made the same representations to A, whereby he was induced CH. 204. to trust B, is admissible. ART. 6. 1. Duelling is a crime that affects individuals as well as the public; and may be ranked among crimes affecting individuals, as well as a crime against public justice, Art. 6. 2. By the act establishing articles of war for governing Act of Conthe armies of the United States, it is provided, art. 25, "no gress, April 10, 1806officer or soldier shall send a challenge to another officer or Act of Kensoldier to fight a duel, or accept a challenge if sent, upon pain, tucky of Dec. if a commissioned officer, of being cashiered, if a non-com- 13, 1799, s. 6, missioned officer or soldier, of suffering corporal punishment at the discretion of a court martial. 7. months' im 3. Art. 26. "If any commissioned or non-commissioned Fine $500, or officer commanding a guard, shall knowingly or willingly suffer twelve any person whatsoever to go forth to fight a duel, he shall be prisonment, punished as a challenger." And all seconds, promoters, and $250, and carriers of challenges are deemed principals; and it is made $150, &c. according to the "duty of every officer commanding an army, regiment, the part one company, post, or detachment, who is knowing to a challenge takes. being given or accepted by any officer, non-commissioned officer, or soldier under his command, or has reason to believe the same to be the case, immediately to arrest and bring to trial such offenders." 4. Art. 27 empowers every officer to part and quell all quarrels, frays, and disorders, to order officers into arrest, or non-commissioned officers or soldiers into confinement &c. Art. 28 punishes as challenger "any officer or soldier who shall upbraid another for refusing a challenge," and discharges from any disgrace or opinion of disadvantage, all officers and soldiers, which might arise from their having refused to accept of challenges. 5. Articles like these in substance, in relation to duels and challenges have ever existed in our military department. But exclusive of the military, Congress has never passed any statutes as to duels; but laws to prevent them have been left to the policy and wisdom of the State legislatures. East's C. L. Where two persons deliberately agree to fight, and meet for that purpose, and one is killed, the other cannot help him- 242.self by alleging that he was first stricken by the deceased, or 1 Hawk ch. that he had often declined to meet him and was urged by im- 31, s. 31, portunity, or that he meant not to kill, but only disarm his adversary; for since he engaged deliberately in an act highly culpable in defiance of the laws, he must at his peril abide the consequences. And where the principal is guilty of murder the second is. 6. To incite one to fight a duel, though provoked by 3 East, 581, charges against his character, is a high misdemeanor, though Rex v. Rice. Art. 7. CH. 204. no consequence thereon ensue against the peace. And if A make charges against B's character and conduct the most grievous, and then B kills A in a deliberate duel, it is murder in B and his second. These proceedings are at common law. 6 East, 464, Rex v. Phillips. Mass. Act, 4 Bl. Com. 140. § 7. An endeavour by A to provoke B to commit the misdemeanor of sending a challenge to fight, is itself a misdemeanor indictable, particularly where such endeavour is by letter containing libellous matter. The sending such letter being an act done towards procuring the commission of the misdemeanor meant to be accomplished. According to this and other cases, sending a challenge to fight a duel is a misdemeanor at common law indictable; also it is one, if I by letter endeavour to excite A to send such challenge, on the general principle above stated. Where it is a misdemeanor to do an act, it is also a misdemeanor to attempt to excite one to do it, and indictable at common law. Thus the common law seems to punish every act in or leading to duelling. 8. Section 6 of this act enacts, "that if any person shall voluntarily engage in a duel with rapier or small sword, back sword, pistol, or other dangerous weapon, to the hazard of life, when no homicide shall ensue thereon; and if any person shall by word, message, or in any other manner challenge another to fight a duel as aforesaid, when no duel shall be fought thereon, every such offender, and every person who shall be knowingly a second, agent, or abettor in such duel or challenge," shall be punished as a felonious assaulter, and disqualified to hold any office or place of honour, profit, or trust under the Commonwealth for twenty years. Section 7 punishes the acceptance of such challenge by any one, and also his second &c., by imprisonmont in the common goal not exceeding one year, and so disqualified five years. The act passed June 30, 1784, sect. 3, directs in what manner the coroner shall bury one killed in a duel, or deliver the body to any surgeon to be dissected. Section 4 directs how the sheriff shall deliver the body to be dissected or bury it, of him who is convicted of killing one in a duel. These statutes are a revision, with some alterations, of the statute on this subject, passed in 1719. ART. 7. Embracery is also an offence against public justices, but hitherto has been very rarely complained of in the United States. And prosecutions in England for this offence have by no means been frequent. It is described as being an -Ken. Act, attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, or money, entertainments, &c. It is an offence at common law, and the usual punishment, fine ed as bribery. and imprisonment for the person embracing, and for "the 1 Hawk. 348. Dec. 19, 1801, s. 27, 28, 29, view ! Art. 8. juror so embraced, if taking money, a like punishment at com- CH. 204. This statute against embracery, maintenance, &c. has never ART. 8. Elections. § 1. Other indictable offences, are frauds in elections, by putting in more votes than the person is entitled to. The principles of elections as involved in civil actions have been already largely considered in the great cases of Gardner v. Ward & al., and Kilham v. Same, and some other cases. It now remains only to consider the indictable offence; and it is not frequent that frauds and malpractices in elections are indictable offences; one among many reasons is, many statutes have been passed in all the several States to preserve the purity of elections, and to prevent malpractices in them, and these statutes usually annex penalties to these practices, and make them recoverable in qui tam actions, commonly viewed as civil suits. 32 H. VIII. c. 9.