Centennial Crisis- the Disputed Election of 1876

by William H Rehnquist

  Nevins gives his own evaluation of Hewitt’s “Secret History”:

  This statement in all probability explains Bradley’s mysterious vote. Rumors of what had happened that fateful night were soon bruited abroad, some very inaccurate and unfair. Judge Bradley later seized upon these reports, one of which included the harsh accusation that he had succumbed to pressure from Texas Pacific Railroad magnates, to issue a long statement. He admitted that he had written a decision favorable to Tilden. But he explained that he had followed the alleged practice of some jurists in writing out two opinions, thus giving the arguments on both sides, and intending to accept in the end whichever seemed the stronger. In a world where anything is possible, this is possible. But it is certainly hard to believe. If the practice mentioned ever existed, it was excessively rare. There was no need to write out the argument, for they lay in printed form before the judges. Bradley’s quick, clear mind was one of the last on the tribunal to require such aid. Moreover, the vital question of going behind the returns was not complex and did not require elaborate argument—it was a very simple issue of principle.14

  To say that there was no need to write out the arguments because they were contained in briefs is to take some liberty with the facts and to fail to understand the preparation of judicial opinions on different questions. What Bradley actually said was that he “wrote and re-wrote the arguments and considerations on both sides.” Surely this does not mean that he mechanically copied first from one brief and then from the other. First and foremost, most of the arguments of counsel had been oral. There were only three written briefs submitted, and all of those were on behalf of Tilden: no written briefs were submitted on behalf of Hayes. Second, a judge must know, and understand to the best of his ability, the arguments made by each party. In a case which is squarely controlled by previous decisions this may be enough. But in a difficult case raising novel questions, it is not. Briefs, even good briefs, may be like two ships passing in the night, neither one squarely dealing with the arguments of the other. The all-important process of bringing to bear one’s judgment is a good deal more than reciting the arguments on each side and announcing the results.

  To say that the “vital question of going behind the returns was not complex and did not require elaborate argument—it was a very simple issue of principle” is not only to subscribe to the arguments of the Tilden supporters, but to declare that there is nothing to be said on the other side. Surely the arguments pro and con set forth at the beginning of this chapter dispose of this simplistic proposition. There was more than one “principle” involved, as there is in most important cases.

  Nevins’ treatment of this subject is, I believe, flawed in two respects. First, he gives uncritical credence to Hewitt’s “Secret History,” and then compounds this mistake by giving his own one-sided assessment of the merits of the case before the Electoral Commission.

  When Hewitt appraised Bradley as a possible member of the Commission, he considered him as “a very able lawyer and man of the highest integrity.” Surely that reputation should have weight in deciding between the unsupported accounts in the New York Sun and Hewitt’s “Secret History” on the one hand, and Bradley’s flat denial of the principal thrust of those accounts on the other. No one writing at the present time can know for certain where the truth lies, but, it would seem, the very most those accounts warrant is a Scottish verdict of “not proven.”

  — CHAPTER 10 —

  HAYES AND HIS FAMILY remained in Columbus until the counting of the electoral vote by Congress was nearly finished. They then boarded a train for Washington, and near Harrisburg the President-elect received word that Senate President Ferry had declared him elected President, and Congress had adjourned. Because March 4 fell on a Sunday, the formal inauguration ceremony was scheduled for Monday. But to avoid any possible disruption, the new President was privately sworn in at the White House on Sunday, March 4. Both Stephen Field and Nathan Clifford boycotted the public ceremony on Monday; indeed, Clifford would never set foot in the White House during Hayes’ term as President.

  The newly elected leader faced a difficult task. Half of the nation regarded his presidency as illegitimate, and his opponents referred to him as “Rutherfraud.” His own party preferred him to Tilden, but was by no means united on the questions with which he would have to deal. Elements in the party wanted civil service reform, but the Senate’s Republican barons were determined to retain their patronage prerogatives. He would confront the necessity of pulling the last federal troops out of the former Confederacy, the question of civil service reform, the “currency questions”: still in a depression, renewed demands for inflationary measures came from farmers and from the western states.

  Hayes appointed a strong cabinet, headed by William Maxwell Evarts as Secretary of State, John Sherman as Secretary of the Treasury, and Carl Schurz as Secretary of the Interior. Evarts was a highly respected New York lawyer who had overseen much of the advocacy on Hayes’ behalf before the Electoral Commission. Sherman, a fellow Ohioan, was knowledgeable

  William Evarts, c. 1860s–1870s.

  about finances from his service in the Senate. Schurz was a longtime champion of civil service reform and therefore obnoxious to the Senate barons. Hayes failed to consult with any of the party leaders about his cabinet, and the Senate took revenge by referring all of the nominations to committees—even that of its own member John Sherman. Though each nominee was in due course confirmed, the Senate’s initial rebuff to Hayes was a harbinger of strained relations over patronage matters.

  Hayes had never explicitly approved the commitment made by his lieutenants to remove federal troops from Louisiana and Florida. Grant had begun the process just before he left office but postponed further actions at Hayes’ request. The new President wished to extract, from the Democratic governors who would come into power upon the removal of the troops, a commitment that they would respect the rights of blacks under the Civil War Amendments to the Constitution. The governors duly promised, and the troops were removed shortly after Hayes took office. But the promises were honored largely in the breach.

