In the superior court of New York city substantially the same blank forms were used, except that there was no printed or other fiat or order of the judge. Instead of this the judge indicated his order simply by writing his intials, "J. H. McC." across the face or along the margin of the application.101

In this court most of the naturalizations were before Judge John H. McCunn, from whose testimony it appears he did not swear any witness or applicant "to testify the truth, the whole truth, and nothing but the truth," nor even to "make true answers to such questions as should be put," but he professed to swear the applicants and witnesses in these words, "that these affidavits you have subscribed are true." 102 After this, sometimes, though rarely, questions were asked as to age, residence, and moral character, but never under oath, unless, indeed, the swearing to the truth of their affidavits could be so considered.

In the court of common pleas each applicant was naturalized separately, an oath was administered to each witness to testify the truth touching the questions put to him in the matter of the application, a proper oral examination of witnesses was had and, the judges and clerk seem to have discharged their duties with an integrity of purpose and regard for the law, 103 which unfortunately did not prevail in the other courts.

This may account for the fact that the common pleas, which in previous years had done most of the naturalization business,104 did but very little in 1868, while the naturalizations in the superior and supreme courts were numerous, though the latter court naturalized none in previous years.

The distinction between an oath and an affidavit is well understood." An oath means an oath in the common law form.106

105

The law does not authorize the court to receive affidavits.107 In order

101 See Evidence, 3614; Meek's evidence, No. 3787.

10 Here is Judge McCunn's own testimony:

3632 Q. In what form did you swear the parties?-A. To my invariable question, "Have you read the affidavit?" the answer would be "Yes, sir." Do you understand the contents thereof?" "Yes, sir." Then, if the witness swore with uplifted hands, I would administer this oath: "You do solemnly swear, in the presence of the ever-living God, that these affidavits you have subscribed are true;" or, if the witness swore on the book, "You solemnly swear that the affidavits you have subscribed are true?" That was the end of the formula, and then the cross-examination would begin: "How long have you known this man in this Country!" "So many years." "Do you know that he came here under the age of 18?" Well, if a man hesitated for a moment, I would tear up the papers and tell him to pass along; but if the answer was, "I have known him from his boyhood," or "from when he was 16 years old in this country," I would then ask, "Do you know him to be a man of good moral character, and attached to the Constitution of the United States of America ?" If he said "Yes," I would then turn to the applicant himself and ask him, "How long have you been in this country?" and if I doubted the man from his answer, I would ask him what ship he came over in, and from which port, for I have knowledge of almost all the steamships and packets, and if I found that the man prevaricated, then I would destroy the application.

3633. Q. Suppose it was not the application of a minor, but of an adult, what would be the process of natalization -A. He has his first certificate then, and it is only a question whether he has been in this country all the time since; or if he has been abroad, whether it was with the intention of residing abroad. The applicant and his witness, in such a case, would be sworn inthe same way that I have already stated. I would ask, then: "Have you read the affidavits?" and if they said they had not, I would go on and read the affidavits, if they said "Yes," I would swear them to the truth of the affidavits. After that I would ask the witness, "How long have you known this man in this country?" and "Is he a man of good moral character?" &c. That was all.

Edwin R. Kent, clerk in equity to the supreme court, testifies :

2057. Q. Were one-tenth of the witnesses examined before they were sworn?-A. O, yes, sir. There may have been one half of them examined, or there may have been more, or there may have been less.

3958. Q. After the examination without being sworn, the oath was administered to them in the form in the printed blanks? A. Yes, sir.

3973. Q. Were they sworn as soon as they came inside the railing?-A. No, sir; as a general thing the judge asked them some questions before the oath was administered.-Evidence, 963, 1366, 1756, 3957, 3973.

1067 Hill, N. Y. Rep. 137. The act of March 3, 1857, (11 Stat. 250,) declares it perjury to swear falsely "in all cases where any oath, affirmation, or affidavit shall be made or taken before any registrar or receiver of any local land office."

