information that they, the relators, were the lawful claimants of the office, and that the others were usurpers. That information was commenced before the Hayes electors voted on the 6th of December. The case proceeded in the regular course of legal proceedings until it came to trial and judgment, first upon a demurrer, and then, the demurrer being overruled and an answer interposed, upon the issues and proofs; and here is the judgment of the court. After the recitals— It is, therefore, considered and adjudged that said respondents— were not, nor was any one of them, elected, chosen, or appointed as such electors or elector, or to receive certificates or certificate of election or appointment as such electors or elector, and that the said respondents were not, upon the said 6th day of December, or at any other time, entitled to assume or exercise any of the powers and functions of such electors or elector; but that they were, upon the said day and date, mere usurpers. Mr. Representative KASSON. Will the objector allow me to state to the court that I presume we are not considered as agreeing to the presentation of those as being in the case at all? Mr. Commissioner EDMUNDS. They are merely referred to for information. . The PRESIDENT. We are hearing the statement of one side now. Mr. Representative FIELD. The whole record is certified and exemplified in due form. I will go on with the reading: And it is further considered and adjudged that the said relators, Robert Bullock, Robert B. Hilton, Wilkinson Call, and James E. Yonge These are the Tilden electors all and singular, were at said election duly elected, chosen, and appointed electors of President and Vice-President of the United States, and were, on the said 6th day of December, 1876, entitled to be declared elected, chosen, and appointed as such electors, and to have and receive certificates thereof, and upon the said day and date, and at all times since, to exercise and perform all and singular the powers and duties of such electors, and to have and enjoy the pay and emoluments thereof. It is further adjudged that respondents pay to relators the costs of the action. So much for the action of the judicial department of Florida. Everything was done, I take it upon me to say, which it was possible to do; so that I am warranted in asserting that if there be any way known to the law by which in such a case a defrauded State can right itself through the courts of the State, that way has been taken. In the mean time the Hayes electors had voted and sent their lists of votes to the President of the Senate, with the certificate of Stearns to their appointment. There was no canvass or certificate of the State canvassers to their appointment, other than that first made, which the supreme court had ordered to be rectified on the application of Mr. Drew, and the rectification of which, therefore, could go no further than the canvass of the governor's vote. The same rectification, applied to the electoral votes, would of course give the majority to the Tilden electors, but to avoid the appearance of this the canvasssers pretended to alter the vote first given by them to Baker County, and reduce it to the two precincts mentioned in the third and false return of the county canvassers. This attempt was rebuked by the supreme court, in an order directing the State canvassers to confine their action under the mandamus to the votes for governor; so that there really appears upon the records of the State canvassers no semblance of any authority for Stearns's certificate other than the first canvass, which the supreme court branded as illegal and false. Now look at what the legislature of Florida has done. The legisla ture is the department of the Florida government which could alone direct how the power devolved by the Federal Constitution could be performed. This legislature has passed two acts to which I call your attention. In view of the fact that the supreme court had made the decision which I have mentioned, the legislature passed An act to provide for a canvass according to the laws of the State of Florida, as interpreted by the supreme court, of the votes for electors of President and Vice President cast at the election held November 7, 1876. The law was approved January 17. It provides that the secretary of state, attorney-general, and the comptroller of public accounts, or any two of them, together with any other member of the cabinet who may be designated by them, shall meet forthwith at the office of the secretary of state, pursuant to a notice to be given by the secretary of state, and proceed to recanvass the votes. They did meet and recanvass pursuant to that law, and they certified the result according to the fact, giving the majority to the Tilden electors. The second law declared that the Tilden electors, naming them, were elected on the 7th day of November, and that they had voted; and directed that the same electors should meet, that the governor should give them a certificate of their election, pursuant to the recanvass, and that they should make out duplicate lists of the votes, and transmit them to the President of the Senate at Washington; and the proceedings under that law make up the third return which has been read. Mr. Commissioner BRADLEY. What was the second return? Mr. Representative FIELD. The second return to the President of the Senate was the return of the Tilden electors. The return No. 1 was made by the Hayes electors and sent with the certificate of Stearns as governor. Return No. 2 contains the certificates of the Tilden electors without the certificate of the governor, but with a certificate of the attorney-general, the only dissenting member of the board of State canvassers, certifying that they were elected. Then return No. 3 contains the action of the State authorities subsequently to the two first, for the purpose of ratifying and confirming, so far as it was possible for the State authorities to do it, the second return; and they therefore not only passed a law for the recanvass of the votes, which recanvass took place and resulted in a certificate of the election of the Tilden electors, but they passed another act, reciting that the election had been in favor of the Tilden electors, and that the