CONGKESS, UNITED STATES (ELECTOKAL COMMISSION). 



173 



" Now, if the commission please, we are told 

 that the certificate of the Governor (Stearns), 

 which has been forwarded to Washington an- 

 nexed to the lists of votes of the Hayes electors, 

 countervails all this evidence, and that, no mat- 

 ter what amount of testimony we may offer, 

 documentary or oral, we can never invalidate 

 the signature of Marcellus L. Stearns ; and it 

 is to that question that I shall devote what re- 

 mains of my address. It is putting the ques- 

 tion in an erroneous form to put it thus : ' You 

 cannot go behind the certificate.' The form 

 should be reversed : Can the certificate go be- 

 fore the truth, and conceal it ? I prove these 

 facts, or offer to prove them. On the other 

 side if I have rightly understood the objec- 

 tions made yesterday in the joint convention 

 on the other side there is no suggestion that 

 we are not right in the facts ; there is no aver- 

 ment that the true and lawful vote of the State 

 of Florida was not given for the Tilden elec- 

 tors ; but the claim is, that ' there is the cer- 

 tificate of M. L. Stearns, and that stands as a 

 barrier against all these witnesses, and the 

 truth cannot be proven. The truth is buried 

 under this certificate. Neither you, exercising 

 for this occasion the powers of the two Houses 

 of Congress, nor the two Houses themselves, 

 acting separately or together, can consider any 

 fact whatever to the contrary of which Stearns 

 has certified.' 



"Let me ask, in the first place, upon what 

 foundation that doctrine rests ? Who tells you 

 that you are to take that certificate as conclusive 

 evidence against anything that can be proved 

 on the other side ? By what rule of evidence, 

 by what precept of law, are you deprived of 

 the right to investigate the truth ? Is it not 

 a universal rule that every judge is invested 

 ex necessitate with the power to take into con- 

 sideration all pertinent evidence in respect to 

 the facts upon which his judgment is to be pro- 

 nounced, unless there is some positive law de- 

 claring that certain certificates or other docu- 

 mentary evidence shall be conclusive ? I ven- 

 ture to say that that is the universal rule, and 

 that there is no court of general jurisdiction 

 known to American or Anglo-Saxon law in 

 which it is not a fundamental principle that 

 whenever a court can inquire into facts neces- 

 sary to its judgment, it may take all the per- 

 tinent evidence that is to say, all evidence that 

 tends to prove the fact unless it is restricted 

 by some positive law. Now, then, show me a 

 positive law that makes the certificate of 

 Stearns evidence against the truth ? Where is 

 it ? In what book ? It is not in the Constitu- 

 tion. It is not in the laws of Florida. Is it 

 in any law of Congress ? The only act of Con- 

 gress applicable is that which provides that the 

 Executive of the State shall deliver to the elec- 

 tors a certificate that they are such electors ; 

 but that act does not declare that this certifi- 

 cate shall be conclusive neither declares it 

 nor implies it. Suppose I offer to prove that 

 the certificate is wholly false fabricated for the 



purpose of cheating the State out of its vote, 

 and the other States out of their rights ? Take 

 the State, one of the oldest and proudest in 

 this Union of States the State of Massachu- 

 setts, of which my friend Mr. Commissioner 

 Abbott is so worthy a representative and sup- 

 pose that the honored Governor of that State 

 were so debased as to certify that the Tilden 

 electors had received the votes of a majority 

 of the good and true voters of Massachusetts: 

 will any man tell me that it must be taken as 

 absolutely true ? that you cannot prove it to be 

 false ? Where is the law for that ? Nay, more : 

 I venture to affirm that, if an act of Congress 

 had declared that that certificate should be 

 conclusive, the act would have been unconsti- 

 tutional. For what reason ? For this reason : 

 The Constitution, as if the foresight of the 

 fathers grasped the conflicts of future years, 

 declares that the person having the highest 

 number of votes shall be the President. Not 

 the person declared to have the highest num- 

 ber of votes, but ' the person having the high- 

 est number.' No certificate can be manu- 

 factured to take that away. If you had de- 

 clared by act of Congress, in the most express 

 and positive terms, that the certificate of the 

 Governor delivered to the electors should be 

 conclusive against all proof, you would have 

 transcended the limits of the organic law. You 

 cannot say that the certificate of the Governor 

 of Massachusetts shall override the votes of the 

 electors of Massachusetts in their choice of 

 President. Therefore it is I say not only that 

 you have not done it, but you could not do it. 

 You could not do it if you would, as I am sure 

 you would not if you could. 



"Is not your right to inquire into the very 

 truth implied by the law under which you act ? 

 What are you to do? You are to declare 

 whether any and what votes are the votes pro- 

 vided by the Constitution ; not to declare what 

 are the votes certified by Governor Stearns. 

 That was known well enough beforehand. You 

 are to certify what are the lawful votes upon 

 which a President of forty-five millions of peo- 

 ple is to be inducted into office. 



" Is not the same right implied in the notion, 

 which I find to prevail everywhere, that Con- 

 gress might authorize a writ of quo warranto to 

 try the title of President within the purview 

 of the Constitution? Can that be doubted? 

 The Constitution has declared that the person 

 having the highest number of votes shall be 

 the President ; not the one certified. Congress 

 has not as yet invested any tribunal with the 

 power to try the title to the presidency by quo 

 warranto. No such law exists, I am sorry to 

 say. Such a law, if I might be permitted to 

 say so, ought to be made. It is no small re- 

 proach to our statesmanship that for a hundred 

 years no law has been provided for this great 

 exigency. 



" I have not been able to satisfy myself that 

 there is any provision for a writ of quo war- 

 ranto in the case of President. But my argu- 



