#### David Henshaw *versus*Samuel H. Foster *et al.*

*tainted*votes are *written*votes, within the meaning of the provision in the constitution, that “ every member of the house of representatives shall be chosen by *written*votes.”

The parties stated a case, by which it appeared, that on May 11th, 1829, the plaintiff, an inhabitant of the city of Boston, at an election of representatives to the general court, tendered a *printed*vote for fifty-five persons, the number to be chosen, which the defendants, the warden and inspectors of ward No. 7, in which he resided, refused to receive. The defendants did not believe this to be a sufficient legal vote, because it was a *printed*one, and they rejected it solely on that account. If the vote was a legal and sufficient one, the defendants were to be defaulted, and damages were to be assessed bv the Court.

Oliver, for the plaintiff.

The constitution of this Commonwealth provides, in c. 1, § 3, *art.*3, that “every member of the house of representatives shall be chosen by *written*votes *318and the question in the present case is, whether under this clause a *printed*vote is legal and sufficient.

In the election of governor, the constitution does not expressly require the votes to be in writing ; it merely speaks of *sorting*and *counting*the votes; so that a printed vote will there be within the constitution as well as a *manuscript*one.

No sufficient reason can be assigned, why a *printed*vote should not likewise be permitted in the case of representatives. It was unnecessary to make an express provision in regard to the governor, since his election could not well be conducted in any other way than by tickets, because the majority is to be ascertained by a comparison of the returns from the several towns ; but representatives might be chosen (though not so conveniently) by hand vote, or by acclamation, and the constitution therefore requires expressly that they shall be chosen by *written*votes.

It probably did not occur to the framers of the constitution, that many of the towns might become so populous as to make it convenient to use printed votes ; they consequently did not intend to exclude such votes. Since therefore the word *written*includes under it the word printed, (printing being one of the various species of writing,) a printed vote is within the letter, as well as within the spirit of the constitution.

If the framers of the constitution intended to exclude printed votes, such intention must have been grounded on some disadvantage attending the use of them. But a printed vote obviously has all the advantages of a manuscript vote, together with some peculiar to itself.

If printed votes are not legal, then lithographic votes also must be illegal, even if not distinguishable from manuscript ones. The consequences may be, that manuscript votes may be rejected under the pretence that they are lithographic, and lithographic votes may be fraudulently imposed upon voters as manuscript, in order that they may be thrown aside when the votes are counted.

If the word *written*is used in its correct *common*understanding, it contains under it *printing,*as well as *manuscript.*“ To write” is defined by Johnson and Webster, “to express in letters.”

*319Or if the word is used in its *legal*sense, it includes what is printed. Thus in Shep. Touch. 49, 50, it is said to be essential to a deed that it should be in writing ; and yet *printed*forms have been in use from time immemorial.

Printed votes are not rendered illegal by any statute. In *St.*1795, c. 55, § 1, “ written votes ” is used as in the constitution. It *St.*1798, c. 31, § 3, “ votes in writing ” means the same thing as “ written votes.” In *St.*1804, c. 58, it is enacted that promissory notes under five dollars “ *bearing the impression of types*” shall be void ; from which it may be inferred, that if the legislature had intended to prohibit the use of printed votes, they would have adopted a similar expression.

It may be suggested, that in the convention in 1820 for revising the constitution, a resolution was offered “ that it is expedient to alter the constitution, so as to provide that printed ballots may be used at elections,” and that the resolution was rejected. The only objection stated in the report of the proceedings of that convention, that printed votes might be abused “ by making caricatures and other things of that sort upon them,” is of no force ; for written votes are liable to the same abuse. A better reason may be assigned for rejecting the resolution, namely, that the use of printed votes was considered to be not inconsistent with the constitution as it now stands.

*J.*Pickering, for the defendants.

The question before the Court is not to be decided on the grounds of mere expediency or convenience ; it is a question of strict right; — what did the makers of the constitution *intend*by *written*votes ? 6 Dane’s Abr. 596.