1 Evidence of Judge Emmet, 5090. 2 Bouvier Dic., title "Oath."

107 In 7 Hill, N. Y. Rep. 137, it was said, in the matter of an application for naturalization, by Judge Dean, a prominent democrat, that "the act of April 14, 1802," declares that the court shall be satisfied" of the residence of the applicant for the proper period; and that

ing certificates of naturalization on such proof alone the courts proceeded illegally.

When any evidence at all was taken in the superior and supreme courts the former only professed to use affidavits as evidence, and the latter did substantially or really the same thing.

Only one witness was required 108 by these courts.

The act of April 14, 1802, provides that any alien "may be admitted to become a citizen" on making the proper declaration in court and taking the proper oath of allegiance," which proceedings shall be recorded by the clerk of the court." The act of the court admitting to citizenship is a "proceeding" to be recorded.

In the courts of New York no record was made other than the files of the applications, affidavits, and order " of naturalization," signed by the initials of the judge. If this should be deemed a record still as to the superior court, the forms used do not contain any such order.109

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"it shall further appear to their satisfaction that during that time he has behaved as a man of good moral character," &c. Then follows a provision "that the oath of the applicant shall in no case be allowed to prove his residence. From this it is to be inferred that the residence is to be proved by the oath of some one other than the applicant. Undoubtedly the legislature may make ex parte affidavits competent evidence in any case, as they have done in various instances, by express enactment. But this only proves that without such enactments affidavits are inadmissible and can never be received. I entertain no doubt, therefore, that affidavits cannot be legally received in these cases." See Brown vs. Hinchman, 9 John's, R. 75. Lenox vs. the United Ins. Co.,3 John's Cases, 224. Ex parte Tucker, 1 Cranch, 89. (See evidence of Judge Emmet, 5090.)

In People vs. Sweetman, 3 Parker's Criminal Cases, (New York,) as late as 1857, Pratt, J., decided in relation to naturalizations that, "the laws of Congress require the application to be made to the court, and the proof of five years' previous residence must be taken in open court. It must also be common law evidence taken by the oral examination of the witnesses. Previously prepared affidavits are not competent." 7 Hill, 137; 18 Barbour, 444. "Affidavits found on file were clearly not competent to prove the pendency of such proceedings, and, especially, as there is no law requiring the examination to be taken in writing and filed." This was an indictment for perjury, in which it was held, that there could be no conviction, because the alleged perjury was in an affidavit used on an application for naturalization. And see Evidence, 2,006.

[The New York courts, in 1868, could scarcely fail to know of this decision.]

108 See Evidence, 1700. By the "act relative to evidence in cases of naturalization," approved March 22, 1816, and May 24, 1824, it is provided: "And the residence of the applicant within the limits and under the jurisdiction of the United States for at least five years immediately preceding the time of such application shall be proved by the oath or affirmation of citizens of the United States, which citizens shall be named in the record as witnesses. And such continued residence within the limits and under the jurisdiction of the United States, when satisfactorily proved, and the place or places where the applicant has resided for at least five years, as aforesaid, shall be stated and set forth, together with the names of such citizens in the record of the court admitting the applicant; otherwise the same shall not entitle him to be considered and deemed a citizen of the United States." (3 Stat., 259; 4 Stat., 310.)

This is inserted as in force in Brightly's Digest, 35, (edition of 1858,) and in Paschal's Annotated Digest. This and the act of the 26th of May, 1828, (4 Stat., 310,) are referred to as in force, and as of general application in the case in 7 Hill's Rep. 140, decided in 1845; and the court say:

By these acts there must be witnesses; one alone is not enough; and they must be citizens, not aliens, as they might have been under the act of 1802.

The act of 1816 having a title "relative to evidence in cases of naturalization," is there regarded as amendatory of the act of 1802, which left the mode of proof doubtful. The rules of construction do not permit courts to limit the application of statutes apparently general in their character, (Brightly's Digest, 35, United States vs. Randolph, Pittsburg Legal Journal, 4th June, 1853.)

The act of Congress of March 13, 1813, proceeded upon the idea that the act of the court admitting aliens to citizenship should be recorded. It requires each of a certain class of persons to procure "a certified copy of the act by which he shall have been naturalized." (Sec. 2, vol. 2, Stat. at Large.) Though this section is repealed, it was a legislative construction of the act of 1802.

