UNITED STATES fl. SMALL.

103

But the case at bar does not resemble those that have been referred to. The contest for a seat in the house of representatives is a proceeding unknown alike to state legislation and the state judicatories, and violations of the laws of congress regulating it are offenses against the United States, and not against the state, of which the national courts have exclusive jurisdiction. The leading authority in support of this proposition is the decision of Mr. Justice BRADLEY in the case of Ex parte Dock Bridges, in 2 Woods, 428. The prisoner must be discharged from the custody of the state officer, and, if proper complaint be made, must be taken into custody of the marshal of this court, to be dealt with as provided for by the laws of congress. I have heard this case in circuit court, and will make the order of discharge in this court in order that if I have erred in this ruling the matter may at once be taken to the supreme court of the United States, where, being privileged, it may be decided without delay.

UNITED STATES

v. SMALL.

March 2, 1889.)

«(Jzrcuit (Jo'lf'ft, E. D. Virginia.

ELECTIONS AND VOTERS-ARREST OF VOTERS AT POLLS.

There is no law authorizing the arrest of a person while offering hls1iallot at the polls, for any cause relating-to his right of suffrage.

Indictment against C. C. Small for unlawfully preventing a qualified voter from exercising his right of suffrage. J.O. Gibson, U. S. Atty., arid Whitehurst <to Hughes, special assistants, for the United States. R. O. MarshaU and John w: Happtrr, for defendant.
HUGHES, J., (charging jury.) The indictment which we are trying charges, among other things, that the defendant, C. C. Small, judge of election at the polls of the Third ward of the city of Portsmouth, did,at the election of a member of congress held on the 6th day of November last, by force, unlawfully prevent a qualified voter, William H. Johnson, from freely exercising the right of suffrage in that election. The evidence shows that the "force" exercised by Small was his ordering the arrest of William H. Johnson while offering to vote, and directing his abduction from the polls. The case is important in only one of its features, namely, in the fact of the arrest of a citizen at the polls while offering his vote, for some cause relating to his right of suffrage. The defendant himself testified that he ordered the arrest of Johnson while standing at the polls offering to vote, because of a matter relating to his suffrage. Stripping the case of all other circumftances,-leaving out of consideration' the cumulative charges usually inserted in indictments to meet supposed features of the evidence yet unknown to the pleader,-"I shall confine myself in what I shall say to this prominent

104

FEDERAL REPORTER,

vol. 38.

feature of this case. Our statute-books, state and national, will be searched in vain for a law authorizing the arrest of a person offering to vote for any matter connected with his suffrage while at the polls, offering his ballot. The laws are careful and minute in provisions designed to protect the citizen in the exercise of this high privilege. But they no clause authorizing hit;! arrest at the polls, and imprisonment for offering to vote. If they did contain provisions susceptible of such an interpretation by the Dogberrys of the hustings, the courts would, by construction, erase them from the statute-book, and declare them unconstitutional, null, and void, as infringing the fundamental right of the citizen to cast his vote free from all fear for his liberty and safe.ty. 1 may add that the law takes great pains to provide that the vote shall be promptly received when offered on election day. The object of registratilm-which is given for several days at a time at several periods of the year-is to ascertain who are legally entitled to the elective franchise, to record the facts of their identity, and to fix the precincts at which they are to vote. The object of registration is to remove all necessity for delay in receiving the votes, and polling them promptly on election day. The law does not intend that the judges of election shall consume time with frivolous interrogations, and obstruct the course of voting by inquiries which have already been made and settled by the registrars. True, section 127 of the Code of Virginia, in force since May 1, 1888, authe judges to challenge on suspicion,and to hear challenges, to tender the voter's oath as a means of saving time, and even to reject a vote on their own personal knowledge or on legal proof that the person offering has not the right of suffrage; but it contemplates in all these provisions that the inquiry shall be speedy and summary. Its object is to secure expedition, and by proceedings before registrars to relieve the judges of election of all inquiries except as to the identity of the person offering his ballot with the person registered. So that the judge of election who goes beyond this inquiry into matters settled by registration, himself obstructs the election with which he is charged, and which he is sworn to conduct according to law. The law takes great pains to aecure quiet and order at the polls, and orders the prompt arrest of persons conducting themselves in a noisy, riotous, tumultuous, or insulting manner at or about the polls. It does these things for the protection of the voter and of the ballot-box. All its provisions of this character are intended, directly or indirectly, to secure to the voter the right freely and securely to cast his ballot without fear or intimidation. It nowhere authorizes the arrest of the citizen offering his ballot. If he votes fraudulently, if he falsely swears when put upon the voter's oath, he may be arrested afterwards at another time and place, and, if found guilty, may be punished. His vote may at another time and place be excluded from computation, or it may be rejected by the judges at the time it is offered. But at the polls, claiming and offering his ballot, his right to be there for the purpose ofvoting is sacred, and his person The law hedges him around on election day with all the protection which it can give to secure him in the free and fearless exercise of the highest priv-

UNITED STATES V. SMALL.

