190 



CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



have counted in his favor the vote of Florida. 

 I admit that the mere certifying act is not 

 conclusive. It may be dispensed with. Con- 

 gress, who provided it, furnished it, made it a 

 part of the transaction, may disregard it. 

 They need not tie themselves hand and foot ; 

 they need not estop themselves ; but they have 

 directed this commission only to receive that 

 which is competent and pertinent by existing 

 law, and the existing law makes the Govern- 

 or's certificate pertinent and competent and 

 sufficient. 



" But, Mr. President and gentlemen, if you 

 go behind the certificate, what are you limited 

 to by the necessity of the thing ? In my judg- 

 ment, you are limited to this : to an inquiry 

 into what are the facts to which he should have 

 certified and did not; not, what are or may 

 be the ultimate and final facts and right of the 

 case. The facts to be certified by the Governor 

 in this or in any case are the public facts 

 which by law remain and constitute a part of 

 the record in the public offices and archives of 

 the State, and of which, being Governor for 

 the time being, he has official knowledge. So, 

 then, the case stands, that on the day and at 

 the time when, if ever, the title and right to 

 the possession and incumbency of this func- 

 tion became complete, Governor Stearns was 

 the lawful Governor of Florida, and the fact 

 to be certified was just what appeared at that 

 time in his office, or in the office of the Secre- 

 tary of State to wit, that by the judgment 

 and finding of the final authority of the State 

 canvassing that election the gentlemen whom he 

 certified to be electors had in fact and accord- 

 ing to law been appointed." 



MONDAY, February 5, 1877. 



The commission met at eleven o'clock A. M., 

 pursuant to adjournment, all the members be- 

 ing present. 



The President : " The concluding counsel on 

 the part of the objectors to the first certificate 

 is entitled to an hour and forty minutes. Mr. 

 Evarts, on the other side, who will speak first, 

 is entitled to an hour and thirty -two minutes." 



Mr. Evarts : " Mr. President aad gentlemen 

 of the commission : The order of the commis- 

 sion inviting the attention of counsel lays out 

 for their consideration three topics : 



" 1. Whether, under the powers possessed by 

 the commission, any evidence beyond that dis- 

 closed in the three certificates from the State 

 of Florida, which were opened by the Presi- 

 dent of the Senate in the presence of the two 

 Houses of Congress, and under the authority 

 of the recent act of Congress are transmitted 

 to this commission, can be received. 



"2. If any can be received, what that evi- 

 dence is. 



" 3. What evidence other than these certifi- 

 cates, if any, is now before the commission. 



" I will dispose of the last question in the or- 

 der of the commission first. It requires but 



brief attention to express our views sufficiently, 

 and will, I think, require but little considera- 

 tion, in point of time, however important it 

 may be in substance, from the commission. 



"It is suggested that certain packages of 

 papers, which were borne into the presence of 

 the commission by the messenger that brought 

 the certificates and the objections, are already 

 evidence in the possession of the commission. 

 What those packages contain, what degree of 

 authenticity, or what scope of efficacy, is to be 

 imputed to or claimed for them as particular 

 matters of evidence and particular forms of 

 proof, is unknown to us and unknown to the 

 commission. The proposition upon which it is 

 claimed that this evidence, whatever it may be 

 subject, undoubtedly, to discussion and to re- 

 jection by the commission as not pertinent and 

 not important and not authentic the proposi- 

 tion is that, being mentioned in one of the ob- 

 jections interposed against the first certificate 

 as matter on which the objection was founded, 

 instead of being a warrant as it were to the 

 objector which he vouches, he, the objector, 

 thereby makes it a part of the evidence before 

 the commission ; and our learned friend, Judge 

 Black, has proposed that, except as against ob- 

 jectors who prevail in their arts and efforts in 

 common-law courts, and whom he has been po- 

 lite enough to designate as ' enapperadoes,' this 

 evidence is, by authentic principles of juris- 

 prudence, made evidence by this attachment 

 to this objection. 



" Now, the provisions of the recent act that 

 at all touch this matter are very few. In the 

 first place, the objections are not conclusive of 

 anything. They bind nobody. They are mere- 

 ly the action upon which the reference to this 

 commission arises. If there be no objection, 

 the case provided for the exercise of your 

 authority is not produced. If the objection 

 is made, however inartificial or imperfect, 

 the case has arisen; but that the objection 

 narrows and limits and provides the issue 

 or affects the controversy upon which your 

 jurisdiction attaches, is a pure fabrication out 

 of utterly unsubstantial and immaterial sug- 

 gestions in the law. Certainly, if volunteer 

 objectors on one side and the other were per- 

 mitted to lay down the issues and adduce the 

 evidence and make up the packages of the evi- 

 dence, it would be a strange commitment of 

 your great authority to casual, to rash, to dis- 

 ingenuous suggestion. 



" So much, I think, entirely disposes of the 

 question whether there is any evidence here. 

 The other question, as to whether evidence in 

 the possession of either or both of the Houses 

 of Congress, in the shape of committees' re- 

 ports or conclusions of either of those great 

 bodies, in any form, is transmissible, and may 

 be proposed to this commission and may be ac- 

 cepted and received by it after it is unfolded, 

 after it is understood, after the paper is scru- 

 tinized and is opposed, is a question that is but 

 a subordinate part of the main question, wheth- 