  Hayes had little choice in the matter. Democrats in the House had already refused to appropriate funds for the continued use of troops. Northern public opinion had over time swung against the use of soldiers for this purpose in the South. Hayes has been criticized for ordering the withdrawal, but he had no practicable alternative. Surely if Tilden had been elected he would have done exactly the same thing.

  Hayes championed civil service reform to a greater extent than any of his predecessors. In June 1877, he ordered federal officeholders not to participate in elective politics, and prohibited the traditional assessments of federal employees to finance the campaigns of the party in power. These orders were by no means instantly heeded across the board, and they antagonized powerful senators—none more than New York’s Roscoe Conkling. The biggest New York patronage plum was the office of collector of the Port of New York: the collector supervised the collection of tariffs at the nation’s busiest port, and was rewarded with a large income in doing so.

  Following the report of a commission that the dubious practices of the current collector, Chester A. Arthur, had cost the government up to one-quarter of its lawful revenues, Hayes in September 1877 announced that Arthur and his second-in-command, Alonzo Cornell, would be removed from office. Conkling struck back a few days later at the New York State Republican Convention, where his handpicked delegates adopted a platform that completely ignored the administration in Washington. Hayes nominated two members of the Reform wing of the New York party to succeed Arthur and Cornell. In November, the Senate Commerce Committee, chaired by Conkling, voted to reject the nominees. Behind this action was the doctrine of senatorial control of patronage in their respective states. The battle between the President and Conkling waged over a period of several years, but Hayes’ persistence won out, and his nominees to the New York Customs House were confirmed over Conkling’s violent op
position.

  IN JULY 1877, a major railroad strike occurred, affecting all of the roads moving goods between the Northeast and the Midwest. The effects of the depression still remained, and the railroads were competing with one another for a shrinking volume of freight. They therefore reduced their rates for carriage and sought to balance this loss of revenue by cutting the wages of workers. In June the Pennsylvania Railroad announced that it would cut wages by 10 percent, and shortly afterward the Baltimore & Ohio, the Erie, and the New York Central Railroads followed suit. In mid-July, employees struck at the principal points along the Baltimore & Ohio Railroad. Police in Baltimore suppressed the strikers there, but in Martinsburg, West Virginia, the workers and their allies halted freight trains, backing up traffic on the road’s main line to the West.

  John W. Garrett, president of the B&O, asked Governor Henry M. Mathews of West Virginia to request federal troops. Matthews made the appeal to Hayes, asking for 200 to 300 troops to restore order in Martinsburg. The request was sketchy as to the situation there, and Hayes asked for further information. The Governor responded that without such assistance much property would be destroyed. Hayes then ordered federal troops from the Washington arsenal and Fort McHenry in Baltimore to Martinsburg. By the time they arrived, the city was calm, but on the next day rioting broke out in Baltimore. Militia troops were stoned, and responded by opening fire on the strikers, killing several of them. A mob then burned nearby railroad passenger cars and part of the depot. Maryland Governor John Lee Carroll requested federal troops and received them.

  Now the rioting spread to Pittsburgh, where neither the local police nor local elements of the state National Guard restored order along the line of the Pennsylvania Railroad. National Guard troops sent from Philadelphia succeeded briefly in doing this, but they were then besieged in a roundhouse and forced to evacuate. Thomas Scott, the president of the Pennsylvania Railroad, Governor Hartranft, and Pittsburgh Mayor William Stokeley, requested Hayes to send troops not merely to keep the peace, but to put down the strike.

  At this time, of course, there were no federal labor laws, scarcely any precedents for presidential action in such a situation. Upon receiving this request, Hayes convened his cabinet at 10 p.m. on a Sunday evening. The administration was gradually developing a policy governing responses to calls for federal troops. Soldiers were dispatched even without a request to protect United States property, such as arsenals. But a formal appeal for assistance was required in other cases, and the military was only made available subject to the direction of local authorities. Scott’s request for federal troops to operate trains carrying United States mail was refused, because the strikers shrewdly let mail trains go through.

  The strike spread further, to Buffalo and St. Louis. Most of the press sided with management, raising the specter of the Paris Commune a few years before. But Hayes refused to be panicked, and the strike was over by the end of July. The President was willing to see the two sides fight the matter out with economic weapons, even at the cost of serious interruption of rail traffic— so long as law and order prevailed and government property was secure.

  THE PREVIOUSLY ENACTED Resumption Act called for redemption of greenbacks with gold beginning in 1879. But desire for debtor relief in some form was spreading from farmers and westerners to the Midwest as well. During a special session of Congress in late 1877, the House passed the Bland Act, calling for unlimited coinage of silver at the rate of 16 to 1 for gold. Hayes had an almost religious trust in the gold standard, and strongly opposed the Bland bill. But Senator William Allison of Iowa proposed in the Senate that the coinage of silver be allowed, but instead of being unlimited, the government should be required to coin 2 to 4 million silver dollars every month. This provision placed a limit on silver coinage and left substantial discretion to the government below that limit. While supporters of unlimited coinage of silver did not have the votes to override a veto by Hayes, both houses enacted the Bland–Allison Act, which called for limited coinage of silver, and overrode Hayes’ veto. This battle would be fought again in the 1896 presidential campaign between William McKinley and William Jennings Bryan.

