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tee, Mr. Edmunds, the House committee on the 12th of January journeyed over to the Senate wing of the Capitol. They were ushered into the Judiciary Committee room, and into the presence of the ambitious statesmen who then sat around its long table. A comparison of notes followed. Each committee was found equipped with a plan. Each plan was a cure for the disorder under which the country staggered. The Senate plan was decidedly complex. While the House was content to submit the dispute to the five senior associate justices, the Senate wanted a mixed tribunal whose elements should come from the legislative as well as the judicial branch of the government. The Senate committee had arrived at a “ third draft” of a bill. They had made revision after revision. They had at last agreed to submit a plan to their brethren of the lower house. It was this: A commission to consist of thirteen members. Nine to be taken from Congress and four from the Supreme Court. Each house of Congress to name five of its members to sit upon the Commission. One of the ten so designated was to be eliminated by lot. Under this plan the Senate would appoint five of its Republican members and the House of Representatives five of its Democratic members, and as the four Supreme Court judges were expected to be evenly balanced, the only way to break the inevitable deadlock in the Commission was to draw cuts." The grave and reverend Senators who proposed this Biblical and happy-go-lucky mode of settling a Presidential succession by the intervention of Providence through the "chances," were the objects of occasional raillery from the members of the other committee. This return to primitive customs was humorously styled the "dice-box" principle.

The House committee readily accepted the Senate idea of a mixed Commission. It would give to Congress itself a representation on the tribunal to be created. But the Democrats of the committee strenuously insisted that if there was to be a "lot," it must apply to the judiciary rather than to the congressional members of the Commission-leaving the political part of it divided between the two parties. After general discussion it was gravely decided that the term "commission," rather than "tribunal," should be the title of this body. It was also decided that it should consist of fifteen members-an equal number from each of the three bodies represented. The Senate committee promptly acquiesced. Thenceforward the discussion related not so much to the plan as to the personnel of the Commission. It was assumed that, so far as the legislative part was concerned, the Commission would be a "stand off" between the parties. How to divide five judges equally between the two parties without doing violence to any one of those venerable wearers of the ermine, required such a nice mathematical calculation as to absorb the entire time of the great minds there assembled for several days. The Democrats claimed but two members of the Court, Justices Clifford and Field; the Republicans had, perhaps, all the rest. Still, Mr. Justice Davis was of uncertain political preferences. Was it unreason

THE COMMITTEES IN CONFERENCE.

64I able to hope that the equipoise, the gravity of this distinguished jurist would not be disturbed by party predilections? It was finally agreed that the contention which was shaking the half of our hemisphere should be in this mode determined. It is too late now to gather up the thousand threads in the tangled rumors of that eventful time. There were rumors of assassination, rumors of wars, rumors of panic from commercial centres, and of diablerie from remote territories. Democrats were to march upon Washington by the hundred thousand. Federal troops were ordered to Washington, cartridges were being made, and chaos was riding wildly over the body of the Constitution under processes unknown to that instrument. By Saturday night an agreement was substantially reached. It provided for taking six of the justices, in the order of their seniority, namely, Clifford, Swayne, Davis, Miller, Field, and Strong,—one of them to be dropped out by lot. Senator Conkling eloquently urged this as perhaps the only practical solution of the difficulty. The House Democrats, except Mr. Springer, reluctantly assented. The advantage, they believed, was with their opponents, as it was not fair to class Judge Davis as a Democrat. Mr. Springer preferred to think it over until Monday morning. The joint session was adjourned, with the Electoral bill still suspended, after the manner of Mahomet's coffin.

