-08 We call attention to a decision of the Supreme Court of Nebraska, given below in Notes of Cases, disapproving the decision of our Court of Appeals in the Onondaga election case. NOTES OF CASES. which relates to the mode of procedure in the election, and to the record and the return of the results, are formal and directory. Statutory provisions relating to elections are not rendered mandatory, as to the people, by the circumstance that the officers of the election are subjected to criminal liability for their violation. The rules prescribed by the law for conducting an election are designed 'N State, ex rel. Waggoner, v. Russell, Supreme chiefly to afford an opportunity for the free and of 2, was extrose to that the provision in section 20 of the act approved * ** | illegal votes, and to ascertain with certainty the result. Generally such rules are directory, not mandatory; and a departure from the mode prescribed will not vitiate an election, if the irregularities do not deprive any legal voter of his vote, or admit an illegal vote, or cast uncertainty on the result, and have not been occasioned by the agency of a party seeking to derive a benefit from them.' The view expressed by these authors has the support of the great majority of cases in this country and England. In fact, we are not aware that there is to be found in the reports any diversity of opinion on the subject. The following are a few of the many cases in point: Gass v. State, 34 Ind. 425; Platt v. People, 29 Ill. 54; Barnes v. Supervisors, 51 Miss. 305; Fry v. Booth, 19 Ohio St. 25; Tarbox v. Sughrue, 36 Kans. 225; State v. Nicholson, 102 N. C. 464. In the last case this rule was held to apply to a constitutional provision. The inference is strong however from the language of the several sections to which reference has been made, that the Legislature, by declaring a limited number of provisions to be mandatory, and a compliance therewith essential to a legal ballot, intended the other provisions as directory only. We are fortunately not altogether without authority on this question. There have been numerous decisions under the English and Canadian election laws, after which ours appears to have been modeled. For instance, in Grant v. McCallum, 12 Can. L. J. (N. S.), 113, it is held that under a statute which directs the voting mark to be made with a pencil, a mark with ink does not render the ballot void. * * * It will be noticed that a ballot marked in violation of the foregoing provision is not declared to be void. The force of the objection is apparent however if the effect of our construction would be to defeat or interfere with the secrecy of the ballot, since that is one of the primary objects of the law. The construction which we have given the statute will not however be attended with any such effect. It is not every mark by means of which a ballot might subsequently be identified which is a violation of the statute. The mark prohibited by law is such a one, whether letters, figures or character, as shows an intention on the part of the voter to distinguish his particular ballot from others of its class, and not one that is common to and not distinguishable from others of a designated class. The fact that a number of ballots are, without any evidence of a fraudulent intention on the part of the voters, distinguishable from others cast at the same polling places, as for instance, marked with a pencil or with ink of a different color, does not bring them within either the letter or spirit of the statute. The English and Canadian cases are not harmonious on the subject, but, according to Wigmore (page 194), the sounder view is that the ballot itself must furnish evidence of an unlawful intention on the part of the voter, such as his initials, or a mark known to be his, or the like. Neither can a ballot be said to be marked in violation of law because the voter, by reason of the happening of contingencies, or presence of conditions not contemplated at the time, is subsequently able to distinguish it from all others. It is true the ballot in controversy in this case might be distinguished by the voter who marked it, since it is the only one at the polling place marked with a pencil, yet the same result would follow in every case where a single vote is cast for any one of the several candidates named on the ballot. We are aware that our views on this branch of the subject are not in harmony with the recent cases in the Supreme Court of Connecticut, viz., Talcott v. Philbrick, 59 Conn. 478; and Fields v. Osborne, 21 Atl. Rep. 1070. In the last case, under a statute substantially like ours, but which authorizes the printing of tickets by the respective political parties, it was held that the name on the tickets of one party of a candidate for judge of probate, when said office could not be filled at that election, and on the other of additional words, descriptive of one of the offices, were distinguishing marks, for which the ballots of both parties should be rejected. To our minds however the reasoning of the dissenting judges is the more satisfactory and convincing, and certainly more in accord with the weight of