The language of the constitution must be understood in the ordinary, popular sense of its terms ; because it' is to be construed and applied by the people at large, by town officers and others who are not lawyers by profession. To make *written*comprehend printed, is giving the word an unusual and rather technical meaning, which courts of law have adopted in many cases, in order to prevent a failure of justice, as in cases of deeds, contracts, &c. that might be rendered void by too rigid a construction of the term *writing.*But in the present case, no person is to suffer in his legal rights by a strict adherence to the common meaning of the term *wriVen.*

*320The words *writing*and *written*have received a construct'on *n our legislation, being used throughout our statutes as equivalent to *manuscript*; as in *St.*1789, c. 19, children are to be taught “to *read*and *tvrite.” By St.*1804, *c.*58, notes &c. under five dollars shall be “ wholly in writing,” and all “ which shall bear the impression of types, plates, or *printing.,”*shall be void. See also *St.*1795, c. 55 ; 1798, c. 31; 1811, c. 9. So by the revised laws of New York, “the ballot shall be by a paper ticket, which shall contain *written*or printed, or partly *written*and partly *printed,*the name of the person voted for,” &c. *vol.*1, *p.*133, 343 ; and in another law of that State it is provided, that if any person shall post another for not fighting a duel, or shall “ in *writing*or in *print,”*use any reproachful language, &c.

The opinions of lexicographers establish a plain and broad distinction between writing and printing. In *writing,*each letter is made part at a time, or by successive strokes ; but in printing, each letter is formed entire and at one stroke or *impression,*from a pattern or mould. Lithography is accordingly called in Germany ston *e-printing,*not ston *e-writing.*

But a stronger reason for the construction of the defendants is, the invariable usage throughout the Commonwealth, ever since the adoption of the constitution, to require *manuscript*votes. And it is a fact of importance, that the proposal in the convention in 1820, to authorize *printed*votes, was rejected.

The difference of phraseology in regard to the election of governor and senators, and that of representatives and certain .militia officers, shows a difference in the intentions of the framers of the constitution.

The constitutions of the other States generally use the same expression with our own, *written votes*or *written ballots.*But in the constitution of Connecticut made in 1818, it is expressly required that the votes shall be *ci fairly*written”; an expression which can only be understood in the common acceptation.

The opinion given by *Sullivan,*attorney-general, in 1804, that printed votes were legal, had reference to the choice of electors of president of the United States ; for which our con slitution does not provide ; and *Davis,*solicitor-general, gave an opinion contrary to that of the attorney-general.

*321*Dunlap,*in reply,

said that no argument against the plaintiff could be founded on the practice of using manuscript votes, for there are but few towns where printing presses are established, and there were still fewer when the constitution was framed ; and in small towns the use of manuscript votes imposes no considerable inconvenience. Besides, voters have been unwilling to hazard an election, by offering votes, respecting the validity of which a doubt might be entertained.

In the revised statutes of New York, allowing the use of “ written or printed votes,” the word *printed*was used from abundant caution. The same thing may be said of the New York statute against the posting of a person either “ in writing or in print ; ” with the further remark, that that is a penal statute, and consequently the word writing, if used alone, must have been construed strictly.

In the statute requiring that schoolmasters shall be provided to teach children to read and *write,"*the connexion shows that the word *write*was used in a limited sense. The other statutes respecting *written*votes, present the same question which is now before the Court. A liberal construction of the expression “ *fairly written,"*in the constitution of Connecticut, would be merely that the votes should be capable of being read with facility.

In legal treatises and forms of legal proceedings and pleadings, where accuracy of lánguage is generally found, *printing*is never mentioned as distinct from, but is always included under the term *writing.*See the case *De Libellis famosis,*3 Co. 125.

Parker C. J.

delivered the opinion of the Court. If *printed*votes are not *written*votes within a fair construction of the terms of c. 1, § 3, *art.*3, of the constitution of the Commonwealth, the plaintiff’s vote was rightly rejected ; otherwise it ought to have been received, and the plaintiff is entitled to redress for the violation of his franchise.

In construing so important an instrument as a cosstitution, especially those parts which affect the vital principle of a republican government, the elective franchise, or the manner of exercising it, w*e are not, on the one hand, to indulge ingenious speculations, which may lead us wide from the true sense and *322spirit of the instrument; nor on the other, to apply to it ich narrow and constrained views as may exclude the real object and intent of those who framed it. We are to suppose that the authors of such an instrument had a thorough knowledge of the force and extent of the words they employ, that they had a beneficial end and purpose in view, and that more especially in any apparent restriction upon the mode of exercising the right of suffrage, there was some existing or anticipated evil which it was their purpose to avoid.

