The sun. [volume] (New York [N.Y.]) 1833-1916, 1877-02-04

instead Of concerning tho rights OF the whole
some sheep TINT thled ,id had had stolen; , n;
don and SO much Of hs record as has Boon
made UP in the House before 1t came hero. are
70 By thrown out and considered MS mere
blank, why then. OF course, you arct proceed.
1low2 According to some approved rule Of fair
Elqy and natural Justice. And what is that2
Why. the rule that prevails in courts OF chan
Gerry. and not the artificial rules that arc pro-
vided by the common law OF England in cascs
of trial by Jury. You know. surely | need not
tho evidence that he has in his possession.
court of equity. There is no such thing known
as objecting TO the admissibility. Of evidence
there. The defendant cannot object to IT, be-
@ may acN S tHR' wR all p % eydence der Snd
court does exactly what the two parties have
done in this case. They appoint their. own
nngsnts, to 20 out and TAKE the Evidence; Snd mey y
y SoSrt Who D" taxes eyidence % for the court,
Scss s0as commtccs RSSsoS have done @ for tho % two
Houses OF Congress There is no such thing
when the evidence is ahsn X H., as o6leng to It,
matter OF course. filed whenever It is offered
by the party. He noed not even come into court
cellor T0' to do Sit it Now w tho rule V OF pro-
cedure about admitting and rcjecting
evidence always throws tho burden Of proving
that i ought to 40 out upon tho parties who do
not ike to have II in. Tho question Of mntcri-
aity or relevancy. what its value and weight
nrc. what proNatiVe force ought TO be given 10 1t
by the Court ia n question which. as one Of tho
Judges said moment ago, il always to be dis
cusscd upon hearing and determined by tho
inul decree OF the judge.
THE MODE OF PROCEDURE
| After further discussion II was moved by Mr..
Justice Miller tnat counsel upon ench side b9
by Mr.. Evarts's objection to testimony ~ to
| whether any other testimony will bc considered
| by. the commission than that. which was laid
| the President pro TEN. OF the Senate.
Mr. Commissioners Thurman-sypposo. then.
the commission decide that further evidence
termined one thing .as TO what that further evi:
denco should be. We would only have decided
presented by the President OF the Senate to the
| two Houses should be received; but we would
not have advanced one single step toward de-
| Gliding what evidence should be received.
Mr. Commissioner Elmunds-l wish 10 sug
| gcst that tho proposition of Judge Miller. as
| modified 10y the suggestion OF Judge Thurman.
| c9vors the whole ground, The first point is,
whether anybody-the two Houses orthis tribu;
nal--has the power to go behind the formal
cortlii,ation OF the authorities; and. secondly.
| II so. by what species of evidence that may he
sustained. II is claimed by Judge Black that il
! may be sustained by evidence in the nature of
testimony taken 10y committees. Sc.. and report
ed 70 either Of the Houses. | suppose it is con-
/
The motion Of Judge Miller was finally mod-
| ncd 80 as TO permit three hours ON each side TO
| discuss the Qu estion whether any evidence will
| be considered 10y tho commission that was not
submitted Ia the two Houses by the President
Of the senate, and If so what evidence can prop
| erly be considered. and IT. was further modified
| to include the question. What is tho evidence
now beiorc tho commission? This motion was
MR. MERRIcK's orrNING.
TIA o'clock the Court took a reccss to 1880.
| when the Democratic side nt the question was
opened 10y the Hon. X. 4. Merrlck OF Washing
| ton. rs follows.
The decision OF the honorable commission this morn.