Tilden electors had met and voted on the 6th of December, but without a certificate of the governor, and directing the governor of the State to forward a supplementary certificate for its confirmation; and directing, moreover, for abundant caution, that there should be new lists made out and a new certificate by these electors who were to be re-assembled for the purpose, the certificates all to be forwarded to the President of the Senate, as they would have been, but for the conspiracy, in November. Those papers make the third return. I will read the recital in this act of the legislature of Florida: And whereas the board of State canvassers constituted under the act approved February 27, 1872, did interpret the laws of this State defining the powers and duties of the said board in such manner as to give them power to exclude certain regular returns, and did in fact under such interpretation exclude certain of such regular returns, which said interpretation has been adjudged by the supreme court to be erroneous and illegal; And whereas the late governor, Marcellus L. Stearns, by reason of said illegal action and erroneous and illegal canvass of the said board of State canvassers, did erroneously cause to be made and certified lists of the names of the electors of this State, containing the names of the said Charles H. Pearce, Frederick C. Humphreys, William H. Holden, and Thomas Long Being the Hayes electors and did deliver such lists to said persons, when in fact the said persons had not received the highest number of votes, and, on a canvass conducted according to the rules prescribed and adjudged as legal by the supreme court, were not appointed as electors or entitled to receive such lists from the governor, but Robert Bullock, Robert B. Hilton, Wilkinson Call, and James E. Yonge Those are the Tilden electors were duly appointed electors, and were entitled to have their names compose the lists made and certified by the governor, and to have such lists delivered to them: Now, therefore, the people of the State of Florida, represented in senate and assembly, do enact, &c. The certificate is in effect that the electors who met and voted on the 6th of December were the true choice of the people of Florida; and the same electors re-assembled and made new lists; they did not vote anew because they were to vote on the 6th of December, but they did certify anew that they had thus voted on the 6th of December, and that certificate, with the other certificate, was forwarded in due form, as I have stated, to the President of the Senate at this Capitol. Now, if the Commission please, we are told that the certificate of the governor, Stearns, which has been forwarded to Washington annexed to the lists of votes of the Hayes electors, countervails all this evidence, and that no matter what amount of testimony we may offer, documen tary or oral, we can never invalidate the signature of Marcellus L. Stearns; and it is to that question that I shall devote what remains of my address. It is putting the question in an erroneous form to put it thus, "You cannot go behind the certificate." The form should be reversed, Can the certificate go before the truth and conceal it? I prove these facts or offer to prove them. On the other side-if I have rightly understood the objections made yesterday in the joint convention-on the other side there is no suggestion that we are not right in the facts; there is no averment that the true and lawful vote of the State of Florida was not given for the Tilden electors; but the claim is that "there is the certificate of M. L. Stearns, and that stands as a barrier against all these witnesses, and the truth cannot be proven. The truth is buried under this certificate. Neither you exercising for this occasion the powers of the two Houses of Congress, nor the two Houses themselves, acting separately or together, can consider any fact whatever to the contrary of which Stearns has certified." Let me ask in the first place upon what foundation that doctrine rests? Who tells you that you are to take that certificate as conclusive evidence against anything that can be proved on the other side? By what rule of evidence, by what precept of law, are you deprived of the right to investigate the truth? Is it not a universal rule that every judge is invested ex necessitate with the power to take into consideration all pertinent evidence in respect to the facts upon which his judgment is to be pronounced, unless there is some positive law declaring that certain certificates or other documentary evidence shall be conclusive? I venture to say that that is the universal rule, and that there is no court of general jurisdiction known to American or Anglo-Saxon law in which it is not a fundamental principle that whenever a court can inquire into facts necessary to its judgment, it may take all the pertinent evidence, that is to say all evidence that tends to prove the fact, unless it is restricted by some positive law. Now, then, show me a positive law that makes the certificate of Stearns evidence against the truth? Where is it? In what book? It is not in the Constitution. It is not in the laws of Florida. Is it in any law of Congress? The only act of Congress applicable is that which provides that the executive of the State shall deliver to the electors a certificate that they are such electors, but that act does not declare that his certificate shall be conclusive-neither declares it, nor implies it. Suppose I offer to prove that the certificate is wholly false, fabricated for the purpose of cheating the State out of its vote and the other States out of their rights. Take the State, one of the oldest and proudest in this Union of States—the State of Massachusetts, of which my friend Mr. Commissioner Abbott is so worthy a representative, and suppose that the honored governor of that State were so debased as to certify that the Tilden electors had received the votes of a majority of the good and true voters of Massachusetts; will any man tell me that it must be taken as absolutely true, that you cannot prove it to be false? Where is the law for that? Nay, more, I venture to affirm that if an act of Congress had declared that that certificate should be conclusive, the act would have