The New York Herald Newspaper, February 4, 1877, Page 5

THE COMMISSION. Second Day's Proceedings in the Great Lawsuit. AN ELABORATE ARGUMENT. A Discussion on the Great Prelimi- nary Questions. WHAT ARE THE POWERS OF THE COMMISSION ? Can the Tribunal Go Behind the Certificates? CHARLES O’CONOR’S SPEECH. Republican Objections by Bvarts, Stoughton and Stanley Matthews. —_—_— Wasutnaton, Feb. 8, 7377. Twe commission was called to order at balf-past ten A M., when the minutes of yesterday's proceedings wero read and approved, Tho Presivixe Justicy—Douptless some question will arise as to the best mode of proceeding, and I will fay, without speaking {or the commission, that it Beems to me that counsel representing the objectors to tertificate No, 1 should make their offers of proof in a soncise, well arranged form, and then that the counsel tepresonting tho objectors to the second certifl- tate make their offers of proot, based, of course, upon the condition that proof should be admitted, i being understood that objection may be made to all proofs by counsel representing objectors to Certificate No. 1. In caso there Le a decision that proofs are admissible then the commission will have before tt a case, If that course be adopted the case will then be the certificates, the accompanying papers, the objections and tho offers of proof upon which the counsel upon one side or the othor will be heard, ¥ Mr, O’Coxon—Mr. President and Gentlemen of the Commission—I was first advised of the position tn which this controversy stood und the stage at which we had arrived by a question somewhat suddenly pro- pounded last evening before the adjournment. IJ have endeavored 1n the interval to adjust a statement as to what seemed to me desirablo matter in tho nature of evidence to be laid before this commission us distinct, succinct, brief, explanatory and intelligible u statement as by tho ut- most eftort I could make, having in view the act of Congress under which this commission is acting, which seems to contemplate great promptitude, or uy least great eflort at celerity on the partof all con- cerned, so that the possibly numerous and difficult matters of investigation that maybe presented may be gotten ridof within the limit of time allowed by the circumstances, and the many observations that fell from the Bench evince on the part ofthe honorable Commissioners a strong desire to second this object on the part of Congress and to uccelerate as much us pos- bible the proceedings. I did not prepare that exactly in the form of the evidence, but though that be not the form that is the substance of what I have written. Presently I will read it, There bas not been time to ‘make u fair copy of 16, much jews to have it priated. Mr. Evanis—If it piense the commission I desire to sayaword, If we are tu assume that the intimations of tho Presiding Justice are the ordur of the commis- sion ag to the manner of conduct of the triul it is the first knowledge that we havo that that order will be the mode of this trial. The Preswixc Justice—Itis not the order of the Commission; 1t is merely a suggestion from the Presi- dent. Mr, Evarts—No objection was made by any of your associates, und if sr. O’Conor were to proceed I sup- pose 1t would have been ou that idoa, I did not wish to question that fact, but I wished to say that it thas be the order of this commission as to the method of this trial it 19 the first intimation that we, as counsel, uve received that that would be tne method, und we have not prepared ourselves and Wo ure not Teady to proceed upon that method of trial so fur ag aflirma- tive action on our part is cuncerned, , MR. O'CONOR'S SPECI, Mr, O'Conon—I was uot instructed, nor had I, nor bad any of us, any earlier notice thau bad the learned tounsel on the viber side ol the probable course of \hings this morning, save what instruction we might derive by drawing our own interence from the observa. tions that fell trom she Chair und from the learned sounsel on both sides yesterday; and my object in of- fering what 1 propose to read to the court, aud which IT have not read myself a second time yet, was not to coniorm to any particular views exactly that I have heard from any quarter, but toplace the cominission in the possession of the general tucts of the case in this briet and coudensed form, sothat the proper course of proceeding might go and a proper course be judged of and determined in their view of the matter by the commission, ‘tbe chief considera- tion which induced ine to adopt such a course was this:—One of your rules indicates that something hike * a general argument on this whole caso aod its inerits ‘was to be presented to this court by opposiug counsel, each being allowed a perivd of gay lilteen minutes to present their views on uny incideutal ques- tion and two hours jor the main question. With these two rules betore ua aod the record proper, con- sisting of the certificates opened by the President of the Senate and the objections to them (and 1 may add, us part of the record, the statements made to this honorable commission by the managers on both sides), 1 was led to believe that there woutd be something possibly quite incougruous and uuprotitubic, owing to the special condition of this proceeding 1m Buch @ course ax tukes place ordinarily in suv- ordinate courts besore a jury, but are to be prosumed entirely incapable of discriminating and apt | to be lea astray if they hear anything that is not to be tuken into judgment in the tinal sideration of the cuse, lt would be very inconvenieut if such « course ‘was to bo taken nure, because the issue is to be made by those papers to which I have relerred, the cortill- cute nud ibe objections. ‘The ixsue as mude at least by the counsel ia favor of the Hayes electors (as 1 will cull them) mxkes the questioa whether any evidence outside of that record shall ve received, lhe whole question in controversy in this cuse, saving and ex- cepling the possivility of some intiruity im the ovie dence, ana iuusmuch’ as | have supposed from w care- ful though very recent view of this cuse that thero wus neither any iniirmity in any evidence which tne supporters of the Tilden electors olfer to present nor any desire to offer evidence to contradict that, 80 us 10 | False a question, 1 was led to the conclusion that too admissability of this so-culled extrinsic evidence, ita eflects and the final merits of the puint which you bave | to decide oo this rivalry between two sels of im- #pecturs or two classes of certificates, that thoxe threo things tirly resolved themselves into one and the same, and that whenever a piece Of evidence of this extrinsic character 1s offered U 18 Iiterally nothing which tho supporters of ul electors desire to say or desire Lo present to this Co: mission in any branch of this controversy that will not be relevant, nor can I perceive that a decision ine terlocutory upon one ol those incidental questions | would not, if avoravle to the exceptant or the objector, } be conclusive us to the whole cuse, because that decision would almost cortwinly go ‘upon ao aitir- mauion of the principal point to the merits of which these Hayes clectors rely. Consequently 1m this de- bute of liftven minutes about the admissaoiity of par- ticular evidence we would have to urgue the whole cuse, There would then be a difficulty trom the inflesibinty of Your Honors’ rules, which could be obviated by four giving additional titne, but it has not appeared to mo that that was the true remedy or the true course, Ou the contrary, with great respect to the better judg- | ment of my learned opponents, iM they should differ with me, and with any honorable member of this Court who may bave taken a different view of It, my conception of the matter 1s thut all the need- Jul evidence should come in, subject to such objections ay to its competency and its eflect us may exu the reason that tley necessarily Incorporate selves with the main qaestion that you have finaly to decide; and I would stato bere, betore reading the paper Which I sbull take wave to present, that such is the usual course of all tribunals wh Inatter of Juet 18 judged of by Judicmi experts, such as Your Hon. | ors must all be pronounced to be, and tho rule of snapping promptly au exception to rome possibly wrolevaut testimony, 10 order to prevent an ignorant jury veing misied by some improper consideration vut of it, bas no application to a proceeding arned experts, leurued Judges. Conor then read the paper referred to as fol- First--On December 6, 1876, being the regular law day, both the Tilden and the Hayes electors respectively met nud cast thelr vote: i the sw the seat Ivory form pre nm tie #ided for in section No. W the Hilden