Ing O., remarked by Mr. cenor. las somev hat cmnAr
Ne came us ,o 70 eeaT So va 10 prpSe w
tes ss a1n mt eSSyins s Nh ise S.1@en ia, saa
representatives upon the subject VA. regularly before
out being, liable, 70 any objection on account
OF %os "ss ss an no Smse ,s .al,S Sna1, bty Of %s
nnaily 70 eensi,r ihe main qseston IN the cause; but
coun,el required 10 aguc the abstract proposition Of
l lsr nn, oI H. r, w ' % n n st AZ Tnp, i' 1' i. u
a. understand T. T. What Generally are iie powers OF
mission. and wha, e'idcncc II competent aiiiu0n
rr, hon % n. t i i" c,cr M w III, 20 ooi,i i ~ lh r
eanic act under which M, comis-ls has been c,tab
states which have sent ap dupcat irpca ciurn-,
lect Ar, mad, 10 av ce rtinciic vote or a,r nom
state, al such c. ruc ic-, vote and papers oh ccied
Win such otcenon. .ksii 6s icriilWiih submit
@ 'S ,s ss"''yap MIR H'n ss ,h9 Irocsed TO
now possessed by the two Houses acting spa
dac,e whether any and What suth States asc
states. ami how man, and what persons wcrc iu, ar'
pointed electors in such @ntc- ani mat therein taxi iul
shall by thc Constitution and now existing Law bc com
Ir,n' ,na @ lftu, ln su,n ven 'HI % 'q, l uon ~, lan
| ,nccinct declaration OF The powers o ui' commission
yc, that has direct reference 10 the testimony before
Now. to tile regularity Of the evidence which is
already before YOU rie sumo t1cie can tc ~ lection
The late Pm d,nual lection carly ~ iheir .-ion "a. TO
Ti'pidn. I6u.,a2a. sonth CaroI'na. ani. / ncH,,e
ofoson Upon That qus 'on committee VA appoinb 4
folida committee, Of the two Houses respectively pro-
| by committee Irprc~nuns 'ousress and dishaf-lnS
va,in,. To- th' rnnn, f de ,tfe, non, ii,t state AT
he senate IN the rfe,.nec Il ihe Two ioa.
lie c,rtnss,s nom TIA, stat, hlns trce in nnnlfer
Mite, Of Contie.. ~ roigren.e 10 ihe regularity ani
sion r1.brSnuly submit ilet that yGeges
onsProS, PS hS. a.umci to 'i eAfc,o Any powSI
~ m rsisrenee to an inquiry me- DISPUTED a.t 4
s eon,m,iis,, MlW tf l.Ner OF ukins ie,iimoi IN
spocuvcy appointed their comm ecs To take Testimony
| IN regard a. the issue raised IN reference t. the
tran united by those House, in Joint session
erc.e all The power Of iho.e tw" Houses in The remi.e
/, therefore. presume that there be- que IN
reference 70 the regularity oi that testimony whatever
question may be raised In reference 10 its ity
under the Issues which you are trying and 10, cN upon
those issues ! speak now ot the mass of testimony
| generally that was laid upon this table, aud
| submit that 1t IS now hcore the commission
| and so TAR as am advised there Is no othci
evidence with the exception OF very small piece OF
evidence In reercnce o the particular hour AT Which tho
writ Of que warmnto was served upon what ma. beer
called the Hayes electors ami with that stated
IN the papers read ~ Mr. Oconor, believe there Is II,
question upon which the counsel for the directors llO
| Iuse to offer any cNtrinsic evidence whatever.
Tho evidence which has been sent % the commi ssor
hy the two Houses l. ut this character First there H. 81,
vote mat was enclosed in the certificates returned non
the state oi Florida There were threc certIhca., tho
nrst being that accompanying the return Of the votes
the Hayes e,curs-the certificate Of the Governor giyrf
| to thor clcctorA The second ccruncste accom-
PANIED by The certificate of The seD otnry of state u
ciM reports which, under the express languag,
OF tie organic act, were referred 10 this boli
tor is consideration The other testimony wa, oxirsc
towhoh have already foerel, mkcnhy that cOnmitt,s
acting under thu authority and IN o cdlenCc t. the
date OF congress- AMI may fcmafk that when that com
mttce took this testimony there was ul OBJ lurtumt,
given Ia all parties Interested in tho result II the inquiry
TO summon whatever witnesses they might de
sire 10 have examined, and 10 crosst Aamin,
all that were brought forward by the par
ties having adverse Interests The examination
dcnoe and cros.c examination was permitted nccordnl
to the hIoadcst latitude Of those rules II were r.
Qircd 10 repeat the experience OF that committee und.
The authority ot this commission, and retaAe that Cyi
drnce, there would probably be no witness called who
not before the other those