178 



CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



composing the commission, that, when they 

 made the recanvass which I have styled Can- 

 vass No. 2, under order of the Supreme Court 

 of Florida, it will appear they then reported 

 not only the result in respect to Governor, 

 but they also reported the result in respect 

 to electors. That result of the second can- 

 vass showed the election of the Hayes electors, 

 but by a reduced majority. These electors 

 appear to have run two or three hundred 

 votes ahead of the State ticket, and the re- 

 canvass left them still some two hundred 

 majority. That appeared on the record. It 

 does not appear on the printed document 

 which has been submitted on the other side 

 here, I suppose, because the court ruled that 

 they intended their order to only apply to 

 State officers ; and therefore they struck out, 

 after it had once gone in the record, the result 

 as to the electors ; but it was originally a part 

 of the proceedings under order of the court, 

 which, if gone into, will show the fact that 

 not only Canvass No. 1 showed the election 

 of the Hayes electors, but Canvass No. 2 had, 

 under the order and in accordance with the 

 ruling of the Supreme Court, showed both the 

 election of the Democratic State ticket and the 

 election of the Hayes electors. 



"Then we come to Canvass No. 3, made 

 after the college was functus officio, and there 

 you find that, not satisfied at all, they ap- 

 pointed a new board of State canvassers. From 

 that new board they left out the Attorney- 

 General of the State. This, I suppose, was 

 owing to the fact that his opinion had been, as 

 to the law of the case in many points of the 

 canvass, with the Republican members of the 

 board. These papers which have been laid on 

 your desk show that, instead of the Attorney- 

 General being a member of the new State can- 

 vassing board, the Treasurer of the State was 

 substituted. 



"Now, I ask if you are to recognize can- 

 vass after canvass, and the changing results of 

 partisan affiliations, the changing desires of in- 

 dividuals, the changing influences surrounding 

 the canvassing board, and the whole political 

 aspect of the State ? Are you to change your 

 rules of law, and to say that canvass after can- 

 vass may be made after function exhausted, 

 and that the last canvass made under the cir- 

 cumstances should prevail, ex post facto entire- 

 ly, ex post facto by law authorizing it, ex post 

 facto by executive authority, ex post facto by 

 the constitution of the board, ex post facto by 

 the exhaustion of the functions of the officers 

 themselves elect, ex post facto because the very 

 terms of the officers elected had expired ? 



"The case is made when it is found to be in 

 accordance with Constitution and law in time, 

 manner, and due certification of authenticity. 

 Can it be upset? Yes, if legal provision is 

 made thereforT^ Where?' says the gentleman. 

 I answer, "Within the jurisdiction where the 

 laws provide for the appellate or original de- 

 termination of rights. ' But,' says the gentle- 



man, 'suppose no such provision of law is 

 made ? ' Then I answer, that a casus omissus of 

 proper authority is no reason for the usurpa- 

 tion of that authority where not a scintilla ot 

 constitutional law has placed it. If the allega- 

 tion were true, it simply shows the necessity 

 of further legislation where that legislation 

 ought to exist. If it be untrue, the whole 

 ground and fabric of the argument here fall* 

 to the ground." 



The President : " I inquire of counsel for the 

 information merely of the commission, that 

 we may know how to act in consultation, Do 

 you propose to offer evidence before proceed- 

 ing to the argument ? " 



Mr. Merrick: " Mr. O'Conor requests me to 

 answer your honor that we expect to offer evi- 

 dence, which is now here, before proceeding 

 with the argument. We have been under the 

 impression that the evidence was already be- 

 fore the commission, without any necessity for 

 a further offer on our part." 



The President: "That is sufficient, sir. 

 What is the proposition of counsel on the other 

 side?" 



Mr. Evarts : " We have no evidence to offer, 

 unless there should be a determination to ad- 

 mit evidence inquiring into facts, and evidence 

 should be produced against us which we should 

 then need to meet" 



The President : " Should the commission 

 decide to receive evidence, you expect to have 

 the privilege of offering it afterward ? " 



Mr. Evarts : " We do." 



SATURDAY, February 3, 1877. 



The commission met at half-past ten o'clock 

 A. M. pursuant to adjournment, all the mem- 

 bers being present. There were also present : 

 Hon. Charles O'Conor. of New York, Hon. 

 Jeremiah S. Black, of Pennsylvania, R. L. Mer- 

 rick, Esq., of Washington, Ashbel Green, Esq., 

 of New Jersey, William C. Whitney, Esq., of 

 New York, of counsel in opposition to Certifi- 

 cate No. 1 ; Hon. William M. Evarts, of New 

 York, Hon. E. W. Stoughton, of New York, 

 Hon. Stanley Matthews, of Ohio, Hon. Samuel 

 Shellabarger, of Ohio, of counsel in opposition 

 to Certificates Nos. 2 and 3. 



The President : " I will state to the coun- 

 sel at the bar that the proceedings under Rule 

 4 are concluded. Proceedings will now take 

 place under Rule 3, two counsel on a side being 

 allowed. 



" Doubtless some question will arise as to 

 the best mode of proceeding. It occurs to the 

 Chair, without speaking for the commission, 

 that a convenient and just mode may be that 

 counsel representing the objectors to Certificate 

 No. 1 should make their offers of proof in a 

 concise, well-arranged, classified form, and then 

 that the counsel representing the objectors to 

 the second certificate should make their offers 

 of proof, based, of course, upon the condition 

 that proof should be admitted, it being under- 