electors certified eral Wer w- to the Huyes elvctors certified by Mr. mtenrus, rt. All this appears on record, and no additional evi- dene 18 needed Wo interpret any partot tt, Perhaps 1 convey no hew hight by saying that; but I say it tor the purpose of presenting a distinct view of the i was commenced ugainst the the prover court of Morita oo the said Bt day of December 16, before they hud cast thelr votes, | electors, but for the purpose of which also that Tilden ‘appointed. i fect of Mstetats ty'at ea teataneee frat, that. the Tilden elses shoul oun rat, me 0 ceclemestalbanst of tas peoslon ince tant the seein elie warranty was served betore the Hayes electors cast their by and. Saas. wales ithe decided ‘on tho other side w common law of Florida, and true construction uf the Florida statutes. The Til- orn in the Supreme Court in that State ted on the rolation of D that State, by force and Mr. Drew was admitted an G Judgment, together with the judges’ opinion, matters of " record, ani proof, nor is there any tec uanver in which this are no other w wl may Inform itvelf concerning the Inws of Florida. It l imay be permitted to interject It will be seen that 1 win endeavor- lg ww show how vory little there iv in the shape af proot. require rule commission ‘isistion dor 6, 1876, wuthorizing « and the tuct of such mew canvass sion thereof to the seat of governm to the constitution und law, exeept that they w quent in puing of tine to December 6, 178, are ull Of record und ulready regularly belore the counnission. Fyth—The only matters which the Tilden electors desira to lay before the commissioners by evidence netually extrin- sic will now be stated:—iret, the Kourd of State Canvass: ers, acting on certain erroneous views while making their aaa, by wvich the Hh wh rs tof the returns from each of the lollowinz Hamilton, Jackson nnd Monroo. noue. In'so doing the suid 5 diction, as the Circuit and Supren decided. It was vy. overruling not warranted by law. these rejections courts of Florida reached their respective conclu- sious—that Mr. Drew wns elected Governor ; thut the Hayes electors wore usurpers, and that the Tilden electors were duly chore: donee that tn any view could dito be uvedful in order wo establish the © relied upon by the ild xcept duly authenticated copies of the sta hut ts, the erroneous canvass, as 1 cousider he above named four cow suid stato Humphries, pi cunvuss, and. secondly, evidence that Mr. & Hayes eloctor, held office under the Unitod Staten Sith Judging rr from the objections taken by those sup- selectors ahd the opening argument of- 1, the supporters of the Titden elvctors hint no evidence Is needed upporters of the Mayes ete XCOvE that tho above meutioned appeals were taken, and secondly, shat Mr. Humobries resigned, Mr. O’Coxon thon continued:—Il I may be permit. ted to say a word belore we proceed, I would say that 1 have acted here with a view to support mygdea that the faciie method is take proot subjeci to objection and that there ts not enough of the matter to produce de- lay, coulusion or conilict im respect of this extrinsic proof, Ou the contrary there is 80 little und it is almost go completely pure matter, that imght be called of record, that we can get rid of the matter of the evience very shortly, unless the Commission, deeming it benelicial as to time and result, pieuses to adopt sueh a method as wili compel ua, on the first little serap of testimony offered, to preaeut our whoo cause on both sides and have the whole merits settled. ‘Alter some general discussion upon the subject of eviaence and its adtoissibuity, JUDGE BRADLEY'S SUGGESTION. Judge Bradley said:—* | unuerstand Mr, O’Conor to suggest that the evidence referred to by bim, the extrinsic evidence be received provisionally tor tho purpose ot argument, not to be decided by the Court at present, Then it 18 with tne Commission a question whetner that be tbe better course, or whether we had better have an argument on the admissibiilty of evi- dence now belore we go into an argument on tho merits, us the argument on the admissibility of evi- dence would necessarily greatly involve the merits, It soeins to me that unless counsel on voth sides have forcible objections than plan, dr, O'Conor's suggestion iga good one, because it will unity the argument— make but one argument on the whule caso.’” Commissioner Hoak—Supposo Mr. O’Conor’s oller- ing of testimony be objected to by the other side and the Commission hear the argument of tho case us it then stands. ‘That would resemble more nearly than any other judicial proceeding that I think of a arga- ment made on a demurrer tv the plaiuutl’s evidence, the evidence not being considered ay in, but as offered, ‘The Presivina Jopcx—That was the view of the Chair. Commissioner Hoar—If we should hear the counsel ‘on both sides on tho case presented by the certificates which are before the Court und the offer of evidence | made by Mr. O’'Conor which was objected to by the other side, it seoms to me that that would present one principal question, whatever others might bo In tho case, in the most clear, convenient and quickest form, Commissioner ‘Tuckaax—I would like to inquire of counsel who support certiticate No, 1 what objection they have to all this evidence being admitted subject to all exceptions, not precluding avy objection whatso- over? It appears upon the statement of Mr. O’Conor that tho testimony which will be produced by him is ina vory simple compass. However great may be tho volume of testumouy, if any 18 to be proauced on tbe other side, 1 do not know what objection there is, as this is a trial not by a jury but by a court, to receiv. ing all this testimony subject to ali objections aud then arguing its adimssibility with the main argu- ment in the case, allowmg the counsel, if 1t becomes necessary in the adoption of that course, more ume, The Presiing Jusricz—In the absence of other dis- cussion, 1 will state the views of the Chair:—1 should regard ‘the paper read by Mr. O’Conor us an offer of proolt. Notkiny, therefore, remains to the other side, except to object or waive 1h Mr, Evarts—Then [ ain not permitted to reply to the point made by Commissioner Thurman ? The Presivpixe Jupce—It iw hardly necessary, bo- cause you are to have un argument at tho proper time, Do you object to the oller of proof? Commissioner Tiugman—I would suggest that Mr, Evaris ought to auswer my inquiry. Mr, Evarts—I arose originally to speak to the very point to which Commissioner ‘Thurman hae called my attention, The Parxsipive Justice—Very well, sir; you may re- ply to the inquiry, Mit, RVARTS? REPLY, Mr, Evarts—I will be as briet as I can. ‘The propo- sition 1s tuet the preparation of the cuge ag ready tor argument upon its exhausted and compleved merits in either alternatives of the views of this coinmission as to the exclusion or the admission of anything shall be made ap by provisional acceptance of the muss of proof, whatever it may be, to be discussed us to the admissability and pertinence and eilicacy in the couclasivos of thé tribunal as a part of the final argument. That I understand to be the proposi- tion, The difficulty with that 1s, that it requires the inclusion of all the countervailing pooof thut we, op- posing their certiticate or supporting ours, have aright to present under some determination of this Court as to that right, for if you go beyond the evidence tur- nished from the bands of the Vice President mio an inspection or scrutiny of the election in the State, a8 upon a trial of right to the office, then we say that tho tribunal that accepts that testimony und is to fulfil that duty is to receive evidence that will make the scrutiny judicial und complete irom the primary deposit of the votes to the conclusion of the election, Now, this Commission, as | suppose, does not contem- piate a provisional introduction of all that evidence, orul, docutnentary, record und otherwise, on our part which comes in without objection and subject only to the sifting of the flual argument, That 1s my sugues- tion 1 reierence to this intimation of convenience of the de bene esse introduction of evidence—the evidence by which, when wo are by the instraction of this Com- mission Jet into the scrutiny of the election of Mlor- idi—io @ matter which can only be exhausted by oral testimony and by the fundamental, original transaction of tho election, That 1 the difllculty in selecting a part of the evidence to be admitted provisionally, agturpishing the ground and area of the tinal discussion, because 1¢ does not io- clude the evidenco on both sides which, under some determination of the Court on final argument, may be property introduced. 