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CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



in any view could be called extrinsic is believed 

 to be needful in order to establish the conclu- 

 sions relied upon by the Tilden electors, except 

 duly-authenticated copies of the State canvass ' 

 that is, the erroneous canvass as we consider 

 it ' and of the returns from the above-named 

 four counties, one wholly and in others in part 

 rejected by said State canvassers. 



' ' II. Evidence that Mr. Humphries, a Hayes 

 elector, held office under the United States.' 



" This may be deemed anticipatory, and per- 

 haps not proper to come from me. 



" ' 6. Judging from the objections taken by 

 those supporting the Hayes electors, and the 

 opening argument offered in their behalf, the 

 supporters of the Tilden electors are led to be- 

 lieve that no evidence is needed or intended to 

 be offered by the supporters of the Hayes elec- 

 tors, except: first, that the above-mentioned 

 appeals were taken; and secondly, that Mr. 

 Humphries had resigned.' 



" If I may be permitted to say a word, the 

 commission will perceive that I have acted 

 here with a view to support my idea that the 

 facile method is to take these proofs subjected 

 to all question; that there is not enough of 

 matter to produce delay or confusion or con- 

 flict in respect of those extrinsic proofs that 

 give rise to a judgment in discretion that it 

 might be inconvenient. On the contrary, there 

 is so little, and it is almost so completely pure 

 matter that might be called of record, that we 

 can get rid of the matter of evidence very 

 promptly and easily and beneficially as to time 

 and as to results, unless the commission please 

 to adopt such a method as will make us, on 

 the first little scrap of testimony being offered, 

 present our whole case bn both sides, and have 

 the whole merits decided." 



Mr. Black: "If your honors please, I think 

 the suggestions that have come from the com- 

 missioners, and what has been said by Mr. 

 O'Conor, as well as what has fallen from the 

 gentlemen on the other side, relate to the 

 most important duty that you have to perform ; 

 and therefore I shall be pardoned, I trust, for 

 making a remark or two at this moment." 



The President : " Do you desire to make fur- 

 ther offers of proof ? " 



Mr. Black : " No, sir ; I desire to suggest the 

 course of proceeding which I think this tri- 

 bunal is bound, by its legal duties, to take, for 

 the purpose of reaching the justice of this 

 cause." 



The President : " It is not the moment for 

 argument now." 



Mr. Black : " It is the moment for suggesting 

 the course of proceeding and our rights with 

 reference to the evidence which is to be given. 

 I insist upon it that the evidence is in, and that 

 we are not bound to make any offer at all " 



The President: "That, I think, is part of 

 your argumenTafter the cause is set down for 

 argument, and not a preliminary statement." 



Mr. Commissioner Miller: "Let me suggest 

 that Mr. O'Conor has made a proposition to 



submit certain evidence. If counsel on the 

 other side have no objection to it, there is no 

 occasion for further argument. If counsel on 

 the other side submit to have that evidence 

 come in, it will come in, and we can go on." 



The President : " I think Judge Black had 

 better defer until we hear from Mr. Evarts; 

 otherwise there may be misunderstanding. We 

 will hear Mr. Evarts." 



Mr. Evarts : " The question whether the cer- 

 tificates transmitted from the States that fall 

 within the warrant of such transmission by 

 the Constitution and laws of the United States 

 constitute the material upon which the duty of 

 counting the vote of the State is to proceed, 

 or whether the authority vested by the Con- 

 stitution with the power to count can seek or 

 receive extrinsic evidence of any kind, in any 

 form, to be added to the certificates in the 

 hands of the President of the Senate under 

 the Constitution, is no doubt a principal in- 

 quiry of law and of jurisdiction in this com- 

 mission, which, once settled upon principle 

 and by your decision, will go to a certain ex- 

 tent in superseding or predetermining your 

 action upon the merits." 



Mr. Commissioner Strong : " Mr. Evarts, al- 

 low me to suggest that perhaps I do not under- 

 stand Mr. O'Oonor's position. I have not un- 

 derstood Mr. O'Conor as offering evidence at 

 all. He has suggested what he supposes to be 

 in evidence, and suggested what he might offer; 

 but there has been no offer made, so far as I 

 have understood him. If there has been an 

 offer made, your province, it seems to me, is 

 simply to withhold objection, or to object to 

 the admission of the evidence so offered." 



Mr. Evarts : " Am I to understand that my 

 objection cannot be accompanied with any 

 observation ? " 



Mr. Commissioner Miller: "If you object, 

 we will hear argument. We cannot hear argu- 

 ment before anything is offered." 



Mr. Commissioner Bradley : " I understand 

 Mr. O'Conor to suggest that the extrinsic evi- 

 dence mentioned by him be received provision- 

 ally for the purpose of the argument, and not 

 to be decided upon by the commission at pres- 

 ent. That is what I understood Mr. O'Conor. 

 If that is his position, then it is simply a ques- 

 tion of convenience whether that would be the 

 better course, or whether we had better have 

 an argument upon the question of theadmissi- 

 bility of evidence now alone, before going into 

 an argument on the merits. As the argument 

 on the admissibility of evidence would neces- 

 sarily greatly involve the merits, it seems to 

 me, unless counsel on the other side have for- 

 cible objections to that plan, Mr. O'Conor's 

 suggestion is a good one, because it would 

 then unify the argument make one argument 

 of the whole case; and the court, upon the 

 close of it, would decide both questions : first, 

 whether the argument was admissible ; and, if 

 it was, then as to its effect." 



Mr. Commissioner Hoar: "Mr. President, 



