
    *DECEMBER TERM, 1802.
    CORAM — SHIPPEN, CHIEF JUSTICE, YEATES AND SMITH, JUSTICES.
    Respublica against Benjamin Gibbs, junior.
    S. C. 4 Dall. 253.
    Under the election law of 15th February 1799, the inspector has-no-right to exact an oath of a citizen claiming to vote, that he did not join the-British'forces during the late war, or was not attainted of high treason.
    The maxim, no one is bound to accuse himself, extends to such cases where the answer may involve one in shame or reproach.
    To-.constitute the offence.of intimidation, threats, violence or interruption, under the 17th section of the election law, there must be a preconceived intention for the purpose of intimidating the officers,-or interrupting the election.
    AN indictment was found against the defendant, and removed by him from the Mayor’s Court into this court.
    It contained five counts; the first three of them, under a law passed 15th February 1799, (4 St. Laws 332,) “to regulate the “general elections within this commonwealth ;”-the two last at common law. The first count charged the defendant with designing and intending to obstruct the due execution of the laws, and that he on the 13th October 1801, at the city of Philadelphia, did threaten and use violence to one John -Beckley, then and there being one of the judges of the election, and in the due execution of his office, and with threats and opprobrious language, did interrupt the said John Beckley in the execution of his duty. The second count charged him with threatening and using opprobrious language to the said John Beckley, one of the judges, &c., thereby designing and intending to interrupt the election. The third count contained some alteration of the first, and varied the charge as to the mode of interrupting Beckley in the execution of his office. The fourth count charged an assault on Beckley as a judge of the election, in the execution of his duty. And the fifth charged an assault on him generally.
    The facts in evidence appeared as follow :
    Benjamin Gibbs, the elder, the father of the defendant, a blind and aged man, entitled as an elector, (both as a native and resident above thirty years, who had paid taxes many years,) was led to the elefction ground by his son, and offered his vote. Pie was told, that previous to his vote being received, he must answer upon -oath or affirmation the following questions, to wit: “ Did you at all times, during the late revolution, continue in “allegiance to this state, or some other of the United States? “ Or did you join the British forces, or take the oath of allegiance “ to the king of Great Britain; and if so, at what period ? “ Have you ever been attainted of high treason against this “ commonwealth; and if you have, has the attainder been re- “ versed, or have you received a pardon ? ”
    *01d Gibbs thereupon asked, by what authority or law p* these questions were put to him, and was informed by the L 43° inspector of the ward, that they were proper, and unless he took the oath or affirmation thereon, his suffrage would not be received. The aforesaid John Beckley was then called upon and proposed the questions, saying the measure had been agreed upon by the judges of the election. Gibbs, senior, enquired of him by what law they were justified, and observed, that unless the questions were authorized, the law was paramount to their judgment. The necessity of answering the questions was again repeated, and Gibbs, by the advice of a friend, at length took the affirmation required of him, and answered the questions proposed, and then was permitted to give his suffrage. But previous thereto, both he and his son used intemperate language and insulting expressions. The defendant in particular said they were all a set of villains and scoundrels, and holding up his fist to Beckley in an angry and threatening manner, said he would see him at another time. One of the witnesses swore, that the defendant was within reach of Beckley when he held up his fist, but two others who were present also, swore that he was distant from him three or four yards, and did not seem as if he intended at the time to strike. The election was interrupted for some time by the violent and intemperate conduct of the father and son, and a tumult arose. It appeared that the same questions were asked of other electors at other windows of the court house, who were alledged to have been on what was called the black list of suspected persons, said to have been copied from Towne’s Evening Post, of persons proscribed by the executive authority of this commonwealth.
