CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



191 



er any evidence beyond the certificates can be 

 received. 



u I wish to preclude, at the outset, anything 

 that should carry for a moment the impres- 

 sion that there has been overpassed, by some 

 stroke of astuteness or of diligence, the ques- 

 tion of what you can receive and what you 

 must reject. I find myself, then, unimpeded in 

 the inquiry, as open to me as it is open to you, 

 whether any evidence can be received, and, if 

 any, what, beyond the certificates opened by 

 the President of the Senate. On that ques- 

 tion I shall think it quite attentive to the in- 

 struction of the commission, and much more 

 suitable to a" practical and definite discussion 

 and a practical and definite determination by 

 this commission, that, whatever of general prin- 

 ciples, and however far-reaching the decision 

 on those general principles in this matter of 

 evidence may be, the evidence that is now act- 

 ually proposed should be taken as the ap- 

 parent limit of the inquiry whether evidence 

 should be received, not from any particular 

 defect as to form or manner of proffer, but as 

 to whether it falls within evidence that may 

 be received extraneous to, in addition to, the 

 certificates opened by the President of the Sen- 

 ate. I am enabled by the memorandum pre- 

 sented by the learned counsel, Mr. O'Conor, 

 to present the quality and character, the office 

 and effort, of extraneous evidence that it is 

 supposed might be, within the powers of this 

 commission, received and entertained by it. 



"In the first place, he excludes from the 

 area of consideration one of the certificates, to 

 wit, that which contains the vote of the Tilden 

 electors ; for that they need no extrinsic proof, 

 and it is mentioned only that it may be ex- 

 cluded. Then, secondly, there are statements 

 concerning the quo warranto suit of Florida, 

 commenced on the 6th of December and end- 

 ing on the 2oth of January. In regard to that, 

 the record is supposed to contain in itself the 

 particular means of its use according to estab- 

 lished rules of jurisprudence a a record or as 

 an authority. It is suggested in respect to 

 that, therefore, that extraneous proof only 

 would need to reach the point of the precise 

 hour of the day on the 6th of December on 

 which the writ commencing that action was 

 served, and on onr part, perhaps, proof that an 

 appeal had been taken from that judgment, and 

 is still pending. 



"Then are enumerated some other matters 

 that require no proof, as it is supposed. Again, 

 the acts of the Legislature mentioned are pub- 

 lic acts aud matters of record ; and it is sup- 

 posed that they are regularly before the com- 

 mission, so far, at least, as they appear in the 

 third certificate, by virtue of that transmission ; 

 and, besides, I suppose that they are matters of 

 public record as the action of the Legislature 

 of the State. We come now to the following: 



Fifthly. The only matters which the Tilden elec- 

 tors desire to lay before the commission by evi- 

 dence actually intrinsic will now be stated. 



1. The Board of State Canvassers, acting on cer- 

 tain erroneous views when making their canvass, by 

 which the Hayes electors appeared to be chosen, re- 

 jected wholly the returns from the county of Mana- 

 tee and parts of returns from each of the following 

 counties 



" Naming them 



In so doing the said State board acted without 

 jurisdiction, as the Circuit and Supreme Courts in 

 Florida decided. 



"That is, by their recent judgments in man- 

 damus and quo warranto, 



It was by overruling and setting aside as not 

 warranted by law these rejections, that the courts of 

 Florida reached their respective conclusions that Mr. 

 Drew was elected Governor, that the Hayes electors 

 were usurpers, and that the Tilden electors were 

 duly chosen. No evidence that in any view could 

 be called extrinsic is believed to be needful in order 

 to establish the conclusions relied upon by the Til- 

 den electors, except duly authenticated copies of the 

 State canvass. That is 



" Mr. O'Conor adds 



the erroneous canvass as we consider it, ' and of 

 the returns from the above-named four counties, one 

 wholly and others in part rejected by said State can- 

 vassers.' " 



Mr. O'Conor: "That is your canvass that 

 you rely on." 



Mr. Evarts : " So I understand. I was read- 

 ing your language. 



And of the returns from the above-named four 

 counties, one wholly and others in part rejected by 

 eaid State canvassers. 



" It is proposed, therefore, as the matter ex- 

 traneous that it is desired to introduce, and 

 that it is claimed is open to your consider- 

 ation ; not that the certificate of Governor 

 Stearns falsifies the fact he was to certify ; not 

 that it falsifies the record that makes the basis 

 of the fact which he was to certify to; but 

 that the record at the time on which by law 

 he was to base his certificate, departing from 

 which his certificate would be false, is itself to 

 be penetrated or surmounted by extraneous 

 proof, showing that by matters of substance 

 occurring in the progress of the election itself 

 errors of fraud intervened. This means, that 

 somewhere in the steps of the election between 

 the deposit of the ballots in the boxes at the 

 precincts and the original computation of the 

 contents of those boxes there, and the submis- 

 sion to a correct canvass in a county of the 

 precincts thus canvassed at their own ballot- 

 boxes, or between the returns of the countj 

 canvass to the State canvassers, or in the ac* 

 tion of the State canvassers in the final compu- 

 tation of the aggregates to ascertain the plu- 

 rality of votes as for one or the other candi- 

 date, and so declare the result of the election, 

 frauds or mistakes occurred. In other words, 

 where in the process of the election itself, 

 from stage to stage, on the very matter of right 

 and on the question of title dejure there has 

 occurred matter of judicial consideration which 

 should be inquired into here. For I need not 

 say that, however simple and however limited 



