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he had not stood in the pillory for perjury. 4 Term. Rep. 449. Here though the defendant had no control whatever over the officers of the election, he attempted to direct them in the exercise of their duties, and that too with threats and violence, accompanied with the most unbecoming language. The legal point, whether the questions might be put with propriety, was at least dubious; and he had no right to use such conduct to persons acting conscientiously, in the discharge of the most important truths. The great security of the sacred right of suffrage, consits in preserving the election ground in a peaceable state, freed from all tumult and disorder, and no individual can assume the power of dictating his own decisions in a turbulent manIf protection is not afforded to those who superintend elections, manifest confusion must ensue, and no peaceable person will take on himself the office of a judge or inspector.

ner.

The intentions of the defendant can only be ascertained by his acts. His conduct was highly intemperate. His language was grossly scurrilous. To Beckely, one of the judges, he held up his hand, clenched in an angry and menacing attitude, within reach of him, (as one of the witnesses has deposed,) and vowed, that he would have satisfaction of him at a future day. What then could he intend, but to influence, overawe and interrupt the election? If his turbulent and disorderly conduct is to be justified, because he interfered in the case of an aged father, a precedent will be established, and the same right will be assumed in the case of a brother or seventh cousin; and the freedom of election will be placed in the most imminent danger.

Shippen, C. J. delivered the charge of the court, in substance, as follows:

The case before us is of great moment. It involves in it the important rights of electors, as will as the preservation of the purity and peace of elections. It has been fully argued by the counsel on both sides, and nothing remains for us, except to narrow the bounds of disquisition, and pronounce our opinion of the law resulting from the facts. The three first counts in the indictment are grounded on the act, to regulate general elections, passed on the 15th February 1799. This law pursues the language of the first section of the 3d article of the present state constitution, in the enumeration of the qualifications of electors as citizens, and prescribes rules and terms under which the suffrages of foreigners shall be received.

The qualifications in the first instance are citizenship, by being born within the state, or being settled therein on the 28th Sep

tember 1776, (when the first state constitution was formed;) being of full age, residence within the state two years next before the election, and payment within that time of a state or county tax, which shall have been assessed at least six months before the election; with a provision, in favor of the sons of qualified citizens, between the ages of 21 aud 22 years, who have not paid taxes. "Every citizen having paid taxes and resided as aforesaid, and claiming a right to vote, shall make proof thereof," &c., are the words of the first section, of the act; which compared with the words of the fifth section, show that no other questions can be put to the electors, than may tend to show whether they are possessed of these qualifications. The rule of law holds in this case, that expressio unius, est exclusio alterius.

Besides, it has been objected, that the questions propounded to the electors, contravene an established principle of law. The maxim is neme tenetur seipsum accusare, (seu prodere.) It is founded on the best policy, and runs throughout our whole system of jurisprudence. It is the uniform practice of courts of justice as to witnesses and jurors. It is considered cruel and unjust to propose questions which may tend to criminate the party. And so jealous have the legislature of this commonwealth been, of this mode of discovery of facts, that they refused their assent to a bill brought in, to compel persons to disclose on oath, papers as well as facts, relating to questions of mere property. And may we not justly suppose, that they would not be less jealous of securing our citizens against this mode of self accusation. The words accusare or prodere are general terms, and their sense is not confined to cases, where the answers to the questions proposed would induce to the punishment of the party; if they would involve him in shame or reproach, he is under no obligation to answer them. The avowed object of putting them is to show, that the party is under a legal disability to elect or be elected; and they might create an incapacity to take either by purchase or descent, to be a witness or juror, &c. We are all clear on this point, that the inspectors were not justified in proposing the questions objected to, though it is probable they did not wrong intentionally. Nevertheless, if by exacting an illegal oath, the election was obstructed or interrupted, it seems most reasonable to attribute it to them.

Another ground of defence has been taken. It is said, that the intimidation, threats, violence or interruption must be the effects of intention. And that so far from there being a design to overawe or obstruct the election in the present instance, it appears by the evidence, that the affair was sudden and unpremeditated; and that the improper warmth of the defendant took its rise from some harsh expressions used

by the inspector towards his father. The severe penalty annexed to the offence shows in what light the legislature have viewed it. Our code of laws is generally mild and lenient, and their intention could not have been to have subjected a slight undesigned interruption of an election to so rigorous a punishment. To constitute the offense, it would seem that there should be a pre-conceived design and intention to intimidate the officers, or interrupt the election, and the three first counts of this indictment lays the offence to have been committed with suchde sign and intention. It must be admitted, that the conduct of the defendant was highly intemperate and blameable, but if it sprung from the passion of the moment, under an impression that his father had been hardly treated, and not from an intention of interrupting the election, he does not seem to be within the meaning of the law.

With respect to the two last counts in the indictment for the assualt on John Beckley, there is a contrariety of evidence. The jury must determine the fact for themselves, whether the defendant was within reach of him, when he held up his hand clenched, in an angry and menacing manner, and the verdict should correspond with the fact so found. Unless Beckley was within his reach, he cannot be guilty of

the assault.