authority. We think too that the construction given our statute is most promotive of fairness and purity in elections, and less liable to result in the disfranchising of honest voters through mere omissions or mistakes of their own, or the negligence or design of public officers. We have not overlooked the case of People v. Board, in the New York Court of Appeals, 29 N. E. Rep. 327. The statute of that State provides for official ballots of the different parties, and requires the county clerk to see to having them printed and distributed. For the purpose of identifying them as official, they are all required to be printed in the same way, upon the same kind of paper, and on the back of each ballot must be printed in prescribed type the words "Official Ballot for " and after the word "for" shall follow the name of the polling district for which it is prepared, and a fac simile of the signature of the clerk. It is further provided that there shall be no indorsement on the ballot other than as above. By another section it is provided that no inspector of election shall deposit in any ballot-box any ballot which is not properly indorsed and numbered, and that no ballot which has not the official indorsement shall be counted. By still another section it is provided that all ballots on which the voter, or any person with his knowledge, has placed any mark, with intention that it shall afterward be distinguished, shall be void, and shall not be counted. The county clerk in that case, by accident or design, sent to one polling district the ballots prepared for another in the same town, and vice versa, so that the ballots voted by one party in the first district of the town of C. bore the number of the second district, and those voted by the same party in the latter bore the number of the first district. For this irregularity the ballots in question were all declared illegal and void by the court, on the ground that the indorsement thereon was not prescribed by law, and was a distinguishing mark, within the meaning of the statute. The reasons alleged by the majority of the court for holding the indorsement in question to be a distinguishing mark are not satisfactory to us. It is argued that by means of the erroneous designation thereon the ballots were readily distinguishable as those of one political party, since the mistake only involved those of one party. This is true, no doubt, yet the ballots deposited in any box, it is assumed, may always be classified politically from the choice of candidates by the voters. That case affords an excellent illustration of the dangerous consequences of a strict construction of election laws, and the imposing upon innocent voters of penalties for the derelictions of public officers. Ballots to the number of twelve hundred were rejected, and the majority of voters of a district disfranchised, through no fault of their own, but on account of the act of a public official, on whose integrity and efficiency they had a right to rely. We agree with the views expressed by Judge Peckham in his dissenting opinion in that case, who, after stating the facts substantially as above, says: The mere statement of the proposition to reverse the result of an election under such circumstances, and for such a cause, is calculated to create in most minds a feeling that, if actually consummated, gross injustice would thereby be done, and that no fair reading of any ballot law would permit its consummation. To utterly disfranchise hundreds of innocent legal voters because the employee or messenger of some public officer made a mistake like the one in question seems to me to work a burlesque on the ballot act and its construction. Where any particular construction which is given to an act leads to gross injustice or absurdity, it may generally be said that there is fault in the construction, and that such an end was never intended or suspected by the framers of the act. A construction of the kind placed upon the act here under discussion certainly tends to bring the law itself into contempt. The construction of this act by the majority of the court is, as I believe, wholly unnecessary, and (I say it with great respect) unreasonable,'" In State v. Heppenheimer, Supreme Court of New Jersey, February 18, 1892, it was held that the State may, in time of peace, condemn land in feesimple, for its use as a military encampment for the military forces of the State. The court said: "The Constitution of the United States clearly recognizes abounds in disputation over terms, which might possibly have been relieved of much doubt and difficulty if, at the outset, a common understanding could have been reached in respect to the meaning of certain familiar phrases and expressions. Happily the announcement now is, that the parties have come to a ground of disagreement, which may be safely and honorably referred to arbitration. Another instance of inexactness in the employment of words occurs in the current phrase, "The right of asylum." What is now usually intended by this expression is the temporary protection which some minister or diplomatic representative-impelled by humanitarian motives under the exigency of the moment - grants to a political refugee, who succeeds in reaching the precincts of a legation, over which floats the flag of some recognized power. the right of each State to maintain its militia, and, THE SO-CALLED RIGHT OF ASYLUM IN I. THE LAW OF NATIONS. I would be difficult to estimate the extent to which the world's progress and development along correct lines has been retarded or diverted as the result of the use of expressions that are vague or misleading. Το the infirmity of language itself must often be imputed confusion of thought. But much misunderstanding may be avoided by the careful employment of apt words. "The great disputes of the world," said a master of hermeneutics, "arise upon words."