184 



CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



discharge it now, I am submitting myself to 

 that subordination that prevails in the profes- 

 sion, and obey the orders of my senior counsel. 



" It was said, in the opening statement made 

 by the objectors upon the other side, that this 

 commission possessed no other than simply a 

 power to perform a ministerial duty ; that it 

 possessed no other than a power to enumerate 

 the rotes ; that the certificate of the Governor 

 of the State was final and conclusive, and there 

 was no authority in this commission, whatever 

 might be the proof, to correct that certificate 

 for mistake or vacate it for fraud. They told 

 you that it imported absolute verity beyond 

 the reach of any evidence, however strong and 

 however conclusive, and beyond the reach of 

 the power of the State itself either to correct, 

 modify, or annul it ; and, carrying out the posi- 

 tion assumed by the objectors on the other 

 side, it would follow that if, in reference to 

 the certificate of Governor Stearns, Governor 

 Stearns himself had, subsequent to the date of 

 that certificate, come before the two Houses of 

 Congress in sackcloth and ashes, begging on 

 behalf of his State to have some error in that 

 certificate corrected, it could not be done. If 

 he had come with penitential sorrow, confess- 

 ing himself to have been guilty of any fraud, 

 however enormous I am merely supposing a 

 case and made it patent that that certificate 

 was the representative of a falsehood and a 

 fraud, and not of truth, yet the certificate was 

 beyond reach of the truth, and it was neces- 

 sary to crystallize its falsehood into a practical 

 fact. 



" May it please your honors, in view of that 

 position upon the other side, as well as in taking 

 appropriate positions in the opening of this ar- 

 gument, it becomes necessary to look at that 

 paper and see what it is, and whence it derives 

 this extraordinary sanctity^ infinitely holy, be- 

 yond any judicial record, and beyond any rec- 

 ord that can be made between nations in their 

 most solemn compacts. By the act of Con- 

 gress, section 136 of the Revised Statutes, it is 

 provided as follows : 



It shall be the duty of the Executive of each State 

 to cause three lists of ths names of the electors 

 of such State to be made and certified, and to be 

 delivered to the electors on or before the day on 

 which they are required by the preceding section to 

 meet. 



"There is nothing in this saction declaring 

 that the certificate to which it refers shall be 

 conclusive evidence of anything. There is 

 nothing in this section declaring in words as 

 to what particular fact that certificate shall 

 ba directed. There is nothing in this sec- 

 tion making it mandatory upon the Governor 

 to issue that certificate; and if there had been, 

 it would have been something transcending 

 the powers of Congress under the Constitution 

 ti put there, for-Qongress could not reach the 

 Executive of a State by any enactment as to his 

 official duty. It was not within the power of 

 Congress to make it mandatory upon the Gov- 



ernor to issue that certificate; and if it was 

 not within the power of Congress to make it 

 mandatory upon the Executive of a State to 

 issue that certificate, can it be possible that it 

 was within the power of Congress to say that 

 the certificate, if issued, should be conclusive, 

 or that the certificate should be necessary 

 evidence in the absence of which the electoral 

 vote should not be counted ? Congress could 

 not have required the Executive to issue the 

 certificate, and could not have declared that 

 the certificate should be the conclusive and 

 only evidence of the election of the electors of 

 the several States, because, in addition to what 

 I have already submitted, the Constitution of 

 the United States itself provides for the au- 

 thentication of those electors, and that re- 

 quirement is for an authentication from them- 

 selves ; and if Congress superadds to that au- 

 thentication an additional authentication which 

 it makes a condition-precedent to counting the 

 vote, it would be an act in violation of that 

 provision of the Constitution, as well as in con- 

 travention of the relations of the Federal to 

 the State Government. I do not question the 

 power of Congress to require authentication, 

 and to specify whatever manner of authentica- 

 tion it desires, in order to relieve any difficulty 

 in determining who are the agents appointed 

 by the State to cast its electoral vote ; but the 

 power that I deny to exist is the power to 

 specify some authentication as an absolute con- 

 dition-precedent to counting the vote, and to 

 declare that, in the absence of that authentica- 

 tion so required by Congress, the electoral vote 

 shall not be counted at all. 



" Recurring to that section of the law in the 

 Revised Statutes which I have read, I respect- 

 fully submit, as a proposition of law, that where 

 certificates are required as matters of evidence, 

 or where the law specifies evidence of any kind 

 going to a particular fact with which the law 

 so specifying the evidence is dealing, such evi- 

 dence is never regarded in any court of law 

 as conclusive beyond the power of rebuttal, 

 unless the law specially provides that it shall 

 be conclusive. Where the law says that such 

 and such a paper or fact shall be evidence of a 

 certain conclusion, that fact and that paper so 

 specified as evidence of that conclusion are 

 never beyond the power of rebuttal, unless the 

 law has declared in specific terms that it shall 

 be the only evidence, and shall be unimpeach- 

 able. 



" I have referred to that clause of the Con- 

 stitution which requires the electors to certify 

 to their own appointment, and the manner in 

 which they have executed their office; and I 

 submit in this connection that it is not within 

 the power of Congress to tie its hands so that 

 it can never inquire into the truth of the due 

 appointment of the electors and the electoral 

 vote. It is not within the power of Congress to 

 estop the two Houses from ascertaining what 

 is the true vote. The language of the article 

 referred to requires the return of the vote by 