The questions before the jury are of great importance. We trust that party considerations will have no weight in their decision of them. The court have laid down this as an undeviating rule of conduct for themselves, and flatter themselves they have evinced their adherence to it on more than one occasion.

Verdict not guilty.

ANDREW BAYARD and ANDREW PETIT against THOMAS PASSMORE.

The publication of a paper to prejudice the public mind in a cause depending, is a contempt, if it manifestly refers to the cause, though it does not expressly appear on the face of the writing. But however libellous the paper may be, the court can have no cognizance of it in a summary way, unless it be a contempt.

A RULE to show cause why an attachment should not issue against the defendant, for a contempt in making a certain publication, was obtained at the last term, on the following affidavits.

James Kitchen made oath, that on the 8th September 1802, Thomas Passmore affixed the paper annexed to his affidavit, (a copy of which hereafter follows,) to a board in the exchange room in the city tavern, and wafered the same to the board, in the manner advertisements are usually posted up.

Andrew Bayard made oath, that the paper annexed was written by Thomas Passmore; that the contents of the said paper relate, as the deponent believes, to a suit depending in this court, wherein the said Thomas is plaintiff and Andrew Petit and this deponent are defendants; that the affidavit taken before John Inskeep, esq. in order to substantiate the exceptions to the report in the said suit is the oath taken by this deponent, to which the said paper refers; and this deponent has no suit, controversy or dispute with the said Thomas Passmore, other than what arises from the said suit depending in this court. The paper published was in these words: "The subscriber publicly declares, that Petit and Bayard of this city, merchants and quibbling underwriters, has basely kept from me the said subscriber for nine months about 500 dollars, and that Andrew Bayard, the partner of Andrew Petit, did on the 3d or 4th instant go before John Inskeep, esq., alderman, and swore to that which is not true, by which the said Bayard and Petit is enabled to keep the subscriber out of his money for about three months longer, and the said Bayard has meanly attempted to prevent others from paying the subscriber about 2500 dollars, but in this mean and dirty action he was disappointed in; I therefore do publicly declare, that Andrew Bayard is a liar, a rascal and a coward, and do offer two and a half per cent. to any good person or persons to insure the solvency of the said Bayard and Petit for about four months from this date. Philadelphia, September 8, 1802. (Signed) Thomas Passmore."

The defendant now appearing in court, in pursuance of the rule, the following facts where shown.

An amicable action was entered in this court on the 6th August 1802, by Passmore against Bayard and Petit, and on the next day was referred to Hugh Henry and Matthew Pearce for decision, who in case of disagreement, were authorized to call in a third person. The suit was brought on a policy of insurance underwrote by Petit and Bayard, and the other underwriters, by their agreement of the 12th July preceding, engaged to abide by the event of that suit. The two referees not agreeing in opinion, chose William Hazelet as the third man; and he and Henry made a report in favor of Passmore for 490 dollars, which was filed on the 6th August 1802. A fieri facias issued thereon returnable to last September term; but the same was stopped on the following exceptions being filed on 3d September last, which were verified by the oath of Andrew Bayard, before John Inskeep, esq., one of the city aldermen. 1st. The defendants were not notified of one of the

meetings of the referees. 2d. The affidavit of the plaintiff of what a person had said was shown to the referees in the absence of the defendants. 3d. The referees had allowed a claim for a total loss, though no account of expenses was produced to them. 4th. The referees had found for the plaintiff, instead of reporting in favor of the defendants. Upon these exceptions, a rule was entered to show cause why the report should not be set aside, and the publication complained of was made on the 8th September following.

Mr. Moses Levy in behalf of Passmore, now contended, that a contempt will not be presumed in a dubious case. There are several matters in the obnoxious publication which do not relate to the suit in this court; nor does it appear by the publication that any cause was depending upon which it was founded. It must be criminal on the face of the paper, and there must be a manifest allusion to a lis pendèns. At the most, this goes to prejudice the minds of the judges, before whom the exceptions must be argued ; and it is a work of more difficulty to prepossess a court than a jury.

Messrs. M'Kean, and Dallas è contra insisted, that if the unlawful intention must appear on the face of the writing itself, any artful man may escape with impunity, though the publication may have the most pernicious tendency to interrupt the course of justice. There can be no doubt concerning the allusion of the paper. One suit only subsisted between the parties; and in that alone, Mr. Bayard took the affidavit before alderman, Inskeep to substantiate the truth of his exceptions to the report. To this oath, filed in this action, the publication must necessarily relate, and though it may be harder to influence a court than a jury, yet it is possible that the report may be set aside, and the merits of the cause may come before a jury for their decision. No atonement has been offered for this base outrage. The sole apology for the conduct of Passmore which is offered, is the assertion that Bayard has perjured himself, by swearing to that which was not true.

By the court. The implication is irresistible, that the publication referred to the suit then under the cognizance of the court. It was an attempt to prejudice the public mind in a cause then depending, and was in the eye of the law a contempt of the court. Let the attachment go.

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