1 object to the evidence now ol- fered. JUDGE BLACK’ ONJECTION, Mr. Buack—We insist upon it that the whole of the evidence which bas been offered by Mr, O’Conor or | referred to in his paper hay been given already and 13 | & part of the recurd in this case, A question urose be- fore the two houses of Congress waether certain yotes oftered for Present and Vice President cought to be counted or vot. Whetber they ought or not depended upon the question whether they were true votes or votes falsely fabricated, not with any purpose to go beuind the appointment of the scertaining what cloc- tors had been appointed aud who were the trae agents of tho people for the purpoxo of casting its vote, ‘The two houses proposed to use their verifying power wot ww enterwin an appeal trom the decision of tho State, but to ascertain what that docision was, which — involved ® question of fact It Was absolutely necessary that the conscience of the two houses sould be informed concerning that proof! which they were to deetdo upon, and accordingly they took a brief, iegitimute aud proper mode of aecertain- ing What the truth wax ‘They sent their committees nd bud testimony take nis und pat the whole thing inte proper torm, and then came buck and offered 14 to the two houses and muaae it a purt of the record of this case, And when you were Appointed a substitute fur ther and became the keop- ers of their conscience they required you to tell them What tey cught to do, aud make the decision which, froin the evidence which was Leflore them, they ought to make, That evidence, | say, was pat in, and | the portion of it which was taken by committces of the | House of prescutatves was laid belore that House, and raised a force struggle and the thibustering of half a pight to keep it out, The President, the Presi dent of the Senate, the President of the two bodies, ded this evidence over in bulk to be used here by the commission, aud you have # it upon this table. Now, canvot © | ecive of anything more unjust than to wik abuul the necessity of our producing this evidence piecemeal, bere « httle and there a little, line upon iine, a order that 1t may be subtitted to the seruany of counsel, who will apply to it those suapperadoes of nisi prias practice Which we would see ina court of quai tor sessions, ug it this case, wsiead of concerning rights of the wholo United Stutes, was related oul; to the price of some sheep that a thief bad stolen, = {f your honors sappose that th 18 to be taken up de nove and that rything that is done, and 80 much of tho record as bas been made up in the House before it caine here are to be thrown out and considered as a mere blank, why then, of course, you are to proceed—how! According to some approved rdle of fair play und natural justice, Aud what 1s thaty Why, the rule that prevails in courts of cb 'y. wbd not tho artificial rules that aro provided by the common law of Englund iv cases of trial by jury. You kuow, surely | noed not say, that when any party files bs bill he may putin along with that bill all the evidence that he bas in lis possession, ‘There can be ho objection to the evidence in a court of equty, There is bo such thing known as objecting to tue admusibilty of evidence there, ‘Ihe de- lendant caunot obyvet to it, because he if not in court at the time he fies bis bik When Ube desendadt pats in bis answer he may accompany it with ail the evidence, aud if either of the parties need anything more the Court does exactly what the two parties have dove im tts case, ‘They appoint thelr ugeuts.to go out und take the evidence, and U bave it produced, Av © ber, & master ib cb. cery, an auditor, or thor staut of the court, who ei Gleveuvuated ius judgment aguinst tuem un the 20th | powers of Congress under thts law takes evidence for the coart 1s doing precisely for the | and sf it was not within poore a Conran ie tn ittees caret | a Executive of the court what these com: ne for the \wo houses of Congress. There 1s no h thing whea the evidence is taken as objecting to it before it is made u Part ot therecord, lt is, us @ iutter of course, fled whenever it is ofle! by tue party. He need Dot even come into court to get u ‘ected order of th Chancellor to do it, Now the rule of procedure about admitting and rejecting evidence always throws the burden of proving that it ought to go oat upon the par- ties who do not iike to have it in. The question of materiality or relevancy, what its value and weight are, what provative loree ought to be given to it by the Court, is a question which, as one of the judges said a moment ago, is always to be discussed upon a hearing, and determined by the final decree of the Judge. MOTION BY JUSTICK MILLER, Alter further discussion it was moved by Mr. Justice Mit.ee that counsel upon each side be allowed two hours to discuss the question raised by Mr. Evarts’ ob- Jection to testimony as to whether any other testimony: Will be considered by the commission than that which was laid betore the two houses by the Vice President or the President pro tem, of the Senate, COMMISSIONER THURMAN’S ONJKCTION, Mr. Commissionor Tuvxaas—Suppose, then, the commission decide that further evidence ought to be considered, we would not have determined one thing as Lo whut that further evidence should he, We would only huve decided that evidence on the mere tuce of the papers presouted by the President of the Senate to the two houses should be received, but we would not Dave advanced one gle stop toward deciding what evidence sbould be received. A BUGGESTION HY COMMISSIONER KDMUNDS, Mr, Commiasioner Epacyvs—1 wish to suggest that , os modi by the armen, covers the whole ground. rst point is whether any body—the two houses or this tribunal--bas the power to go behind the formal certitication of the authorities, and sec- ondly, if 80, by what species of evidence that inay be sustained, tie claimed by Judge Mack that it Iny be sustained by evitence in the nature of testimony tuken by committees, &c., and reported to either of the houses, | suppose itis contended on the other sido that it cannot, MODIFICATION OF JUDGE MILLE) MOTION. The motion of Judge Miller was tnally modified so ag to permit three huurs on each side to discuss the question whether any lence will be considered by the commission that not submitted to the two houses by the President of the Senate, und if 30, what evidence can properly be considered, and it was tar- ter modified to iuelude the question, What 1s tho evidence now before the commission ‘Yous motion was ayreed ta, AVTER RECESS —MI, MERRICIIS #PRECIL At twelve o’clock the Court tcok u recess to half- past twelve, whow the democratic side of ihe question was opened by Hon, R. 1. Merrick, of Washington, ‘The decision of the honorable commission this morn- ‘ng, a8 remurked by Mr. O'Conor, has somewhat © buraseed us in entering upon this important transi Mon. We came tu court expecting to proceed directly to the Florida cuse, and believing that the testimony that bad been takeu by the committees of the Senuto and House of Rep: esontatives upon tho subject was reg- ulurly beloro tue commission as testimony in the case without being lubie to any objection on account of Ip- forinaiity, aud tho ultimate admissibility of which would be considered by the Court when it came finally to consider the main question in the cause; but that caso i# practicully suspended for the present, aud the counsel are required to argue the abetract proposition of law which is submitted to them tn the paper read Uy tho President of the commission, That proposi- ton of law, as I understand it, is:—What, x rally, ure the powers of this commissiol What evidence 33 now betore the commission, and what evidence is it competent, in addition to tbat now belore you, for counsel to offer to introduce? Firat, then, as to the power of this commission, the orgunic act under whieb (this commission has boen established provides ag follows, in regard to returns trom States which have sent up duplicate or triplicate returns, whon objections are made lo: those returns: “When objections are made to any certticate, vote or paper irom a State, all such certillcates, votes and papers so objected to and all papers accompaning the sane, Logetber with such objections, shail be forthwith submitted to said commission, whieh shull proceed to consider the same with the same power, if apy, a8 now possessed vy the two bouses, uct- ing separately or together, and by u majority of votes decide whether any and What votes from such States are the votes provided fer by the constitution of the United States, and how many and what persons were duly appointed electors in such States, and may therein tuks into view suca petitions, depositions and other papers, if any, as snail by thoconstitution and now ex- isting law be competent and pertinent in such consid. eration.’’