free male citizens of the age of 21 years and upwards residing and assessed in such hundred or election district." He shall write the word "naturalized" opposite the name of any one on said list who appears from evidence in his office to have been naturalized; and here, by this officer, is virtually made a registration of voters—a list making a prima facie case of right on the payment of tax-a list given to and used by the inspector of elections for that purpose, whose duty it is made to write the word "voted" opposite the name of every one who has voted.

It will be noticed that the clerk of the peace does not simply take from the assessment lists in his official custody the names of those assessed, but he also has to decide and fix on the residence of the persons on this list, and certifies the place of residence, as well as the fact of assessment, thus making a prima facie case of right to vote on the payment of a tax. Now this is not a complete registration or list of voters, because of the possible change of the residence of voters after the first of September, or from other causes, but it is as complete as the clerk of the peace can make it, and is in close analogy, and, indeed, almost identical with lists of voters made out under a system of registry laws, eo nomine, which exists in Pennsylvania; the only substantial difference being that there the assessor makes out the list of voters from the assessment lists he has previously made, and here the clerk of the peace makes out the list of voters from the assessment lists which have been made by the assessors, perfected in the levy court.

Why is not this list made out by the clerk of peace such an one as should be guarded and scrutinized? It is made by a public officer, charged with the performance of a duty, who has office hours and a known place for the transaction of public business. If he is a dishonest and unprincipled man he has the means of perpetrating great frauds, and in no way more easily than by placing on this list of voters men who are not assessed.

We have argued this question hitherto on two grounds: First, that it was necessary to give such a construction to the

term "registration of voters," as used by congress, as to embrace the system of laws in the state of Delaware governing the assessment of her citizens, in order that the manifest intention of congress should be carried out; and, second, we have endeavored to show that while congress may have contemplated provisions of registry laws existing in other states, which have no existence here under our system, there still remains sufficient subject-matter to make the application of those laws simple, practicable and easy. Under these circumstances, unless I can find in the argument of counsel insuperable objections, I shall be compelled to give such a construction to our laws as to give them substantially the character of a registration of voters as contemplated by congress.

It is urged by both the counsel for the objectors that the registration of voters, to meet the requirements of the act of congress, must be a registration of voters "qua voters" or "as voters" alone, and one of counsel goes so far as to say it ought to be conclusive evidence of all the qualifications of the voters, or the act of congress would not embrace it as a "registration of voters."

This latter idea is thoroughly refuted by the settled practice and construction of the registration laws of Pennsylvania, which afford no conclusive evidence of a man's right to vote if upon it, or of the deprivation of a man's right if not on it, as will appear from Purdon's Digest of Pennsylvania Laws, too voluminous to be here cited (see chapter "Elections," Annual Digest for 1873-78).

But have we not shown already that the clerks of the peace in each county, by authority of law, make up lists of voters as such voters affording prima facie evidence of the right to vote upon the payment of tax, for the use of the inspectors of election in each election district in the state? Can it be said that that is not a list of voters on which, by requirement of law, the word "voted" is to be marked opposite the name of every person who does vote; and when these lists are to be retained for the purpose of evidence of the fact of voting?

An examination of the statutes hereinafter cited of the

state of Delaware, referring to the action of the clerks of the peace in making out these lists, will show that he performs other than mere clerical duty in taking names from the assessment lists; in fact, some of them are quasi judicial, such as determining the fact of naturalization of foreigners, and determining and certifying to the residence of all persons assessed. They are in part as follows:

"Section 21. He shall make and certify under his hand and official seal, and deliver to the sheriff of his county, in the month of August, in the year of holding the general election, an alphabetical list for each hundred, [and election district where a hundred is divided into two or more election districts,] of the names of all the free white male citizens of the age of 21 years and upwards, residing and assessed in such hundred [cr election district;] and when it appears by any certificate recorded in his office that a person named in said list has been naturalized he shall write the word 'naturalized' opposite his name. If the general election be not held in any year on the same day as the election for electors of president and vice president, he shall, in that year, make, certify, and deliver two such lists.