* Illustrations of this commonplace truth will occur to * A prime minister of England has been credited with the Who saidt, Gott knows, I meant somedings when foorst dis Boot Gott only weiss vot das buch means now, for I have for- Although it is sometimes said, that the right to grant asylum to fugitives is still one of the open questions of public law;(1) and that the rule of international law as to the right of protection and asylum by diplomatic agents is not very well defined; (2) it is the purpose of this thesis to maintain that such a right is not recognized or countenanced by the law of nations, and that the rule of international law in this regard is clear and explicit, as applicable to civilized or constitutionallyorganized States. It is conceded however that it is a alleged, has been exercised to a greater or less extent by every civilized State in regard to barbarous or semibarbarous countries. (3) However it may have been in other times, the claim of a political refugee to such asylum is not recognized by modern international law, and no such "right" is admissible in the view of the law of nations.(4) The temporary protection which, under circumstances, is extended by foreign ambassadors or ministers to political refugees, who are hotly pursued until they reach the shelter of a legation, is in derogation of fixed principles of international law, and is usually accorded on the individual responsibility of the foreign representative, who is impelled thereto by considerations of humanity. It will appear further on, when I come to the consideration as to what constitutes "right," that while there is some ambiguity in the term, it may, for the purposes of this discussion, be sufficiently defined to satisfy the intelligent reader. The abuses to which the so-called "right of asylum" was often in times past carried led to an examination and denial by publicists of the existence of any such "right." Contemporary occurrences in certain countries in friendly relations with the United States have again made the expression familiar; and the recent very threatening condition of affairs in Chili may render present examination of the subject interesting and instructive. The origin of the so-called "right of asylum" dates back to a period when the semi-savage instincts and cruelty of man was only checked and tempered by an advancing culture and refined civilization. It existed under the Mosaic law, and no doubt served a useful purpose in its humanizing influences. In Greece there was a temple inclosure, asylum, within which protection from bodily harm was afforded to all who sought it and could prove their danger. In a general sense, all Greek temples and altars were asylums; that is, it was a religious crime to remove by force any person or thing under the protection of a deity. But it was only in the case of a small number of temples that this protecting right of a deity was recognized with com (1) Mr. Fish to Mr. Preston, 1 Whart. Int. Law Dig. 686. (2) Law Magazine and Review, Nov. 1891, pp. 93, 94. (3) Mr. Seward to Mr. Hollister, 1 Whart. Int. Law Dig. 678, 679. (4) Vattel IV, chap. 9, p. 555 (Northampton ed., 1820). mon consent, and apparently these were among the oldest temples of Greece. Similar asylums existed in Asia Minor and at Rome. (1) Under then existing conditions it was natural for the weak, the unfortunate and the defeated to seek safety by flight to the most sacred and respected asylum the temple. After the Christian era, by common consent, and under a custom which developed into a law, the unfortunate offender or fugitive who reached the threshold of the church was held to be inviolate. In the course of time a similar protection was extended to political refugees who sought the shelter of a friendly or neutral flag. In each instance however it was the supposed sanctity of the place of retreat that was the source and spring of immunity rather than the character or misfortune of the fugitive. The immunity which the temple and church enjoyed in other times as a refuge, secure from bloodshed and broil, was in time extended to the foreign legation in certain States. In respect to the latter however it was rested upon that fiction of the law of nations, described as extra-territoriality, by virtue of which the residence, office and entourage of ambassadors, ministers and other diplomatic representatives of foreign States was held secure from any invasion or molestation. In the progress of time, and in countries subject to frequent disorders and civil commotions, the plea of humanity on behalf of the political refugee became loud and frequent. And on occasion the claim was insisted upon, as if it was the protection of the fugitive that was the principal consideration, and the immunity of the legagation from unseemly invasion merely an incident. These claims to immunity increased until the attention of publicists being called to it, the real character of the exemption which the legation now enjoys under international law was clearly set forth.