who had voted against Tilden, assaulted the foul conspiracy with the whole force of their logic and eloquence. But the fraud was defended by men whom the party was accustomed to obey, the mutinous were brought under control, the indifferent were quickened into active participation, and "lewd fellows of the baser sort" rushed to the work as to a labor of love. So it came

to pass that a great political party, comprising American citizens of all the best classes, was thrown with nearly its whole momentum of weight and velocity upon the side of a manifest and most notorious swindle. To the immortal honor of the Democracy not one of its men in any part of the country shrunk from his duty or wavered in his allegiance to the truth.

But how was the object of the conspiracy to be accomplished? The House of Representatives was Democratic, and without its consent, expressed or implied in some form or another, the Senate could not give effect to a false count. The first intention was to claim that the President of the Senate had power to determine absolutely and arbitrarily what electoral votes should be counted. and what not. This was the great rallying-point until Mr. Conkling took it up, and, in a speech of surpassing ability, utterly demolished and reduced it to invisible atoms. It became settled, therefore, that the two Houses must count the votes, and this clearly implied the power to inquire and determine what were votes. It could not be denied that the voice of the House of Representatives was at least as potential as that of the Senators; and it was not supposed that the House would suffer a fraud so glaring as this to be thrust down the throat of the country "against the stomach of its sense." But if the two bodies would declare inconsistent results of the count, and proclaim the election of different Presidents, a state of things might come which would subject our institutions to a strain severe enough to endanger them greatly. It was in these difficult circumstances that a mixed commission of fifteen was proposed, consisting of five Senators, five Representatives, and five Judges of the Supreme Court. The mode of appointing them made it certain that fourteen would be equally divided between the parties; and as the fifth Judge would be named by the consent of his brethren on both sides, he might be expected to stand between them, like a daysman, with a hand as heavy on one head as the other. The Democrats consented to

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this in the belief that no seven Republicans could be taken from the Court or from Congress who would swear to decide the truth and then uphold a known fraud; if mistaken in that opinion of their adversaries' honesty, they felt sure, at all events, that the umpire would be a fair-minded man. They were bitterly disappointed; the Commission went eight to seven for the Great Fraud and all its branches; for fraud in the detail and in the aggregate; for every item of fraud that was necessary to make the sum total big enough, eight to seven all the time. ~

We must look at the state of the case as it went before the Commission. Tilden and Henrdicks had 184 electoral votes clear and free of all dispute, one less than a majority of the whole number. They also had in Louisiana eight, and in Florida four, appointed by the people, but falsely certified to Hayes and Wheeler by the Governors. In Oregon they had one certified by the Governor, but against whom a popular majority had been cast for an ineligible candidate. To elect Hayes it was necessary that each and every one of these thirteen votes should be taken from Tilden and given to Hayes. As this required many distinct rulings based upon contradictory grounds, the path of the Commission was not only steep, but crooked.

The great and important duty cast upon the Commission by a special law and by a special oath of each member was to decide, in the case of contested votes from a State, "whether any and what votes from such State are the votes provided for by the Constitution of the United States, and how many and what persons were duly appointed electors in such State." It is not denied that the sole 'power of appointing electors for the States of Louisiana and Florida is in the people. It was then and still is an admitted fact that the people had exercised the power of appointment in the prescribed and proper way; they did duly make an appointment of electors, and their act was duly recorded, and so made a perpetual memory. This thing was not "done in a corner"; it was seen and known of all men." That each of the two States named had duly appointed Tilden electors at a regular election called for that purpose on the 7th of November, in pursuance of law, was a part of their history as much as the fact that they were States of the Union. All the members of the Commission knew it as well as they knew the geographical position of Tallahassee or New Or

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leans. It needed no proof; but if specific evidence had been required, there was the record, from which the truth glared upon them as clear as the sun. They shut their eyes upon the record, and refused to see 'how many and what persons were duly appointed electors" by the people, but listened eagerly to the evidence (aliunde though it was) which showed "how many and what persons" had been designated by the returning officers. It was ultimately held (eight to seven) that the appointees of the Returning Board were duly appointed, and the appointees of the people were unduly appointed. Did the Eight suppose that the legal power to make such an appointment was vested by law in the Returning Boards? Did they think it was not vested in the people? No, that is impossible. But they may have conscientiously believed that the interest of their faction would be well served by Hayes's election. They may have been prompted by a virtuous admiration of carpet-bag government, and were sincerely anxious to save it from Tilden's reform.

