The members of
the Commission.
Since without the fifth Justice the Commission would consist of seven Republicans and seven Democrats, it was evident that this Justice would
The fifth
Justice.
It was the general feeling throughout the discussion of the bill that the man who would be chosen was Judge David Davis. He had been a Republican and a close personal friend of Lincoln, but had latterly inclined toward the Democracy, and, it was thought, had favored the election of Mr. Tilden. He was regarded as the man of least political prejudice among a set of men of very little political prejudice. The Democrats, however, were entirely willing to risk their cause in his hands, because they believed it was strong enough on its merits to convince any unprejudiced mind, and there is little question that the Republicans were afraid to risk their cause in his hands, because they knew that they must win on every point or lose altogether, and they hesitated to take such desperate chances unless whatever political prejudice might exist in the mind of the umpire should be on their side.
But to the apparent surprise of everybody and to the consternation of the Democrats, Justice Davis was chosen by the Illinois legislature, on
Justice David Davis.
The Democrats in the House of Representatives learned of the election of Justice Davis to the Senate on the morning of the day they were to vote on the passage of the Electoral Commission bill. Even they did not fully realize that it meant that the Justice would not serve on the Commission. Moreover, they had gone to such lengths with the bill that it was too late to turn back. So far as is known the Justice did not inform them or anybody else of his intention to accept the senatorship, or of his scruples about being a member of the Commission, until after the bill became law. When he did do so, the correctness of his position was so clear that the four Justices named in the Act immediately selected Justice Joseph P. Bradley as the fifth judicial member of the Commission. Bradley was a Republican, as were the other three members of the court, Waite, Hunt and Swayne. That is, after Justice Davis was disposed of there remained only Republicans to choose from, and Bradley being regarded as the least partisan, and the most learned in the law, was selected. He fully realized the vast responsibility which had been thus unexpectedly thrust upon him, but he accepted it bravely and without flinching, and discharged it with honor and success.