Centennial Crisis- the Disputed Election of 1876

by William H Rehnquist

  Justice Clifford, as president of the commission, spoke last. The principal point he made, in addition to those made by Justice Field, was that the amount of evidence that the Commission would have to consider, if it went that route, was not great. He said that the Tilden electors were relying on returns from four Florida counties which had been thrown out in whole or in part by the State Canvassing Board, and that these county returns were on file with the Florida secretary of state.

  He also argued that, legally, “fraud vitiates everything.” In other words, if the canvassing board had acted fraudulently, it was just as if it had not acted at all. He concluded by saying:

  Prompt investigation was made by the new board of State canvassers, and the legislature enacted the statute declaring that the Tilden electors were duly chosen and appointed the next day after the decree was entered in the quo warranto suit. Neither the public nor the citizens have any power to defeat the machinations of fraud, perjury, and forgery if the measures adopted for that purpose in this case are held to be ineffectual and insufficient.8

  There was a separate issue in the Florida case because it was claimed that F. C. Humphreys, one of the Hayes electors, had been appointed United States shipping commissioner by the Circuit Court for the Northern District of Florida. The Constitution, Article II, Section 1, provided that no “person holding an Office of Trust or Profit under the United States, shall be appointed an elector.” On September 24, 1876, Humphreys had sent his resignation to Circuit Judge Woods, who was then out of the state. On October 2, Woods replied, “Your resignation is accepted. The vacancy can only be filled by the Circuit Court, and until I can go to Pensacola to open the court for that purpose, the duties of the office will have to be discharged by the collector.”9 The Tilden electors claimed that Humphreys’ resignation could only be accepted when the court was in open session, and therefore Humphreys had never been validly chosen as an elector. Though this issue involved only one vote, it should be remembered that Hayes needed every one of the disputed votes in order to win; if Tilden could win only one of them, he would be President.

  Bradley, though agreeing with the Hayes electors on the principal point at issue in Florida, held that evidence of Humphreys’ appointment and resignation should be considered by the Commission. On Thursday, February 8, these witnesses confirmed the facts described above, and counsel argued the point. Bradley concluded that Humphreys had resigned his office before the election, but even had he not, he was a de facto elector and his vote should be counted.

  Garfield then moved that the Commission find that the Hayes electors had been lawfully chosen, and the motion carried by a vote of 8 to 7—all of the Republicans voting for it and all of the Democrats voting against it. Senator Edmunds and Justices Miller and Bradley were appointed to draft a report to that effect; it was duly prepared, signed by the eight Republican members of the Commission, and sent to the President of the Senate. Upon the reading of the report to the joint session, the Senate withdrew to its chambers and promptly voted to sustain the decision of the Commission by a margin of 44 to 24. The House, after considerable debate, voted 168 to 103 to reject the report of the Commission. Since only one of the two houses had voted to overturn its report, the decision of the Commission was upheld and Florida’s four electoral votes were counted for Hayes.

  The tallying of the electoral votes by the joint session of Congress now resumed. The certificates from Georgia, Illinois, Indiana, and Iowa were not controverted. But then came Louisiana. Here, as with Florida, there were multiple certificates, members’ objections to certificates unfavorable to their party, and a reference to the Electoral Commission.

  The situation in Louisiana was different from that in Florida in at least two respects. First, there had been no court decisions in that state which attempted to decide the outcome of the election. Second, the returning board in Louisiana had thrown out not just a few votes, as was done in Florida, but thousands. Again, the question of “going behind the returns” and taking evidence was raised. Democrats spoke of fraud; Republicans spoke of intimidation of black voters. But after debate in closed session, the Commission by the same vote of 8 to 7 decided that it could not go behind the certificates and that the Hayes certificate was valid.

  The joint session reconvened to receive the Commission’s report; as with Florida, the Senate accepted it, and the House, after much rhetorical denunciation of the Commission, rejected it. Under the Electoral Commission law, Louisiana’s votes, like Florida’s, would be counted for Hayes.

  Serious objections remained to be considered against the certificates of Oregon and South Carolina; both were referred to the Commission. That body decided by the familiar 8-to-7 margin that the Hayes certificate from each should be received. The Senate accepted, and the House rejected, these reports. But, beginning with the House debate on the Oregon certificate, a minority of Democrats began to delay proceedings in that body by offering dilatory proposals. One group, about forty in number, were the ones most outraged by what they regarded as the fraud on the nation perpetrated by the Republicans in general and by the Commission majority in particular. A second subset, mostly southerners, were willing to see the electoral count completed but in the meantime wanted to threaten the Republicans in order to extract some concessions from them.