    Messrs. Ingersoll and Lewis for the defendant,
    after premising that every question concerning the right of suffrage was peculiarly interesting to the citizens of a representative government, made two points.
    ist. The conduct of the judges and inspectors of the election was illegal, when they exacted answers to their questions, before they would admit the parties to vote ; and if any interruption was occasioned thereby to the election, it arose from their own improper conduct. And,
    2d. Though the defendant may not be justifiable in all he has said or done, still he cannot be convicted on. any count in this indictment.
    i. The law of 13th June 1777, first directed, that all persons who had not taken the oath or affirmation of allegiance to the state, should be incapable of electing or being elected. Loose * -, *Acts 38, § 4. And those disabilities were confirmed 43 U and declared by the act of ist April 1778, to continue during the life of the delinquent or offender. Ib. 129, § 7. The law of 6th March 1778, attainted divers persons of high treason, if they did not render themselves by a certain day. 1 Dali. St. Laws 750. By the nth section of the act of 5th December 1778, persons who had taken the oath of allegiance to. this state, before the ist June then last past, and had since taken the oath or affirmation of allegiance to the king of Great Britain, were declared capable of electing and being elected, upon taking the oath or affirmation therein prescribed. Loose acts 174. And by the 2d section of the act of 4th March 1786, persons who had neglected to comply with the former test laws, were admitted to full citizenship, on taking the oath or affirmation specified therein. Ib. 35. Another more comprehensive law was passed on the 29th March 1787, whereby it is declared, that all persons shall, on taking a general oath or affirmation of allegiance to the state, without any renunciation of the king of Great Britain, his heirs and successors, or ,any retrospective clause whatsoever, enjoy all the rights and privileges of citizenship. Loose Laws 304. By another law passed 13th March 1789, all former laws requiring any oath or affirmation of allegiance from the inhabitants of this state, were repealed; and all persons who were excluded by former laws from certain privileges, were restored to the full rights of citizenship ; and every foreigner thereafter coming to settle within the state, shall be entitled to enjoy all the rights and privileges secured to him by the 42b section of the plan or frame of government. Ib. 43. 2 Dali. St. Laws 676. This was a general act of amnesty and oblivion, wisely calculated to heal all political animosities. Even the legislature would have no right to revoke the privileges and franchises, thus firmly vested in individuals by a solemn legislative contract and declaration.
    The constitution of Pennsylvania, formed on the 28th September 1776, directs in the 9th section of the declaration of rights, that “ no man can be compelled to give evidence against “himself; ” and the same words are repeated in the 9th section of the 9th article of the constitution of 1790. But it will be objected, that giving answers to the questions proposed by the judges and inspectors of the election, is not giving evidence by the party, to charge him with a crime now punishable by law. It will be remembered, that though corruption of blood, on an attainder of high treason, is taken away by the last state constitution, it followed under the constitution of 1776. It is true, that by the 6th article of the treaty of peace of 3d September *1783, between the United States and Great Britain, it is stipulated, that “there shall be no future confiscations L 432 “ made nor any prosecutions commenced against any person or “ persons, for or by reason of the part, which he or they may “ have taken in the war; and that no person shall, on that account, “ suffer any future loss or damage, either in his person, liberty “or property,” &c. 1 U. S. Law 483. But though, since the peace, Gibbs the elder could not be executed on a previous attainder of high treason, if such was really the case, nor any future confiscations flow from thence, would not his blood be corrupted thereby ? Would not the disabilities immediately consequent thereon attach to him, and he be rendered incapable of being a witness or juror; of bringing a suit; of electing or being elected ; of taking by descent or purchase ? And are these no pains or penalties ? Moreover, it is contended, that the true meaning of the constitution and law is, that no question shall be asked a person, the answer to which may tend to charge him either with a crime, or bring him into disgrace or infamy. Is the commission of high treason no offence against good morals, as well as the highest political crime ? Does not a man’s admission, that he has received a pardon on such attainder, induce merited shame and reproach ? Thus saith the law. Nemo ten-eturprodere (aut acensare) seipsum. 3 Bulst. 50. For it is against the very law of nature. Styl. Pract. Reg. 582 (675.) A juror may be examined on oath of voir dire, with regard to causes of challenge, which are not to his dishonour; but not with respect to the head of challenge propter delictiim, which would be to make him either forswear, or accuse himself if guilty. 3 Bl. Com. 364. A person shall not be asked whether he is a Roman Catholic. Doug. 572. A witness or juror shall not be asked, whether he was whipped for felony, or committed on a charge of coining. Salk. 153. 4 St. Tri. 747.