If an enlarged sense of any particular form of expression should be necessary to accomplish so great an object as the convenient exercise of the fundamental privilege or right, that of election, such sense must be attributed. We are to suppose that those who were delegated to the great business of distributing the powers which emanated from the sovereignty of the people, and to the establishment of rules for the perpetual security of the rights of person and property, had the wisdom to adapt their language to future as well as existing emergencies ; so that words competent to the then existing state of the community, and at the same time capable of being expanded to embrace more extensive relations, should not be restrained to their more obvious and immediate sense, if, consistently with the general object of the authors and the true principles of the compact, they can be extended to other relations and circumstances which an improved state of society may produce. *Qui hceret in 'litera hceret in*cortice, is a familiar maxim in the law. “ The letter killeth, but the spirit maketh alive,” is the more forcible expression of scripture.

We will consider this question then under these several heads : —

1. What is the scientific force and meaning of the terms used in the constitution.

2. What was the object of its authors in the use of those terms.

3. What has been the practical construction and how far should it limit or restrain their force.

The first question may be easily settled, for there appears no difference of opinion among philologists. They all concur in giving an extended signification to the term “ writing ” or *323“ written,” varying in their own phraseology, but not in their ideas. Thus,

Walker defines write, “ To express by means of letters, to compose.”

Johnson, — “To express by means of letters, to engrave, to impress.”

Webster, — “ To form by a pen on paper or other material, or by a graver on *wood*or *stone.”*And the word *writing*he defines, “ Any thing written or expressed in letters.”

A still more apposite authority exists in the system of penal law prepared for the State of Louisiana, by Mr. Livingston, which has been handed to me by Mr. Dunlap since the argument. In the book of Definitions, ch. 1, the word *writing*is defined thus : “Wherever the contrary does not appear from the context, *writing*not only means words traced with a pen or stamped, but *printed*or *engraved*or *made legible*by any other device.”

In the common and statute law of this Commonwealth and Great Britain, both now and at the time of making the constitution, the use of the word writing, to express instruments generally printed, was familiar. Thus a bond is a *writing*obligatory, though printed ; — a promise in writing, to avoid the statute of frauds, may be printed ; — the statute of Anne, respecting promissory notes, speaks of notes in writing, and yet nothing is more common than to see them in print.

In the convention of 1780 there were great scholars, lawyers, philologists, — John Adams, Caleb Strong, Sullivan, Par sons, with many other distinguished characters. These men made the constitution ; they *knew*the use and force of its terms ; they looked to the future as well as to the present, for the application of them. There is no reason to suppose they intended to restrict them to the mode of voting then only in use. Probably the comparatively little use of types at that time did not suggest their application to votes ; if it did, the convention were willing to let them be so applied; for the object they had in view would be as well answered by printed at by manuscript votes.

What was their object in requiring “ *written*votes,” is the next inquiry' This must be left in some measure to conjecture, *324but a probable solution may be found in other provisions in the constitution, and in the history of the country antecedent to the forming of the constitution.

This requisition of written votes in the constitution is confined to the choice of representatives. The important election of governor, senators and counsellors, is left unprovided for in this respect, except by implication, and that implication does not exclude printed votes. The votes of all the different communities were to be sorted and counted, and a certificate of the result transmitted to a common focus, the secretary’s office, where they were to be examined and compared. This process *necessarily*requires tickets or ballots, so that there was no occasion to require expressly that the votes should be in Writing or in print.

There can be no ground to exclude printed votes for these state officers, for all that is required is, that they should be so given as that they may be sorted and counted. But in regard to the choice of representatives the case was totally different. The selectmen of each town determine the choice. If there were no express provision to the contrary, a choice might be made by nomination and hand vote, or *viva*voce, neither of which modes was thought calculated to insure an independent suffrage. The practice had been to elect many town officers by hand vote, and probably in some instances representatives had been so chosen. It became necessary therefore to prescribe that the choice should be made by ballot; but even the word *ballot*itself is ambiguous, and therefore it was required that representatives shall be elected *by written votes.*Now if writing was “to express by letters,” according to the lexicographers, which may as well and better be done by writing with types than in manuscript, no inference can be drawn from the terms employed, againsj the use of printed votes. Suppose one manuscript vote, and others copied from it by machinery, would these latter be illegal votes ? Suppose *lithographic*votes ; which was said to be the character of the one tendered by the plaintiff.

