ame in Congress over the counting of the electoral
votes. The Constitution provides that "the President of the Senate
shall, in the presence of the Senate and the House of Representatives,
open all the Certificates, and the Votes shall then be counted." But
there was no agreement as to where authority lay for deciding disputed
votes. Never before had the presidency turned on a disputed count. From
1864 to 1874 the "twenty-second joint rule" had been in force under
which either House might reject a certificate. The votes of Georgia in
1868 and of Louisiana in 1879 had thus been thrown out. But the rule
had not been readopted by the present Congress, and the Republicans very
naturally would not listen to a proposal to readopt it now.

With the country apparently on the verge of civil war, Congress finally
created by law an Electoral Commission to which were to be referred all
disputes about the counting of votes and the decision of which was to
be final unless both Houses concurred in rejecting it. The act
provided that the commission should consist of five senators, five
representatives, four designated associate justices of the Supreme
Court, and a fifth associate justice to be chosen by these four. While
nothing was said in the act about the political affiliations of the
members of the commission, every one understood that the House would
select three Democrats and two Republicans, and that the Senate would
name two Democrats and three Republicans. It was also well known that of
the four justices designated two were Republicans and two Democrats, and
it was tacitly agreed that the fifth would be Justice David Davis, an
"independent." But at the last moment Davis was elected Senator by the
Illinois Legislature and declined to serve on the Commission. Justice
Bradley, a Republican, was then named as the fifth justice, and in this
way the Republicans obtained a majority on the Commission.

The Democrats deserve the credit for the Electoral Commission. The
Republicans did not favor it, even after they were sure of a party
majority on it. They were conscious that they had a weak case, and they
were afraid to trust it to judges of the Supreme Court. Their fears were
groundless, however, since all important questions were decided by an 8
to 7 vote, Bradley voting with his fellow Republicans. Every contested
vote was given to Hayes, and with 185 electoral votes he was declared
elected on March 2, 1877.

Ten years before, Sen