    The present constitution of Pennsylvania declares in article 3, section 1, 3 Dali. St. Laws XXVIII. “In elections by citi- “ zens, every freeman of the age of twenty-one years, having “.resided in the state two years next before the election, and “ within that time paid a state or county tax, which shall have “ been assessed at least six months before the election, shall en- “ joy the rights of an elector.” This is a paramount law, declaring the qualifications of the electors, and to these only can proper questions refer, viz. citizenship, 'full age, two years residence, and the payment of a state or county tax.
    The act of 15th February 1799, was passed in strict conformity thereto, and’ directs the specific questions ; and -it may be observed, .that though the first section of the law runs in-the affirmative, yet the 5th section clearly implies a.negative. 1 St. ^ -, *Laws 332.' In the present instance, no.difficulty could 43 3 J possibly exist as to Gibbs the elder -being born within the state, his advanced age, his residence on .the 28th September 1776, his living in his own house in the city, and his payment of state and county taxes for many years. This self-created inquisitorial tribunal, claiming a right to examine him on affirmation, as to matters which -might involve -legal incapacities, and subject him to shame and reproach’, was an arbitrary assumption of power, and a flagrant outrage on the rights of electors.
    The remark of Lord Chief Justice Holt in .Rex v. Tooley et al. 2 Ld. Raym. 1301, seems applicable to this case: “Where “an act is done under a colour of justice, and where the liberty “of the subject is invaded, it is a .provocation to all the subjects “ of England.” The assertion that the name of Gibbs the father, was found in the list of persons proscribed by the government, is a mere pretext; and we confidently assert, that it was unfounded ; with this also, that no legal opinion was ever obtained, justifying the practice. contended for. The slight interruption which took place during the election, must be ascribed to the illegal conduct of the judges and inspectors, and cannot be imputed to the defendant. The high commission court in England, which was afterwards abolished by stat. 16 Car. 1, c. 1.1, fell into disrepute, from forming themselves into a court of inquisition, in which all persons were obliged to answer, in cases of bare suspicion. 3 Bl. Com. 447. See also Junius’s 2d letter to Lord Mansfield -38, 39.
    2. But admitting' that the defendant’s conduct may not have been strictly correct in every particular, he cannot be convicted on.either of the counts in the present indictment. The three first counts are framed on the 17th-section of the act of 15th February 1799. After providing that all elections shall be free and voluntary, and directing how electors shall be punished, who take rewards for their votes, it declares, that “if at any “ election to be holden under the act, any intimidation, threats, “force or violence, shall be used or practised with design to “ influence unduly, or to overawe such election, or to restrain “ the freedom of choice, or .if any officers of .the election shall “ be threatened, or violence used to his person, or interrupted “in the execution- of his duty, every person who shall be guilty “of such intimidation, threats, violence or interruption, being “ convicted thereof, shall be fined and imprisoned for the same, “ at the discretion of the court, not exceeding six months im“prisonment, nor exceeding one hundred dollars fine,” &c. It is therefore essential, that the acts done shall be with' a view to influence unduly, or interrupt the election; and so are the counts of *this indictment framed. It will not be sufficient, r* that an interruption took place, in consequence of a sudden and unpremeditated act or speech, springing from sources not contemplated by the law. Penal acts must be construed strictly. And it must be admitted that this section is highly penal. Let a few instances be put by way of illustration. Suppose an affray to commence in an adjoining square, on grounds wholly foreign to the election, which in its progress should reach the place of election, and thereby cause a temporary obstruction, will this be within the act ? Or suppose blows given and returned on a sudden provocation, arising from private differences, at the time and place of election. Can these acts -however unjustifiable, be deemed to merit so severe a punishment, as must be the necessary consequence of a conviction under this act ? It is presumed not. Here the defendant went to aid an infirm and blind father, who was desirous of exercising the rights of a freeman, without any design of influencing or interrupting the election, and the intemperate warmth which took place from the conduct used towards his father, was merely accidental. As to the assault laid in the two latter counts, in order to constitute it, the adverse party must be within reach. Bull. Ni. Pri. 15. It was submitted to the jury, that the weight of the evidence on this point, as well as the circumstances attending the case were greatly in favour of the defendant.
