thinks the latter in point of law sufficient to entitle him to vote, this ignorance of law shall not excuse him; for he voted knowing a state of facts to exist which, in point of fact, disqualified him."

§ 158. Embezzlement - Belief of Right to Take Property. - Money taken under the erroneous belief that the taker is entitled to it is not embezzlement.1 Where an agent, though mistaken, believes he has a just claim against his principal, and in good faith undertakes by holding his principal's money to secure himself against loss, he is not guilty of embezzlement.2

In R. v. Norman, the prisoner was indicted for embezzlement. The prosecutors were owners of a vessel, and the prisoner was in their service as her master. The vessel was chartered to carry coals from Swansea to Plymouth, for a coal merchant resident at the latter place. The coal when delivered at Plymouth weighed two hundred and fifteen tons, and the prisoner received payment from the coal merchant for the freight accordingly. When he was asked for his account by an owner, he delivered a statement acknowledging the delivery of two hundred and ten tons, and the receipt of freight for so much. Being further asked whether this was all he had received, he answered that there was a difference of five tons between the weighing at Swansea and the weighing at Plymouth, and that he had retained the balance for his own use, according to a recognized custom between owners and captains in the course of business. There was no evidence of the alleged difference of measurement in weighing, or of the custom asserted by the prisoner.

CRESSWELL, J. (in summing up). I think this does not amount to embezzlement. Embezzlement necessarily involves secresy; the concealment, for instance, by the defendant of his having appropriated the money. If, instead of denying his appropriation, a defendant immediately owns it, alleging a right or excuse for retaining the sum detained, no matter how frivolous the allegation, and although the fact itself on which the allegation rests was a mere falsification, as if, in the present case, although it should turn out that there was no such difference as that asserted by the captain, between the tonnage as measured at Swansea and at Plymouth, or that there was no such custom as is set up. I do not say to what species of offence this may amount, but in my opinion not to embezzlement. Verdict not guilty.

§ 159. Forgery — Mistake as to Authority to Sign. - So one who puts the name of another to a bill or note, believing from the course of their dealings that he has authority to do so, is not guilty of forgery though he actually had no such authority. In R.v. Parish, Lord ABINGER, C. B., in charging the jury said: "It is conceded that the acceptance is not in the handwriting of Mr. T. and it seems pretty clear that it was written by the prisoner. If the prisoner had the authority of Mr. T. for writing the acceptance it is no forgery, neither is it if he had no such authority, provided that from the facts that have been proved, it is made out that he had fair ground for considering that he had such

1 Beaty v. State, 82 Ind. 228 (1882.)

2 State v. Reilly, 4 Mo. App. 392 (1877). And see U. S. v. Hewitt, 11 Fed. Rep. 243 (1882), as to retaining pension money col. lected under similar circumstances.

81 C. & M. 501 (1842).

4 R. v. Forbes, 7 C. & P. 224 (1835); R. v. Beard, 8 C. & P. 143 (1837); Parmelee v. People, 8 Hun, 623 (1876).

68 C. & P. 95 (1837).