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(Criminal prosecutions for illegal voting.)

not naturalized, who shall presume to intrude into elections, should be indignantly resisted; for the sovereign power actually resides in the people; they elect their rulers to administer the government, according to the constitution; when an alien, not naturalized, presumes to vote at an election of our rulers, it is a wrong done to every citizen. It is the nature, perhaps, the life of free governments, to generate parties; but when a foreigner, or other unqualified voter, gives in a ballot at an election, it is a wrong to the voters of every party, without reference to the candidate for whom he votes; if one party should, by such means, gain an unlawful victory, at one election, their antagonists will perhaps prevail, by like means, at the next. The state will become corrupt, and gradually lose its free character; elections will come to be decided by illegal votes, and the people will, in time, find themselves governed by rulers not of their choice.* I say, therefore, that it is a common injury; and I hope that, while any virtue remains in the people, they will be watchful over each other, and so preserve the foundation of the free body politic. If any citizen should become so recreant to duty, and to the principles of free government, as wilfully to aid and abet foreigners in attempting to vote at our elections, before they shall have been naturalized, he ought to be made to suffer the penalty of the law.

But I am bound to add, that there has been, I believe, a neglect of caution, in times past, which may have led many well-disposed foreigners to consider themselves legal voters, when they were not, in fact, entitled to that privilege; having resided here for years and paid taxes, finding also their names on the lists of voters, they have been per

ments upon their political rights by the overgrown corporations that exist among them, should convince the candid observer of this unwelcome truth. The individual is lost in the community.

*The learned judge has graphically described the state of the nation, in the year of grace 1871.

(Criminal prosecutions for illegal voting.)

mitted to vote and serve as jurors, without distrusting their own right or having it questioned by others. But until an alien has been naturalized, he is not a citizen, and is not entitled either to vote or to serve on a jury; the payment of taxes is a return for the protection of the government; neither length of residence nor payment of taxes will constitute citizenship. If he was not born in the country, or, if born abroad, if his parents were not citizens of the United States, not having renounced or forfeited their allegiance, he is a foreigner, and must conform to the laws which regulate naturalization, before he can hold real estate, or exercise the freedom of election, as a citizen of the country.

It follows, from these views of the law, that if a foreigner, who has not been naturalized, should vote at an election, his vote not being legal, yet, if he honestly believed, at the time, that he had a right to vote, it would not amount to that wilful act which is forbidden in the statute. And so also, if a person should aid and abet such foreigner in attempting to vote, if it should appear to the jury, that he honestly believed that the foreigner had a right to vote, they ought to acquit him of the offence. Whether a person is a qualified voter, is a question compounded of law and fact; those who prepare the lists may inadvertently err in their judgment and lead others into

error.

If an alien, having resided in the country for many years, and finding his name on the list of voters, should use the privilege without question, it would be for the jury to consider, whether he might not naturally be led to believe that he was a qualified voter; but if, presenting himself at the polls, and being interrogated, he should falsely assert, that he had conformed to the laws of naturalization, a jury might reasonably infer from that falsehood, that he knew, at the time, that he was not a legally qualified voter. Even a citizen may be ignorant of the law, and may innocently believe that, if the mayor and aldermen have placed the name of a person on the list of

(Criminal prosecutions for illegal voting.)

voters, it is conclusive evidence of his right, not to be questioned by the ward officers; whether such citizen acted wilfully, in aiding and encouraging an unqualified alien to vote or to attempt to vote, must be decided by the jury, under all the circumstances of the case.

