THE GEOGRAPHICAL PLAN. 647 three of the ten members representing that body in the Commission, namely, Senator Thurman and Representatives Payne and Garfield. New-York had no voice in that tribunal. The "geographical" plan needed little urging. "The public," said Mr. Edmunds, "will recognize at once the propriety of these selections, embracing all sections of the Union, and at the same time maintaining the desired political equipoise of the Commission." This was said in the most impartial tone of the Senator. His attitude was that of one who would not bend to the right nor to the left. He was polar in the frigidity of his rectitude. What could be fairer than a geographical plan set off in judicial ermine, with Justice herself holding the political scales in equipoise? Mr. Hewitt was favorably impressed. "I can see," he said, "that this plan is less embarrassing in that it leaves the selection of the fifth judge between the two senior judges, Swayne and Davis." Judge McCrary thought that the suggestion of the Senate committee was exceedingly felicitous. Judge Hunton, the cautious and conservative Virginian, was not quite persuaded. "Could we believe," he half soliloquized, "that this tribunal would be absolutely devoid of partisanship, we would have no hesitation; nor would we care who were taken. But we have to act on the other theory." The House committee retired for consultation. With what result afterwards appeared. Its members once more joined the Senate committee within the closed doors of the Judiciary Committee room at four o'clock that afternoon. Mr. Payne announced that with a single exception, his associates had unanimously agreed to accept the geographical proposition. That exception was Judge Hunton. He wished to think of the matter over night, before pronouncing his judgment. But the child was born. The long agony of the committee was ended. It only remained to glance at the bill by sections. Its phraseology was then scrutinized. In this task Mr. Conkling was especially happy. Mr. Morton sat moodily aside. He scowled his protest. He was silent and gloomy, like the effigy of the great Napoleon when contemplating the defeat of his veterans at Waterloo. He despised state lines. They might not fall in pleasant places. He had reason to be satisfied afterwards with the geography that made Ohio the "hub" of the Commission. A great load seemed to have been lifted from the committees. The venerable Thurman enthusiastically declared that "the agreement of the two committees would be hailed with joy from one end of the country to the other. The effect on its business would be immediately felt." Mr. Hewitt spoke for the great commercial metropolis. He declared that it was worth five hundred millions to the country at once. Mr. Hoar's benevolent face beamed with delight. He waxed eloquent over the auspicious result. He declared that this committee action would be considered as one of the most important events of history. That the two great parties, after the heat of a quarrel over dynasties, should be able to meet deliberately and agree upon a settlement of their differences without the shedding of a drop of blood, would, in his opinion, strike the student of history as something hardly short of miraculous. Other members of the committee indulged in like gratulations over this crowning grandeur of their work. The constitutional requirements were forgotten in the general joy. But Mr. Morton was still himself. He had no joy. He watched. He found fault with a feature of the bill which might be interpreted as conferring power on the Commission to go behind the returns. To this criticism Senator Thurman replied that the bill decided no disputed questions. It created no new powers; but it submitted all disputes to this tribunal. It submitted them with the same powers no more, no less that belong to the two houses of Congress, jointly or severally. "It is," he said, "as to disputed questions of jurisdiction, as non-committal a bill as could be made." The great work is accomplished! Mr. Edmunds and Mr. Thurman are made a committee to prepare an address to accompany the submission of the bill to Congress. The members of the two committees descend the great stone steps of the Capitol as the evening shadows are falling. They go to their homes with light hearts, sincerely feeling that the country is saved from chaos by this unwonted and courageous proceeding. For the last time, the committees meet on the morning of Jan. 18, 1877. Mr. Chairman Edmunds reads the address which, in conjunction with Mr. Thurman, he had prepared. It is altered to suit various suggestions. The critical Senator from Massachusetts, Mr. Hoar, raised an objection to the phrase that "it is comparatively unimportant who is President." "In my opinion," said he, "it is of immense importance which party rules the country."-Out goes the obnoxious phrase! Senator Conkling lays down the broad proposition that it is "always unwise, in large transactions, to do anything unnecessary." then proceeds to criticise the phrase in the address, "If such jurisdiction is not invested by the Constitution this bill creates it." He maintains that no jurisdiction was created by the Constitution which is not vested somewhere. "Can we," he asks, "by a legislative act create a jurisdiction? We may create a tribunal to exercise jurisdiction; but can we create the jurisdiction itself?""This report," he says, "is to be put under a microscope. It is to be examined with great care. No man can vote for this bill unless he believes the power bestowed exists somewhere." Here Mr. Hoar suggests the following phraseology: "If the Constitution, requiring the exercise of this jurisdiction, does not designate a tribunal or officer to execute it, this bill provides such a tribunal." "I prefer," replies New-York's eminent Senator, "to say just what we mean. If we have that right, it is because the Constitution requires the two houses to do it, or the Constitution not making such requirement expects the law-making power to provide it. This is our pediment. Take that from under us and we are gone. This bill goes to the theory of regulating and adjusting the power already held. Mr. Hoar's AGREEMENT BETWEEN THE COMMITTEES. 