  These filibusters thought they would have at least the tacit support of the Speaker of the House, Samuel Randall of Pennsylvania. In the immediately preceding Congress, he had successfully held the floor for three days in an effort to defeat enactment of the Force bill. But now, as Speaker, he refused to entertain their motions, saying:

  The Chair rules that when the Constitution of the United States directs anything to be done, or when the law under the Constitution of the United States enacted in obedience thereto directs any act by this House, it is not in order to make any motion to obstruct or impede the execution of that injunction of the Constitution and the laws.10

  Beginning in the last week of February, Hayes’ supporters began making overtures to the southerners. Charles Foster, the representative from Hayes’ own district in Ohio, said in a speech on the floor of the House that if Hayes were elected, “the flag should wave over states, not provinces.” On February 26, three meetings were held in Washington between representatives of Hayes—Stanley Matthews, John Sherman, James Garfield, and William Dennison—and representatives of the southerners— Representative John Young Brown of Kentucky, Senator J. B. Gordon of Georgia, Representative W. M. Levy of Louisiana, and Henry Watterson representing South Carolina. Out of these meetings came the following letter:

  GENTLEMEN:

  Referring to the conversation had with you yesterday, in which Governor Hayes’s policy as to the status of certain states was discussed, we desire to say that we can assure you in the strongest possible manner of our great desire to have him adopt such a policy as will give to the people of the states of South Carolina and Louisiana the right to control their own affairs in their own way, subject only to the Constitution of the United States and the laws made in pursuance thereof, and to say further, that from an acquaintance with and knowledge of Governor Hayes and his views, we have the most complete confidence that such will be the policy of his administration.

  Respectfully,

  Stanley Matthews,

  Charles Foster.

  The southerners now began to withdraw their objections to the completion of the electoral count. After a rather spurious controversy over the electoral vote of Vermont—at that time as rock-ribbed a Republican state as there was—the count continued on to Wisconsin, the last state in the alphabetical order. Democrats attacked one of its electors as a federal employee and therefore ineligible. The debate carried over into the early morning hours of March 2. At about 4 a.m., the count was complete, and the President of the Senate, before declaring Hayes elected, commented:

  In announcing the final result of the electoral vote the Chair trusts that all present, whether on the floor or in the galleries,
will refrain from all demonstration whatever; that nothing shall transpire on this occasion to mar the dignity and moderation which have characterized these proceedings, in the main so reputable to the American people and worthy of the respect of the world.11

  — CHAPTER 9 —

  THE ELECTORAL COMMISSION’S DECISIONS were roundly denounced by the Democrats and heartily praised by the Republicans. Although eight members of the Commission had voted to sustain Hayes’ claims to the presidency, Bradley alone was singled out for special opprobrium. There were two reasons for this: First, because he was the “casting vote” among the fifteen members, replacing David Davis, who was thought to be a genuine Independent. Second, because he was believed to have changed his vote at the last minute at the behest of Republican friends.

  Bradley was indeed the “casting vote” on a commission composed of seven Democrats, seven Republicans, and himself. But his selection in that capacity cannot have been welcome to him. He was identified with the Republican Party. If in good conscience he concluded that its arguments should prevail, he would nonetheless be denounced as a partisan, in a way that Davis would not have been had his reasoning followed the same course.

  The arguments in favor of Tilden were easier to grasp than those in favor of Hayes. Tilden had won a majority of the popular vote, and there was strong evidence that at least in Louisiana a partisan returning board had fraudulently disallowed more than enough returns to deny him the state’s electoral votes. The charge against the board was not simply incompetence, or negligence, but fraud—deliberate tampering with the returns to produce

  “The Electorial Committee in session in the Supreme Court Chamber,” from the February 17, 1877, issue of Harper’s Weekly.

  the outcome desired by the board. The fact that all four members of the board were Republicans, and that its chairman, Madison Wells, had an unsavory reputation, lent substance to the charge. Surely there must be some way to remedy this wrong and award the presidency to Tilden, who had rightly earned it.

  The reasoning of the pro-Hayes Republicans was far more complicated and must be placed in the context of the times to be fully understood. The Englishman James Bryce wrote a well-regarded study of the American system of government entitled The American Commonwealth in 1889. He relates the following incident:

  Some years ago the American Protestant Episcopal Church was occupied at its triennial Convention in revising its liturgy. It was thought desirable to introduce among the short sentence prayers a prayer for the whole people; and an eminent New England divine proposed the words “Oh Lord, bless our nation.” Accepted one afternoon on the spur of the moment, the sentence was brought up next day for reconsideration, when so many objections were raised by the laity to the word “nation,” as importing too definite a recognition of national unity, that it was dropped, and instead there were adopted the words “Oh Lord, bless these United States.” 1

  There was not only a different perception of the relationship between the states and the nation at this time than there is today, but the reality was, in fact, quite different. Until the Civil War, Congress had followed what might be called the “night watch-man” principle of government. It provided for the common defense, delivered the mail, collected customs duties at the country’s ports, and left the remainder of governing to the states. All of this was beginning to change with the industrialization following the Civil War, but in 1876 most of the change toward a more active federal government lay in the future.