It has been argued, that the ward inspectors in this city may not question the right of one whose name is borne on the list of qualified voters, nor refuse to receive his vote; on this point, I have been requested to state my view of the law. No person, although a qualified voter, is permitted to vote at an election, unless his name is borne on the list; although the name of an unqualified person may be borne on the list, by mistake, it would not authorize him to vote; he would do so at his peril. The name on the list will justify the inspectors in receiving his vote, because it is not declared to be their duty to institute an inquiry; they may, however, lawfully refuse the vote of one who is not a legal voter, though his name be borne on the list, when that fact has come to their knowledge, by the confession of the individual himself, or otherwise. In refusing to receive an illegal vote from an unqualified person, they do no injury to him, they prevent fraud, and they perform a meritorious act to the public, since it tends to keep elections pure, and to perpetuate our government and laws in pristine health and vigor. It is part of the ministerial office of the inspectors, to prevent "all frauds and mistakes in elections," and to place a check against the name of each voter. In refusing the vote of one whose name is on the list, they would act upon their own risk, and would, undoubtedly, be liable to the action of the party, if he were a legal voter; just as the mayor and aldermen would be liable to the action of a qualified eitizen, whose name they should wrongfully refuse to insert on the list, whereby he should lose his privilege; still, if the party had no right to vote, at the time, he would sustain no wrong in either case, and therefore, he would be entitled to no redress.

(Criminal prosecutions for illegal voting.)

The first fact to be settled by you is, whether Francis Aglar attempted to give in a vote, at the election held on the second Monday of November 1834. If you should not be satisfied that he made this attempt, he must be acquitted; and it would then follow, that Ralph Huntingdon must be acquitted also, because his offence is charged as accessory to that of Aglar. But it may be, that Aglar did attempt to vote at that meeting, in which case, it will be necessary for the jury to inquire further, whether it was done wilfully, he having, at the time, the knowledge that he was not a qualified voter; if they are not satisfied that he acted wilfully, he must be acquitted. But even if Aglar should be acquitted for this cause, if he made the attempt to vote through the wilful persuasion of Huntingdon, knowing, at the time, that Aglar was not qualified to vote, then, though Aglar should be acquitted, it would be the duty of the jury, to find Huntingdon guilty; it would amount to a substantive offence in Huntingdon; and it is not necessary, like the case of an accessory in the commission of a felony at common law, that the conviction of the principal should precede that of the accessory.* Therefore, if Aglar did not attempt to vote, Huntingdon must also be acquitted, whatever feeling or zeal he may have manifested at the time; if Huntingdon advised Aglar to vote, and promised to stand by him, in case he would vote, still, if Aglar did nothing in consequence of this advice and tender of protection, the offence was not consummated. It is not made an offence, under this statute, to advise an unqualified person to give in a ballot, not even if such advice be accompanied with an offer of protection; it may have been very improper, and contrary to the duty of a good citizen, to give such advice to an unqualified person, but that is not declared to be an offence, and that is not the charge for which Huntingdon is on trial.

*Sed quere, whether it would not be necessary that Huntingdon should be separately indicted for a substantive offence?

(Criminal prosecutions for illegal voting.)

It does not appear, that there was any previous concert between Aglar and Huntingdon; they were strangers to each other; all occurred in the ward-room, during the heat of the election. Aglar came to the polls, with a vote in his hand, undoubtedly intending to vote; as soon as he appeared, and before he tendered his vote, one of the inspectors asked him, whether he was a naturalized citizen; he immediately answered that he was not; he was then told, that an alien, not naturalized, was not a legal voter, and that if he voted, it would be at his peril; he said, he had been in the country for 24 years, had paid taxes, his name was on the list of qualified voters, and that he had voted at former elections, without question; he was told by the inspectors, that his name was indeed on the list, and that they would receive his vote, but that, if he was not a naturalized citizen, he would be liable to prosecution. While this conversation was proceeding, Huntingdon came forward, and having learned that Aglar's name was on the list, insisted that that was conclusive evidence of his right and qualification, and urged him to vote, promising, at the time, to hold him harmless from the consequences; Aglar said that, if he was entitled to vote, he should be glad to do so; but if he was not authorized, he would not vote. After a very animated contest, in which the inspectors offered the ballot-box to Aglar to receive his vote, but without any attempt on his part to give it in, he and Huntingdon left the room, in order to obtain legal advice on the subject. They went to Samuel Dexter, Esq., and from him to Andrew Dunlap, Esq., by whom they were advised, that an alien, not naturalized, could not lawfully vote at that election; Aglar did not return to the polls; but Huntingdon came back, asked the names of the inspectors and threatened to institute a prosecution against them for refusing the vote. The warmth on both sides led to further inquiry and resulted in this prosecution. It is not politic to attempt to restrain, by severe regulations, the freedom of

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