Thus stood matters on Saturday night. When the committees came together the next Monday, a wonderful change had come over the spirit of their dreams. In spite of the sternest injunction of secrecy, the plan which came so near being adopted at the close of the preceding week had transpired. It had trickled into the columns of the New-York Times. Members of Congress were not long in getting hold of it. They were not long in heaping ridicule upon the proposition. Lottery might be in certain cases admissible, but not in lieu of constitutional methods. In the joint meeting of the two committees, Mr. Payne announced to his associates, that since their plan had become known, the opposition to that feature which provided for selecting six justices of the Supreme Court and dropping one by lot had developed to a degree which satisfied him that it could never receive the indorsement of the House. The House committee, on reflection, decided to withdraw their assent to that proposition. That committee once more submitted their original proposition to take the five senior justices outright. This was the fairest to all parties. Two of these, Justices Clifford and Field, being understood to be in Democratic sympathy, two, Justices Swayne and Miller, in Republican sympathy, and the fifth, Justice Davis, leaning no more to one side than the other. This plan, Mr. Payne urged, would insure the non-partisan character of the Commission. It would give the odd number without a resort to the "lot" system, to which many seriously objected. This brought a retort from Mr. Edmunds. This remarkable man, who bears so close a resemblance to a sainted character, is known as the St. Jerome of the Senate. He is a man whose wit rivals his legal acumen.

He said that Judge Davis was one of those "Independents who stood always ready to accept Democratic nominations." He had noticed that "such men are generally the most extreme in their partisanship," and, he added, that he "would rather entrust a decision to an out and out Democrat than to a so-called Independent." Having fired this Scythian arrow, the elegant and sainted Senator unstrung his bow. Mr. McCrary said that the Republicans of the House committee were quite satisfied with the senatorial Providential plan; but they would like fully as well to take the two senior justices only, and drop one of them by lot. "Certainly," added he, “no one would say that Clifford and Swayne are not absolutely fair."

During this remarkable confabulation, where is the great War GovernorSenator Morton? Glum and saturnine, he sits far and aloof from these superficialities. His every feature suggests clouds charged with thunderbolts. His very presence, as he frowns upon the gathered statesmen from behind his crutches, is a vengeful protest. He seems to be gathering electric currents for a wrathful flash of luridness and danger. Thus far he has eyed askance each talker, but has seldom spoken. He now ventures to address his associates. He declares that he entertains great doubt about the power of calling in any outside tribunal to settle this momentous question. If, however, there is such a power, "why not," he exclaims, "call in the whole Supreme Court? Is it not more simple? It will not have the appearance of being fixed. All parties will be satisfied. Their decision would be acquiesced in by all." This was in conformity with what the Senator said subsequently, when the bill was before the Senate. The Indiana Senator, with characteristic sledge-hammer force then denounced the plan as a "contrivance." He held that it was unknown to the Constitution. It was, in short, a cowardly evasion of duties by Congress. Mr Frelinghuysen took up the point in the joint committee and retorted that to drop one judge by lot could not possibly be susceptible to the charge of "being fixed." The discussion then reverted to the party leanings of Justice Davis. "Judge Davis," said Mr. Springer, "is just about as much of a Democrat as Horace Greeley was in 1871. He is not now, and never was, a Democrat. His most intimate friends, among whom I may count myself, do not know to-day whether he favored Tilden or Hayes. He did not vote at all. They only know that he is absolutely honest and fair."

The chances of agreement, so star-like on Saturday, had become nebulous on the following Monday. Unusual apprehension seized the committeemen. They feared that even if an agreement in committee were possible, its ratification by Congress was impossible. "Those fellows," said Mr. Edmunds, "who believe it foreordained that Hayes is to be President, think the Constitution, as it is, sufficient for their purpose. They will oppose any legislation whatever on the subject." Mr. Bayard, more sanguine, perhaps, than some of the others, said: "If we - seven men of both houses - could agree, would

EFFORTS AT AGREEMENT.

643

there not be a weight in such an agreement sufficient to carry it through? Would it not be a most noble example of abnegation of partisanship? I am one who believes that whatever measure is recommended by this committee will be adopted." Mr. Hewitt, who, as chairman of the Democratic National Committee, was sometimes credited with representing the views as well as the interests of Mr. Tilden, was pressed by Mr. Conkling to suggest a way out of the entanglement. "My colleague," replied Mr. Hewitt, "is aware of the disadvantages I labor under in making suggestions. He has doubtless observed that I have had little to say in this discussion. Owing to my peculiar relations, I am unjustly supposed to speak for another. But my personal views are not always or necessarily in harmony with those of the person for whom I am supposed to speak." He stated his conviction, however, that the bill with the "lot" feature could never pass. Whereupon Mr. Conkling said it was a question in his mind whether it would not be better for each committee to report its own plan to its own house, and there discuss it, "getting together finally if we can." Throughout the committee sessions, Mr. Conkling manifested an exceeding anxiety to arrive at some satisfactory settlement. His opponent is Senator Morton. There he sits in his sullen and sublime disquietude. He is, in this mood, the Achilles of the contest. When the committees separate that evening, they walk out of the Senate Judiciary room with anything but a hopeful mien.