? The language that I have read trom the bill embraces a more succinct declaration of the powers of this commission than any other por- tion of the bill, and is the only purt, 1 believe, that hus direct reference to tho textimeny betore the commission, Now as to the regularity of the evidence which 18 already beiore you, I presume there can be no objection. A question was made in the two houses of Congress alter the late Presidential clection, early in thelr session, a8 to what votes, if auy, should be counted from the States of Florida, Louisiana, South Carona, and I believe Uregon. Upon that question a committee was appointed ty take testimony. In rel ence to the caso of Florida, committees of the two houses respectively provecded to that State and took testimony ip accordance, as 1 believe, with the uniform bubit and custom adopted by committees representing Congress and discharging similar duties. That testimony, bav- ing been taken, was returned to the two houses of Congress, When objection was made to the counting of the votes irom that State at the time thoy were opened by the President of the Senate in tho presence of the two houses 1n pursuance of the order of the bill; that I have received the certiticuses from that State, being three in number, with tho papers accompauying those certificates, und the objections and evideuce that has been tukoa by the committees of Congress in reterence to the regularity and legwity of that voto were ull transmitted to this commission. I respect- jully submit that that evidence is now belore this commiasion, Wherever Congress has assumed to ex. ercise any power in reference to un inquiry into a dis- puted fact it has uniturmly appointed commutices or invested standing commiiecs with the power of taking testimony in regard to that fact, and in this caso the two houses respectively appointed their cum- mittecs to take testimony in regard to the issue Taised in reference to the vote of that State. That testimony bas been transmitted by those houses in joint session to this commission, which possesses wod 1s to exercise all the power of those two houses in the premises, 1 therelure presume tbat there can be no Question in retereuce to the regularity of thut testi- mony. Whatever question may be raised in reference to 18 admissibility under the issues which you are trying and its effect upon those issues, I speak now of the mass of testunony generally toat was laid upon this table, and 1 suumit that it is now belore the commission, and so fur as 1am advised, thero 13 ho other evidence with the excepuon of a very small piece of evidence in reference to the particular hour at which the writ of quo warranto was served upon what has been called the Hayes electors, und with that ex- ception stated in the paper read by Mr. 0’Conor, | believe there 18 no question upou which the counsel tor the objectors propose to oller any extrinsic evi- dence whatever. ‘Tuts evidence which bas been sent tu tho commission by the two houses is of this charac- ter:— First, thero is the vote that was enclosed inthe certificates returned from the State of Florida, There were three certificates, the tirst bemg that accom- panying tho revurn of the votes of the Hayes clectors, the certificate of the Governor given to those electors. The recond certiticae was accompanied by the cer- titicate of the Secretary of State of Fiorida, and the third was accompanied by certain judicial reports, which, under the express language of the orgenic act, Were reierred to (bis body tor its considera- tion. The other testimony was extrinsic to which 1 have already referred, taken by that committeo acting Gonder the authority and in obedience to the mandate of Congress; and | may remark that When that committee took this testimony there was full opportunity given to all parties interested im the resuit of the inquiry to summon Whatever wit- nesses they might desire to have examined and vo cross-examing ail that were brought turward by the parties having adverse interests, ‘Ihe examination-in- chio! was taken with the regularity of the rules of © evidence, and a — cross-examination was mitted — according to. the broadest latitude of those rules, Jf we were required to repeat the experience of that committee under the authority of this Commission, and retake that evidence, there would probably be no witness called who was not be- ture one or the other of those committves, and prob. ably no queetion Would be propounded that was not propounded by one or the other, and the answer to which 1s not reported to and now belore this honorable body. But as this Commission 18 invested with all the question re- curs upon the materiality and tne admissibility of the evidence without Fr ‘a tolorm a3 to what ure these powers, Lowe to Your Honors an apology for under- taking to argue the question, tor I did wot come imw court prepared to periorm that duty, and in ase ming to do wt now 1 merely = submit elt to that subordination ul Prevails in the prolession to obey the orders of my associate counsel GOVERNOR STEARNS IN BACKCLOT! Was suid In the opening stateme ade by the objectors upon the other side that Commission possessed no other than a simple power to pertorm a ininisteril duty; that i pessessed no other tuan a power to euumerate the vote; that the certificate of the Governor of w State was tinal and conclusive, and that there was no authority in this Comineaion, whatever mignt be tho prool, tocorrect that cortificate for mistake or Vacate it tor fraud, Carrying out the position wssumed by the objectors on the other side, 1 would follow thac even in retercuce to the certiicate of Governor Stearns, of Florida, Governor Stearns bimsell bud, subsequently to the date of that certiie © bolore the two Louses of Congress iu sackcloth and ashes, come on behalf of his State to have some error in that certificate cor- reetou, 1 could not vedone. Ht he bad come with peuttential sorrow, contessing himself to have been guilty of fraud—(1 am merely supposing « case)—how- ever enormous, however patent that traud might be, it would follow from the argument presented by the other side that that certificute was beyond the yoach of prool, und that it was unnecessary to crystallize its falsevood into the shape of a practi- cal fact, Now, in view of that position tuken vy Wo other side, It becomes necessary to locate that paper and see What it is and whence ‘it derives its extruordie nury sapetity, 1olinitely boly, according to that theory, beyond any judicial record and beyond any record that cal be made between nations, By the act of Congress, section 136 of the Revised Statutes, it i provided as follows ;— AND ABIES, It soul be the duty of the cutive of ench State to couse three lints of the naine: f and to be on or before the date on whieh they wre required weding xevtion to meet, There 18 nothing to this section declaring that that Ceriificate sbuli bv conclusive evidenoy of anything. Tuere is notuing makiog 1% mandutory on the Gov | ornor to use hut certificate; but if there bad been it would have been something jn the section transcend- jog (be powers of Cougress uader tho constitnt put it there, for they cold neitner reach the Go by process of law nur by process of enactment. wis bot withiu the power of Congress to make it mandatory upon the Governor to issue that certilicate, make {t mandatory upon Bute to issue thut ceriBeate, cap tt ve possible that it was within the power of Congress to | guy thut tho certiticate, if issued, should be couclusive. For if the cortiticate 1s conclusive when issued tt 18 therefore necessary vestimuny, in the absence of which there is no testimony, and unless it accompanies the vote the vote cannot be counted at all, ff, then, Con- gress could not have required the Executive to give it, gress could not, not even if it bad been so dis- Posed, deciared that the certidcate should be the con- clusive wad only evidence of the election of the eiecturs of the several States, because the constitution itse!f provides for an authentication of those electors by au authentication by themsecives, If to that Congress adas additional authentication, which it makes a con- dition precedent to the counting of the vote, 1b would be wn act in violation of that provision of the constitu. tion as wellus in violation of the relations of the raland the Stat roment, There are two Congress can, on electoral — vote. — insti- tote = an original =inquiry and take = tas- timony, Sing bebind the certificate of the Governor of the State, dnd can invalidate that cortiticate op its own motiou, while the State still adberes to the regu- Jarity of the