MR. CROWLEY: It is not disputed.
THE WITNESS: I would like to say, if I might be allowed by the Court, that the general impression that I swore I was a male citizen, is an erroneous one.
By MR. VAN VOORHIS:
Q. You took the two oaths there, did you?
A. Yes, sir.
By THE COURT:
Q. You presented yourself as a female, claiming that you had a right to vote?
A. I presented myself not as a female at all, sir; I presented myself as a citizen of the United States. I was called to the United States ballot box by the 14th amendment, not as a female, but as a citizen, and I went there.
MR. VAN VOORHIS: We have a number of witnesses to prove what occurred at the time of registry, and what advice was given by these federal supervisors, but under your Honor"s ruling it is not necessary for us to call them. Inasmuch as Mr. Hall is absent, I ask permission to put in his evidence as he gave it before the Commissioners.
MR. CROWLEY: I have not read it, your Honor, but I am willing they should use so much of it as is competent under your Honor"s ruling.
THE COURT: Will it change the case at all, Mr. Van Voorhis?
MR. VAN VOORHIS: It only varies it a little as to Hall. He stated that he depended in consenting to the registry, upon the advice of Mr.
Warner, who was his friend, and upon whom he looked as a political father.
THE COURT: I think you have all the question that any evidence could give you in the case. These men have sworn that they acted honestly, and in accordance with their best judgment. Now, if that is a defense, you have it, and it will not make it any stronger to multiply evidence.
MR. VAN VOORHIS: I suppose it will be conceded that Hall stands in the same position as to his motives?
MR. CROWLEY: Yes; we have no evidence to offer upon that question at all.
_Evidence closed._
Mr. Van Voorhis addressed the Court at some length, as follows:
May it please the Court, I submit that there is no ground whatever to charge these defendants with any criminal offense.
1. Because the women who voted were legal voters.
2. Because they were challenged and took the oaths which the statute requires of Electors, and the Inspectors had no right, after such oath, to reject their votes.
1 R.S. Edmonds Ed., 126-127.
The duty of Inspectors of Election is defined by the Statute as follows: "-- 13. If any person offering to vote at any election shall be challenged in relation to his right to vote at that election, by an Inspector, or by any other person ent.i.tled to vote at the same poll, one of the Inspectors shall tender to him the following preliminary oath: "You do swear (or affirm) that you will truly and fully answer all such questions as shall be put to you touching your place of residence and qualifications as an Elector.""
"-- 14. The Inspectors or one of them shall then proceed to question the person challenged in relation to his name; his then place of residence; how long he has resided in the town or ward where the vote is offered; what was the last place of his residence before he came into that town or ward, and also as to his citizenship, and whether a native or a naturalized citizen, and if the latter, when, where, and in what court, or before what officer, he was naturalized; whether he came into the town or ward for the purpose of voting at that election; how long he contemplates residing in the town or ward; and all such other questions as may tend to test his qualifications as a resident of the town or ward, citizenship and right to vote at that poll."
"-- 15. If any person shall refuse to take the said preliminary oath when so tendered, or to answer fully any questions which shall be so put to him, his vote shall be rejected."
"-- 16. After receiving the answers of the person so challenged, the board of inspectors shall point out to him the qualifications, if any, in respect to which he shall appear to them deficient."
"-- 17. If the person so offering shall persist in his claim to vote, and the challenge shall not be withdrawn, one of the inspectors shall then administer the following oath: "You do swear (or affirm as the case may be) that you have been a citizen of the United States for ten days, and are now of the age of twenty one years; that you have been an inhabitant of this State for one year next preceding this election, and for the last four months a resident of this County; that you have been for thirty days next preceding this election a resident of this a.s.sembly district (or Senate or Congressional district or districts, ward, town, village or city from which the officer is to be chosen for whom said person offers to vote); that you are now a resident of this town (or ward, as the case may be) and of the election district in which you now offer to vote, and that you have not made any bet or wager, and are not directly or indirectly interested in any bet or wager depending upon the result of this election, and that you have not voted at this election.""
"-- 18. Prescribes the form of oath to be administered to colored men."
"-- 19. If any person shall refuse to take the oath so tendered, his vote shall be rejected."
The defendants performed their duty strictly and fully according to the statute.
The persons offering to vote were challenged; the defendants administered the preliminary oath to them; all the questions required by the statute were answered fully and truly; the challenge was still insisted on; the general oath was administered by the defendants to them; they took that oath, and every word contained in it was true in their case. The inspectors had no alternative. They could not reject the votes.
