Centennial Crisis- the Disputed Election of 1876

by William H Rehnquist

  Rud had his share of run-ins with college authorities enforcing parietal rules but found the curriculum not overly demanding. He participated actively in the affairs of the Philomathesian Society, the college literary and debating organization. In his junior year he was elected treasurer of the society, and in his senior year he became president. His interest in politics quickened; in 1842 he journeyed to Dayton to hear a speech by Henry Clay, the Whig leader whom he greatly admired. In his senior year he buckled down to his studies—chemistry, mathematics, and “mental philosophy,” and on his own read history and biography. He was rewarded by being named valedictorian and class speaker in 1842.

  Throughout his life, Hayes demonstrated a capacity for making and keeping friends. Two of those closest to him at Kenyon were Stanley Matthews and Guy Bryan. Bryan was from Texas, a nephew of Stephen Austin, and would later fight in the Confederate Army while Hayes served in the Union Army. They corresponded regularly before and after the Civil War.

  Matthews, a fellow Ohioan, would later become a principal adviser to Hayes during the presidential election of 1876. Hayes, in turn, nominated him to be a justice of the Supreme Court of the United States. For a small, isolated college, Kenyon produced a remarkable number of national political figures of this era. In addition to Hayes and Matthews, both Edwin M. Stanton, Lincoln’s Secretary of War, and David Davis, whom Lincoln appointed to the Supreme Court of the United States, attended Kenyon.

  After graduation, Hayes decided on a career in the law. As was common then, he began to read law in the office of a lawyer in Columbus. Fanny and her husband had moved there, which made it attractive to him as a place to study; but after nearly a year, he decided he was not progressing fast enough. He decided to attend Harvard Law School. He obtained some money from the sale of family land, and his uncle Sardis contributed the balance toward his expenses at Harvard.

  He enrolled there in August 1843 and was very impressed with professors such as Joseph Story, a sitting justice of the U.S. Supreme Court, and Simon Greenleaf, who had written the authoritative Treatise on the Law of Evidence. Story at this time had served over thirty years on the Court, having been appointed an associate justice by James Madison in 1811. But he disappointed Madison and his predecessor, Thomas Jefferson, by quickly moving into the camp of Chief Justice John Marshall, who shared his preference for a strong federal government.

  Story did not confine himself to judging and teaching. Like Greenleaf, he had written highly regarded texts on several branches of the law. In addition, he had been president of a bank in Salem, Massachusetts, written speeches for Daniel Webster, and drafted bills for Congress dealing with the federal judiciary. While Greenleaf concentrated on the subject matter of the course, Hayes found that Story tended to introduce extraneous anecdotes from his own experience.

  Outside of class, he listened to the orations of historian George Bancroft and Congressman Robert Winthrop, as well as the speeches of septuagenarian John Quincy Adams. Adams, after serving as President, returned to the House of Representatives as a member from Massachusetts. Hayes found the orations of Daniel Webster, one of his Whig heroes, less impressive than he had imagined. All in all, 1844 was an exciting time to be in a city like Boston, where there was much agitation over proposals

  Rutherford B. Hayes (seated, left), Guy Bryan (standing), and Stanley Matthews (seated, right), taken in either 1843 or 1848.

  to annex Texas to the Union, and much interest in the presidential race between the Whig candidate, Henry Clay, and the Democrat, James Polk.

  Hayes returned to Ohio for the summer of 1844 but went back to Harvard in the fall of that year to finish up his studies, which he did in January 1845. He was now twenty-two years old and ready to settle down to the practice of law.

  In March he went to Marietta, Ohio, to be examined by a committee of lawyers for admission to the bar. He passed the examination and was admitted to practice, returning to Columbus by way of Cincinnati. Cincinnati was then by far the largest city in the state, with a population of nearly 50,000. Columbus had a population of only 6,000, and Fremont—where Sardis lived and where Hayes planned to practice—had barely 1,000 inhabitants. Hayes chose a small town on the advice of his Harvard teacher, Professor Greenleaf, who counseled against hanging out one’s shingle in a large city.

  Hayes’ business in Fremont generally consisted of debt collections and the unscrambling of land titles. In the spring of 1846 the Mexican War began, and Hayes very nearly enlisted—but changed his mind at the last minute. He was critical of President Polk, but greatly admired General Zachary Taylor, who commanded American troops in their successful advance across the Rio Grande and into northern Mexico.

  Ill with a throat ailment in the spring of 1847, Hayes took the summer off and traveled to the East Coast with John Pease, a Fremont businessman, cousin, and client. Such an absence did not bespeak a thriving law practice. In the fall of 1848, he again took an extended vacation with Sardis, this time by steamboat to New Orleans, then on to Galveston and the Texas Gulf Coast to visit his classmate Guy Bryan. Warmly received and lavishly entertained by Bryan and his fellow planters, Hayes was here exposed for the first time to the institution of slavery. He felt that it was not only bad for the slaves, but bad for the masters. Returning to Ohio after four months, he wound up his practice in Fremont and moved to Cincinnati, now wanting to meet the challenge of a larger world.

  He rented a room with another young lawyer, a room which served as both living quarters and office for both of them. Business was slow at first, but Hayes relished the flourishing social and intellectual life of Ohio’s largest city. More importantly, he became engaged to Lucy Webb, the daughter of a friend of his mother’s, in June 1851. Nine years his junior, Lucy had been too young to be thought of as a marriage prospect when they had first met in Columbus, but she was now twenty. After an engagement that lasted more than a year, they were married in December 1852.

  Rutherford and Lucy Hayes began what would be a long and happy marriage by taking a short honeymoon trip to Columbus. Here Hayes argued his first case before the supreme court of Ohio. His client was James Summons, whom a jury had convicted of murdering two family members (he had poisoned four with arsenic but the other two had survived). Hayes argued on appeal that the testimony of a key witness had been improperly admitted. Shortly afterward he heard that a majority of the court favored reversal, but then later learned that one justice had changed his mind and the court was deadlocked. He would argue the case twice more, and finally, four years later, the supreme court upheld Summons’ conviction.

  The question before the court was whether an incriminating statement made by a witness at an earlier trial of Summons could be testified to by someone who had heard her at that trial; the witness had since died. At this time it was not customary to have verbatim transcripts of trial testimony where there had been no appeal, and so the state offered the testimony of one of the prosecutor’s clerks at that trial who had written down what the witness said. Hayes had argued that such testimony violated the hearsay rule, but the supreme court decided by a vote of 3 to 1 that it was properly admitted under an exception to that rule. The Governor, however, commuted Summons’ sentence to life in prison.

  Hayes’ reputation as a criminal defense lawyer grew with his performance in this and other capital cases. One such case was that of Nancy Farrer, charged with the murder of an eight-year-old boy. He argued that she was legally insane. The jury deliberated for days, and then brought in a verdict of guilty. Hayes appealed the conviction to the state supreme court, claiming that jury misconduct vitiated the verdict. The supreme court agreed and sent the case back for a new trial. This time Hayes persuaded the jury that Farrer was “of unsound mind”; she was saved from execution and was committed to a mental institution.

  The publicity Hayes received in cases such as these was not bankable, and for more than a year after their marriage, the couple lived with Lucy’s mother. But Hayes also developed a civil practice t
hat was more remunerative than the criminal. His uncle Sardis had extensive real-estate holdings in and around Fremont, and was anxious to secure a rail line for the town. With its small population, Fremont could not be a destination, but it could be a way station on a railroad from Cleveland to Toledo. The Junction Railroad had been chartered to serve Fremont in that way, but then decided on a more direct route between Cleveland and Toledo which would bridge Sandusky Bay northeast of Fremont.

  Hayes represented the Fremont interests and sought an injunction against the new route in federal court in Cincinnati. He argued that the new route would violate the company’s charter— which called for it to go through Fremont—and also that a bridge across Sandusky Bay would be an obstruction to navigation. The case came before Justice John McLean in April 1853. McLean was a justice of the Supreme Court of the United States, but at this time the justices also sat as trial judges in their respective geographic circuits.