certificate. Tuat is one question, and a Very important one. But there is another question totally differeut from that, which 18, whether the two houses of Congress, commissioned to inquire into the electoral vote and to ascertain what votes will be ¢ 8 g A g = 3 2 +3 = & & z 2 & = Hi ES = < & g z E 5 vernor There 1s a wide difference in the two etfully submit that if the power does not two houses of Congress usa primary and er separately to take testimony, going be- bind tho certificates, then the power must exist in tho State to correct its certificate or to unpeach it for | fraud oF falsehood, Otherwise we would be inevitably ted to an accident or a mistake, and a Presidential election might turn upon u certificate which ts known to all the world to be up accident or a taisebood or a fraud, and yet it could nvither be impeachea by the State that gave i vor interlered with by the federal governinent, but must be a substantial, living ana perpetual truth in the presence of conflicting evidence that itis a he, THK ACTION OP FLOKIDa, i take up the second proposition im the case of Floriaa, The State hersel!, alter the meeting of the clectors, ascertuining that the certiticate given by Governor Stearns was given cither by mistake or fraud, and was founded on irregular and illegal cauvass of the votes, passed a law by her Legislature directing | another cunvasy to be made; but she did not pass that law, even, until she bad applied to her judicial tribunals to interpret the laws previously existing, Having ap- lied tu those tribunals to imterpret the laws previous- ly existing, and having In the mandamus case re- ceived from her tribuval of last resort an opinion giv- jug 4 construction to previous existing laws, by which opinion it was oppareut that the Returning Bourd had transcended its legal cuties and = made Q return that was erroneous under the law, The Stute Legislature, on the basis of that opinion, directed another canvass of the Staic to be made. When that cunvass was made and returned to tho Leg- iluture the Legislature passed unother act declariag Shut the purtics townom the certificates had been insued by Governor Stearns. were not elected, aud Specitying by legislative enactments who bad’ been chosen us the agents of the State to speak her yoice in the Electoral College. But she has gone turther, A que warranto was issued against those parties who assumed to cxercise the electoral office under the cer- tificutes igaued by Governor Steurne, and that quo war- ranto having come before ter’ judicial tribunal, it was decided that the men who had re- ceived thut cortilicate were not elected, but that other mon wero lected. Therefore you have from that Stato this evidence; evidence trom her Legislature; evidence from ber Governor; evidence trom ber judicial tribunals, that the electors to whose vote we object hore were not the duly appointed electors of tho State of Florida, ‘Through all depart. ments of her government Florida comes to the United States and begs thut you—tor you exercise that power now und it is embodied in you—will protect her people from having ber voice simulated by parties who were never appointed to speak im ber bebalt. Is not that competent evidence to go before the bouses of Con- gress’ If itis uot, and it Congress itselt cannot in the oxercise of its original power go back und inquire into the manner of clecting electors, then you have placed the whole government and adininis- tration of the United States in the power of any Stato executive that may issue his certilicate to a purty Dover voted jor at all, when the ununimous vote of the State was in favor of another party. And you ure bound by i, You may take tho whole population of Florida, and although’ they way never have yoted for Aor B,'vnd though A and B may never havo received ‘a single yote, and although the vote may have been ubanimous in favor of other parties, the Governoe may issue bis cortificate to A and Hi, aad the cortiti« cate may thus become vinding on Congress and the Gloctoral vote may be cast by parties Who never re- ceived asingie vote from any citizen of the United States. If this be the law then “who «hall deliver ug from the body of this death?’ If i is not im the Bae of Congress it is not in the power of the tate, JUDGE BLACK’S SPECI Mr, Jexgmtan Biack toliowed Mr, Merrick on tho same side of the question, characterizing Mr, Merrick’s statement of the case us admirable and weil calculated to impress the true nature of the cuse upon the Commission and to give u full notice to gentiemen on the otber side ag to what nis (Mr. Bluck’s) side m- tended to rely upon, He suid it would only bo “gil jug retived gold” for nim to add anything to Mr. Mei rick’s statement. He insisted upon it that tbo evidence being once in or caTered or filed in the ca: wus to be treated aga court of equity treats evide ‘The Commission was not required to yivo w% any particular amount of force or weight in ite =eflnul judgment, but the Commission ‘was to look at it and to determiue tho case un all the evidence betore it, He could give the commission an assurance, founded on some little experience, that a Judge or a lawyer never decided or spoke upon any subject much the worse tor knowing a hittic avout it before he did speak or judge it (Langhter,) He would not reter to “Chitty on Pleadings,’’ nels? Chancery Practice,” or uny of the books in which the rules of evidence are laid down, because ne took it for granted that those Were things on which he would bo “speaking as to the wise; but be reminded the commission of a quotation from Judge Murshall made yesterday, 10 the effect that it was presumed that a judge of the Supreme Court know something. He hoped that no decision which this commission would make would repel that presumption. (Luughter.) Ludeed, he hoped that the presumption would be extendet to the efect | hot only that judges of tho Supreme Court knew some- thing, bat that members of the Senate and House ot Representatives ulso knew somothing. (Laughter.) There bad been much talk bere about going behind the action of a State. He believed firmly im the sovereign power of u State tv appoint any person an viector, provided it was done in the manner prescribed by her Legislature, and he believed that atter the up- polutmeut was made in that manner no man had a right to go belind it und suy that it was not an Ap. potment it to be made. Anybody (whether au oili- cee of the State or an Ofliccr of the general govern- ment), who undertook to set aside such an appotment as that would be guilty of usurpation of authority und his act would ve utterly void. ‘Therefore, it the Governor ol the Suite of Florida tn this case, alter tho appointment of these electors made by tho people, undertovk to ceruty that they were not elected und to put somebouy eiso in ther place, that act was atterly void, talse und fraudulent, They were not going behind the act of the State tn this cust, ‘They were only going belind the fraudulent act ctun officer of the State, whose act hud no vandity whatever in it, This was'a questiou of evidence. ‘two Sets ol persons came here, euch of them pretending to be the agouts of the State of Florida, tur the purpose 0i periorming that important function of the States tu the electon of Prosid Vice President. It was | the business of the two houses of Congress to count | the votes, He asked the commission to remember the argument of Mr. rrick, aud to let itsink in their beurts und not to forget it, because 11 Was God's truth, lt was the word ‘‘votos” that gave the coutroling meaning to the provision of the constitution. ‘fhe votes were to be counted,” not a fraud, not a forgery. When they were tuta that if the President of the Senate laid betore the two houses a false paper that was ab- soluiely @ counteriett, and that that was an nd of It, and that no eXtraneous evidence could be duced jor the purpose ol showing a torgery, the | t too fur, If tuat proposition were cur- ried but Co its logical conclusions, then it would follow | that the two huuses of Cougress’ must simply recerve what anybody chooses to faoricate und to say belore them through tho Vresideut of tho Senate; and that neither the President of the Senate nor ether ot the houses, nor both ol them together, could do anything in the mnattor, but just take what was given without inquiring into the genuineness of it at all, suw, everybody saw, and he hoped that nobody on the other side would attempt to deny, that tbe two houses of Congress have the vory {ying power—the powe rwhich enables them to inquire Whether a pa; 8 a lorgory or not—and if they have the right to inquire whether it 18 # counterfeit, they certainly have th igt to ine quire Whether 1618 not invalidated