  In the spring of 1878, the Democratic majority in the House created a special committee—called the “Potter Committee” after its chairman, Representative Clarkson Potter of New York—to investigate alleged fraud in the 1876 presidential elections in Florida and Louisiana. The committee heard testimony that several election officials in those states had been offered federal jobs if they would “keep the faith,” but most of the testimony was secondhand. The Republican minority of the committee brought to light a bribery offer by Tilden’s nephew but never traced it back to the candidate himself. The efforts of the committee led to no legislation or other action.

  IN THE OFF-YEAR ELECTION of 1878, the Democrats not only retained control of the House of Representatives, but gained a majority of the Senate as well. Hayes would now face a Congress entirely controlled by the opposition party. One of the objects of this new Congress was to repeal the Force Act, enacted during the Grant administration. It provided for various forms of federal supervision over elections for federal officeholders. Over a period of many months, Congress sought to accomplish its repeal in two different ways: first, by attaching a “rider” to a bill whose main purpose was to appropriate money for the operation of the federal government; second, by enacting the repealer as a separate, substantive bill. Appropriations bill riders are a form of political hardball, not to say blackmail. Knowing that the President must have funds appropriated to run the government, Congress says, “Here are the funds you need, but you may have them only on the condition that you accept the rider as well, a provision we know you would veto if it were passed as a separate bill.” Hayes vetoed no less than four of these efforts, and in each case the House of Representatives was unable to muster the necessary two-thirds majority to override him.

  AT THE BEGINNING of his term as President, Hayes declared that he would not be a candidate for reelection. Although urged from time to time to repudiate his declaration, he stuck with it. He remained neutral during the contest for the Republican nomination in 1880, when James A. Garfield won the nomination on the thirty-fifth ballot.

  Various rankings of presidents generally show Hayes as “average,” and there seems little reason to quarrel with this assessment. The presidents rated as “great”—Abraham Lincoln, George Washington, and Franklin D. Roosevelt—held the office at a time in which events critical to the nation’s destiny were occurring. For Lincoln it was the Civil War, for Washington it was the formative stage of the new government, for Roosevelt it was World War II. Hayes presided during a much less turbulent era, and it is doubtful that Lincoln, Washington, or Roosevelt would have been called “great” had they held office at that time.

  Tilden’s biographer Alexander Clarence Flick, writing in 1939, observed that, “although confronted by hostile Democrats who controlled the House for four years and the Senate too, and by an unsympathetic group of Republicans, [the Hayes] administration was enlightened and able.” 1 The Hayes era, of course, differed greatly from the present. Hayes discussed at length with his cabinet many of the more difficult questions he faced. Typical were the issues arising during the railroad strike, and the decision to veto the efforts to repeal the Force Act. Today such discussions would be held between the President and top members of his own staff, rather than with the various cabinet officers. The difference is probably due mostly to the tremendous growth of the executive branch, giving cabinet members quite enough to do in the administration of their own departments, and giving the President a circle of trusted advisers with no cabinet rank.

  Hayes’ administration is notable for the President’s championing of executive authority. The tradition of the now-defunct Whig Party, from which he had migrated, favored a weak chief executive. This was quite in keeping with the outlook of its namesake party in England, which championed the cause of Parliament over that of the King. But Hayes, both
in his successful use of the veto power and in his insistence on the executive’s right to select appointees to important positions in the executive branch, looked toward a more assertive presidency in the future.

  THE DEMOCRATS were understandably bitter about the outcome of the election. On March 3, House Democrats passed a resolution declaring Tilden the lawfully elected President, and some of them urged him to take the oath of office on the strength of that resolution. The House would have had a role to play under Article II of the Constitution if the joint session of Congress had not completed its count of the electoral votes. In that event, the election would have been thrown into the House, where, voting by states, the President would have been chosen. But the joint session did complete its count, and so the House resolution was of no legal consequence.

  The Washington Union, Tilden’s organ in the nation’s capital, suspended publication on March 3, saying:

  Fraud has triumphed, and triumphed through the treachery of Democrats. Honest men of irresolute natures and dull perceptions have assisted, but corruption led the way.2

  The Cincinnati Enquirer proclaimed even more emphatically:

  It is done. And fitly done in the dark. By the grace of Joe Bradley, R. B. Hayes is “Commissioned” as President, and the monster fraud of the century is consummated.3

  Some of the more militant elements in the Democratic Party counseled a call to arms; letters from across the country urged such a course. General George McClellan—the Democratic nominee in 1864—gave sympathetic consideration to the possibility of a resort to arms. But Tilden would have none of such a course, and the majority of the Democrats agreed with him. In June 1877, he was tendered a dinner at New York’s Manhattan Club, where he expressed these sentiments: