CHAPTER III

THE ELECTORAL COMMISSION

[HAYES-TILDEN ELECTION]

"The

Disputed Contest for the Presidency in 1876-Electoral Commission Appointed to Decide It; It Reports in Favor of the Republican Candidates; Report Adopted by Congress Speech in the House against the Seating of Hayes and Wheeler by Benjamin A. Willis [N. Y.]: "The Basest of Conspiracies"-Reply by Simeon B. Chittenden [N. Y.]: "Who Are the Conspirators?" and by John R. Tucker [Va.]: Fruitlessness of Fraud"-Debate in the House on the Constitutionality of the Electoral Commission: Affirmative, George F. Hoar [Mass.]; Negative, Gen. James A. Garfield [O.]—Clarkson N. Potter [N. Y.] Introduces Bill in the House to Create Commission to Investigate Hayes's Southern Vote; It Is Passed; Investigation Finds Democratic Attempts at Bribery, and Is Discontinued.

I

N the Presidential campaign of 1876 the Democratic candidates, Governor Samuel J. Tilden [N. Y.], and Thomas A. Hendricks [Ind.], carried New York, New Jersey, Connecticut, and Indiana, and the Republican candidates, Governor Rutherford B. Hayes [O.], and William A. Wheeler [N. Y.], the other Northern States. The contest depended on the vote in the South. Governor Hayes's manager, Senator Zachariah Chandler [Mich.], declared on the morning after election that he had information that South Carolina, Louisiana, and Florida had gone Republican, giving Governor Hayes 185 electoral votes-a majority of one.

It was charged by the Democrats that Senator Chandler's announcement was not based on information, but was a mere claim, preparatory to an endeavor to have the votes of these States counted for Governor Hayes, even though Governor Tilden had won them. It was pointed out that the three States named were likely

FIRE AND WATER MAKE VAPOR

[Caricature of Henry Watterson and Murat Halstead] Cartoon by Thomas Nast in "Harper's Weekly"

to have given a Republican majority, since in South Carolina and Louisiana there were more negroes than whites, and in Florida, where the whites were slightly in the majority, a number of these were Northern settlers, and, therefore, if the cry of fraud were raised in the event of Hayes being declared the winner in these States, the presumption would be against the cry.

The legal convassing boards gave the electoral votes of the three States to Hayes and Wheeler. The Democrats at once declared that these were false returns and that the Tilden and Hendricks electors had really been elected, but "counted out." Committees of investigation were sent to the States by both parties, the members of the Republican one being named by President Grant, who later submitted their report to Congress.

On December 6, 1876, the day prescribed for the meeting, the Electoral College sat, and declared Hayes elected by a vote of 185 to 184 cast for Tilden.

The indignation of the Democrats was at boiling point. Henry Watterson [Ky.] declared that one hundred thousand Democrats should assemble in Washington in protest against the usurpation. Joseph Pulitzer, then editor of the St. Louis Post-Dispatch, followed this with the declaration that they should come armed. Watterson was credited, however, with Pulitzer's proposal.1 Against the possibility of the fulfillment of this declaration, President Grant took military precautions.

By a joint rule of Congress, adopted in February, 1865, it had been agreed that "no electoral vote objected to shall be counted except by the concurrent votes of the two Houses." The Democrats, with the intention of objecting to enough Republican votes to leave Tilden with a majority, claimed that this rule was still in force. The Republicans held that it was applicable only to the occasion of its adoption, and that the VicePresident had resumed his constitutional right to open the returns of the Electoral College and declare the result. Finally (on December 14, 1876) the House passed 1 See Mr. Watterson's article on the Hayes-Tilden contest in the Century for May, 1913.

the issue by, and provided for the appointment of a joint committee of House and Senate to report a measure for deciding upon a proper method to count electoral votes in the present case. The Senate on December 18 adopted the resolution. The joint committee consisted of fourteen members equally divided between the two Houses and the two parties.

On January 18, 1877, Senator George F. Edmunds 1 [Vt.] made the committee's report, to which all the members but one (Oliver P. Morton, of Indiana) had agreed. The report declared that "no electoral vote or votes from any State from which but one return has been received shall be rejected, except by the affirmative vote of the two Houses." Where more than one return had been received a reference to an Electoral Commission was provided-the commission to be composed of five members of the Senate, five members of the House, and five justices of the Supreme Court of the United States. When this 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. After an elaborate and very able debate the bill was passed in the Senate on the 24th of January by 47 ayes, 17 nays. Two days later it passed the House by a large majority-191 ayes, 86 nays.

The Electoral Commission was organized in such a manner that both parties were equally represented in the Senate and House membership, and that the Supreme Court membership would be, so far as could be foreseen, non-partisan, or, on the whole, equi-partisan. Only one place on the commission was left virtually unindicated, that of the fifth appointee from the Supreme Court. It was expected that Associate-Justice David Davis [Ill.], who had been first a Republican, and then a Liberal Republican (in 1872), would be chosen for this place. The Democrats believed that he would be favorably disposed toward their contention; indeed, it was said that Governor Tilden would have objected to the

'See Senator Edmunds' article on the Hayes-Tilden contest in the Century for June, 1913.

appointment of the commission, but for the assurance of his adviser, Abram S. Hewitt [N. Y.], that such was the case. However, on January 25, 1877, the day after the Electoral Commission bill was passed in the Senate, Justice Davis was elected as Senator from Illinois, and he accepted the election. Accordingly, the fifth place fell to another, and Joseph P. Bradley [N. J.] was chosen.

The Electoral Commission sat on January 31, 1877. Leading Republican counsel were William M. Evarts [N. Y.], Stanley Matthews [O.], Edwin W. Stoughton [N. Y.], and Samuel Shellabarger [O.]; leading Democratic counsel were Jeremiah Black [Pa.], Charles O'Conor [N. Y.], John A. Campbell (ex-Associate-Justice), Senator Lyman Trumbull [Ill.], Montgomery Blair (ex-Postmaster-General).

The vote of Florida was made the chief issue. On this, as well as upon one contested vote in Oregon, the commission voted 8 to 7 in favor of the Republican contention, Justice Bradley being of the majority.

Thus the commission reported in favor of Hayes and Wheeler. A long fight was made in Congress over the acceptance of the report and the decision based thereon. It was not until March 2, 1877, two days before the constitutional date of the inauguration of the new President, that Congress decided that Hayes and Wheeler had been elected.

During Hayes's Administration the House was Democratic. Believing that the title of President Hayes was invalid speakers of that party allowed few opportunities to pass by for expressing their opinions on this point.

On January 20, 1877, Benjamin A. Willis [N. Y.] spoke in the House as follows:

THE BASEST OF CONSPIRACIES

BENJAMIN A. WILLIS, M.C.

The morning after election day almost every newspaper in the land contained the intelligence that Samuel J. Tilden was the President-elect of the United States. Democratic editorials