States, 219; and for John A. Logan, of the State of Illinois, for the office of Vice-President, 182.'

"The President of the Senate: 'Senators, and Members of the House of Representatives, the tellers have reported to the presiding officer the state of the vote which you have heard, from which it appears that Grover Cleveland, of the State of New York, has received 219 votes for the office of President of the United States, and that James G. Blaine, of the State of Maine, has received 182 votes for the same office; that Thomas A. Hendricks, of the State of Indiana, has received 219 votes for the office of Vice-President of the United States, and that John A. Logan, of the State of Illinois, has received 182 votes for the same office.

"Wherefore I do declare that Grover Cleveland, of the State of New York, has received a majority of the votes of the whole number of electors appointed, as they appear in the certificates read by the tellers, and so appears to have been elected President of the United States for four years, commencing on the 4th day of March, 1885; and that Thomas A. Hendricks, of the State of Indiana, has received a majority of the votes of the whole number of electors appointed, as they appear in the certificates read by the tellers, and so appears to have been elected Vice-President of the United States for four years, commencing on the 4th day of March, 1885. And the President of the Senate makes this declaration only as a public statement in the presence of the two Houses of Congress of the contents of the papers opened and read on this occasion, and not as possessing any authority in law to declare any legal conclusion whatever.''

When the question of counting the electoral vote was presented by itself and under conditions which offered no temptation to magnify the presiding senator's office, Congress seems never to have had any serious difference of opinion on this subject, agreeing almost unanimously with Senator Edmunds as he expressed himself in announcing the vote for Cleveland and Hendricks, that the presiding officer of the Senate had authority only to open and state the contents of the returns produced before him, but no authority to declare any legal conclusion from them whatever.

LVII.

THE four electoral votes of the State of Florida cast at the Presidential election of 1876 were contested before the two Houses of Congress assembled to count the electoral vote. The first canvass of the Board of State Canvassers was set aside by order of the Supreme Court on the application of Drew, the Democratic candidate for governor, and he was duly installed. Both canvasses were subsequently set aside by an act of the Legislature for alleged irregularities, and a new canvass ordered according to rules prescribed by the Supreme Court. By this canvass it appeared that the Tilden electors had the highest number of votes. The Governor's certified lists, required by statute, were not furnished on or before the day on which "the electors were required to meet for the purpose of casting and certifying their votes," but after that day. The following brief was prepared by Mr. Tilden to show that want of punctuality in furnishing these lists could be and was cured by other evidence.

BRIEF ON THE FLORIDA ELECTORAL VOTE.

1. THE Constitution of the United States does not prescribe the evidence of the appointment of electors. It does not require certified lists or certificates from the governor that persons claiming to have been appointed as electors have in fact been so appointed. It does not require any particular form of proof. It is wholly silent in respect to the evidence by which such an appointment is to be authenticated.

2. In delegating to the "State" the appointment of electors, and to the legislature of that State the authority to "direct" the "manner" in which such appointment shall be made, the Constitution seems to contemplate that the proof of the appointment should, in the first instance at least, be furnished by the State, and its nature and form prescribed by the legislature of the State. "Each State," it declares, "shall appoint in such manner as the legislature thereof may direct" the electors. It is natural that the power authorized to do an act and to determine the manner in which that act is to be done, should also provide for verifying its own act and showing that it was done in the proper manner. The legislative power of the State, in directing the manner in which the act is to be done, might properly direct also the mode of proving that such manner had been followed.

The primary and best authority as to what the State has done, is the State itself. Its own declarations through its legislative and judicial organs are the most weighty testimony which can be offered.

3. The statute of 1792 provided that "It shall be the duty of the executive of each State to cause three lists of the names of the electors of such State to be made and certified, and to be delivered to the electors on or before the day on which they are required, by the preceding section, to meet ;" and one of these lists was directed to be annexed by the electors to each certificate of their votes.

This provision, so far as the State executive is concerned, is little more than a request to the governor to make such lists; for there is no mode of compelling him to perform the duty.1 Its real effect is to provide by Act of Congress convenient evidence of the appointment of the electors to be considered by the two Houses of Congress when they come to examine and count the votes. The Act nowhere goes beyond that; it does not make this evidence indispensable; it does not make this evidence conclusive; it does not make this evidence exclusive; it does not shut out other evidence; it does not limit the discretion or fetter the judgment of the authority having the power to count the votes and to decide between several sets of papers, purporting to be votes, as to which are in truth genuine and valid votes.

Suppose the governor's certified lists should happen to have been unattainable at the time the electors voted; suppose that accident, disability, or death intervened; or that the governor's conscientious judgment on the case, or his wilful refusal to perform his duty, deprived the electors of this evidence. Are their votes to be destroyed?

Or suppose that by mistake or fraud the governor should give the certified lists in favor of persons who were not appointed electors, and should withhold them from the true electors. Is there no remedy? Must the State lose its votes ? Must the State submit to have its votes cast against its real will, as if by a false personation, made before its eyes in the open day, but which it has no power to resist?

The answer is, that the authority commissioned to count the

1 See Note D., post, p. 479.

votes, and, in doing so, to determine what are authentic and valid votes entitled to be counted, will receive other evidence besides the governor's certified lists, which evidence may prevail over that certificate; and will receive evidence impeaching the truth of that certificate for mistake or fraud. The tribunal might act on the petition of the persons claiming to have been duly appointed electors, and wrongfully interfered with in the exercise of their functions, for it is not limited as to the sources of the evidence it will accept, but especially will it receive evidence from the State itself.

The evidence that Wilkinson Call, James E. Yonge, Robert Evidence of the B. Hilton, and Robert Bullock-or the Tilden appointment of the Tilden electors. electors, as we shall for convenience call them were duly appointed by the State of Florida, in the manner the Legislature of that State had directed, is complete and conclusive.

Governor's certified lists.

The only defect which can be alleged in the evidence in their favor is that the governor's certified lists, specified by the Act of 1792, was not furnished "on or before the day on which" they were required to meet for the purpose of casting and certifying their votes, and therefore was not at that time annexed to their statements of their votes, but that the governor's certified lists were furnished and annexed after that day.

fied lists not es

sential.

It has already been shown that the permanent absence of the Governor's certi- governor's certified lists is not fatal to the validity of the vote of the electors, and that this piece of evidence is not made indispensable or conclusive or exclusive, or invested with any particular force or effect by the statute which provides it. The terms of the statute are remarkable. They do not even say that the certified lists shall be required by anybody or as a condition of anything to be done, but are a mere imposition of a "duty" upon the State executive to furnish the lists, with only the moral force of a recommendation. Language could not be chosen fitter to make the injunction fall within the class called in legal parlance directory, as contradis