When the committees met the next day, Mr. Payne sought refuge once more in the bill agreed to by his Democratic confrères of the House committee,― naming the five senior associate justices, Clifford, Swayne, Davis, Field, and Miller. He again urged its absolute equipoise-Justice Davis, as usual, being relied on to divide himself equally between the two parties. For the sake of reaching an agreement, Mr. Payne announced that the House committee, contrary to their own judgment, had assented to the proposition that the decision of the tribunal should be final unless overruled by both houses. Mr. Morton interposed again in favor of taking the whole Supreme Court instead of any part of it, "and thus avoid invidious distinctions." Mr. Hewitt said that his idea was, to take five from each body, namely, five from the Senate, five from the House, and five from the Judiciary. "In selecting the latter," said he, "there is an obvious propriety in selecting those longest on the bench, as farthest removed from the passions of the party politics of the day. Those recently appointed on the bench are too fresh from the domain of politics to have gotten over a natural bias that they took with them."

Republican distrust of Justice Davis-the expected fifth wheel of the coach- and Democratic insistence that he should not be charged up against the Democrats, were the leading features of these discussions, of which the Constitution should by its own vigor have made an end. "The proposition of the House committee," declared Senator Frelinghuysen, "is really to make

a Commission of eight Democrats and seven Republicans. Judge Davis has twice aspired to the nomination by the Democrats for the Presidency. Perhaps he has now aspirations for the future. His vote might turn the government over to the Democrats or retain the Republicans in power. It is not a fair proposition." Mr. Hewitt, who had thoroughly investigated the judge, said that the best information he could get was that he was “neutral.” At this a sardonic smile plays over the features of Senator Edmunds. He flashes somewhat recklessly his daggers of speech, keen-edged, like those of the Corsican vendetta, on which are burned in letters of bluish beauty — A la morte! "The best evidence of his neutrality," said the Senator, "is the same as that of Greeley and Chase. He is fishing after Democratic nominations!" Senator Thurman the grand old man of Ohio, and the fidus Achates of Judge Edmunds- demurely suggests an even number of judges. "I do not believe," he said, "that they would range themselves on party lines. No doubt they would decide as they believed right." Here Mr. Hoar and Mr. Willard strike off on a line of their own. They are full of inspiration for "an evenly divided Commission, which, in case of inability to decide, should be empowered to call in an outsider, some eminent American not in public life, as umpire." A waggish member suggests Lord Dufferin as equal to the task! It must be confessed that this accomplished civilian was not unfitted to decide a controversy which had overleaped the barriers of the Constitution; for had he not been the successful commissioner to the Lebanon, to intervene in behalf of the Christians who were being butchered by the cruel Druses of the mountains? Had he not visited "high latitudes" and drawn inspiration from the wisdom of the thousand years of Iceland's republican simplicity? Had he not, by persuasive good sense, reconciled Canada with the Crown? It was hardly waggery in such a dilemma to suggest so just and fair an arbitrator. There were more consultations; but still no agreement. The Republicans still insisted on drawing the line at Justice Davis. The Senate committee came forward with a new proposition. It was, to take the four senior justicesClifford, Davis, Swayne, and Miller-and these to select a fifth. This, it seems, had the acquiescence of the Democratic members of the Senate committee. It was not approved, however, by the House Democrats. "I confess," said Chairman Payne, "that I am at a loss to understand how this last proposition is based on any assumption that the Commission should be equal. Judge Davis is not a Democrat. You ask us to take as a Democrat one who is not more than half a Democrat, against two absolute Republicans. I can see no equality in such a proposition."

Senator Bayard, whose faith in the Supreme Court was shortly to be rudely shaken, was sometimes disposed to criticize the Democrats of the lower House because they so stubbornly contended for absolute equipoise in the composition of the Commission. To them he talked across the commit

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