Year: 1877




The Power to go Behind the Returns


for Evidence.


1t was said in the opening statemen,


made by the objectors upon the other


side that this Commission possessed


no other than simply power to per-


form a ministerial duty; that il pos


sessed no other than power to emu


merate the votes; that the certificate Of


the Governor of the State was final


and conclusive, and there was no au-


thority in this Commission, whatever


might be the proof. to correct that GER


tificate for mistake or vacate it for
| fraud They told-you that it imported
absolute verify beyond the reach of
any evidence, however strong aud how
ever conclusive, and beyond the reach
of the power of the State itself either
to correct, modify, or annul it; and car
rying out the position assumed by the
objectors on the other side, it would
would follow that if, in reference
to the certificate of Governor Stearns,
Governor Stearns himself had sub
sequent to the date of that certificate
come before the two houses of Con-
gress 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, eonfessing
himself to have been guilty of any
! fraud, however enormOus-I am mere
! ly supposing a case-and made it pat
! ent that that certificate was the repre-
| sentative of falsehood and fraud,
and not Of truth, yet the certificate
was beyond reach Of the truth and
that is was necessary to crystalline ITS
! falsehood into practical fact.


| May it please your Honors, in view
| of that position upon the other slde
as well as in taking appropriate posi-
/ tions in the opening of this argument,
| it becomes necessary to look at that
| paper and see what it is, and whence
( it derives this extraordinary sanctity;
infinitely holy, beyond any judicial
record, and beyond any record that can
be made between nations In their most
solemn compacts. BY the act of Con-
gress, section 136 of the Revised Stat
utes, it is provided as follows:


1T shall be the duty of the Execu-
tive of each State to cause three lists
of the names of the electors of such
State to be made and to be delivered
to the electors on or before the day on
which they are required by the preced-
ing section to meet


There is nothing in this section de.
claring 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 be
directed. There is nothing in this
section making it mandat tory 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 to put
there, for Congress could not reach the
Executive of State by any enactment
as to his official duty. It was not with
in the power of Congress to make it
mandatory upon the Governor to issue
that certificate; and if it was not with |
in 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 I
the certificate should be necessary evil
dence in the absence of which the elec- |
toral vote should not be counted?


Congress could not have required the I
Executive to issue the certificate, and /
could not have declared that the GER /
tiicate should be the conclusive and /
only evidence of the election Of the |
several States, because, in addition to |
what | have already submitted, the |
Constitution of the United States it.
self provides for the authorization of |
those electors, and that requirement is |
for an authentication from themselves;
and if Congress superadds to that au-
thentication an additional authentica-
ton which it makes a condition-pre-
cedent 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 Fed
eral government. | do not question
the power of Congress to require au-
thentica ton and to specify whatever
manner of authorization it desires in
order to relieve any difficulty in deter
mining who are the agents appointed



but the power that J. deny to exist is
the power to specify some authentica-
tion as an absolute condition -prece-
dent to counting the vote, and to de-
clare that in the absence of that au-
thentication so required by Congress
the electoral vote shall not be counted
at all.


Recurring to that section of the law
10 the Revised Statutes which | have
read, respectfully submit as propo-
sition of law, that where certificates
are required as matters Of evidence, or
where the law specifics evidence of
any going to q particular fact with
which the law so specifying the evil
dence is dealing, that such evidence is
never regarded in any court of law as
conclusive beyond the power of rebut-
tai, unless the law specially provides
that it shall be conclusive. Where the
law says that such and such paper of
fact shall be evidence of certain con-
cluslon, tina. fact and paper so speci-
fed as evidence of that conclusion are
never beyond the power of rebuttal,
unless the law has declared in specific
terms it shall be the only evidence
and shall be unimpeachabIe.


| have referred to that clause of the
which requires the cleo
tors to certify to their own appoint
ment, and the manner in which they
have executed their office; and | sub
NIT, 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. 1t
is not within the power of Congress to
stop the two houses from ascertaining
what is the true vote. The language
of the article referred to requires the
return of the vote by the electors, re-
quires them to name in their ballots
the persons voted for as President and
Vice President, to make distinct lists,
to return the certificate of their vote
to the President of the Senate, and
then it proceeds as follows:


"The President of the Senate shall,
in the presence of the Senate and
House of Representatives, open all the
certificates, and the votes shall then
be counted"


The learned objeetoFs upon the other
side stated that the word counted"
was the controlling word in the sent
ence, and that giving that word its
proper and only Specification, the
oIo,co Fbof bouo rood nnnfarro1 no /