649 amendment implies that the law-making power is vested in the tribunal. That is not my theory. Mine is that the Constitution requires Congress to declare a President. The two houses employ this tribunal as an auxiliary, as eyes and hands. We do not delegate this power. We keep it all. This is our own ministration." Senator Bayard closes the discussion. He declares that it will be a grave error, and perhaps indefensible, if this report shall deny the vesting of power, and yet prescribe its exercise. But the committees, as a whole, are in no mood to stand on mere technicalities of language. After a long breath of suspense, the address receives all the signatures except that of Senator Morton. The two chairmen slip duplicate bills into their side pockets and repair to their respective chambers. The fact that the committees had agreed, and that the two parties were then practically committed to the agreement, was the signal for a patriotic outburst throughout the country. The memory of 1861-'65 was too fresh for the people not to welcome any peaceful avenue of escape. They shrank from a repetition of past bloody experiences. To resist the pressure from without for the passage of the Electoral bill required a moral courage such as is vouchsafed to few legislatures. The bill went through both houses with impetuous promptitude. Its chief opponents in the Senate were Mr. Morton and Mr. Sherman; and in the House, Mr. Garfield, of Ohio, and Mr. Mills, of Texas. Almost the first response to the submission of the bill came from Massachusetts, where a prolonged struggle over Senator Boutwell's seat was suddenly ended in the triumph of Mr. Hoar. Speeches of rare eloquence and power were made for the bill in both Senate and House. Mr. Conkling spoke for two days. Among other things, he riddled to shreds the pretension that the Vice-President had the right to "count" the electoral votes. Senator Hill, of Georgia, made a speech of unusual cogency. It breathed throughout the true patriotic spirit. He favored the expedient with all his acumen and eloquence. His enthusiasm kindled a lambent flame charged with electric force. As he reached his peroration he was handed a telegram, announcing that the protracted contest for Senator in his state had just ended in the senatorial toga being again placed on his shoulders. The popular tide was now all one way. It was irresistible. What would be the consummation? The Democrats felt secure in the justice of their cause. No matter to them who might be the fifth judge whose choice was to determine the party bias of the Commission. No one doubted, however, that the choice of the fifth judge would fall upon Mr. Justice Davis. He was the only one left on the bench on whom the two Democratic and the two Republican judges could possibly unite. He was, to be sure, an unknown element, but notwithstanding this the Democrats had more confidence in his impartiality than the Republicans seemed to have. How the action of the Commission so equipoised might have eventuated must ever be a subject for speculation, and speculation only. Judge Davis, whose political belongings were so fruitful a theme of discussion in the committees, and in whom centered alike the hopes of Democrats and the fears of Republicans, was not born to sit on the Electoral Commission. Fate had ordained otherwise. When the proceedings had reached this harmonious stage, a cloud no larger than a man's hand was discerned in the western sky. An Illinois "Independent," not having the fear of General Logan before his eyes, cast his vote for Judge Davis for Senator. That "Independent" little dreamt that his craft bore Cæsar and his fortunes; or that he was playing the rôle of General Monk. The Illinois Democrats in the legislature, gifted with a fatuity beyond their age or generation, with a vision hardly extended beyond their physical organs, swung into line, and the news was flashed over the wires that Judge David Davis had been elected to fill the seat of John A. Logan in the Senate of the United States! That dispatch was pregnant with stupendous significance to the American people, for it meant, as the fifth judge on the Commission, Joseph P. Bradley! The Electoral bill was still pending in Congress, but had either party been then inclined to defeat it they could hardly have done so. Both parties were fully committed to it. It is not certain that either wished to recede. It was plain, however, that from that moment Democratic hopes went down, and that Republican apprehension was succeeded by confidence. Judge Davis' acceptance of the senatorial seat removed him from the list of probabilities for the fifth judgeship of the Commission. In the further selection of the members of this Electoral Commission, and by arrangement between the two parties, the Republican Senate was to name three Republicans and two Democrats, and the Democratic House three Democrats and two Republicans. The party caucus was in each house the medium of selection. The choice of the caucus was in every case ratified by the respective houses. The four judges named in the bill had, in the meantime, as expected, selected Justice Bradley as the fifth judge. The Commission, as finally made up, consisted of the following gentlemen: On the part of the Supreme Court: Associate Justices Clifford, of Maine; Miller, of Iowa; Field, of California; Strong, of Pennsylvania; and Bradley, of New Jersey. On the part of the Senate: Edmunds, of Vermont; Frelinghuysen, of New Jersey; Morton, of Indiana; Thurman, of Ohio; and Bayard, of Delaware. On the part of the House of Representatives: Payne, of Ohio; Abbott, of Massachusetts; Hunton, of Virginia; Garfield, of Ohio; and Hoar of Massachusetts. Eight Republicans, associated with seven Democrats, were thus to sit in judgment on the electoral returns of the disputed states. Their judgment was to be binding, unless both houses concurred in overruling it. CHAPTER XXXVII. THE ELECTORAL COUNT OF 1877. EVENTFUL DAYS OF HISTORY-MEETING OF THE HOUSES TO COUNT THE VOTE - M EN will regard the year 1877 as grimed with the blackest fact and the greatest political wrong of our history. There was then repressed the greatest right pertaining to the American people. Forbearance on their part and the goodness of God, alone prevented terrible results. There is a time when, if injury be inflicted, it cannot be forgotten. There is no Lethe for the outrage. The barbed shaft rankles remedilessly and poisons forever. The season of Democratic memory will ever be the Centennial year. The volumes most cherished, handed down by Democratic ancestors, are the writings of Algernon Sidney. They were the sacred writings of one who died upon the scaffold as a devotee to his imaginary commonwealth. When he wrote for the sanctio recti, in the eleventh chapter of his discourses, he not only inspired such men as Rousseau in France, and Jefferson in America, but, as it should be, he made the law derive its excellency not from antiquity, nor from the dignity of legislatures, but from an intrinsic equity and justice which accorded with universal reason. He not only inspired the Declaration of Independence, but he taught that, as that which is not just is not law, so, that which is not law ought not to be obeyed. If his ideal cannot be realized in human affairs, it is none the less a moral mentor,—one never more needed than in 1877. The ideals of Plato, Harrington, Sir Thomas More, and Lord Bacon were the |