This statute has been construed by the Court of Appeals of this State in the case of _The People vs. Pease, 27 N.Y. 45_.
In that case it is held, that inspectors of election have no authority by statute to reject a vote except in three cases: (1) after a refusal to take the preliminary oath, or (2) fully to answer any questions put, or (3) on refusal to take the general oath.
_Davies_ J., in his opinion after an examination of the provisions of the statute says:
"_It is seen, therefore, that the inspectors have no authority, by statute, to reject a vote except in the three cases: after refusal to take the preliminary oath, or fully to answer any questions put, or on refusal to take the general oath. And the only judicial discretion vested in them is, to determine whether any question put to the person offering to vote, has or has not, been fully answered. If the questions put have been fully answered, and such answers discover the fact, that the person offering to vote is not a qualified voter, yet if he persists in his claim to vote it is imperative upon the inspectors to administer to him the general oath, and if taken, to receive the vote and deposit the same in the ballot box._"
_Selden_, J., who wrote in the same case, examines this question with great care and reaches the same conclusion. He says:
"The course required by the statute, to be pursued where the right of any person to vote is challenged, cannot be reconciled with any discretionary power of rejection vested in the inspectors. (Citing the statute as above quoted.) The inspectors are, first, to administer what is called the preliminary oath, requiring the person offering the vote to answer such questions as shall be put to him touching his place of residence and qualifications as an elector. The statute then mentions several questions which are to be addressed to him by the inspectors, and authorizes such other questions as may tend to test his qualifications as a voter. If he refuse to take the oath, or to answer fully, his vote is to be rejected; but if he answers fully, the inspectors are required to point out to him the qualifications, if any, in which he shall appear to them to be deficient. If he still persists in his right to vote, and the challenge is not withdrawn, the inspectors are required to administer to him the general oath, in which he states in detail, and swears, that he possesses all the qualifications the Const.i.tution and laws require the voter to possess. _If he refuse to take the oath, his vote shall be rejected._ Is not the inference irresistible, that, if he take the oath, it shall be received? If his vote is to be rejected after he takes the oath, why not reject it before? _As I construe the statute, the inspectors have no discretion left them in such a case_ (where the person offering to vote is not shown by a record to have been convicted of a crime, or by his own oath to be interested in a bet upon the election,) _but must deposit the ballot in the box, whatever they may believe or know of the want of qualifications of the voter. They are required to act upon the evidence which the statute prescribes, and have no judicial power to pa.s.s upon the question of its truth or falsehood; nor can they act upon their own opinion or knowledge._"
These views were concurred in by all the Judges. _Denio_, J., who wrote a dissenting opinion in the case, concurred with the other Judges as to the powers and duties of inspectors.
The defendants, then, have not in the least violated any law of the State of New York. They performed their duty according to the statute and in accordance with the decision of the highest court of the State, and in accordance with the printed instructions furnished them by the Secretary of State. What further can be demanded of them? No United States statute prescribes or attempts to prescribe their duties. They cannot legally be convicted and should be discharged.
3. Because no malice is shown. Whether the women were ent.i.tled to have their names registered and to vote, or not, the defendants believed they had such right, and acted in good faith, according to their best judgment, in allowing the registry of their names--and in receiving their votes--and whether they decided right or wrong in point of law, they are not guilty of any criminal offense.
The substance of the statute is, as to registration:
"If any such officer shall ... _knowingly and wilfully_ register as a voter any person not ent.i.tled to be registered, or refuse to so register any person ent.i.tled to be registered ... every such person shall be deemed guilty of a crime."
Act of May 31, 1870, -- 20, As Amended by Act of Feb. 28, 1871, -- 1.
And as to voting:
"If any person shall ... _knowingly and wilfully_ receive the vote of any person not ent.i.tled to vote, or refuse to receive the vote of any person ent.i.tled to vote ... every such person shall be deemed guilty of a crime."
Act of May 31, 1870, -- 19.
To bring an inspector within either of these sections he must know as _matter of fact_, that the person offering to vote, or to be registered, is not ent.i.tled to be registered or to vote.
The inspectors were _compelled to decide the question_, and to decide it instantly, with no chance for examination or even consultation--and if they decided in good faith, according to the best of their ability, they are excused, whether they decided correctly or not in point of law.
This is too well settled to admit of dispute--settled by authority as well as by the plainest principles of justice and common sense.
The law never yet placed a public officer in a position where he would be compelled to decide a doubtful legal question, and to act upon his decision, _subject to the penalty of fine_ or imprisonment if he chanced to err in his decision.