The whole apparent object of the framers of the constitution is attained by this mode of voting. They did not intend to require that each citizen should write his own vote ; that would *325have been, in those days, to disfranchise a portion of the citizens. They did not expect that votes would not be prepared by the more busy in elections to distribute at the polls ; that can as well be done by manuscript as by printed votes. In short, no reason against printed votes could have suggested itself ; convenience being much in their favor, it being much easier to detect and strike out an unpopular name from printed than from manuscript tickets.

But it is said, and this is the third head of inquiry, that the uniform and constant use of manuscript ballots in elections amounts to a construction of the terms of the constitution, which ought now to be received as the only true one. This practice of a mode of voting, which is undoubtedly constitutional, founded in existing convenience, and never brought into competition with the use of printed votes, scarcely furnishes an argument against the latter. Where there are two legal or constitutional modes of performing a duty or exercising a right, the use of one for any length of time cannot render the other unconstitutional or illegal. It merely shows a preference of one over the other, or that one during the time of the practice is more convenient than the other. There has been no judicial inquiry into this subject before the present, though the question has been raised, and in such manner as to entitle the proceedings in regard to it to some attention.

In the year 1804, on the approach of the choice of electors of president and vice-president, it having been determined by the legislature that the choice should be by a general ticket through the Commonwealth, the selectmen of Boston, wishing to save their fellow-citizens the trouble of writing a long list of names and multiplying the lists by manuscript for the purposes of the election, proposed to the attorney-general and solicitor-general the question whether it would be lawful and constitutional for them to receive printed votes. The former officer, then a gentleman of great political experience and wisdom, having been a member of the convention which formed the constitution, gave a decided opinion in the affirmative, and repeated this opinion afterwards with cogent reasons in favor of it, there having been some misapprehension of it as first given. The solicitor-general gave no decided opinion, though from the *326course of his reasoning it may be inferred that he was inclined against the measure. He merely recommended adherence to the old custom as the safest course for the occasion. It was a time of great political interest and excitement, and the selectmen concluded to act upon the old maxim, *via trita via tuta.*We think the opinion of the attorney-general was sound and ably supported ; and that much force may be added to it, from the fact that he was a member of the convention, and from what we know of his character and talents, we may say an active and influential member of that body.

The supposed inconveniences from the substitution of printed for manuscript votes, are probably in a great degree imaginary. It is said it may be the means of introducing caricatures, or libellous pictures upon the ticket, —but is it not quite as easy now ? The picture may be stamped, and names of candidates written over or under it, and the vote will be legal. It *has been*done, and probably will be again in times of fervid struggle. The legislature may, if it see fit, prevent this evil, by prohibiting the receiving of any ticket which has any thing upon it but the name and official designation of the candidate. It is said that votes may be printed and sent into the country for distribution in party times. But both parties having the same means, will neutralize each other on this point. Besides, there is a spirit of independence among the people in the country which will render any attempt to influence them by votes sent from the city dangerous to the party who shall use it.

We make no remark upon the several statutes which have been cited for the purpose of showing a legislative construction of the words “ written votes,” for they in fact show no such construction. The words used in the statutes are substantially the same as in the constitution, and therefore admit of the same construction.1

With regard to the revised code of New York laws, which provide for the writing or printing of votes, — it was well to remove all occasion of doubt, but it is not a just inference that *327the legislative body of that State thought that without such provision, printed votes would be illegal.

For these reasons we think that the rejection of the tiff’s vote was illegal, and that judgment must be rendered against the defendants. Considering however that they acted in the honest discharge of their supposed duty, and in conformity to a long course of practice, and that the object of the suit is probably to obtain a judicial decision upon a controverted question arising under the constitution, the assessing of damages being left to us, we assess them at one dollar ; to which are to he added the costs of suit, if required.

1

 The words “ written ” and “ in writing ” may be construed to include printing, engraving, lithographing, and any other mode of representing words and letters; provided, &c. Revised Stat. c. 2, § 6, *art*9.