* another author says: "According to the principles of the natural law, it would appear that if the minister knows that an accused person (whether innocent or guilty) has taken refuge in his dwelling, he ought not, unless he has some just and cogent reason for so doing, refuse to give him up, and that if he does, he ought to impute to himself all the consequences of such refusal. However, according to modern custom, ministers alleging the extra-territoriality of their dwelling, or else particular usages, claim the right of granting an asylum, and regard as an infraction of the law of nations every violent measure taken by the court (State) in order to force from their dwellings any person that may have taken refuge there."(1) It is further pointed out that at many courts this right was formerly granted to ministers; but from the nature of the right every power is justified in declaring that it will no longer grant it, and this several of them have done. With others it still subsists, but its existence is everywhere disputed, and is generally allowed not to extend to State criminals. Under this exclusion of "State criminals" it would frequently be a nice and delicate question to decide what individuals may be properly included within the description "State criminals." And the further inquiry as to who is to determine the first question still remains. In 1726 the Duke of Ripperda, the first minister of Philip V, took refuge in the residence of Lord Stanhope, the English ambassador at Madrid. The king asked for the opinion of the Council of Castile, the first tribunal in the kingdom, whether, without a violation of the international law, he had a right to take his subject Ripperda, accused of high treason, by force, if other means were of no avail, from the residence of the English ambassador. The answer was in the affirmative, and Ripperda was accordingly taken by force from the residence, and his papers were seized at the same time. The British government, of which the Duke of Newcastle was the prime minister, complained bitterly of this act, and demanded reparation for an alleged insult to the ambassador. The complaint was however founded rather upon the manner in which the act was done than upon a claim for the right on the part of the ambassador to have retained the refugee. Spain refused to make any reparation, and asserted boldly the legality of what she had done. The difference between the two nations increased in bitterness till, in the next year, war upon other grounds broke out between them. "It would seem to follow," says Phillimore, “that Spain was not guilty of any violation of international law.''(2) Referring to the extra-territorial character of the legation, a contemporary author remarks: "Upon this valuable and necessary immunity was at one time grafted the monstrous and unnecessary abuse of what was called the right of asylum. In other words, the hotel (residence) of the minister was to be a place of refuge for offenders against the law of the State in which it was situated. Bynkershoek is clearly right in pronouncing that, whether common sense, the reason of the thing or the end and object of embassies be considered, there is not even that faint color of reason which the most absurd pretensions can generally put forth, to be alleged in favor of such a custom. History teems with examples of the evil consequences resulting from this absurd privilege, which was often extended from houses to whole districts and quarters of the town, as at Rome and Madrid. The Polish ambassador at Rome in 1680, the Spanish in 1682, the Eng-dispatched to Spanish waters. And the attitude of lish in 1686, voluntarily renounced these exorbitant and mischievous privileges."(2) After an examination into many cases in which the so-called right of asylum was asserted, another publicist concludes that "The right of asylum, in respect of the official residences of ambassadors, constitutes a perpetual source of dissen-refugees, the foreign State has no right forcibly to arsions and of controversies. The good of nations demands that it should be entirely abolished, and this course seems to be more reasonable since there are many States in which it is not known."(3) And Grotius had early declared that the jus asyli was no part juris gentium.