Everybody knows that, after the recent election, the men who were elected by the people as President and Vice President were counted out; and the men who were not elected were counted in and seated. If my voice could reach throughout our country and be heard in its remotest hamlet, I would say: Be of good cheer. The Republic will live. The institutions of our fathers are not to expire in shame. The sovereignty of the people shall be rescued from this peril and re-established.4
The strain of the election dispute took a toll on Tilden’s health. His left hand was almost useless because of arthritis. Parkinson’s disease made his gait slow and shuffling, and his face had a jaundiced appearance. The summer after the election he vacationed first at Sea Girt, New Jersey, and then in July sailed for Europe with two friends on the liner Scythia.
He landed first in Ireland, and then went on to London. He visited the usual tourist spots and sought out some of his English relatives. He then spent a month in Paris. He returned to New York in late October and was immediately plunged into the affairs of the New York State Democratic Party. He had no difficulty refusing to be considered as a candidate for one of the New York seats in the United States Senate.
Although the next presidential election was three years away, it was already on Tilden’s mind. He spoke at an elegant dinner given in his honor at Delmonico’s restaurant in New York, and occasionally made other speeches expressing his political views.
In the spring of 1878, the Republican minority of the Potter Committee investigated Democratic frauds, and grilled Tilden and his nephew, W. T. Pelton, about a cipher telegram concerning a bribe to one of the returning boards. Tilden appeared before the committee in February 1879:
He seemed to have aged considerably, and . . . looked quite ill and feeble . . . it was a painful spectacle to see the slow, halting lame walk with which he passed the table and reached his seat. His figure was stiffly drawn up and seemed incapable of bending, as though from a paralytic contraction of the limbs.5
Tilden declared that he had no knowledge of Pelton’s activities, but Pelton’s testimony was quite unsatisfactory, and the matter cast a shadow over Tilden’s leadership of the Democratic Party. But he was the leader of that party, and viewed by most of its adherents as the odds-on favorite to be its presidential nominee in 1880.
When virtually the entire Democratic state ticket went down to defeat in the New York election of 1879, Tilden himself began to doubt whether he should be a candidate in 1880. He believed that election as President then would be the ultimate vindication for the denial of the office to him in 1877, but he did not wish to campaign for the nomination. Fan mail and newspaper editorials urged his candidacy, but he remained silent.
Republicans did not remain silent, and were harshly critical. The New York Times said:
The Democratic party does not want any such money grabber, railroad wrecker, and paralytic hypocrite at the helm of the state.6
But Democrats continued to support him, though they grew uneasy at his silence as the date of the national convention in June 1880 approached. William C. Whitney, one of his attorneys in the election contest of 1876, was critical:
One of the peculiar weaknesses of Mr. Tilden as a political leader is that he gives his whole confidence to no one, not even to those on whom he must rely for the execution of his plans. He has reserves in everything he says, he expects his supporters to guess his intentions. And if we do not guess accurately, he is angry. He lost the Presidential seat by just such methods. By withholding his confidence from those who represented his interest in Washington he weakened them with Democratic senators and congressmen who at first were willing, if not anxious, to submit to their lead. 7
Before the New York delegation left for the national convention in Cincinnati, Tilden told them that he did not want the nomination unless it came to him by unanimous consent. He said he would make his position known in a letter which he would give to his brother, Henry, to take to the convention. The letter spoke of the repugnance he felt at entering an office which would involve “four years of ceaseless toil.” But it was not the irrevocable declaration issued by General William T. Sherman at the Republican convention in 1884: “I will not accept if nominated, I will not serve if elected.”
After Tilden’s letter was made public, some delegates thought it a withdrawal, while others believed it was an invitation to a “draft.” Tilden received a few votes on the first ballot, but on the second the convention nominated General Winfield Scott Hancock of Pennsylvania to be the Democratic standard-bearer. Hancock would lose to James A. Garfield in the November election, thus assuring the Republicans of a twenty-four-year tenure in the White House—a record never since achieved by either party.
Four years later Tilden was pressed again to let his hat be placed in the ring for the presidential nomination of his party. But in the intervening years, his physical condition had declined further, and for once he made an unequivocal withdrawal as a possible candidate. He died two years later at the age of seventy-two and was buried in the cemetery of his boyhood home, New Lebanon.
