CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



189 



under State authority, and defeat their adver- 

 saries by the interminable delays of litigation. 



" It was the policy of our fathers, it is the 

 policy of the Constitution, to provide a ma- 

 chinery which, let it work as it will, must 

 nevertheless, by the 4th day of March, after the 

 election, necessarily work out the result of hav- 

 ing some President and some Vice-President. 

 It was of far more consequence, and was so 

 esteemed by the framers of the Constitution, 

 as it will be by every lover of law and order, 

 that we should have some constituted author- 

 ity ; far more important that the line of con- 

 tinuous authority should be preserved, than 

 that either A or B should hold the place and 

 receive the power and the emoluments of the 

 office. 



" I say, therefore, that, although I admit 

 that the State may provide as it pleases any 

 mode by which the appointment may be 

 made and by which the fact of appointment 

 may be verified so as to furnish such machin- 

 ery and mode of proof as it may choose to 

 verify its own appointment, yet, nevertheless, 

 it must take effect, if it have any power what- 

 ever, prior to the time when by the Constitu- 

 tion of the United States those who have the 

 indicia of office and the color of office are 

 called upon as the appointed electors of a par- 

 ticular State to discharge the constitutional 

 duty of depositing their vote for President 

 and Vice-President ; so that when the person 

 appointed, or who appears to have been ap- 

 pointed, having in his possession formal evi- 

 dences of his appointment, in fact exercises 

 the authority conferred upon him under the 

 Constitution of the United States, actually 

 discharges the duty of casting the vote which 

 it is his business to deliver, the transaction to 

 which he has been a party has passed beyond 

 the control of State power and authority. 



" Then, Mr. President, if I be right, the act- 

 ual question before this commission is not, 

 Which set of electors in Florida received a ma- 

 jority of popular votes? it is not, Which set 

 appears, from the return of the votes made at 

 the primary voting-places, to have had a ma- 

 jority of votes so returned ? it is not, Which 

 set, by looking at the county returns, appears 

 to have had a majority of the votes so com- 

 piled ? but it is this : Which set, by the actual 

 declaration of the final authority of the State 

 charged with that duty, has become entitled to 

 and clothed by the forms of law with actual 

 incumbency and possession of the office ? That 

 body of electors which, with an apparent right 

 and a paper title, and in possession of the 

 function, franchise, or office, actually exercises 

 it, is for the purpose of this tribunal the law- 

 ful body whose votes must be counted. It is 

 not necessarily the body which upon subse- 

 quent proceedings may be ascertained to have 

 had de jure title ; but it is that body which by 

 color of office, having the formal external 



S roofs of authority, was in point of fact in- 

 ucted into possession of the power to cast 



that vote, and who did it ; in other words, who 

 under the law of Florida were, on the 6th day 

 of December, 1876, de facto electors for that 

 State. 



" The gentlemen say there were two sets. 

 Why, Mr. President and gentlemen, it is as 

 absurd to say that there are or can be two 

 sets of de facto officers in the same office as 

 it is to say that there are or can be two sets 

 of de jure officers. It is as absurd in law as 

 it would be in physics to say that two bodies 

 can- occupy the same space in the same mo- 

 ment of time. The man who is in the office, 

 who has possession of it, who has been in- 

 ducted into it, who exercises its authority, who 

 does the thing which that office authorizes 

 whomsoever is in it to do, is the man for whom 

 we are inquiring, for he is the man that votes. 

 Nobody else votes. Everybody .else is a mere 

 volunteer, unorganized, illegal, without au- 

 thority, no matter although his ultimate and 

 final right be better than that of the man who 

 has intruded. 



" There is no safety and there is no sense 

 I speak it with great respect to this tribunal 

 and to the gentlemen who differ with me ; I 

 am bound to say it there is neither safety nor 

 sense in any other doctrine. You may talk as 

 eloquently as may be on questions of fraud. 

 It is said 'fraud vitiates everything.' No, it 

 does not. It makes things voidable, but it 

 does not vitiate everything. If my friend (Mr. 

 Black), by the arts and stratagems of other 

 people (which I know his guileless soul does 

 not possess), should hoodwink me by fraudu- 

 lent misrepresentation into voting for his can- 

 didate if that be a possible supposition I 

 cannot retract my ballot, nor can the scrutiny 

 set aside the result, because fraud upon private 

 persons is sometimes insignificant when com- 

 pared with public interests. Frauds by trus- 

 tees or persona in fiduciary capacities do not 

 make void their fraudulent transactions. They 

 may be avoided, but only by judicial process, 

 and the defense of laches is always a sufficient 

 answer; and lapse of time may be an element 

 in a matter of such transcendent public inter- 

 est as this that no man, after the time had 

 elapsed, cnn be heard to allege it. 



" And, Mr. President, the only alternative, 

 as I think I have already once said, is, upon 

 the doctrine of our learned friends on the other 

 side, that if the inquiry is opened, it must be 

 opened to all intents and purposes ; it must be 

 opened for all inquiries and investigations; it 

 must be opened for all possible proofs. It will 

 not do to stop at the first stage in the descent, 

 but you must go clean to the bottom. And, 

 although it be not pertinent to a forensic dis- 

 cussion, perhaps the example set to me by the 

 learned gentlemen on the other side will war- 

 rant the expression, on my part, of my per- 

 sonal confidence that, if that true result, set- 

 ting aside all the forms and the fictions of the 

 law, could be ascertained, there would be no 

 question here as to who ought to be entitled to 



