Centennial Crisis- the Disputed Election of 1876

by William H Rehnquist

  But Tilden’s supporters proved that two could play at that game. An investigation by a congressional committee two years after the election revealed that telegrams in cipher were exchanged between Manton Marble and C. W. Woolley, Tilden agents in Tallahassee, and Colonel W. T. Pelton in New York. Pelton, Tilden’s nephew, lived under the same roof with him; he was also secretary of the Democratic National Committee. One of the exchanges read thus:

  COL. PELTON, NO. 15 GRAMERCY PARK, N.Y.: CERTIFICATE REQUIRED TO MOSES DECISION HAVE LONDON HOUR FOR BOLIVIA OF JUST AND EDINBURGH AT MOSELLE HAD ANY OVER GLASGOW, FRANCE REC. RUSSIA OF.

  The dispatch when translated read:

  Have just received a Bolivia [proposition] to hand over at any hour required Russia [Tilden] decision of London [Canvassing Board] and certificate of France [Governor Stearns] for Moselle [two] Glasgow [hundred] Edinburg [thousand]. Moses [Manton Marble].

  To this the following reply came:

  TELEGRAM HERE. PROPOSITION TOO HIGH.4

  December 6 was the day fixed by law for the electors to gather in their respective states and cast their votes. In thirty-four states this ordinarily ministerial function occurred without controversy. But in Florida, South Carolina, Louisiana, and—at the last minute—Oregon—the question was “Which electors?”

  The State Canvassing Board in Florida met and began its work in late November.

  Of the states which were in dispute, Florida was most different in 1876 from what it is today. Its population in 1870 was 187,248, concentrated in the northern part of the state and mostly rural. (Miami would not even become an incorporated city until 1896.) The population of Key West was 10,000; Jacksonville a little under 7,000; Tallahassee just over 2,000; and Tampa less than 1,000. By 1880, there were about 1,300 miles of railroad track in the state, but concentrated in the northern half. Railroad lines connected points in north Florida with Georgia and Alabama, and a track ran across the neck of the peninsula to connect with ports on both the Atlantic Ocean and the Gulf of Mexico. The railroad would not reach Miami for another twenty years. There were slightly fewer than 50,000 votes cast in the 1876 presidential election, in contrast with the more than 6 million counted in 2000.

  The State Canvassing Board at this time consisted of the state attorney general, William Cocke, a Democrat, and Samuel B. McLin and Clayton A. Cowgill, both Republicans. The board’s authority went beyond merely counting the returns that were submitted from the various counties of the state. In the 1874 election, Cocke had given an opinion that the board had discretion to exclude returns that were “irregular, false, or fraudulent.”

  The board began its work in public, and numerous “visiting statesmen” from both parties were allowed to be present. On the face of the returns from the various counties, Tilden led Hayes, but by a margin of only 80-some votes. The board exercised its discretion to reject some of these returns, some unanimously, others by a party-line vote of 2 to 1. It finally concluded that Hayes had won the state over Tilden by a majority of 45 votes.

  What the result would have been if the returns had been canvassed by an unpartisaned board it is impossible to say with certainty. At the same time it is clear that if none of the returns had been rejected and if in Baker County the return containing all the precincts had been substituted for the Driggers return, the result would have been a majority for the lowest Tilden elector over the highest Hayes elector of 93 votes. How nearly these returns corresponded to the votes in the ballot boxes can never be ascertained. 5

  While a fair count of the votes cast in the state of Florida might have resulted in a small majority for Tilden, a free election would with far greater certainty have resulted in a substantial majority for Hayes. The Board did not throw out votes, not even single “marked ballots,” on the score of intimidation; yet no one familiar with the evidence and with the attitude of the Southern Democrats toward negro suffrage will for a moment doubt that there was sufficient intimidation to change the whole result.6

  On the basis of the board’s conclusion, the Republican electors on December 6 met and cast their votes for Hayes. Results certified by the Governor were sent to the President of the Senate on Washington.