-1 Dallas, 67, Morris' lessee v. Vanderen. § 2. It is by no means common for an indictment to lie on Mass. Act, an act of Congress for a fraud in elections; but almost inva- 1800, c. 74. riably if an indictment can be supported it is on some principle of the common law or some State statute. monwealth v 3. But as in this case of Silsbee it was held, that it is a 9 Mass. R. misdemeanor at common law for a citizen who is a legal voter 417, Comat a town meeting, to give in more than one vote for a muni- Silsbee cipal officer at one time of balloting, it is obvious indictments Mass. Act, on the grounds of the common law may in time become very 1806, c. 26. frequent. It was as late as 1812 this decision was made, and none earlier was found. This is then an important case. The indictment stated the town meeting holden in Salem, March 11, 1811, for the choice of town officers, and that the deft. "did then and there wilfully, fraudulently, knowingly, and designedly give in more than one vote for the choice of selectmen for the said town of Salem, at one time of balloting, to the great destruction of the freedom of elections, to the great prejudice of the rights of the other qualified voters in said town of Salem, to the evil example of others in like case to offend, and against the peace and dignity of the Commonwealth aforesaid, and the law of the same in such case made and provided." On motion in arrest of judgment the court held it clear this was an offence at common law; and that "it is a general rule, that where a statute gives a privilege and any one wilfully violates such privilege, the common law will Art. 8. CH. 204. punish such violation." "In town meetings every qualified voter has equal rights and is entitled to give one vote for every officer elected. The person who gives more, infringes and violates the rights of the other voters; and for this offence the common law gives the indictment ;"—and the conclusion of this one is proper for the case. In Kentucky $10, bribing Mass. Act, Feb. 24, 1796. Maine Act, ch. 115. 4. The general and very broad principle laid down in this case is, that whenever a statute gives one a privilege, as of voting, &c. and he abuses it to the prejudice of others, the common law punishes his offence, a misdemeanor, by indictment. And also, as was admitted in this case, every one knowing to the abuse, the bad vote, is a witness though prejudiced or not by it. If this decision is correct, and perhaps it is, is it not a little surprising that no prior indictment of the kind was found in England or in this country, in which votes enjoyed as a privilege have long been so numerous and frequent, and on which this privilege has been often abused? It will be observed, that the principle laid down in this case as the foundation of the indictment, to wit, the abuse of a privilege given by statute, does not apply to a case in which one having no right to vote puts in a vote; but in this case the prejudice to others is the same, equally a violation of their rights, equally improper to be the ground of an action to be brought by every voter injured, as such actions would be infinitely multiplied almost; and to reject the bad vote as the remedy would be no better in the one case than in the other; and for a remedy to wait for a statute to be passed must be alike objectionable in both cases. Thus far the reasons seem to be as strong for indicting a man for voting who has no right to vote at all, as for indicting one for giving two votes who has a right to give but one. But there is a difference in practice between the two cases. He that gives more than one vote must almost invariably transgress wilfully and knowingly, whereas often the non-voter may vote honestly, mistaking his right to vote. But this is a difference only in regard to the evidence, for there can be no difference where the non-voter knowingly and wilfully gives a vote; he as much infringes and violates the law, as the voter does who gives an extra vote to the prejudice of others; and in a case in which the remedy by action is impracticable, on account of the vast number usually injured, and would have a right to sue severally and individually; and, therefore, in a case in which any proper remedy must be a public suit or prosecution only. P. 18 to 26, many other provisions. 5. This act inflicts a number of penalties on town and other officers neglecting their duties in elections, and it provides, "that any elector who shall give in more than one vote Art. 8. in any election, and any person who shall be disorderly Cн. 204. in any such meeting shall forfeit," not above $20 nor less than $10. Section 6 provides, that all forfeitures incurred on this act may be recovered by indictment or by an action of debt in the name of, and to the use of the Commonwealth. This act respects State representatives, governor, lieutenant governor, counsellors and senators, electors of president, vicepresident, and representatives in Congress. The third section Mass. Act, in this act is the same as the fourth in the act next above, ex- March 7, cept in this act of 1801, the penalty is a fine not exceeding 1801. $30, and this act also enacts, that if any person "shall, knowingly and designedly, give in more than one vote or list" &c. March 7, § 6. Section 4 provides, that no person vote until his name is See also found on the list of voters, on penalty not exceeding $20 for Mass. Acts, each offence. Penalties inflicted by this act may be recover- 1803; March ed by indictment in the Supreme Judicial Court, or by action 15, 1805, and of debt in any proper court, half to the State and half to the March 6, prosecutor. As it now is settled, that, if a man having a right to a vote gives in more than that one, he is indictable at commont law, statutes to restrain illegal voting of this kind seem to be unnecessary, except as to ascertaining the amount of the fine or penalty, but it may be doubted if the legislature in 1796 and 1801, when it enacted the above penalties for giving such extra votes, relied at all on this indictment at common law. 7. If it shall also be decided, that it is a misdemeanor indictable at common law, for a man to give in a vote who has no right to vote at all in the case, then no statutes will be of much importance to prevent such voting, either where the party has no right to vote at all in the case, or to one vote and he puts in above one, except as to the amount of the penalty or punishment; the amount of the penalty not being limited at common law to any useful purpose. 8. It is a settled principle in all our constitutions, Federal and State, that each branch in our legislatures, either senatorial or representative, has the clear and conclusive right to examine into, settle, and decide all questions of elections made of members of such branch, to the purpose of allowing or disallowing a member a seat in it, but not to any purposes of pun ishment. 1810. 9. The French penal code not only expressly guards the rights of citizenship, voting, &c. but perhaps more carefully than our laws do. Art. 109, &c. Part of its punishments in many cases is the loss of the right of voting, and sometimes A. D. 1806. of citizenship for a time limited; perhaps in this case it is just to take from a man a privilege he violently or fraudulently takes from another. At any rate the mode of punishment in |