"Section 5. The said alphabetical list shall be made and certified by the clerk of the peace of the county, under his hand and seal of office; and, as to every person whose name shall be contained in such list and who shall appear by any certificate recorded in the office of said clerk to be naturalized, the word 'naturalized' shall be distinctly affixed to the name of every such person. Such alphabetical list shall be delivered by the clerk of the peace to the sheriff on some day in the month of August next preceding the general election.

"Section 18. Each qualified elector shall deliver a single ballot, containing the names of the person voted for, to the inspector, who shall audibly pronounce the name of the elector, which shall be entered in words at length upon a list of polls to be kept by each of the clerks, whom the judges shall direct to that duty, and one of the judges shall write against it, on the alphabetical list delivered by the sheriff to the inspector aforesaid, the word 'voted.' There shall be no

examination of a ballot, except to determine that it is single; and the inspector shall, immediately after pronouncing the elector's name, put the ballot into the box in his presence, unless the vote shall be objected to.

"Section 33. Each inspector shall, on Thursday preceding the day of the general election, deliver into the office of the clerk of the peace of his county the oaths or affirmations that shall have been signed by the inspector and judges of the election in his hundred, and the certificate of said oaths. or affirmations being administered, to be made and signed as directed in the thirteenth section, and the two lists of the polls kept at the election as before directed, and the alphabetical list aforementioned, with the notes of 'voted' as, the same shall have been made thereon; all of which shall be filed in the office of said clerk, and shall be public records, and as such admissible as evidence.”

Now, on a comparison of the two systems of Pennsylvania and Delaware, in what respect does the Pennsylvania assessor present on his list of voters a stronger case of prima facie right to vote than does the clerk of the peace on his? By the former law the assessor makes out from his own assessment an alphabetical list of persons entitled to vote. By the law of Delaware the clerk of the peace makes out an alphabetical list from the lists of the county in his official possession of all freemen over the age of 21 years "residing and assessed in each hundred or election district." The assessor in Pennsylvania enters the letter "N" opposite the names of naturalized persons; the clerk of the peace writes the full word "naturalized" opposite the foreigner's name. The Pennsylvania assessor is required to write the word "vote," while the inspectors of election in Delaware write against each name the word "voted," as the act of voting takes place.

So it will be seen there is a great similarity between these two systems, and my last proposition on this subject is this, that if the test of the character of the list as made out by the clerk of the peace as a list of voters is the making a list presenting a prima facie right to every one on the list to vote on the payment of a tax, then that test is found as fully to

exist in the lists made by the clerk of the peace as in the registration of voters made by the assessor under the Pennsylvania laws. But it has been argued by the objectors that even if these lists made out by the clerk of the peace were lists of voters, the guarding and scrutinizing must be confined to the action of the clerks of the peace; that it cannot be extended to the action of the hundred assessors or the action of the levy court.

The answer to this is a simple and easy one. The determination of the essential element of the right to vote, an indispensable prerequisite, viz., that of assessment, by the constitution of the state, is primarily made by the assessor, and finally determined by the levy court in the completion of their assessment lists, and that determination, expressed by the act of assessment itself, becomes incorporated into and a part of that list of voters made out by the clerk of the peace. A denial, therefore, of the right to guard and scrutinize the action of the assessors and the levy court in that respect would be fatal to the right of the voter, as the period and opportunity would have passed by when he could claim his right to be assessed--the essential prerequisite, as before stated, of the exercise of the right of suffrage.

The attorney general, Mr. Gray, assumes that we have no registration of voters within the meaning and intent of the act of congress, and then argues that the acts of the assessors and members of the levy court cannot be guarded and scrutinized under any of the provisions of section 2011, or congress would have added the comprehensive language of section 2005.

But, as I have shown that we have in substance a registration law within the clear meaning and intent of the act of congress, the argument can have no application.

Both of the counsel contend that the lists in the hands of the assessors and in the hands of the levy court are not lists. of voters, because in addition to the voters others are assessed, such as females and non-residents. Now, while it may not be a list containing all the qualifications of voters, it is a list which embraces the names of every one having the prerequi