  The Democratic electors in Florida, although having no official status, met at the same time as the Republican electors and cast their votes for Tilden. Attorney General Cocke—a Democrat—irregularly certified their result and sent it to the President of the Senate. To complicate matters further, George C. Drew, the Democratic candidate for Governor, requested the state supreme court to direct the canvassing board to re-count the votes for Governor without exercising any discretion to reject returns. The Democratic-leaning court granted his request, and following the recanvass he was declared Governor.

  But the legal proceedings did not stop here. The Democratic presidential electors obtained a ruling from a state trial court that they were the ones properly chosen; this decision was appealed by the Republicans, and the case, of course, became moot after March 4, inauguration day. Finally, in the first week of January 1877, the newly elected Democratic legislature enacted as a first order of business a law creating a new canvassing board to reexamine the November 7 votes. The new board, consisting entirely of Democrats, to no one’s surprise declared that Tilden had defeated Hayes by about 90 votes. The legislature then directed that the votes of Democratic electors be certified by the Governor and sent to the President of the U.S. Senate.

  In Louisiana the returns from throughout the state on their face gave Tilden a lead of between 8,000 and 9,000. The state had a turbulent history even before the Civil War, and the turbulence increased during the period of Reconstruction. In July 1866, for example, the Radical Republicans attempted to reconvene an earlier constitutional convention in order to enfranchise the freedmen. The mayor of New Orleans sought to suppress the convention; a riot ensued in which about 40 blacks and 1 white Radical were killed and many more wounded. This uprising drew national attention, and was one of the factors which enabled the Radical faction of the Republican Party to gain control of Congress in the election of 1866. The entire period in Louisiana is described by Paul Haworth in these words:

  In general the period [from 1868 to 1876] was one in which the party in opposition, consisting of most of the white inhabitants, pursued a policy of intimidation, even to the extent of assassination; while the party in power, consisting chiefly of negros and white carpetbaggers, resorted to election frauds and to unblushing misappropriation of public funds. 7

  The State Returning Board convened on November 17. The board had the same sort of discretion as its Florida counterpart to reject returns for fraud, and even, under some circumstances, where force or intimidation had occurred. The composition of the board was not one to inspire confidence in the Democrats. Its membership was set by law at five, with representation from both parties required. But the one Democrat on the board had previously resigned, and the remaining Republicans had made no effort to replace him. Madison Wells, the president of the board during the Reconstruction regime, had been removed as Governor by General Philip Sheridan for dishonesty. In a letter to Secretary Stanton, Sheridan wrote: “I say now unequivocally that Governor Wells is a political trickster and a dishonest man. . . . His conduct has been as sinuous as the mark left in the dust by the movement of a snake.”8 His fellow members— Thomas Anderson, Louis M. Kenner, and Gadane Casanave— were not held in high regard by impartial observers.

  After a closed meeting, the board decided to invite five each of the Republican and Democratic delegations to attend their public meetings. The board received protests, and accepted affidavits in oral testimony. It held twelve public sessions and then retired to reach its decision. During this period rumors circulated that Wells, at least, was for sale to the highest bidder. It was never proved that he took any money. But it may not have been coincidental that Hayes, after he was elected, appointed Wells and two other members of the board to local federal offices. The board released its conclusion two days before
the December 6 deadline; it rejected more than 13,000 Democratic and about 2,500 Republican ballots. The result gave Hayes a majority of a little more than 3,000, which was certified and sent to Washington.

  On the same day that the returning board announced its decision, Democratic electors met and, on the basis of their own canvass of returns, declared themselves to be the chosen electors and voted for Tilden. Their certificate was signed by John Mc-Enery, who claimed to have been elected Governor in 1874. After pitched street battles and the intervention of federal troops, he had been deposed and replaced by the Republican candidate, William P. Kellogg.

  In South Carolina, federal troops had been stationed in various parts of the state ever since the end of the Civil War. Blacks outnumbered whites in the state by a ratio of five to three, and they voted a virtually straight Republican ticket. Often they made up a majority in the legislature. In the summer of 1876, racial hostility lead to the Hamburg Massacre, in which one white man and as many as a dozen blacks were killed, some after they had been captured by an armed posse of whites. Governor Daniel Chamberlain appealed to Grant to send troops into the state in October, and the President obliged.

