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. EXCITEMENT - EVENTFUL DAYS OF HISTORY-MEETING OF THE HOUSES TO COUNT THE VOTE – THE OREGON, WISCONSIN, AND THE CONCLUSION — THE STARS AND STRIPES LOWERED DE FACTO AND DE JURE. 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 delight of the author's early days; for in them were found the pole star by which all political ventures should be guided. To see our country approximate the ideal, where perfect liberty and right should find hospitality, was inspiration and pride. But the year 1877 broke the idol and destroyed the ideal. Amidst all the rough waves and dangerous rocks of the last “three decades," it has been the author's place to be on the deck; and while the star at times has seemed obscured, never yet has it been so utterly eclipsed as by the blackness of that portentous year, 1877. No day of greater import ever came to this hemisphere than that appointed for the count of the electoral vote. Both houses meet in the great Hall of Representatives. Senator Ferry, of Michigan, President pro tempore of the Senate, is in the chair. Speaker Randall is by his side. The galleries are packed with men and women of the white and negro races, and of all localities. Public expectation stands upon the tiptoe of trepidation. The certificates containing the electoral votes are opened by President Ferry. He hands them to the appointed tellers. The votes of state after state, in alphabetical order, are duly recorded, now in the Tilden and now in the Hayes column. All goes serenely for a time; when lo! a wild excitement and a hush of expectation! Florida is reached! The Chair announces that from Florida there are two sets of returns. By the law under which they are acting, these two sets, he declares, must go to the Electoral Commission. Thereupon the joint convention takes a recess,- for it never "adjourns until the count is finally completed. Each house in its own way resumes legislative business. All wait for the tribunal to which Congress has so improvidently delegated its duties. The Electoral Commission meets in the room of the Supreme Court. It was formerly the United States Senate Chamber. Its vaulted roof, in times past, reverberated with the eloquence of Webster, Clay, Calhoun, Marcy, Benton, and Seward. The echoes of those memorable debates might even yet be heard within those historic walls, where the Commission is now convened, which is to bring so much obloquy upon the Court which is wont to sit on that bench. Justice Clifford, the senior judge, takes the chair. The fourteen others range themselves in the seats commonly occupied by the dispensers of justice. The five judges are in the centre. They are flanked on their right by the five Senators. On the left are the five Representatives. At the foot of the line, at the left, sits one who is destined to fill a large and tragic space in the history of the near future. It is James A. Garfield. On each side of this wonderful forensic battle, is an eminent array of counsel. What is the case? It is the great contention of our century. It is no private suit; not even an action between states. It concerns fifty millions of people. It enlists the talents of O'Conor, Evarts, Matthews, Merrick, Carpenter, Hoadley, Campbell, and Ashbel Green. From the first, it is evident that the chief reliance of the Republican side of the contest is the astute and THE FLORIDA VOTES COUNTED FOR HAYES. 653 learned leader of the New-York bar, William Maxwell Evarts. If Mr. Evarts cannot make the worse appear the better reason, then is their cause vain. The first step of the Electoral Commission is to assume the regularity of the returns of the Hayes electors. This is done on the plea that they have come up under the seal of the state. Therefore the Tilden electors are classed as contestants. Another act is even more ominous. The Commission excludes all evidence "aliunde." It will not go behind the returns. It will not see whether they were born of fraud. To make fraud sacred requires only a proper distribution of prima facie papers. Even in its earliest stages, the malign spirit of partisanship thus crops out in the Commission. The judges are not of different clay from their associates. Whether it be political or judicial, it is all of a kind. seven The lawyers have finished, and the case is in the hands of the Commission. One after another, each of the members reads his opinion in secret session. Fourteen members of the Commission are heard from. Fourteen men, sworn to hear and impartially to judge, divide on a party line, being quite sure that the Tilden electors from the State of Florida are regularly chosen, and that their votes should be counted in the Electoral College. Seven are just as firmly