  Structurally, too, the system of national government gave the states a greater role than it does now. Today, members of the United States Senate are elected by popular vote in their respective states. But it took the Seventeenth Amendment to the Constitution, adopted in 1913, to bring that about. Before then, the legislatures of each state elected its senators. When, after the Lincoln-Douglas debates in 1858, Illinois picked Stephen A. Douglas as its senator, the choice was made not by popular vote but by the Illinois legislature. State legislatures did not hesitate to attempt to instruct the senators they had chosen as to how to vote on a matter pending in the Senate. Senators were thought of as representing their states as entities, as well as the people in their states, to a degree that lessened with the Seventeenth Amendment.

  In the Hayes–Tilden dispute, this concept of state sovereignty played an important role. Everyone agreed that the Electoral Commission could do no more by way of investigation of state election returns than Congress itself could do. The Republican position was that the Constitution left the choice of electors to the states, and that with rare exceptions Congress could not “go behind” the certificates which they sent to the President of the Senate. It could not, therefore, examine the correctness of the vote count certified by state officials. While a state itself could provide for challenges to the count, those challenges had to be concluded by the December date on which the electors meet and cast their votes. Once the designated electors had done this, no later state proceedings (such as those in Florida) could occur, and Congress itself could not conduct a reexamination of the outcome of the election.

  The Republican position was based not only on the Constitution but also on fear for the consequences if congressional reexamination were allowed. The question to be examined, of course, was which candidate had actually received the majority of votes cast in a given state. But how would the Commission (or in future cases, the joint session of Congress) go about this? Justice Field suggested that they need only consult the majority report of the committee of the House of Representatives which had toured the disputed states after the election and concluded that Tilden had won Florida and Louisiana. But this was hardly acceptable to the Republicans. The House was controlled by Democrats, and the Republican-controlled Senate majority report had come to the exact opposite conclusion.

  David Dudley Field told the Commission that he was prepared to prove by “clouds of witnesses and by a host of documents” that Tilden had carried Florida. Justice Miller described the material offered to the Commission as “a large pile of papers, a half-bushel perhaps in quantity. . . . They may be ex parte affidavits taken in the morasses of Florida, the slums of New York, the private office of retained counsel in this city.”

  The returning boards themselves merely received tallies compiled by voting officials in the various counties or parishes of the state in question. If the Commission could review the conclusions of these state returning boards, could it also examine the tallies compiled in each county? What would be the basis of the challenges? The Democrats emphasized the likelihood of fraud—that returning boards had disallowed proper votes in order to reach a desired result. The Republicans spoke of intimidation of black voters—would this, too, be a permissible issue? If so, there was an added difficulty in that the chain of causation was much more indirect and difficult to prove. If night riders had gone through a town two weeks before the election, would claims be entertained that black voters refrained from voting because of this?

  Since the Electoral Commission refused to receive any of the evidence offered, it is not possible to say how time-consuming even an inquiry into the claims of fraud would have been, or how clear-cut any result would have been. Perhaps a truly independent commission could, in due time, have produced satisfactory proof that, at least in Louisiana, Tilden had received a majority of the vote. But at what cost in terms of future challenges in close presidential elections? If control of the House and Senate in future contests were divided between the two parties, as it was in 1876, the result would likely have been the creation of another electoral commission, with the same number of partisans on each side, and one presumed neutral member who would in fact decide the issue for the entire commission.

  But if both houses were controlled by the same party, there would be no need for a commission. Congress could appoint a joint committee to examine and report, with some suspicion that the result was foreordained. Each House of Congress would go through this process in connection with challenges to the election of its o
wn members, but the Constitution expressly confers this authority upon it. There is no similar constitutional provision in the case of counting the electoral votes for President.

  One need not choose between the Democratic and Republican arguments to say that the position accepted by Bradley was a reasonable one. Two contemporaneous sources confirm at least the reasonableness, if not the outright correctness, of Bradley’s stance. First is the comment of David Davis himself on the matter, Davis having been viewed as a true Independent by members of both parties. Privately he said of Bradley’s position, “No good lawyer, not a strict partisan, could decide otherwise.”2

  The second support for Bradley’s position came in an earlier Senate debate predating the Hayes–Tilden contest when there was no actual dispute over the counting of electoral votes and neither party had an ax to grind. Congress, in February 1865, had adopted Joint Rule 22, which provided that, when electoral votes were being counted in the joint session of Congress, “no vote objected to shall be counted except by the concurring vote of the two Houses.” In 1875, the Senate debated a proposal by Senator Morton of Indiana to amend Joint Rule 22 and provide that “no objection to any such vote shall be valid unless such objection is sustained by an affirmative vote by both Houses.” The effect of this proposal would be to reverse the principle of Rule 22— instead of requiring both houses’ concurrence to overrule an objection, it would require such a vote to sustain an objection. That is to say, no objection could prevent an electoral vote from being counted unless both houses of Congress agreed.

  In the ensuing debate, some of the Senate’s ablest members expressed their views on the general subject. No measure was actually adopted, but there was substantive agreement on both sides of the aisle that in its consideration of an objection Congress could not “go behind” the certifications sent in by the states. Professor Charles Fairman states that this was “the view of Thurman, Bayard, and other Democrats, as well as of Frelinghuysen and other Republicans in the debates of 1875 and 1876: ‘It could not be done.’ ” 3