The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-07-13
"A QUESTION FOR HISTORIANS
The Late David Davis and His Relation
to the Electoral Commission.
Falsity Of the Charge that He Agreed to Go on
1t and Award the Presidency to Tilden-
What Judge Davis Said on the Subject.

AIaFl0 LAWS Which may require somo dbtonsloH'
&c has been reserved until after his death, that
he can neither confirm nor confute it, You do
not need to he warned against stories which are
sprung on public attention concerning man
right after or long after the grave has received
his mortal form. The reasons which perscribe
large incredulitY touching such stories are OBJ
vious They are greatest when the allegation is
OF such kind as could have been established or
disproyed By recourse to the man affected in his
lifetime. When such recourse is avoided and
when the declaration is launched at just the mo-
ment the subject of it is no more, one may be
almost certain that the declaration is untrue.
This view is especially enforced when the dec
laration is of a damaging not to say defama-
tory character concerning the dead.
The. story about the late David Davis is in
effect this:
An anonymous writer in the Sun newspaper
declares that Justices Strong, Republican, and
Clifford and Field Democrats, three of the four
Supreme Court members of the 1877 Electoral
Commission, were agreed IN q purpose to choose
Judge Davis as the fifth judicial member; that it
was known that Judge Davis would vote to
award the presidency to Mr.. Tilden; and that
the sudden election of Mr. Davis as United States
Senator by the Illinois Legislature led to q con-
a Democratic Congressman from the Cleveland
district, to this effect: Mr.. Payne
asked Judge Davis if his election
as Senator, January, 1877, to take
acceptance of position on the Electoral Com
mission, which was to sit during February, 1877
telling him in substance that if it would the
Democrats would defeat the Electora.-comms
sion bill then pending in the House, which the
Democrats controlled Justice Davis the story
continues, substantially assured Mr.. Payne that
bis choice as Senator wonld not prevent him
from taking position on the Electoral Commits
sion, and good as added that he would take
that position aud award the presidency to Mr..
Tilden. Thereupon, the narrative proceeds to
say, the Democrats of the House passed the bill;
the Commission WAS constituted: Justice Davis
violated his promise to Mr.. Payne; Justice Brad
ley was chosen as the odd man; the eight-to
seven award of the presidency to Hayes re-
suited.
/ wish to examine this story in detail
It is fact that Strong, Clifford and Field were
expected to choose Mr.. David Davis as the fifth
man, and that be was expected to vote the award
of the presidency to Mr.. Tilden The first part
of this fact was confirmed by Justice Strong,
who declared in the session of the four judges to
Choose a fifth that Mr. Davis had declined to
serve or to be chosen by his colleagues as a
member. The expectation that he would vote
Tor Tilden If putson the Commission arose entire
ly from the confidence of the Tilden men in their
case and in Mr.. Dayiss character. Il rested on
nothing which Judge Davis ever gave forth,
orally or in writing 1t was an inference credit
able to his reputation for learning and truth and
drawn from that reputation.
It is also fact that Mr. Davis did not 60 on
the Commission, and that he took the ground
that his choice as Senator by both parties was
the consideration which restrained him from go
ing on it,
the alleged conference between Representative
Payne and Judge and Senator-slect Davis Did
it occur2 If 1t occurred, was it of the nature so
precisely statedg
Justice Davis is dead. This story of his weak
ness or perhdy was never heard of while he
lived The conference is alleged to have oc-
Cured Jan. 26, 1877. He died June &C. 1886
The allegation slumbered or not concocted
III oil tie nine years ana five months to a day of
HE lifetime after the conversation between him
and Mr.. Payne is declared to have been held
According to the Sun, sthe statement comes from
responsible and well-informed source, and its
truth can be vouched for"
Though Mr. Davis is dead, Henry B. Payne is
alive. He knows whether he had any such con-
ference and agreement with David Davis or not.
BE realizes by this time the significance of such
conference TO those whom it concerned, If any
was held. He may realize the gravity of ad
hitting its truth and the embarrassment of
denying or modifying the narrative-wlth an
effect OF angering or antagonizlng the New York
Sun. II there is any newspaper enterprise or
news perspective among Washington CORE
spondents Mr. Payne will have to consent or
refuse to participate in this attack on his own
character and on the memory and character of a
mead man.
Do you appreciate what this narrative amounts
cot It amounts to conspiracy to pack IN ad
vance q tribunal invested with most solemn du-
ties in an unparalleled emergency of the United
States. The conspiracy IS charged on dead
man. who is posthumously accused of defaultlng
or backing out. at the last moment and oil a
living man, whose subsequent acceptance of a
position on the tribunal and whose subsequent
action on it are thus made to wear the aspect of
conformity to O conspiracy instead of q response
90 sense of duty.
More than this is charged. The entire Demo
cratic membership of the House of 1851 is
represented to have based it's action in passing
the Electoral Commission bill on the condition
that the consent of one man could be secured
to go on the tribunal to be formed under the
bill, and to vote that tribunal in p-ede-
termned way. A writer who for the sake of
reviving controversy, can thus describe his
whole partys relation to it is morally unscrupu-
lous orgrayely unaware of the meaning of words
1t is to be believed that Mr.. Henry B. Payne
will recognize the magnitude of the work cut out
Tor him in case he should feel able to sustain the
narrative which includes him as a chief factor in
an important event.
1t will be no answer to rejoin that the Demo
Gratis believed their claim was just and that
purpose existed to defraud them against which
they must guard. They did believe that. But
Wnen you desire to guard your rights you do
not proceed to pack the court or to get a mem
Der OF it to perjure himself You employ
IS counsel expert case makers, get
your evidence in shape. and consider
the courts as trustworthy. The matters taken
for granted--which must be taken for granted
nre that iures will true verdict give, according
to the evidence, and that judges will be learned
and just. All the processes which go to the max
ing Of judge. and all the circumstances which
surround the action of judge, are reasonable
Insurance of his ability and fairness. There can
not be perfect assurance, but such insurance as
Ghere is protects society from all evils that are
act eventually redressible temporarily bear
able. The project alleged by the writer in the
Sun invents or discloses state of things which
destroys the merit of Democratic motive or the
merit OF Democratic procedure in the great presi-
dental case Of 1867. ! leave to casuists to
determine the effect of such destruction of the
merit * motive or of the merit of procedure or
both. on the merits of the case itself I have
been OF those who supposed that case was com
F1lafa on its merits and hav vvrittap ,oor, -