105

ilege of the American citizen. To arrest him in the exercise, or attempt to exel'cise; this privilege, goes much farther than his own case. The loss of one vote is not the only effect of the arrest. It produces widespread and general fear and trepidation among the whole class of poor and friendless voters, of which he is but one. If the officers charged with the duty of receiving the ballots of citizens could legally arrest them in the act of offering the suffrage, intimidation would become epidemic, the infection would be general, and the suffrage would be a curse instead of blessing to the humble workers of the country The elective franchise is the basis and safe-guard of republican institutions. It is that which distinguishes the American citizen from the serf and peasant of Europe, who dare not stand erect, and look the privileged classes in the face. There the man is drafted into the army, and the woman may often be seen working, in the field, yoked beside an ox, or a goat, or even a dog, in tilling the soil. The ballot, in the hands of the working classes, is our protection from the condition of things presented in the old countries. The ballot is of little value to the powerful and strong. The most of them -drones of society-can prutect their right!; by other meaos. But the workers in the hive have no protection comparable in value and efficiency to the ballot. And when, by any means, especially that of arresting the obscure and friendless citizen in offering his vote on election day, the free and fearless use of the ballot is destroyed, our country will be already on the highway which leads to the ruin of republican inRtitutions. The protection of this right is the duty of the courts and juries of our country. This court and its officers have done their duty in this case, and it only remains for you to do yours. r must not omit to say that,although the arrest of William H. Johnson at the polls was illegal, whether he was a qualified voter or not, yet, under the wording of the indictment, the defendant cannot be found guilty, unless Johnson was a qualified voter. On this point it was shown in evidence that he was duly registered in 1884, and that he had voted unchallenged in each and every election since that registration. When his "Vote was challenged at the election of the 6th of Novem ber last, the fact of his registration and subsequent voting established the presumption that he was a legal voter, and this presumption could not have been disregarded by the jndges of election, unless the requirements of section 127 of the Virginia Code were first complied with. It was their duty under that section, before they could reject his ballot, first, to administer the voter's oath, which he demanded to take. Not until after he had taken that oath could they have had any iegal right to reject his ballot, and even then they could not reject it except upon record, or legal proof, or their own personal knowledge of his incompetency The evidence shows that they did not administer the voter's oath to him, and their rejection of his ballot was for that reason alone illegal and null. Under these circumstances he must be presumed to have been a qualified voter, and it is your duty so to assume. The evidence shows that a placard was put up in the election room showing the instances in which persons of the same or similar names

106

FEDERAL ,REPORTER,

voL 38.

were registered in different precincts of that part of the country. This placard gave thename of one William Johnson as registered in the cinct next to the Third ward of Portsmouth. It was contended by sal that this showing of the placard, supported by a' challenge from side the.room, constituted, under some peculiar provision of the Code of Virginia, a criminal complaint against William H. Johnson, and fied his arrest and abduction from the polls. If that were so, the jails of Virginia on election days would be filled with Johnsons, Browns, Smiths, Joneses, Marshalls, Washingtons, Jeffersons, and Madisons. If that were so, it would be incumbent on all of us who bear names like those of persons in other precincts to march to the jails to be locked up on election days, instead of repairing to the polls to exercise the highest right of freemen. And I could not help feeling that the intelligence of the jury and the court were not much flattered by the urging of such a pretension upon them. No, gentlemen, there can be no legal arrest of a voter on election day for any cause relating to his suffraj1;e. In the temple of the republic the place on which citizens stand in casting their votes is sacred ground, and the is an altar before which their persons and liberty are inviolable. In this case, I leave out of consideration all other evidence and all other features except the one which gives it importance,-the arrest of a voter at the polls in the manner shown in this case. It is charged that the Cendant at the bar, by force, unlawfully prevented the voter, William H. Johnson., from freely exercising his right of suffrage, and the evidence is that this force was exercised by, ordering the voter's arrest at the polls, and his abduction from the voting place. I charge you, gentlemen, that .this arrest and abduction were unlawful, and turn the case over to you.

UNITED STATES V. WIGHT.

DlBtrict Oourt, E. D. MicMgan. March' 10, 1889

1.·· POBT-OFFIClIH-LARCENY

FROM: MAILS-REV. ST. U. S. § 5467. The two clauses of Rev. St. U. S. 5467, describe two separate And distinct offenses, viz.: .(1) Secreting. embezzling, or destroying a valuable letter; and. (2) stealinl!.' the contents of such letter. These two clauses should be read diBjunctively.

8.

SAME-INDICTMENT.

It is not necessary, in an indictment under the :first clause for secreting' and embezzling, to that the letter had not been delivered to the party to whom it was directed; nor. under the second clause, for stealing the contents, to allege.that the letter was intended to be conveyed by mail or mail carrier.

8.S.uiE'-:LETT1lJRS D1lJPOS1TED IN LETTER-Box.

It is sufficient evidence that letters are "intended to be carried by a letter carrier" that they are deposited in pillar-boxes to be carried to the poat-office. although it be intended to interceptthem after they have pasaed through the handa of a.suspected employe. . .