vy the fraudulent manuer 10 which it was concocted. The work of the counterioner was as well eptiticd to be regarded as 4 truth, as the mere spawn of # criminal couspiracy gotten up for the purpose of cheating the people of the | State ana the poopie of the Union, by ov: ‘ang and | overthrowing the gi principle underlying the m- sututions of the country, He instanced the ease of a patent issued by the Sec- retary of the Loterior uF the Lund Oilice, the validity of which depended upon its coutirmation by the Supreme Court, aud where It was falsely recited that the Court had dehvered # judgment contirming il, when the rec ord showed that thy Court had never done so, and be asked Whether that patent was worth auything, It was good for nothing, because it was bused upon a fact that was not true, In all cases of this kind false was fraudulent. The man who undertook to say that he to the lection certified h did it there glared upon bim Irom tho record which lay before him the evidence that the fact was the other way, was a coun- terleiter, and the paper ixsued by him was fraudulent, T1\t was fraudulent was it not as void in law and as corrupt in morals as if it was a simple counterfeit made by somebody oclso than by the man who pro- teased to sign it, A PRAUDULENT CKRTIVICATE, He undertook to suy thut no man in this commu- nity would duro to deny that asa legal proposiuen, In this case it was shown that the certificate was fraudulent, How was it sbown? By producing the evidence, of which Governor Stearns Wus as well aware as he (Mr, Black) was, which every man, woman and child in this Wholo nation knew, or bad reason to believe was true—viz, tuut the other set ol clectors had @ decisive and clear majority of the Votes that were ro- ceived and counted at the polls. Governor Stoarns knew that because it was recorded im every county in tho Stute. [he votes were collectoa together and were tiled in the olfice of the Sccrewry of the Common. wealth, ‘That was ooe way in which the telsetood and traud was showa, But it was sbown again by the co of ao act of the Legislature, containing the solemn protest of the State against ihe cheat which ber de /acto Goveruor attempted to palm of on her and on the nation, It was shown again by the tact that He |e NEW YORK HERALD, SUNDAY, FEBRUARY 4, 1877.--QUADRUPLE SHEET, the Governor of Florida, not the same person, bat the of same olfierr, bad revoked that fraud, deciaring that the | Sretrun votes other parves aud pot those whose were now offered, had becn elected and choxen and authored exclusively to declure the vote of the State. Thos there was the evidence of two departments of the State government against the fraud, but there was still mora The State bad determined not to be cheated Out of ber vote, and had determined that she would ascertain the truth in some undeniable form by a proceeding the correctness and truth of which could | Bever be tinpesched. She therefore had taken those usurpers by the throat, had dragged them into ow court of justice, and there, in the presence of a competent tribunal, she bad ita. pleaded them, charged them with the oifeuce, brought the otwer parties Who were clitmed to be her agents for the purpose and set tnem face to face. The prools had been given ou both sides, and there bad been a solemn adjudication by that court of competent juris diction that the persons who claimed to cast their votes for Hayes and Wheeler had no right or authority or power whatever todo thatthing. It had been laid down as # rule of law that whenever a cause bas been decided by a court of competent jurisdiction the de- termination of that court could’ be pleaded in bar x conclusive evidence of every fact and every matter of luw what was or could bave been brought into the controversy, and that neither in law nor in fact shou that doteriniuation ever afterward, collaterully or di rectty, be drawn into covtrover: Was not that rule’ 1t had veen so laid down by the Chief Justice in the Duchess of Kingston's case. 1t bud been followed y every courtin Curistendom from thut day vo this. ‘Thero was not in Eugjand or America oue J or une lawyer who had ever undertaken to assert that the law Was otherwise, por had it ever beep attempted to be clothed in apy other words thun the clear and felicitious language that was used by Cuiet Justice De Grey im thut case. ‘This doctrine had been applied over and over again to election returns as well ax to all other things. ft would be pertectiy ab- surd to say that where @ question about the ttle of a horse was in controversy velore a Justice of the Peace the doctrioe which inade the title void tor fraud was to be applied so as to save the horse to the honest owner of it, and that it should wot be applied to a case in which the rights of a whole nation were boing struggled for, False returus bad been made many tines; false counts had beoeu made at the polls, and false election officers hud made false returus of the voters as they counted them, but no man had ever sald to bis knowledge that ag election fraud ought to be held to be successtul, merely because tt was put into the form of | a taw, had never been said before except on one of which was the famous "New Jersey case, and the other case which occurred in Pennsylvania iu 1835, when Mr. Porter was elected Governor of Pennsylvania by about 14,000 majority and lis election Way attempted to bo set aside by the opposite party. That They ali knew what bud become of that attempt; te had resuited in the famous “bnekshot war.” ‘The parties opposed to Mr. Porter bad intended 10 carry ‘out their schomo at the expense ol covering the whule Commonwealth with blood apd ashes, und they would have dope it only that they could not get General Paterson and his men to fire upon the people, MK. GREEN'S BRIEF, Mr, Black’s time baviug expired he resumed his seat, aud Mr. Merrick prosented to the Commission brief by Mr. Groen, of Now Jerse ‘f which he said was a cleur, full and able discuesion of the question now be- fore the Commission, INKLIGIBILITY OF AN ELECTOR, Mr, BLACK again arose to supply an omission that he had made, which was to state that evidence would be presented to show the incligibily of one of the Hayes cloctors on account of his being « United States olficer ub the time ol his election, “What IS IT ATTACHED TO?" Mr. Evarrs (addressing Mr, Black) said that a certain amount of evidence, not othorwis described than gon. erally 19 arguinent and which bis side had never seen or inspected, bad been argued upon as being already in on some Chuncery notion thut it had been attached to something which had brougot it here. Mr. Buack—That ia in the record. Mr, Evanrs—-What 1s it attached to? Mr, Bhack —It is pms ol the record tn thia case, made up by the House of Representatives belore the case was sent over here, Mr, Evants—What is it attached to? Mr, Biack—Do you mean to ask mo the bookbinders question as to whether it 1 sutched ? Mr, Evants—No; but to what is it attached? Ar. Mexuick—It 1s altucheu to the objection that was made when the vote was offered in the Huuse as Deing the basis on which Ube objection was raised, Mr. Evants—The question ts auswered; it comes in, Senator EpMUNps—It came in as part of the objec- tion, THK REPUULICAN ARGUMENT, Mr. SraNcky Marukws then urose to present the re- publican side of the case. He said:— MK. PRESIDENT AND GENTLEMEN oF THE CommissiION— Unused as 1 am to appearing belore a tribunal su un- peecrentet aud august us this, and quite unused to handing such bigu thetnes as form the subject of the Jurisdiction of this commission, 1 rise with the most uualfected deference to undertake the discharge of the duty which has deen assigned to mo by my learned associates, And while | hope that 1 may say some- thing which will assist the commission in solving the questions that are submitted tor arguineut, | shall be ouly happy if alter Ttake my seut [ shail be able to recollect that 1 have suid nothing Which may toyure it, A MIGAPPBEHESION CO“RKCTED, I take the first opportunity to correct « serious mis- appretchsion on the part of the learned goutlemen who have acted as counsel tn the opening of this ques- tion in regard to the position which they seem io assume as being already taken on our side. I refer to the conclusive effuct which they suppose we attribut to the certificate of a Governor of a State, accompuny- ing the last of those whom been duly appointed electors of that State. am uuthorized to say by tho gentlemen who are objectors to the secoud and third Certificates, that that statement is uu incorrect repre- sentution of their position, and I respecttally submit that when [ bave sat dowa no gentleman on the other side will understand our case