  McLean did issue an injunction, but only on the ground of violation of the charter, and not because of obstruction of navigation on Sandusky Bay. This left open to the railroad the option of merging with another line to avoid the charter problem, and it promptly did this. The new railroad offered to connect Fremont to Fort Wayne, Indiana, by a separate line, if the Fremont interests would drop the claim that the bridging of Sandusky Bay on the route between Cleveland and Toledo would obstruct navigation on the bay. Hayes advised his clients to accept the compromise, and they did.

  That same year Lucy gave birth to the first of their seven sons—Birchard, called “Birch.” The following year the couple felt able to buy a home of their own, and moved out of Mrs. Webb’s house.

  Hayes was active in local politics during this period, helping to start the fledgling Republican Party in Cincinnati. In December 1858, the city solicitor of Cincinnati was killed in a railroad accident, and Hayes was one of the lawyers nominated to fill the position. It was regarded as a political plum; the pay of $3,500 per year was more than twice that of a state trial judge. After thirteen ballots of the sharply divided city council, Hayes was chosen.

  One of Hayes’ rivals for the position wrote of the winner’s “luck” in obtaining the position. But as Hayes’ most recent biographer, Ari Hoogenboom, points out:

  In time, Hayes’ luck became an axiom for Ohio political pundits, but it was neither blind nor dumb. Hayes never appeared to be seeking office, but by instinctively and deliberately enhancing his availability, he created conditions conducive to good luck. Eschewing extreme positions, he made himself acceptable to a wide spectrum of voters. Genuinely decent and kind, he was careful not to take his friends for granted nor to offend his rivals. . . . His reputation for fairness and integrity made Hayes acceptable to many with whom he was not in agreement.1

  Hayes would enthusiastically support Abraham Lincoln when he received the Republican nomination for President in 1860. In February, the President-elect left his home in Springfield, Illinois, on a railroad journey which would take him through Indiana, Ohio, Pennsylvania, New York, New Jersey, and Maryland, and ultimately to Washington, D.C. Hayes met the train in Indiana and rode with the presidential party to Cincinnati.

  His admiration for Lincoln deepened, but his worry about the fate of the Union increased. No sooner had Lincoln been elected in November than South Carolina began a procession among the states of the lower South to secede from the Union. James Buchanan was a lame-duck President until March 4, and he simply threw up his hands at the situation confronting him. Lincoln, succeeding Buchanan, debated with his cabinet for six weeks over what to do about the Union garrison at Fort Sumter, located on an island in the harbor of Charleston, South Carolina. The Confederates demanded that the Union troops surrender; finally, on April 12, the shore batteries in Charleston Harbor opened fire, and the Union garrison evacuated the fort two days later.

  Hayes responded with alacrity to Lincoln’s call for volunteers. There was none of the ambivalent attitude that he had felt about enlisting in the Mexican War. Hayes and his Kenyon friend, Stanley Matthews, volunteered together, and in the first week of June, Hayes was appointed a major and Matthews a lieutenant colonel in the Twenty-third Regiment of Ohio Volunteers. Hayes would fight for the Union until mustered out four years later.

  The regiment was billeted at newly established Camp Chase on the outskirts of Columbus from early June until late July. Hayes, who had no previous military experience, took readily to his new role, learning quickly about the three ways to do things: the right way, the wrong way, and the Army way. When the colonel in command, William S. Rosecrans, was absent, Matthews and Hayes were in charge. “ ‘What we don’t know, we guess at,’ Hayes reported. ‘And you may be sure that we are kept busy guessing.’ He enjoyed it all ‘as much as a boy does a Fourth of July.’ ” 2

  Rosecrans was promoted to brigadier general and ordered into then western Virginia—now the state of West Virginia. In late July, the Twenty-third Regiment was ordered to join Rosecrans’s forces at Clarksburg. Thus began a campaign of several months to drive the Confederates out of West Virginia. Hayes came under fire for the first time at Carnifex Ferry on the Gauley River and was pleased with his coolness. In October the regiment went into winter quarters at Fayetteville, and Hayes was promoted to lieutenant colonel. There being not much to do, he boned up on military texts and enjoyed life in the outdoors. In February he obtained leave to visit Lucy and their newborn son, Joseph, who lived only eighteen months.