been unconstitutional. For what reason? For this reason: The Constitution, as if the foresight of the fathers grasped the conflicts of future years, declares that the person having the highest number of votes shall be the Presi dent, not that the person declared to have the highest number of votes, but "the person having the highest number." No certificate can be manufactured to take that away. If you had declared by act of Congress in the most express and positive terms that the certificate of the governor delivered to the electors should be conclusive against all proof, you would have transcended the limits of the organic law. You cannot say that the certificate of the governor of Massachusetts shall override the votes of the electors of Massachusetts in their choice of President. Therefore it is I say not only that you have not done it, but you could not do it; you could not do it if you would, as I am sure you would not if you could. The language of the act of Congress is not as strong as the language of the State laws generally respecting the canvass of votes. Take the case in Wisconsin, which arose in the courts, of the contest for the office of governor. There a law of the State had declared that the State canvassers should determine-I think that is the language-should determine, certify, and declare who was governor. A person came into the office of governor upon such a certificate declaring that he was elected, and a rival claimant went into the courts with a writ of quo warranto, and was met there by the ablest counsel in the State with the argument, "You cannot inquire, because the certificate of the State canvassers is conclusive." "No," said the court, in an opinion which does them great houor and will stand as a record of their learning, their patriotism, and their inflexible firmness; "the title of governor depends upon the votes of the people, upon those little ballots that declare their supreme will; the question is not who have certified but who have voted ;" and the court declared the claimant entitled and threw out the usurping governor. Is not your right to inquire into the very truth implied by the law under which you act? What are you to do? You are to declare whether any and what votes are the votes provided by the Constitution, not to declare what are the votes certified by Governor Stearns. That was known well enough beforehand. You are to certify what are the lawful votes upon which a President of forty-five millions of people is to be inducted into office. Is not the same right implied in the notion which I find to prevail everywhere, that Congress might authorize a writ of quo warranto to try the title of President within the purview of the Constitution? Can that be doubted? The Constitution has declared that the person having the highest number of votes shall be the President; not the one certified. Congress has not as yet invested any tribunal with the power to try the title to the Presidency by quo warranto. No such law exists, I am sorry to say. Such a law, if I might be permitted to say so, ought to be made. It is no small reproach to our statesmanship that for a hundred years no law has been provided for this great exigency. I know that one eminent member of this Commission has labored assiduously to procure the passage of such a law, and of all his titles to respect I am sure that will be especially remembered hereafter. Mr. Commissioner BRADLEY. apply to the case? Does not the law of the District Mr. Representative FIELD. I think not, sir. I should be very glad to learn that it does. The judiciary act of 1789, as if ex industria, omitted to mention writs of quo warranto. It gave the several courts power to issue writs of mandamus and certain other writs, but not that of quo warranto. I know that the statutes lately passed give a right to a quo warranto in respect to certain offices, enumerating them, arising out of the amendments to the Constitution providing for the emancipated slaves; but I do not find any provision whatever for a writ of quo warranto to try the title to any such office as that of President or presidential elector. Mr. Commissioner BRADLEY. You are aware, of course, that the whole body of the Maryland law as existing in 1801 is the municipal law of this District, so far as not modified. Mr. Representative FIELD. I am. Mr. Commissioner BRADLEY. I do not know whether there is any such provision in those laws or not. Mr. Representative FIELD. Of course I speak entirely under submission to the better knowledge of the court. I have not been able to satisfy myself that there is any provision for a writ of quo warranto in the case of President. But my argument is that, whether there be a law now existing or not, it is competent to Congress to pass such a law, and if a law to provide for a writ of quo warranto would be constitutional, then it is constitutional to impose a like duty on any other tribunal to investigate the title. That is to say, if you could devolve that duty upon any tribunal by means of a writ of quo warranto, you can devolve it by other means. If the governor's certificate would not be conclusive there, it is not conclusive here. The right to inquire into the fact exists somewhere, and, if nowhere else, it must be here. Thus thinking that Congress could devolve upon some tribunal the authority to inquire into the title of the President, and that such authority would necessarily give to the tribunal investigating the right to go into the truth notwithstanding any certificate to the falsehood, I argue that here before this Electoral Commission, invested with all the functions of the two Houses, you can inquire into the truth, no matter what may have been certified to the contrary. Furthermore, I submit to the Commission that there is another rule of law which necessarily leads us to answer affirmatively the question whether the truth can be given in evidence notwithstanding the certificate; and that is that fraud vitiates all transactions and can always be inquired into in every case except possibly two. I will not argue now that the judgment of a court of record of competent jurisdiction can be impeached collaterally for fraud in the judge. Opinions differ. If it cannot be impeached, it must be because such an |