An Account of the Proceedings on the Trial of Susan B. Anthony, on the Charge of Illegal Voting, at the Presidential Election in Nov., 1872, and on the Trial of Beverly W. Jones, Edwin T. Marsh, and William B. Hall, the Inspectors of Election by Whom Her Vote was Received.

by Anonymous

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 If he still persists in his right to vote, and the challenge is not withdrawn, the inspectors are required to administer to him the general oath, in which he states in detail, and swears, that he possesses all the qualifications the Constitution 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 pass 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 entitled 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 entitled to be registered, or refuse to so register any person entitled 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.