The Portland daily press., 1877-02-09
The Electoral Count.
The Question of Humphreys
Eligibility.
Arguments by MeSsrs. Evarts and
Merrick,


After the journal had been read, Justice
Clifford stoted that the proceedings were now
in order under the order adopted yesterday.
Mr. Green counsel on the Democratic side
the commission of Mr.. Humphreys,
the Florida eector and certificate from the
clerk of the court in which the commission
was fled that no resignation had been filed
up to January q, 1877 The witness stated
that be had transactions with Mr.. Humphreys
as shipping commissioner, from some time in
1873 up to the time of his leaving Florida in
August last, and knew the man to be the one
voted for as elector Mr. Green said that
was all the affirmative evidence they proposed
to offer.
Mr. Humphreys was called on the other side
and examined by Mr. Stoughton. The testlmo-
ny here closed.
Justice Clifford then announced that the
whole case was now ready for argument. and
under the third rule counsel would be allowed
two hours on each side.
Mr. Merrick said they had to ask the in
diligence of being heard by three counsel and
that as some important questions had arisen
this morning, that the time be extended.
The commission granted the extension asked,
and at quarter of II Judge Hoadlep COM
menced his argument. He contended that the
acceptance of Humphreys resignation by a
Judge of Ohio was not an act of the Circuit
Court of Florida, and that therefore the resg-
nation of Mr.. Humphreys had not been legally
accepted, and he was consequently, on the 9TH
of November, holding an Office of profit under
the United States, and therefore ineligible as
an elector He argued that the effect of the
disqualification extended not only to the elect.
ors, but TO the state which appointed him.
Mr.. Green commended that the laws passed
by the Legislature of Florida since Jan. l, in
relation to the receut election were not ec post
facto laws within the meaning of the constltu-
ton. He gave notice to the other side that,
under the order of the court, they should insist
that the commission cOuld look into the nrO-
ceeding by quo Ddrrdnto.
Mr.. Shellabarger followed on the other side.
He said that since he heard the decision of
the commission, refusing to hear testimony in
relation to the quo aoarrdnto proceedings, he
had thought all discussion uf that subject un-
called for.
Eyarts' Argument.
After further argument by Mr.. Shellabarger,
Mr.. Evarts addressed the commission, contend
ing that Humphreys resignation was legally
effective. He closed the argument on the Re-
publican side. He contended that the evidence
in regard to Humphreys holding Office fell
short of showing that he was in office at the
time of the casting of the electoral vote, and
that the burden Of proving it rested Cd the
side that made the objection, and that the
counter proof showed that early in October he
had resigned his office in writing to the circuit
Judge and had received from him letter of
acceptance and instructions to turn over what
ever of public means he had for the exercise of
the office to the collector of customs, who would
discharge the dutessot the Office, and that the
collector had at the same time been rotified by
the judge that the office had devOlved upon
him. Was it, he asked, to be pretended that
under the law there was any power to hold an
occupant of civil Office to the performance of
its duties moment beyond his will? The au-
thorties, he said, were clear as to the right OF
citizen resgning an office even without his
resignation being accepted. All that was nee
essary was to make a public vacation of the
Office.
He then went on to say: This subject then
being rejected from further consideration, un-
derstand there is no matter left but for the exc
ton by this Commission of the duty accorded it
by the act of Congress, under which i t is Or
ganized to determine out of the material of
these three certificates, what, and how many
votes are to be counted for the state of Florida.
No fact can countervene this vote. 1t is to be
counted not because it is the best but on &C
complying with all the laws that had been i'm
posed by Congress concerning the complete
verification of certificate. The fact certified
is not gainsaid by proof between the fact of
the canvass being closed and recorded and the
governors certificate. This certificate then in
surance the vote of the state of Florida. There
are four votes here and there is room for no
more.
To make it therefore of any practical impor-
lance in the further discussion there must be
apparent in the other two certificates either
such disparagement of the first or such anthem
ITCHY in themselves as shall displace the one
and substitute the other, or there must be such
a production of rival and competing certii.
Gates as leaves the commission in doubt AID
uncertainty as to which votes ought to be
counted. Now as youwill not allow the evi.
dence outside of this first certificate as bearing
quickly on its actual affirmative authenticity
and sufficency, you will not allow any such
evidence colaterally on the mere presentation
and support of any other certificates.
Evarts went on to argue against the second
and third certificates, and said the Attorney
General who authenticated the second certif'
cate had no more right to do it than a militia
captain had. AS to the three certificates sign
ed by Gov. Drew it was postnumous certif.
cate, post mOrtem action not preceding from
any vital or living bollege Of electors but only
by the galvanic agency OF intere sted party pur
poses taking Effect after the whole transaction
was ended. Il such thing could be done then
all the care and wisdom and contrivances that
were to make this transaction of the states fina
at some point certifiable would 60 for nothing
new legislatures then all the powe rs
of a state could be corrupted, subtracted, OBJ
scured or defeated. You must never lose light
of the matter that you are to advise what votes
and how many shall be counted by the two
Houses, and when you have determined that
larity of the finished transaction of state you
have determined as by doubled decision thai
it shall not be invaded, disparaged or exposed
to any question by mere certificate which is
its own agent and author, a volur teer distur
bance in the counting of the votes.
Judge Merrick's Argument.
Judge Merrick closed the argument on the
Democratic side. He said when the counsel of
the other side called the attention of the Com
49, 49, hyrl N,n
proceedings with the electoral votes as trans.
mitted to the President of the Senate, he had
omitted to call attention to the counterpart of
the picture, the condition of government with
person stepping into the Presidential chair
along pathway strewn with frauds, perjury
and crimes, into which the people were neither
allowed to enquire through their representa-.
tives IN the state government or through their
representatives in the federal government. ALI
that was asked on his side was that the truth
should be ascertained on which the Commission
was to act and that when ascertained it shout
become in its legal results practical fact in
the political history of the country.
He argued that unless the Humphreys resig-
nation was accepted by the power that con
ferred the office and that fact appeared on the
records, he must be held to be still occupying
the Office.
Representative Hoar put the case of an off ce-
holder being elected to the Senate and asked
whether if his resignation of the Office were not
accepted he was thereby to be kept from his
seat.
Mr.. Merrick replied that the fact of his being
admitted to his seat in the Senate would be a
discharge from the office which he had held
provided he had prior to that tine rendered his
resignation.
Mr.. Hoar inquired whether the same rule
would not apply in case OF an elector as well as
in case of a Senator.
Mr.. Merrlck replied that in case of Senator
the disability would be only personal while in
that of an elector it was impersonal. In other
words the state was positively forbidden to ap.
point an Office holder for an elector. TWAS
limitation upon the power of state and not a
personal disability of the man.
Presiding Justice-But if Humphreys sent it
to the judge and the judge desired 1t to be fled
Mr.. Merrick-If that is done when the whole
court is in session, then it is an act of the
court.
Representative Garfeld-Do you hold that
in case of a long vacation or in case of the
court being abolished by law, or in case of the
death of the judge who gave the appointment,
this officer never could have resigned?
Mr.. Merrick-I presume that death, and the
extinction of the Office, and the abolition of a
government and the wiplng out of a nation
make exception to all principles of law.
Mr.. Merrick claimed in conclusion that the
record of the quo udrTdnt0 proceedings was
before the commission, if not as evidence, at
least as showing the law of Florida, and that
it informed the commission that according to
the law of Florida the Hayes electors were not
Al, sl.on