offense, and one on which the jury were not only entitled to exercise, but were in duty bound to exercise, their independent judgment. That question of fact was, whether the defendant, at the time when she voted, knew that she had not a right to vote. The statute makes this knowledge the very gist of the offense, without the existence of which, in the mind of the voter at the time of voting, there is no crime. There is none by the statute and none in morals. The existence of this knowledge, in the mind of the voter at the time of voting, is under the statute, necessarily a fact and nothing but a fact, and one which the jury was bound to find as a fact, before they could, without violating the statute, find the defendant guilty. The ruling which took that question away from the jury, on the ground that it was a question of law and not of fact, and which declared that as a question of law, the knowledge existed, was, I respectfully submit, a most palpable error, both in law and justice. It was an error in law, because its effect was to deny any force whatever to the most important word which the statute uses in defining the offense—the word "knowingly." It was also unjust, because it makes the law declare a known falsehood as a truth, and then by force of that judicial falsehood condemns the defendant to such punishment as she could only lawfully be subject to, if the falsehood were a truth.
I admit that it is an established legal maxim that every person (judicial officers excepted) is bound, and must be presumed, to know the law. The soundness of this maxim, in all the cases to which it can properly be applied, I have no desire to question; but it has no applicability whatever to this case. It applies in every case where a party does an act which the law pronounces criminal, whether the party knows or does not know that the law has made the act a crime. That maxim would have applied to this case, if the defendant had voted, knowing that she had no legal right to vote; without knowing that the law had made the act of knowingly voting without a right, a crime. In that case she would have done the act which the law made a crime, and could not have shielded herself from the penalty by pleading ignorance of the law. But in the present case the defendant has not done the act which the law pronounces a crime. The law has not made the act of voting without a lawful right to vote, a crime, where it is done by mistake, and in the belief by the party voting that he has the lawful right to vote. The crime consists in voting "knowingly," without lawful right. Unless the knowledge exists in fact, the very gist of the offense is wanting. To hold that the law presumes conclusively that such knowledge exists in all cases where the legal right is wanting, and to reject all evidence to the contrary, or to deny to such evidence any effect, as has been done on this trial, is to strike the word "knowingly" out of the statute—and to condemn the defendant on the legal fiction that she was acting in bad faith, it being all the while conceded that she was in fact acting in good faith. I admit that there are precedents to sustain such ruling, but they can not be reconciled with the fundamental principles of criminal law, nor with the most ordinary rules of justice. Such a ruling can not but shock the moral sense of all right-minded, unprejudiced men.
No doubt the assumption by the defendant of a belief of her right to vote might be made use of by her as a mere cover to secure the privilege of giving a known illegal vote, and of course that false assumption would