CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



181 



suppose Mr. O'Conor's offer of testimony be 

 objected to by the other side, and then the 

 commission hear the argument of the case as 

 it then stands, resembling more nearly than 

 any other judicial proceeding that I think of 

 an argument made on a demurrer to the plain- 

 tiff's evidence, the evidence not being consid- 

 ered as in, but as offered." 



The President : " That was the view of the 

 Chair." 



Mr. Commissioner Hoar: "Now, if we should 

 hear the counsel on both sides on the case pre- 

 sented by the certificates which are before the 

 commission, upon the offer of evidence made 

 by Mr. O'Conor, and objected to by the other 

 ride, it seems to me that that would present 

 (I do not know what other questions may arise 

 in the case) one principal question of the case 

 in the most clear, convenient, and quick form." 



Mr. Commissioner Thurman : " Mr. Presi- 

 dent, I should like to inquire of counsel who 

 support Certificate No. 1, what objection they 

 have to all the evidence being received subject 

 to all exceptions, not precluding any objection 

 to it whatsoever? It appears from the state- 

 ment of Mr. O'Conor that the testimony to be 

 produced by him is in a very small compass. 

 How great may be the volume of testimony, if 

 any, produced on the other side, I do not 

 know. But what objection is there, as this \a 

 a trial not by jury but by a court, to receiving 

 all this testimony subject to all exceptions, and 

 then arguing its admissibility with the main 

 argument in the cause, allowing counsel, if 

 it become necessary by the adoption of that 

 course, more time than the third rule allows 

 such further time as may be necessary in order 

 to consider the question of the admissibility of 

 the evidence as well as the main question? 

 What objection is there to that ? I should like 

 Mr. Evarts to answer." 



The President: "In the absence of other 

 discussion, I will state the view of the Chair. 

 I shall regard the paper read by Mr. O'Conor 

 as an offer of proof. Nothing, therefore, re- 

 mains to the other side except to object or 

 waive objections." 



Mr. Evarts: "Then I am not prepared to 

 reply to Mr. Commissioner Thurman." 



The President : " It is hardly necessary, be- 

 cause you are to have full argument as well as 

 a brief explanation of the objection." 



Mr. Evarts : " I rose to speak to the precise 

 point " 



The President : " Do you object to the offer 

 of proof?" 



Mr. Commissioner Thurman : "I suggest that 

 Mr. Evarts ought to answer my inquiry." 



Mr. Evarts : " I rose originally to speak to 

 the very point to which Mr. Commissioner 

 Thurman has drawn my attention." 



The President: "Very well, sir; you may 

 reply to that inquiry. I wished to get at the 

 case as soon as may be. That was my pur- 

 pose." 



Mr. Evarts: "I will be as brief aa I can, 



and certainly fall quite within the fifteen min- 

 utes. The proposition is that the preparation 

 of the case, as ready for argument upon its ex- 

 hausted and completed merits on either alter- 

 native of the views of this commission as to 

 the exclusion or admission of evidence, shall 

 be made up by provisional acceptance of the 

 mass of proof, whatever it may be, to be dis- 

 cussed as to admissibility and pertinency and 

 efficacy in the conclusions of the tribunal as a 

 part of the final argument. That I understand 

 to be the proposition. 



" The difficulty with that is, it requires the 

 inclusion of all the countervailing proof that 

 we, opposing their certificate or supporting 

 ours, have a right to present under some de- 

 termination of this court as to that right; for, 

 if you go beyond the evidence furnished from 

 the hands of the President of the Senate into 

 an inspection and scrutiny of the election in 

 the State as upon a trial of right to the office, 

 then we say that the tribunal that accepts that 

 task and is to fulfill that duty is to receive 

 evidence that will make the scrutiny judicial 

 and complete, from the primary deposit of the 

 votes to the conclusion of the election. Now, 

 this commission, as I suppose, does not con- 

 template a provisional introduction of all that 

 evidence, oral, documentary, record, and other- 

 wise, on our part, which comes in without ob- 

 jection, and subject only to the sifting of a 

 final argument. That is my suggestion in ref- 

 erence to this intimation of convenience of a 

 de lene esse introduction of evidence. The evi- 

 dence by which, under the instruction of this 

 commission that we have the right, we are let 

 into a scrutiny of the election in Florida, is a 

 scrutiny which can only be exhausted by oral 

 testimony and by the fundamental original 

 transactions of the election. That is the diffi- 

 culty in selecting a part of the evidence to be 

 admitted provisionally as furnishing the ground 

 and area of a final discussion, because it does 

 not include the evidence upon both sides which, 

 under some post hcec determination of the court 

 on the final argument, may be properly intro- 

 ducible. 



" Now, I object to the evidence now of- 

 fered." 



Mr. Commissioner Miller: "Mr. President, 

 I move that counsel on each side be allowed 

 two hours to discuss the question raised by Mr. 

 Evarts's objection to testimony, as to whether 

 any other testimony will be considered by this 

 commission than that which was laid before 

 the two Houses by the presiding officer of the 

 Senate." 



Mr. Commissioner Thurman : " Mr. Presi- 

 dent : Suppose, then, that the commission should 

 decide that further evidence should be consid- 

 ered, we should not have determined one thing 

 as to what that further evidence should be. "Wo 

 should only have decided that evidence beyond 

 the mere face of the papers presented by the 

 President of the Senate to the two Houses 

 ehould be received, but we should not have ad - 