differegtly. [ may also tuke this immediate opportunity for relieving the up. prehonsion of my learned trie.d who spoke last, and who spoke so well in regard to the possible effect of excluding the consideration of what he bas been pleased to call exhibits on evidence trom the judgment of this tribunal, “Tux ODD MAN.” It is, Mr. President und gentlemen, a fortunate feavure of your legal constitution that you can make no mistake, It was a quaint saying of Seldon, ina little cesay on Papul councils, where Le Was treating of the doctrine that they were enlightened by the pres- ence of the Holy Gost, that he had generally tound that the Spirit dwelt in the odd man (laughter), so that in the exercixe of the constitutional function, whatever it muy be, devolved by Congress upon this commission 10 the couni of the electural votes, ellectual jon has ade ayuioat the detvat of the transac by re- it to a tribuual which caunot be equally divided. Aud now, Mr. President aod gentlemen of the Commission, ‘alow mo to state tu very general terms, and yetas precisely as 1 may be able to accom- phish it, the Various propositions by which and through which we lead ourselves and hope to lead you to the conclusion for which we contend in referen to the pomt to which you, as sentatives of tho Congressional jurisdiction, may go in this inquiry and to the point where vou must stop. What is the transaction, what 18 the subject of the yoneral invéstigation? It 18 stated in its tinal re- sult—the election of a President and Vice President of the United States, In what does that consist? lt is not a single act; it is @ series of acts. Tho olectiun of the two high officors is bot a popular election either according to the spirit of the constituwon, the moaning of its framers, the interpretation of the generation which adopted orthe practice auder it. There ts a select body Vt men in each State who constitute the constitutional body who are to make that election, and | need not Temind this tribunal that they bave a right to make & selection, as well a election, 16 is altogether, in my jtugmeat, a mistake to suppose that the electoral bodies ure dologates representing the State or the peu- ple of a State us agents to accomplish their will They hot only bave the power in the sense of might, but they have authority, ia the sense of right, to vote Upon the day named for tho persons who, in their judgment, ought to be, all things consid. ered, the Chief Executive of the nation. Mr, Matthews ihen went on to show that cach Stato hus the right to prescribe the modo im which tho cloe tors shall be appointed; how they may be chosen vy the Legislature, uppotnted by the Governor or electou by the people; how arrangements are made tor count- ing the vote by Returaing boards, &c., and tor the issuance of the certilicates by the Governor. Up to that point, be said, tho State acted. Congress had | under the coustitution reserved to itsell, in certain particulars, control over these appointments—that is, Congress might designate the day on which the ap- pointments sbould be made and tho day on whieh tho electurs su appoiuted should deposit tuetr bailows for President and Vico deut. He would neither deny nor allirm, bat he was willing to admit anything sod vihing which might be claimed on the other side as LO the existence ol State authority to inquire imo aud affect that record, until the tine when the electors completed their work by casting ther votes, Then the transaction passed beyond the limits of State con- trol and became a federal act—one of those things passed to the jurisdiction of the federat power, The votes bad been deposited in the ballos box of tho pation, and tho nation took charge of its ballot = boxes, What power was exerted after that or exerted under the power conterred by the constitution upon any constituted national authority which wes invested with power over the subject, When the person ap- pointed, of Who appears to have been appointed, an elector, having in lis possession the format evidence of bis appointinent, exercised the authority conferred upon him under the constitution and actually dis charged the duty of casting the vote, the transaction passed beyond the control of Siate power avd authority. The actual question, Mr. Mathews maint now before = the ~—- Commission is not which set of electors in Florida received a m Jority of popular votes nor which set appears trom returos of the votes made wt the primary polling places to have had a majority, but which set, by the Actual declaration of the official aathority of the State charged with that duty, bas bocome clothed by the forws of law With actual incumbency and possession of the oitice, The vody of electors which has un apparent right and a proper title, and which is im the Cxercise aud possession of the functions and franchise of an oflice aud who actually exercise t powers of that office is tor whe purposes of this tribunal the lawtel body to cast the vote, and their votes must be counted, Mr, Matthews admitted tuat 4 mere certilying act was not conctusive. WHAT THY COMMINSICN 1 LIMITED TO, Conoress, Which provided it and wade it partof the transaction, may disregard it; they need not iie them- selves to it; but if the cominission went behind the certiicate, 10 What were they limited by the necessity ofthe case? Tn his judg y were limited to an inquiry as to what are 0 which tho Gover- nor lo bis certificate should have certitied. The facts vo be cerufied by the Goversur are pablic facts, and are facts whieh records of the State, and of ernor at the time, he has official knowledge atthe time when, it ever, the title to the possossion and jucumboncy of this tanction required for the par- Y | this become complete Governor tr tbe Lue Govern of Flerida, and the fact wasthat by the jedgment and finding of the Gaul authority uf the State as decided by tne elecsion those whom he certitied to be the had i fact according to law boen appoin' fact that » t Governor came a court rendered a judgment upon hin change the de facto status ot Governor bw warranto proceeding could nut be alleged as. the facts recited in Governor Stearns’ certitieate, be- cause facts ure not matters of legal construction, exist of themselves, The fact is undoubted and on- questioned that rbor Stearna, atthe time indicated, wus tho de facto Governor of Florida... The reiatura that quo warranto case appeared clearly by the record not to have been in possession at the time and their claim Of right to occupy the office did not affects the actual status of Governor Stearns nor the legal and constitutional farce of bis action, ig MR. Patio ns ig ADDRESS, fr. Stowcurox succoedo1 Mr, Mathews and opened the case for the republicans as follaws:— Me. Paxsipunt aNd GextLEmey Or Tux Commission— Although iny brother Evarts ana myself propose to uivide Letwoen us too remainder of our time, 1 shall occupy, | think, but a very smail portion of it The tigen mh which this tribunal has giveo us to argue, as understand it, ig whether euy aud, if any, what testimony can ceived in this case of any nature, Iudepeacent of documents, which were transmitted to the President of tue Senate aud opened in the presence of the two houses. Ip the first place it scems to me wppropriate to ask, What is the jurisdiction of this Tribuaal, and whst are its powers? Upon it te devolved, by tho legislation uf ongress, such power, if any, to count the electoral vote in special cases referred to it as ie awed =oby the two houses of \ Congress wcting separately or together. The jurmdie- tiou us conferred 1%, therefore, an unkvows quantity until it shall’ be ascercained what ure the powers of the two houses ucting separately of fogetver. Assuming the power of the two houses or of cither House to count the election vote, whut duty, what power, i# involved in the exercise of that funce tion? The purpose to be attuined ts the count of tho electoral vote. Tho power devolved upon tos tribunal is to count that vote in special case it is to couut the electoral vote and nos count the votes by which the electors were elected. That is a discrimination which need hardly, 1 think, have been forced by argument, Tho Klectorul vote only ts to be counted, and this tribunal has no power and no duty to count vote vy which the electors were lected. If it had it would be compelled to descend to an anfathomadle abyss and grope ity way into recesses in which It could tind itself in @ position not only somewhat unpleasant, but trom which it could with ditticulty extricate itselt. What is the seope of the inquiry before this body? ‘The general inquiry of the gentleman is whether any testimony is admissible in this case, and for the pur pose of ascertaining what testimony is