  On election day, there was illegal voting by both white Democrats and black Republicans. The Democrats carried their state ticket, electing Wade Hampton as Governor, but the same ballots gave Hayes a win over Tilden. The Board of Canvassers so certified the returns, outwitting the efforts of the state supreme court to thwart it.

  The court thereupon held the members of the board in contempt, fined them $1,500 each, and committed them to the county jail in Columbia, the state capital. They were almost immediately released on writs of habeas corpus by a judge of the federal court.

  The historian James Ford Rhodes, writing in 1906, described the situation in the country in the late fall of 1876 in these words:

  The dispute in Congress, in the press and among the people was fierce. The Democrats kept up a persistent cry of fraud but the Republicans retorted that the fraud was on the other side. . . .

  No prospect was apparent of their reaching any common ground. . . . Some Senators and Representatives derided the idea of danger; but anyone, who lived through those days in an observing and reflective mood, or anyone, who will now make a careful study of the contemporary evidence, cannot avoid the conviction that the country was on the verge of civil war. The number of men out of employment and in want owing to the depression of business, the many social outcasts in the community, whom the railroad riots seven months later disclosed, constituted a formidable army who were ready for any disturbance that might improve their condition or give them an opportunity for plunder. The mass of adherents on each side, which was clearly indicated by the closeness of the vote in many Northern States, shows what a terrible internecine conflict would have followed a bloody affray on the floor of Congress.9

  In Oregon, there was no disputing that the Republican electors had been chosen by a margin of about 1,000 votes. But one of the electors, John W. Watts, was a deputy postmaster in a small village a few miles southwest of Portland. He was a fourth-class postmaster and received an annual salary of $268. But Article II, Section 1, of the Constitution provided that no “Person holding an Office of Trust or Profit under the United States shall be appointed an elector.” All agreed that Watts was subject to this prohibition. But the state law provided that “if there shall be any vacancy in the office of an elector, occasioned by death, refusal to act, neglect to attend, or otherwise, the electors present shall immediately proceed to fill, by viva voce and plurality of votes, such vacancy in the electoral college.” The clear intent of this law was that the remaining electors should fill the vacancy.

  The Oregon Democrats were slower than their counterparts in the East to exploit this possible opportunity. But they were goaded into action by Tilden agents in New York. The view there was that if one elector in Oregon was a Democrat, the result would force the Republicans to “go behind the returns” sent to Washington and thereby reveal the inconsistency of their position with that taken in Louisiana and Florida. This Oregonian view was embodied in the following telegram sent from Abram Hewitt to Governor L. F. Grover, a compliant Democrat:

  UPON CAREFUL INVESTIGATION, THE LEGAL OPINION IS THAT VOTES CAST FOR A FEDERAL OFFICE-HOLDER ARE VOID, AND THAT THE PERSON RECEIVING THE NEXT HIGHEST KNOWN NUMBER OF VOTES SHOULD RECEIVE THE CERTIFICATE OF APPOINTMENT. THE CANVASSING-OFFICER SHOULD ACT UPON THIS, THE GOVERNOR’S CERTIFICATE OF APPOINTMENT BE GIVEN TO THE ELECTOR ACCORDINGLY, AND THE SUBSEQUENT CERTIFICATE OF THE VOTES OF THE ELECTORS BE DULY MADE SPECIFYING HOW THEY VOTED. THIS WILL FORCE CONGRESS TO GO BEHIND THE CERTIFICATE, AND OPEN THE WAY TO GET INTO MERITS OF ALL CASES, WHICH IS NOT ONLY JUST, BUT WHICH WILL RELIEVE THE EMBARRASSMENT OF THE SITUATION.

  Not content with giving long-distance advice to Oregon Democrats, headquarters sent out to that state from Omaha J.V.H. Patrick. Shortly after he arrived, Patrick sent a cipher telegram to New York saying it would be necessary to buy the vote of one of the Republican electors for a price of $10,000. Money was deposited into Patrick’s account, but this particular scheme was never consummated.