But this decision in favor of fraud which so shocked the common sense and common honesty of the nation was not made without some attempt to justify it. The Eight gave reasons so many and so plausible that Kellogg and Wells must have chuckled with delight when they heard them. One argument very seriously urged was that it would be troublesome, and require a great deal of time, to ascertain who was duly appointed by the people. It was much easier to accept the false vote and say no more, about it. To decide how many and what persons got certificates from the Returning Board was a short and simple process; but to push the inquiry behind that, — to inquire whether the certificate was honest, to look for the evidence which would show who were duly appointed, hic labor hoc opus est. The Seven reminded the Eight, but reminded them in vain, that the due appointment which nobody in the world, except the people, had the least right to make was the very thing which they were there to find out; and they could not be excused from a duty to which they were pledged and sworn by the mere inconvenience of performing it. Besides, the Eight knew very well that there was no difficulty in it; it was but looking at the record of the appointment as the people made it up; they could read it as they ran; the truth was plainer than the lie; the honesty of the case was as

easily seen as the fraud. But no persuasion could influence them to cast even a glance at the actual appointment. What did they think this Commission was made for? Why was this great combination of learning and statecraft set up? According to the Eight its sole purpose was, not to determine any matter in dispute between the parties, but merely to declare that the Returning Boards had certified for the Hayes electors; which everybody knew already and nobody ever denied. If its object was what the law said, to decide who were duly appointed, then the Eight succeeded in making it merely a splendid abortion, because, among other reasons, it was too much trouble to make it anything else.

But the Commission, following the lead of counsel for Mr. Hayes, insisted that the certificate of the proper State officer ought to be regarded as conclusive evidence of the appointment made by the people. It is undoubtedly true that the State has a right to speak on this subject through her own organs, and when she does. so speak, her voice should be regarded as true. But what officer is her proper organ? The Governor being her political chief, and his certificate being required by act of Congress, it would not have been unreasonable to hold that it was conclusive unless tainted with fraud. The Hayes electors had the executive certificate in Louisiana and Florida, and this in regard to those States gave the Eight a great legal advantage. But they threw it away, abandoned the attestation of the Governor as worthless, claimed no faith or credit for it, and pronounced it open to contradiction, no matter how honestly it may have been given. What was the meaning of this phenomenal ruling which apparently opened the door of investigation even wider than the Democrats asked? It was understood by everybody. The Commission was hedging for Oregon. The Eight were reaching across to the Pacific for the one vote there, which was just as important as the twelve on the Gulf of Mexico.

But having gone behind the Governor's certificate for the sake of correcting errors, could there be any possible justification for stopping before the truth was reached? If the head of the Commonwealth, whose attestation is required by Federal law, went for nothing whenever it was contradicted, how could the conclusiveness be asserted of a paper made by subordinate officers unknown outside of the State and powerless even by the local law to make a certificate of more than prima facie validity? Yet the Electoral Commission (eight to seven) decided that the Governor's certificate

might be set aside for a mere mistake of law or fact, while that of the Returning Board would stand, though known to be founded on falsehood and saturated all through with corruption.

The unvarying preference of the eight Commissioners for the false over the true becomes very striking at this point. When they got behind the Governor's papers, they found lying aliunde two other sets of documents, one of which was a record of the actual appointment made by the people, the other was a mere fabrication of the Returning Board without any semblance of truth; they embraced the latter with all the ardor of sincere affection, and rejected the former with all possible marks of their dislike.*

To give the decrees of the Returning Boards the conclusive effect claimed for them, it was necessary to hold that they were legally invested with judicial powers, and that their jurisdiction, whether rightly or erroneously exercised, was absolute over the whole subject-matter. In Florida the statute which creates the Board gave it nothing except ministerial powers, and the Supreme Court of that State solemnly pronounced its claim of judicial authority to be altogether unfounded. But the Electoral Commission would not be influenced by either the written or the unwritten law. The Commission conceded to the Louisiana Board all the judicial power it needed to sanctify its disfranchisement of the people in the face of the Constitution, which expressly forbade it. This general jurisdiction was not all they bestowed on those boards; they declared in substance that it might be well exercised in particular cases where it was not invoked according to the law which gave them being, as, for instance, where a Louisiana parish sent up its return without a protest statement or affidavit.

*The point contended for by Mr. Hayes's counsel, and decided in their favor by the Commission, was that no evidence could be received except the report of the Returning Board as to the actual result of the election. The Commission positively refused the offer of Mr. Tilden's counsel to prove the facts, and would not receive or look at the evidence showing that by the precinct and county certificates on which the Board acted the majority was for the Tilden electors. Yet the "Congressional Record" of February 6, 1877, p. 29, represents that Mr. Hayes's counsel on the trial read to the tribunal several alleged computations of the vote cast at the election, to show that the Hayes electors had in fact the majority. These computations, so read, were taken from a report made to the House of Representatives by the Republican minority of its Committee. If this be true, then the Commission received evidence aliunde to bolster up the certificate of the Returning Board, while it refused to look at that which would have overthrown it by proving its entire falsehood. Mr. O'Conor thinks that this misrepresents the facts of the trial, and that it is an interpolation upon the record intended to pervert the truth of history.