  After inconclusive and desultory fighting in the spring of 1862 in West Virginia, Hayes’ regiment, along with five others in the division of General Jacob Cox, was pulled out of West Virginia and assigned to General Jesse Reno’s corps of Ambrose Burnside’s army. Burnside’s corps was part of General George McClellan’s Army of the Potomac, which was now pursuing the Confederate force of General Robert E. Lee. Lee had crossed the Potomac after the Second Battle of Manassas and was marching through Maryland.

  The Union Army marched north to Frederick, Maryland, and then turned west into the Blue Ridge Mountains. One of Lee’s aides had left behind a paper, found by a Union officer, which showed that Lee’s troops were badly divided. McClellan sought to push through Turner’s Gap in South Mountain, and ordered Reno’s corps to do it; Reno in turn chose Cox’s division and it fell to Hayes and the Ohio Twenty-third Regiment to spearhead the attack. Hayes led his men up a mountain path toward the pass, where they were met by a strong Confederate force. Hayes twice ordered the troops to charge, and finally the enemy broke. Just as they did, Hayes was hit by a musket ball in his right arm, fracturing the bone and leaving a large hole.

  At first he tried to continue directing his men, but he felt faint and had to lie down. Weak from the loss of blood, he was only intermittently conscious and was briefly left in front of his own lines at the mercy of the Confederates. But one of his lieutenants rescued him, and he was taken to a field hospital where his wound was dressed, and then to the rear by ambulance. A local merchant in Middletown, Maryland, took Hayes into his house to recuperate from the wound. The next day he sent telegrams to Lucy and others telling of his wound.

  Unfortunately, due to a mix-up, Lucy did not receive the telegram, and learned of Hayes’ wound only from a second telegram received several days later. The message appeared to have come from Washington, and Lucy started for that city with Will Platt, Hayes’ brother-in-law. But after a search at military hospitals in the capital proved unsuccessful, they discovered that the telegram had come not from Washington, but from Middletown. They took the train to Frederick and located Hayes in the merchant’s home. Hayes now improved steadily, but the arm continued to give him spells of pain.

  He went on leave in October and November 1862, brushed off an offer to support him for election to Congress, and returned to the Army. He was in West Virginia for a time but finished the war in the thick of the fighting in the Valley of Virginia in the summer and fall of 1864. He was promoted to brigadier general and was mustered out of the Army in 1865. />
  Being a warrior had been hard, but it had given Hayes the experience of a lifetime. When his soldiers were leaving for home, Hayes doubted “that many of them will ever see as happy times again as they have had in the Army.” As he was about to lose the camaraderie of camp and field, he realized that the four most glorious years of his life were ending. But, if war had been fascinating, he sensed that peace could be enchanting and knew that its time had come. To his mother, Hayes simply wrote, “I am very happy to be through with the war.”3

  Even though he had declined to run in 1862, Hayes was elected to Congress from his Cincinnati district in 1864 while still in the Army. The first session of that Congress did not begin until December 1865. Hayes left for Washington in late November by himself. There had, of course, been no representatives from any of the seceded states during the war, and now the Ohio Republican delegation voted to oppose any representation from those states for the time being. This Congress would be the first to deal with the political aftermath of the war, and one of the first orders of business would be to decide how the states of the former Confederacy should be integrated back into the Union.

  Lincoln had favored a conciliatory policy toward these states. In 1864 he had proposed that Louisiana—by that time wholly under the control of the Union military—should be “readmitted” when 10 percent of the 1860 voting population took an oath of loyalty to the Union. The Radical wing of the Republican Party—headed by Benjamin Wade of Ohio and Charles Sumner of Massachusetts in the Senate, and by Thaddeus Stevens of Pennsylvania in the House, favored something closer to a “Carthaginian Peace”: these states should be treated for the present as “conquered provinces” rather than as sister states.