udmussible rt it well to loarn precisely what this isund what it the purpose of the testimony proposed to be pat in, Here are some factsof which this tribunal can wke Judicial notice, Ono consists of the laws of the Sta of Fiorida What are thoso iaws in relerence to tus subject? And what was dove in pursuance of them, and what is proposed to be done by testimon (as it 18 callou) for the purpose of over- throwing What was done in pursuance of the statute of vhat Stato’ In the tirst place the statute of that State, by a provision, # portion of which I will take the lib: erty of reading, creuted w Returaing Board, having car pacity to certily the number of voles cust tor olectora, and to certity who was elected, ‘und ff that board performed its dut however mistaken, however clouded with error, bor ever (if you ptuase) tuinted by fraud, if it performed the duty Imposed on it by law and did ascertain und did declare how many votes for particular sets of elec- tors bad been cxst, and did certily avd declare who were the persons who w elected electors, that ends the inquiry here, assuming that you may go behind the Governor's certiticate, and unless you sume the right to yo behind the action of the Returning Board the final tribunal tor that purpose, created by the law of that State, and ascertain whether did or did not, according to your judgment, taith- fully declare tne voto cust aud fauithiuily declare who were the persons elected. Asto the constitution of that Returumg Board 1 will appear from the tourth sectioa of the act of 1872, which will be found on page 2 of the report of Mr, Sargent’s committee, It provides that on the thirty-in day ator the holding of any generat ar special eloctign for any Stute officer, momber ot the Legislatare oF representative in Con- gress, or us 600n as the returns sbull have beea re- curved from the several counties where the elections shall have been beld, the Secretary of State, Attorney General and Controller uf Public Accounts, or any of them shall go with asy other member of the Cabinet who may be designated by them, and shull meet at the office of the Secretary of State pursuant to notice to be given by the Secretary of State and sball form a board of Stato canvassers and proceod to can vass the returns of said election, 1 desire the co jon to mark well the language of the act. It says they shall “procced to canvass tho returns of said election apd devwrmine and declare woo shall have been elected to any such oflice or as such momber as shown by such returu, ‘1 any such return shall ap- near to be irregulur, false or fraudulent, sv that tho Boara shall be unable to determine the true votw for any such offer or member, they shall so certuty, and shall not include such returns in their determination, and declaration,” ‘there was committed to thom by that statute a ca pacity to determiue and decide tinal und couclustve, and a majority of that Hourd were authorized to per: form that duty, and they did perform it, And tt ep- pears here beiore this tribunal that, in tho dwcbarae of that duty, two of these members (omitting the Attor- ney Genoral) did, in the exercise of that discretion thus confided to them, certity and dociare that the Hayes electors (so-calied) fad been duly elecied jawtul voters of that State. ‘Then, we go behiod that, we go behing the tribunal which the state of Florida has sent up to declare her will in the Eleetorai College, for it is ber will xs @ sovereign State, whether wise ot foolish (and foolish tt may be, as we huve lately seen), which she is to declare. [It seems to me that if this jon shall go behind the finding ot that Board Vohind it upon the theory that it may exer. cise us will irrespective of judicial power, upon tne same theory that it bas the capacity of botl houses either House todo as it pleases. Not in subjection to the constitution of the country, but in obedience te its will and purpose. THK DECLARATION OF THR STATE. 1 suppose it will not be denied that a state of this Union by tts Legisiature may, in any mode it pleases, declare who shall be its instrument for selecting clec- tors, I suppuse that if the State of Flor.da had declared that one of its Sheriffs should lect the electors that would be tinal, If it were done, peradventure some theorists, upon the notion that you should go to the people as the sourco of power to elect judges as well as all othor officors, might say that (hat was hardly in harmony with republican notions, bat | toink that he would go behind the express will of the State ag to the electors appointed, would tind himselt en- gaged in an eilort to invade the sovereignty of the State and interfere with its supremacy, 1 am per- fectly aware that if this tribunal were lett to ‘the intelligence of committees by which* selecting some of its number, it could throush them procee! to different States, and, irrespective of the rules of evidence or of law, gather togoiber testi- mony, there supposing it to have the capacity to de ae it should please, it might go behind and overset any final, lawtul declaration of any Returning Board in any State tn the country. But Congress, while it confera iu the shape of an unkuown quantity a juris. diction upon this tribunal, declaring that it should possess the powers, It any, of the two bouses fer the purpose of periorming the duty of counting the vote, Wok curo not to permit it to found its conclusion upon testimony inadmissable in a court of justice, Tho dis. tinction between the uncertainty of language which confers jurisdiction, and th unty and precision of lan, uage which confers power, is narked and oe gored Mr. Stoughton then read from the Electoral bill ag follows :— All such certificates. yotes and eum fame with tho Parpose by the two majority of id stato i wore duly apporntnd electors in such States, and may therein take into view ch petitions, depositions and other papers, if any, as shall by the constitution and existing law be compotent wad pertinent in such consideration, Competent and pertinent in view ot what? In view of the action of Congress through ita committees, mean no disrespect whon I say that that mode permits the breath of calumny to ve blown tn a way which, thank God, courts of justice take care to prevent, and your Honors being confided with the power to hear depositions, papers und. petitions, within the Ineaning of the constitution and existing laws (it not being oxpressed precisely what they are) will look those rules of law which guide you in administering Justice upon the bench, and will determine what are Uho petitions, papers and uepositions which you may thus receive, ‘Turn over the pages of the books of common law and you will fad, printea in characters unmistakable, an Utter incapacity to deal with anything except that which the common law bas sanctified by usage and declarations through the mouths of judges ag fit to be employed to affect the rights of men; to say nothing of the rights of States and nations, This Court will, unquestionably, therefore, seo that 1% etuployes no testimony not in harmony with the laws, Tho jurisdiction of this body is to count the vote, Its power, when counting, 18 to use such proof, if any, a8 the constitation and laws permit. You are dealing with a delicute subject when tho quos- tion of jaristitetion is reached; you aro deul+ jug with = the = supremacy "oF State when = you undertake to atinck its final tribunal for the purpuse of overtauling and upsetung is xction, I have now in a general way, perbaps very impertectly, presented my view of the jurisdiction, power and purpose of this tribunal, I propose to way but @ very few words im addition, have said that the purpose of tho testmony offered is t go behind not merely a Governor's cor- tificate (for undoubtedly questions ot forgery or mig- take and many questions this Tribunal could deal wish bat the propose is to go behind the section of the Tri which the State has set up, of else y offered is sensciess aud worthless. Us @ certificate of the Attorney General of Florida, who dissented trom the majority of the Ret Board, stating in that certiticate with does, that there is uo method of oeeae aia that tribunal beyond his ceruficate by Ly hay oute of the Governor, because it would in violation of the laws ni Florida for the Governor to cortity to the election of electors who Lad been returned as, wy & minority of the Board. it next do we Gad find a statute of the s ro us autborizing. Passed on 17th day of January, long after these electors bad vowed authorizing a new canvass of what? 1s ita canvass gee § wilt the Lato [ogee authorized No; bat aeanvasy of the votes rT them) then in the offlee of the Secretary at eure and we find ander that act a board of, canvamer, |