109 See Evidence, 3475, 924, page 79 and evidence of Meeks. A list or index of names and residences of applicants and witnesses is made up in a book with the date of naturalization. Evidence, 1668, 1672, 1734.

As affidavits are unauthorized, no person guilty of false swearing could be convicted of perjury,110 and thus immunity from all penalties has been given to all who made them.

111

If certificates of naturalization granted on illegal affidavits shall be deemed valid, it only adds to the gross character of the violations of law by the judges who participated in them.

And if the power to revoke or annul certificates of naturalization does not exist,112 there can be no adequate remedy for these violations of judicial duty and of law; or if a legal remedy in the courts could exist, it would be extremely difficult, if not impracticable, to apply it, and especially in these courts.

But as to the naturalizations in the superior court it may well be doubted whether they are not all void, because there is no paper on file nor other record showing any order of the court 113 directing any applicant to "be admitted to become a citizen," for which, and a "record" thereof, the act of 1802 provides, and as to which there can be no proof by parol, when no record ever existed.114

And this doubt may well exist even independently of the acts of March 22, 1816, and May 24, 1828, which declare, as to the cases therein provided for, that if a record is not made containing the names of citizens as witnesses, &c., the record shall not entitle the applicant "to be considered and deemed a citizen."

116 The act of March 3, 1857, makes it perjury to swear falsely before any register or receiver of a local land office "in all cases where any oath, affirmation or affidavit shall be made" which the law requires, &c. ; 11 Stat., 251. The general perjury statute only applies when "an oath or affirmation shall be required under any law of the United States." (Act March 3, 1825, sec. 12, 4 Stat., 118.)

The judgment of the court is conclusive that all legal prerequisites were complied with; Brightly's Dig. 34, citing Stark vs. Chesapeake Ins. Co., 7 Cranch, 420. Spratt vs. Spratt, 4 Peters, 406. Ritchie vs. Putnam, 13 Wendell, 524. McCarthy vs. Marsh, 1 Selden, 263, 278. Campbell vs. Gordon, 6 Cranch, 176. (See evidence of Judge Emmet, 5090.)

112 The Attorney General of the United States, on the 9th February, 1844, gave an opinion as to the Louisiana certificates of naturalization, in which he said that a certificate of naturalization is the judgment of a court purporting absolute verity, and fully operative, unless impeached for fraud." (Vol. 9 Senate Docs., 2d session 28th Congress, Doc. 173, p. 156.) Judge McCunn testified as follows:

3664. Q. Has not the court power to set aside certificates of naturalization procured by fraud?-A. Yes, I have done it.

3665, Q. Cannot you make an order annulling a certificate of naturalization without having possession of the certificate ?-A. I suppose we can; we can grant an order declaring that the persons naturalized shall not Fote; but they go to the registry and are registered and vote, and that is an end of the story.

A certificate of naturalization irregularly obtained may be set aside. (Richards vs. McDaniel, 2 Nott & McCord, 351, note to 1 Brightly's Dig. 34; 11 St. Tr. 230, 262: 1 Ves. 159; Andr. 393.)

See Evidence, 6867.

Under the act of January 29, 1795, (1 Stat. 414,) similar in its provisions to the act of 1802, it was held that "the oath (of allegiance, &c.,) when taken confers upon him (the applicant for naturalization) the rights of a citizen, and amounts to a judgment of the court for his admission to those rights. It is not necessary that there should be an order of the court admitting him to become a citizen." (Campbell vs. Gordon, 6 Cranch, 176.)

But in Spratt vs. Spratt, 4 Peters, 406, decided by the Supreme Court of the United States in 1830, it is said: "The various acts upon the subject submit the decision on the right or aliens to admission as citizens to courts of record. They are to receive testimony, to compare it with the law, and to judge on both law and fact. This judgment IS ENTERED ON RECORD as the judgment of the court. It seems to us, if it be in legal form, to close all inquiry; and like every other judgment, to be complete evidence of its own validity."