convinced that the Hayes electors have the only stamp of regularity. Justice Bradley alone remains to be heard from. All eyes are turned to the Jerseyman. Chosen as he had been, to enact the rôle of a non-partisan, is he not still a judge? Is not his symbol and his effigy the blind goddess, holding the scales of justice in equipoise? The Democrats of the Commission look, not without some confidence, to Judge Bradley. Would he save the Supreme Court from the threatened disgrace? Would he decide on merely partisan lines? Would his party bias bend his judgment on a question involving the most stupendous consequences ever within the jurisdiction of a court? Pale and trembling, Judge Bradley unfolds his manuscript. He begins to read. He is impressed, apparently, with a sense of the overwhelming responsibility resting upon his conscience and conduct. he reads, Democratic hopes grow bright and brighter. Justice will dawn at last with auroral splendor. Alas! The drift of his argument leads to but one conclusion. The end is not the fruit of the promised exordium. Florida's vote, we all know, belongs to Tilden. Change! The wind suddenly veers, and Mr. Justice Bradley accomplishes a dexterous non sequitur. He closes with the assurance that his vote must be given to the counting of Florida for Hayes. In "counting" the votes from the State of Florida, it was held that Congress, which had full constitutional power to "count" them, was concluded by the governor's certificate. Had not the latter been made in accordance with the decision of the returning board? Offers are made to impeach the decision of this board. It is impeachable, for want of jurisdiction to do what it did. What it did, changes the result. "I know of no tribunal," says Judge Thurman, "high or low, whose acts, without jurisdiction or beyond its jurisdiction, are not absolutely void." And so every honest lawyer and man will aver. The county returns of Florida gave the vote to the Democratic electors. This is not disputed. The court so decided it. Every department in Florida so decided. The state remedy had been applied to correct the fraud. It was applied timely. Its results are ignored by the Electoral Commission. The Democrats of the Commission felt the humiliation of this departure from constitutional methods. Judge Bradley would never have been guilty of such stultification unless he had deliberately decided to accept its full consequences and to gather its substantial fruits. Such an excoriation as Mr. Payne, the Nestor of the House commission, gave this unjust judge for his betrayal of the high trust reposed in him, has probably not been heard since Sheridan's philippic against Hastings. Sadder, but wiser men, were the Democratic "seven" when they marched out of the Supreme Court room that memorable afternoon. The chivalric Bayard, who in the Electoral committee had erected a lofty pedestal upon which the Supreme Court judges should stand, bore the mien of one whose illusions had been rudely dispelled. Mr. Hoar, who had, to his associates in framing the bill, scouted the idea that the Supreme Court judges would be willing to go down to history as dividing on a question of such transcendent importance on a party line, and had expressed his conviction that their bias against thus appearing in history would be infinitely greater than any mere party partiality which they might feel, smiled benignantly behind his gold spectacles. He was quite content with the bias, so long as his party received its benefit. The air of the national capital became oppressive. A callous numbness seemed to have settled upon the national consciousness. Only the Federal office-holders breathed easier. The decision of the Commission was submitted to Congress. The Senate, by a strict party vote, concurred in it. The House, also by a strict party vote, refused to concur. Not a Republican voice was raised in either branch of Congress against counting Florida's vote against Florida's choice. Again the Senate files into the Hall of Representatives. The count is resumed. Florida's four votes are added to the Hayes column. The certificates of other states are opened and counted, until Louisiana is called. Louisiana is found prolific of returns not two only, but a third set also. The third set is signed "John Smith, bulldozed Governor of LouisiIt purports to give "the proceedings of the college of electors at New Orleans of December 6, 1876." This set proves to be a joke. It is a ghastly joke, to interrupt even so grave a farce. Its reading is dispensed with; and it is ordered to be suppressed from the record. Under the law regulating the count, all papers, with the objections raised on either side, go to the Commission. That body met on Monday, February 12, and went |