  On December 4, the Oregon secretary of state found that the Republican electors had received the highest number of votes. But then Governor Grover, who was by law present at the canvass, announced he would hear argument on a Democratic protest of the result the following day. After argument, he said that the votes cast for Watts were void and that E. A. Cronin, a Democrat, should be the third elector. Once more, two sets of returns—one giving Hayes all three of Oregon’s electoral votes, and the other giving Hayes two and Tilden one—were sent to Washington. Since Hayes needed every single contested vote to give him a majority in the electoral college, the loss of Oregon’s one contested vote would be fatal.

  The Oregon dispute had the effect that the Democrats hoped it would as a matter of logic, but as a matter of public relations it was a serious mistake. If the Republicans insisted that Congress, or the commission which it appointed, could not consider any material that had not been contained in the certificate sent to the President of the Senate in states such as Florida and Louisiana, how could they challenge the returns certified by the Governor of Oregon which gave Tilden one of its electoral votes? But if this was a legal coup, it was certainly not a political or public relations victory. With respect to Florida and Louisiana, the Democrats could forcefully argue that a large part of the public thought that Tilden had carried both of the states, and that surely he should not lose them both on what fairly might be thought to be the actions of politically biased Republican returning boards. But the Democratic position in Oregon—clearly contrary to state law—was even more egregious than the Republican position in Florida and Louisiana. Tilden, like Hayes, was playing a no-holds-barred game.

  — CHAPTER 6 —

  ON MONDAY, DECEMBER 4, two days before the presidential electors in the various states cast their votes, Congress reassembled. The Republican-controlled Senate was presided over by Thomas Ferry of Michigan; Speaker Samuel Randall of Pennsylvania oversaw the Democratic-controlled House. Each House appointed committees to investigate the vote counts in contested states. The House named a special committee and directed its members to go to Florida, Louisiana, and South Carolina to conduct its inquiries. One day later, the Senate Committee on Privileges and Elections was charged with a similar mission, which included not only the states just mentioned, but also Georgia, Alabama, and Mississippi.

  The respective committees set out on their journeys to the South where they took voluminous testimony from a great number of witnesses. Each committee issued both a majority and a minority report. The majority of the Senate committee—all Republicans—reported that the electoral votes of Louisiana, Florida, and South Carolina belonged to Hayes. The minority— all Democrats—concluded that they belonged to Tilden. In the House, the majority and minority reports were the exact opposite of those in the Senate. The two houses were at loggerheads; there was n
o evident way that Congress, following its regular procedures, could resolve the election.

  Prominent Democrats assembled in a kind of caucus to plan strategy. Fernando Wood, now a congressman but still remembered as the mayor of New York City who at the beginning of the Civil War had proposed that the city secede from the Union, urged the impeachment of President Grant for illegal use of troops during the election campaign. Some northerners agreed, but several southern members opposed any move that might lead to another civil war. No incendiary measures were approved by the caucus. Meanwhile, Congress received numerous petitions urging it to find a way to resolve the conflict.

  Senator George F. Edmunds of Vermont introduced a proposed constitutional amendment authorizing the Supreme Court to decide the contest. The proposal was debated several times in the Senate, but it was never passed. Representative George McCrary of Iowa offered a resolution calling for the appointment of a House committee to work with a similar Senate committee to devise a proposal “to the end that the votes may be counted and the result declared by a tribunal whose authority none can question and whose decision all will accept as final.”

  The resolution was referred to the House Judiciary Committee, where its fate was uncertain. Tilden opposed any compromise, but he played his cards so close to the vest that his lieutenants were often uncertain of his wishes and therefore unable to work for their attainment. He was not well liked by some of the Democratic power brokers in the House, and this made the task of his lieutenants more difficult.

  The Judiciary Committee amended the resolution to call for committees consisting of seven members of each House; this measure passed the House and the following day a similar one passed the Senate. The Senate committee consisted of four Republicans and three Democrats, and the House committee was the partisan mirror image of the Senate committee.