    Messrs. Jo. Reed and Dickerson for the commonwealth.
    This cause has assumed a more important shape than was at first apprehended. The right of suffrage is perfectly distinct from violence and threats used in support of it. But though the legal point is not necessarily connected with the matters of fact, which the jury are called on to decide, the counsel will not shrink from the investigation.
    It is apprehended, that the proposing of the question to electors under suspicious circumstances, was not unlawful. The oath of each inspector and judge of the election, is prescribed by the 5th section of the act of February 1799. The former is sworn or affirmed, that “ he will not receive any ticket or vote “from any person or persons, other than those he shall firmly “ believe are entitled to vote according to the provisions of the “ act, without requiring such evidence of their right to vote, as “is directed to be given by the act.” And the latter, that “he “ will not give his consent, that any vote or ticket shall be re- “ ceived from any person or persons, other,” &c. Though certain inquiries are directed to be made in the xst section, yet there being no negative words, .the Judges and inspectors are not s -, *necessarily confined to them. They must firmly believe the elector is a citizen, or a foreigner under certain qualifications, before they should admit him to a vote. Whether a person is a citizen or not, who offers himself to vote as such, they have certainly a right to examine ; and though Gibbs, senior, was a native of Pennsylvania, yet he bright have elected during the struggle for independence, to continue a British subject; and he had an undoubted right to take his side during the civil war, until the nth February, 1777, without blame on that score, or being involved in high treason. 1 Dali. 58, 59, Respublica^. Chapman. But after making such election, he would no longer be a citizen of the state. If he continued an inhabitant of the state and became attainted of high treason, he forfeited all right of citizenship, and became incapable of voting, unless he had received a pardon. The judges and inspectors of the election were not bound to obtain copies of the records of the late Supreme Executive Council, or of the courts of Oyer and Terminer, either at their own, or-the public expence ; but they were bound by oath, to permit only real citizens to vote in that character. They must therefore be allowed to inquire into the citizenship of the person claiming to vote, by all the means in their power. If Samuel Chapman, in 1 Dali. 53, had offered to vote, his pretensions and disqualifications were proper subjects of inquiry. The burthen of proof of being entitled to vote, rests on the voter; and by his claim of the privilege, he subjects himself to the necessity of answering such questions, as may tend to shew that his claim is well founded. No compulsion is practiced on him. His owii act invites the examination. If he is under legal disqualification, it rests generally in his own breast, and can only be discovered by his answers upon oath. When it is said, that no one is bound to accuse himself, it cannot be supposed to apply to a person offering to vote, with a criminal intention of deceiving the inspector. But we take the rule to be, that such questions only are forbidden to be put, which may involve a man in guilt, or a penalty. Here the treaty of peace in 1783, took away all penalties for acts done during the war. 1 Dali. 233, Respublica v. Gordon. And yet there are not wanting cases to shew, that such questions as are now complained of, have been put in courts of justice. In the case of the Attorney General v. Mr. Du Plessis and others, where an information was exhibited to assert the king’s title to the lands of a woman charged to be an alien, she cannot demur to the discovery, whether she is an alien or not, because the disability of an alien to hold to lands, is not a penalty or forfeiture. Parker 144, 163. One offering * himself as bail was asked by *the court, whether he had ^ J not stood in the pillory for perjury. 4 Term Rep. 440.
    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, consists 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 manner. If 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.
    The intentions of . the defendant can only be ascertained by his acts. His conduct was highly intemperate. His language was grossly scurilous. To Becicley, 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 well 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 1st 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 suf-frages 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 September *1776, (when the first state constitution was formed;) being of full age, residence within the state two [*437 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 favour of the sons of qualified citizens, between the ages of 21 and 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, shew that no other questions can be put to the- electors, than may tend to shew whether they are possessed of these qualifications. The rule of law holds -in this case, that expressio unius, est cxchisio 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 shew, 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 obj ected 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 *438] towards his father. The severe penalty annexed to the offence shews 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 unde-signed interruption of an election to so rigorous a punishment.. To constitute the offence, 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 such design 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 assault 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.  