14 Naturalization cannot be proved by parol. 1 Brightly's Digest, 34, note (a) citing Slade rs. Minor, 2 Cranch, C. C. R. 139. Price vs. Barber, 13 Leg. Int. 140. (See Campbell vs. Gordon, 6 Cranch, 176.)

The determination of the court on an application for naturalization "is the judgment of a court. 115

The act of 1802 requires that "the court admitting such alien" "to become a citizen" "shall be satisfied" of certain facts. In 1854 Judge Dean, of the supreme court of New York, said "that, as the court before admitting him (the applicant for naturalization) is to be satisfied of certain facts, it follows that the powers conferred upon the court are judicial and not ministerial or clerical." (18 Barbour, Sup. Ct. R., 446.)

It cannot properly be said that the certificate of naturalization furnished to the applicant is the record and all the record required by the law.

No act of Congress requires any certificate to be issued, though the 13th section of the act of March 3, 1813, makes it penal to forge or alter them. Where a record exists, the fact of what the court did, may, on general principles, be certified.

This is what a certificate of naturalization does.116

It is not a record

of the court, because it is not preserved on its files or record.

The 4th section of the registry law of New York, of May 13, 1865, requires the production of a certificate of naturalization, in certain cases, to enable naturalized citizens to register and vote.

Unless the order of the court exercising judicial powers can rest in parol, and the act of Congress requiring the "proceedings to be recorded"that is, the evidence of them to be written in a book, or preserved among the rolls or files of the court-can be disregarded, there is no valid evidence of any order in the superior court, in 1868, "admitting any alien to be a citizen;" and if no evidence exists there of an order, no certificate can be given of a fact not so appearing of record.

CHAPTER IV.

REPEATING AND FRAUDULENT CANVASSING.

I.-Repeating.

In New York city there are 22 wards, divided into 340 election districts. The registry law of the State of May 13, 1865, as amended April 25, 1866, provides for four inspectors of registry and election in each district, who, aided by two poll-clerks, sit one day three weeks before the election, or two days if the number of voters exceed 400 in the district, and again on Friday and Saturday before the election, to register the names and residences of voters appearing for that purpose, and none can lawfully vote unless so registered. These inspectors at the election receive the ballots from voters and deposit them in proper ballot-boxes.

115 Opinion of Attorney General United States, February 9, 1844, Senate Doc. 173, p. 156, vol. 9, 2d sess. 28th Cong; Stark vs. Chesapeake, Ins. Co., 7 Cranch, 420; Spratt vs. Spratt, 4 Peters, 406; Ritchie vs. Putnam, 13 Wend., 524; McCarthy rs. Marsh, 1 Seld. 263, 278; Campbell vs. Gordon, 6 Cranch, 176; it is so far a judgment that, if irregularly obtained, it may be set aside. Richard vs. McDaniel, 2 Nott & McCord, 361.

116 The form used in the supreme court is as follows:

UNITED STATES OF AMERICA, STATE OF NEW YORK,

City and County of New York, ss:

Be it remembered, that on the 19th day of October, in the year of our Lord one thousand eight hundred and sixty-eight, Andrew B. Seigner appeared in the superior court of the city of New York, (the said court being a court of record, having common law jurisdiction, and a clerk and seal.) and applied to the said court to be admitted to become a citizen of the United States of America, pursuant to the provisions of the several acts of the Congress of the United States of America for that purpose made and provided. And the said applicant having thereupon produced to the court such evidence, made such declaration and renunciation, and taken such oaths as are by the said acts required, thereupon it was ordered by the said court that the said applicant be admitted, and he was accordingly admitte 1 by the said court, to be a citizen of the United States of America. In testimony whereof, the seal of the said court is hereunto affixed, this 19th day of October, one thousand [SEAL.] eight hundred and sixty-eight, and in the 92d year of our independence. By the court:

JAMES M. SWEENY, Clerk.

The names and residence of voters are recorded by the poll-clerks on poll-lists, and when the polls are closed the ballot boxes are delivered over to two canvassers, who canvass or count the ballots, which should by law tally in number with the names recorded on the poll-lists. The result of the canvass is announced and certified by the canvassers and their returns finally passed upon by the board of supervisors sitting as a county board of canvassers. Persons claiming the right to be registered and to vote may be challenged, and their right so to do is decided by a majority of the inspectors.

