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CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



vanced one single step toward deciding what 

 kind of evidence should be received. Here 

 the two Houses have sent this inquiry to this 

 commission, with all the powers that the two 

 Houses, acting separately or together, possess ; 

 and obviously on that bare statement the ques- 

 tion arises, What powers have the Houses? 

 what may the Houses not by main force, 

 but what may they constitutionally receive as 

 testimony ? And that question is for us to de- 

 cide ; for, whatever they may constitutionally 

 receive as testimony in deciding this question, 

 it will be certainly admitted that we, having 

 their powers, may receive. And that brings 

 up the question suggested by the counsel who 

 last spoke. I think, therefore, while I am per- 

 fectly willing that this question shall be argued 

 and indeed it ought to be argued the scope 

 of the argument must go much further than 

 that suggested by Mr. Justice Miller, and it 

 must embrace the question of whether or not 

 we, are to take into consideration the testimony 

 that has been taken by either of the Houses, 

 and also the question what further testimony 

 may be offered here. Therefore, I think the 

 question to be submitted for argument ought 

 not to be narrowed to the mere question of 

 whether we can go beyond the face of the 

 papers that were handed in and opened by the 

 President of the Senate ; for when we have de- 

 cided that, if it be decided one' way that we 

 can go further, we have not advanced one 

 single step toward deciding what we can re- 

 ceive, and we should have to have another 

 argument." 



Mr. Commissioner Miller : " I am willing to 

 modify the motion in accordance with the sug- 

 gestion of the Senator from Ohio." 



The President: "The motion, as modified, 

 is as follows : 



" That counsel be allowed two hours on each 

 side to discuss the question whether any evi- 

 dence will be considered by the commission 

 that was not submitted to the two Houses by 

 the President of the Senate ; and if so, what 

 evidence can properly be considered ; and also 

 the question, What is the evidence now before 

 the commission? 



The President : " The question recurs on the 

 original motion of Mr. Justice Miller, as mod- 

 ified." 



The motion was agreed to. 



The President : "The order of speaking will 

 be that indicated yesterday, unless otherwise in- 

 structed by the commission. One of the counsel 

 supporting the objections to Certificate No. 1 

 will open. Both the counsel supporting the ob- 

 jections to Certificate No. 2 will follow. Then 

 the other counsel supporting the objections to 

 Certificate No. 1 will close. The case is before 

 you under the motion of Mr. Justice Miller al- 

 ready adopted by the commission, and, if the 

 counsel are^ready, the commission is ready to 

 hear them." 



Mr. O'Conor : " I hope I may be allowed to 

 say, Mr. President, that your direction to pro- 



ceed immediately in an argument which ap- 

 pears to us to involve essentially the whole 

 merits, has rather confused our order of battle. 

 We bow to it, however, most respectfully ; but 

 it somewhat embarrasses us; and it has not 

 been thought that it would answer any useful 

 purpose to make the counsel who is expected 

 to deliver the reply to also deliver an opening. 

 It would be clumsy and inconvenient in a great 

 many respects ; and we have had some diffi- 

 culty in arranging so as to present a fair and 

 proper argument covering the whole ground 

 to-day, without consuming too much of our 

 three hours. It appears to us that Judge Black 

 and Mr. Merrick should be allowed to divide the 

 time that we consider it proper to occupy to- 

 day, if that is agreeable to the commission." 



The President (to the commission): "Shall 

 three counsel be allowed to speak on each side, 

 if they desire, without enlarging the time? 

 That is the motion." 



The motion was agreed to. 



Mr. Merrick : " Mr. President and gentlemen 

 of the commission: The order passed by the 

 honorable commission this morning, as re- 

 marked by Mr. O'Conor, has somewhat changed 

 our order of battle, and we are compelled, 

 though but indiff erently prepared, to enter upon 

 the discussion of the grave and important ques- 

 tions which you have required us to argue. We 

 came into court expecting to proceed regularly 

 with the Florida case ; and, believing that the 

 testimony taken by the committees of the Sen- 

 ate and House of Representatives upon this 

 subject was regularly before the commission as 

 testimony in the case, without being liable to 

 any objection on account of its formality, sup- 

 posed that its effect and ultimate admissibility 

 would be considered by the court when it came 

 finally to determine the main questions in- 

 volved in the cause. But that case is practi- 

 cally suspended for the present, and the coun- 

 sel are required to argue an abstract proposi- 

 tion of law submitted by the commission, in- 

 volving an inquiry into the general powers of 

 this commission under the organic act, and as 

 to what evidence is now before you, and what 

 further evidence it may be competent for coun- 

 sel to offer and introduce. 



" First, then, may it please your honors, as 

 to the powers of the commission. The law of 

 the United States under which this commission 

 has been established and organized provides as 

 follows in regard to electoral certificates from 

 States which have sent up duplicate or tripli- 

 cate certificates, and to any of which objec- 

 tions may be made at the time such certificates 

 are opened in the presence of the two Houses : 



When all such objections so made to any certifi- 

 cate, vote, or paper from a State shall have been 

 received and read, all such certificates, votes, and 

 papers so objected to, and all papers nccompanying 

 the same, together with such objections, shall be 

 forthwith submitted to said commission, which 

 shall proceed to consider the same, with the same 

 powers, if any, now possessed for that purpose by the 

 two Houses, acting separately or together, and,"by a 



