members of the House and five justices of the
Supreme Court of the United States. When the Electoral Commission
should decide any question submitted to it, touching the return from
any State, the bill declared that the decision should stand, unless
rejected by the concurrent votes of the two Houses. Every member of
the Senate and House committees, with the exception of Senator Morton
of Indiana, joined in the report. After an elaborate and very able
debate the bill was passed in the Senate on the 24th of January by
_ayes_ 47, _noes_ 17. Two days later it passed the House by a large
majority, _ayes_ 194, _noes_ 86.

The mode prescribed in this act for selecting the members of the
Electoral Commission was by _viva voce_ vote in the Senate and in the
House,--it being tacitly agreed that the Senate should appoint three
Republicans and two Democrats,--each political party in caucus
selecting its own men. In regard to the Commissioners to be taken
from the Supreme Bench, it was ordered that the "Justices assigned to
the First, Third, Eighth, and Ninth circuits shall select, in such
manner as a majority of them may deem fit, another Associate Justice
of the said Court; which five persons shall be members of such
Commission." The four Justices thus absolutely appointed were Nathan
Clifford, Samuel F. Miller, Stephen J. Field, and William Strong. From
the hour when the Electoral Bill was reported to the Senate the
assumption was general that the fifth Justice selected for the
Commission would be David Davis. It was currently believed that Mr.
Abram S. Hewitt had given the assurance or at least strong intimation
that Judge Davis would be selected, as one of the arguments to induce
Mr. Tilden to support the Electoral Bill.

Originally a Republican, Judge Davis had for some years affiliated with
the Democratic party, and had in the late election preferred Mr. Tilden
to Mr. Hayes. Without any imputation of improper motives there can
hardly be a doubt that the Democrats, in their almost unanimous support
of the Electoral Bill, believed that Judge Davis would be selected, and
by parity of reasoning the large Republican opposition to the bill
might be attributed to the same cause. But an unlooked-for event
disturbed all calculations and expectations. On the 26th of January
the House was to vote on the Electoral Bill, and a large majority of
the members were committed to its support. To the complete surprise
of both parti