If the committee had devoted the whole time from their appointment to the close of this Congress it would not have been possible to ascertain or to take testimony to prove the number of persons who voted more than once in each of these 340 districts, in all of which there were cast at the presidential election in November, 1868, 156, 060 votes, a number nearly as great as all the votes cast in six of the States of the Union, and larger than the vote of any one of twenty-one of the States cast at the same election. All that could be done was to prove, as the evidence does, that an organized system was perfected and carried into effect, by members of the democratic party, to register many thousands of names, fictitious or assumed, and then to vote on them by hundreds of persons voting from two to forty times each for the democratic candidates.

"Headquarters "117 were established in different localities of the city, books made 11 with duplicate lists of names, opposite to each of which were placed a number and street as a residence.

See evidence to foot-note (119) this chapter, and table showing prominent places from which illegal registration and voting was carried on.

119 Robert Murray, (United States marshal:)

A. Some five days before the election a man called at my office and stated to me that with a little help he could get books of these repeaters.

This thing is regularly systematized here.

They have got a book made the form of a check-book, a line is drawn through each page, leaving what is supposed to be a margin. There is a place for the date, for the na ne and residence that the repeater takes, and the election district in which he is going to register. The same thing is put down on the margin. The captain of the division (for they have got the city divided into sections) cuts of the memorandum and gives it to one of these repeaters registered, and when the election day comes he cuts off the corresponding memo. randum in the margin, and the fellow goes and votes upon it. It became fully developed and we arrested the parties and got the books.

56. Q. How many times do these repeaters vote, each ?-A. Twenty, or 30, or 40 times each.

George W. Walling, inspector metropolitan police.

A. On the Friday night previous to the election, the night of the 30th of October, Superintendent Kennedy sent for me to meet him at the Fifth Avenue Hotel. I met him there, and he introduced me to a young man, whose name I do not know, and told me that this young man knew something about parties who were regis tering for the purpose of "repeating." I talked with him and directed him to meet me the next morning at o'clock-Saturday, the 31st of October. I left him then, and went to the station-house to get six men from Captain Campbell, captain of the 18th precinct, in citizens' dress. I met the young man the next morning, and be then stated to me that a man by the name of William Varley, alias Reddy, the blacksmith, had charge of a company of repeaters," who had been registering from Catharine street, and he believed they were going the next day to 29 East Broadway to register. I went near that vicinity, and from time to time I sent these officers that were now with me to watch No. 29 East Broadway. They came back and reported several tes that they saw no one, until about dinner time, between 12 and 1 o'clock, when we separated, and I directed them to meet me again after dinner. We got back probably near 2 o'clock. I sent them around again, and they came back and reported that they had seen several men come out from 29 East Broadway, and go to a place of registry, and go into a place of registry. Of course, the officers did not follow them in, for they might have suspected something. They followed the men; I saw them, after coming out of the registry, go back to 29 East Broadway again, and then leave 29 East Broadway and go to another district, and go in there, and then come back again.

3576. Q. What was the first district they went to ?-A. I think it was the 1st district of the 7th ward. The officers came back and reported to me, "It is all right; they are now registering." We then separated. Some went up East Broadway, and some down. One of the officers told me that he had seen a man standing on the stoop of the house, who appeared to be on the look-out. Well, we rushed into the house, No. 29 East Broadway, and as we rushed in the man who was standing at the step rushed in also. There were seven persons there beside him; he made the eighth, I directed the officers to seize all the books. We seized a book that was on a table, at which a young man was sitting, and we took the eight persons whom we found there, with the book, to the police headquarters. The book is here, and I now produce it. I think it is marked "1st, 3d, and 6th districts of the 7th ward.”

We took the men to police headquarters. I wished to find Reddy, the blacksmith, whom I knew well, and wanted to go to his place to arrest him, or to look for any books that I might find there. As I was going out I met Counsellor Howe, and he requested me to take the prisoners before the police court. It was near 4 o'clock and the court had not closed. I said there was another party I wished to get, and I immediately left