(4) Of the right of granting an asylum, *The ambassador's official residence is free from local jurisdiction, but it is no longer an asylum, and a criminal taking refuge there may be seized by the local authority if not delivered up by the ambassador. Encyc. Brit., word "Asylum." Vattel, bk iv., ch. ix, § 118. (1) 11 Encyc. Brit. 825; Plutarch's Lives, Romulus, 16. (2) 2 Phil. Int. Law, 241 (A. D. 1882). (3) Merlin, S. 28, p. 414. (4) L. II, chap. 18, VIII, 2; 2 Twiss Law of Nations, 367. While the sharp remonstrance of Great Britain was passing between the two courts an English fleet was Spain was described in a speech from the throne as a little short of a declaration of war. Referring to this case, a contemporary English reviewer of international episodes maintains that there is no reasonable doubt that if a minister chooses to grant asylum to rest the latter in the embassy.(3) But he does not say whether or not such a refusal might not be deemed by the foreign State a just casus belli. As to the authority of an ambassador over his household, and the asylum which he may afford in his house to fugitives, these depend upon agreement made with the power to whom he is sent, and do not come within the decision of the law of nations. It has been suggested that the claim of the refugee to protection while under the cover of the flag of a foreign legation is in no sense a 'right" which appertains to him personally. The most that can be said of (1) Martens, 233 (A. D. 1788). (2) 2 Phillimore Int. Law, 242-3. 64 (3) Law Review and Magazine (London, Nov., 1891), 94-95. it is that it is a "privilege" which is extended to him, In civil wars necessity sometimes gives birth to new This brings me to a consideration of the meaning of Of the right of asylum accorded in privileged places, tent authorities a person pursued by the police or the judicial authorities of the country, and who shall have taken refuge with him, or to authorize the search of his dwelling for the fugitive."(1) This leaves the case of a fugitive pursued by a mob-the too frequent occurrence in some countries-unprovided for. It is the uncertainty as to which of two mobs constitutes, or that may in time constitute, the actual government, that, in certain countries, makes the situation embarrassing for the minister resident. The character of some of these so-called "revolutions" may be gathered from the statement of an eye-witness, who declares that an incipient revolution in one of these so-called States was extinguished by a heavy rainfall which dispersed the mob just as the "revolutionists," armed with broomsticks, canes, knives and dilapidated muskets began to form in the main plaza. The painful truth is that several so-called "States" which are recognized members in the family of nations by the United States and other dominant powers, and with whom are interchanged all the etiquette and formality which diplomacy enjoins, lack three of the essential characteristics of a State proper, namely, autonomy, order and stability. They are in fact only opera bouffe governments, such as are customarily seen upon the comic stage. (2) It is difficult to reconcile this condition of affairs with the postulate of international law which demands that a member of the family of nations which expects recognition shall possess the essential attri butes of statebood-union, order, autonomy and stability. In some of these so-called States low cunning takes the place of statecraft, and duplicity is substituted for diplomacy. II. THE PRINCIPLE AND PRACTICE OF THE UNITED I come now to contrast the principle asserted by the law of nations, with the practice of the United States in this regard, as illustrated in the foreign relations of the government. If reference be had to the official declarations of principles which have been laid down by that branch of the government which is charged with the conduct of foreign affairs, it will be observed that these are pronounced and explicit. But while adhering to the doctrine of the law of nations, the United States has felt constrained to follow the practice of European States in granting asylum, during revolutionary periods, in certain half-civilized and unstable political communities. This government has always discountenanced the use of its legations and consullates to shield the citizens of a country from the action of their own government. And its position has been repeatedly stated in official communications by the secretaries of State. (3) In view of these it will appear that while insisting upon the rule of international law, as herein stated, the instructions to its diplomatic agents make provisions for exceptional cases. In 1875 Mr. Fish, in a communication to Mr. Cushing at Madrid, advised as follows: "The right of asylum, by which I now refer to the so-called right of political refugees to immunity and protection within a foreign legation or consulate, is believed to have no good reason for its continuance, to be mischievous in its tendencies and to tend to political disorder. These views have been frequently expressed, and while this government is not able of itself to do away with the practice in foreign countries, it has not failed on appropriate occasion to deprecate its existence and to instruct its representatives to avoid committing the gov (1) 1 Moore Extradition, 8, 9, note. (2) St. John, Hayti, or the Black Republic; Lettres de Dondan, ii, p. 51. (3) 1 Moore Extradition, 9, note. |