THE REPUBLICAN NATIONAL CONVENTION of 1880 took an exhausting thirty-six ballots to nominate a presidential candidate to succeed Hayes. One faction of the party—the Stalwarts, led by Hayes’ old enemy, Senator Roscoe Conkling—supported none other than Ulysses S. Grant for an unprecedented third term. Opposing them were John Sherman, Hayes’ Secretary of the Treasury, and James G. Blaine, Hayes’ opponent at the 1876 convention. After a number of ballots, it became obvious that Grant, though having more votes than any of the others, could not win a majority of the delegates. But those opposing Grant appeared unable to unite behind a single candidate. So it went for some thirty ballots, until on the thirty-fourth ballot the Wisconsin delegation cast 16 votes for James A. Garfield. Garfield had not even been nominated, and in fact was managing Sherman’s campaign. He rose to a point of order to withdraw his name, but the weary convention nonetheless nominated him only two ballots later.
The omens did not appear favorable to the Republican Party that year. The Democrats now controlled not only the House, but the Senate, and Hancock was one of the heroes of the Battle of Gettysburg. His candidacy would likely neutralize the “bloody shirt” tactics of the Republicans in earlier post–Civil War elections. Hancock, however, was out of his element as a political candidate. The tariff was an issue on which the parties were divided: Republicans favored high tariffs to protect American manufacturers, while the Democrats favored a “tariff for revenue only” to favor American consumers. A famous cartoon drawn by Thomas Nast shows Hancock on a speakers’ platform festooned with a large TARIFF FOR REVENUE ONLY banner. Inquiring of the man next to him, Hancock asks, “Who is Tariff, and why is he for Revenue only?” In November, Garfield barely edged out Hancock in the popular vote, but won the electoral vote handily.
President Garfield, like Hayes, would also battle Conkling on patronage matters. First the President refused the senator’s demand that the Secretary of the Treasury in his administration come from New York (and thus be subject to the senator’s veto under the rubric of “senatorial courtesy”). Their mutual hostility reached a climax when Garfield nominated William H. Robertson, a Conkling enemy, to be collector of the Port of New York.
Justice Stanley Matthews, c. 1870s.
The senator predictably opposed the nomination, but Robertson was nonetheless confirmed by the Senate. Conkling and his ally, Thomas Platt, the junior senator from New York, both resigned their seats to seek reelection by the New York legislature. But that body completed their humiliation by declining to reelect them. Conkling then retired from electoral politics to devote himself to a lucrative private law practice, but sadly, he was a victim of the Great Blizzard of 1888 in New York. Caught downtown, he scorned a cab and walked the entire distance to his house in Gramercy Park. A month later he was dead.
Garfield did not live to enjoy the fruits of his victory. On July 3, 1881, after only four months in office, he was shot in th
e back by Charles Guiteau, a crazed supporter of the Stalwart wing of the party, in a Washington railroad station on his way to a reunion of his class at Williams College. He lingered for two months, dying in September. He was succeeded by Vice President Chester A. Arthur, whose nomination had been a sop to the antireform Stalwarts. But it was during Arthur’s administration that the Pendleton Act—the first major reform of the federal civil service—was enacted by Congress and signed by the President.
AFTER HIS FAILURE to obtain the Republican nomination in 1880, Grant gave up his effort to obtain yet another term as President. He settled in New York City and invested his savings in a brokerage partnership with Ferdinand Ward. Ward’s speculations caused the house to fail in 1884, and Grant was left heavily in debt. He wrote magazine articles to keep the wolf from the door, but soon learned that he had incurable throat cancer. He then began to write his Personal Memoirs, which were completed only days before his death in 1886. The memoirs were both a critical and a financial success, Mark Twain judging them to be the best military memoirs since Julius Caesar’s Commentaries.
TOWARD THE END of his administration, Hayes nominated his college friend and political ally Stanley Matthews to be a justice of the Supreme Court. Opponents branded Matthews as a “railroad lawyer” and the Senate, controlled by the Democrats, adjourned without acting on the nomination. But shortly after becoming President, Garfield sent up the nomination, and this time a differently composed Senate confirmed Matthews. He would join a Court on which Miller, Field, and Bradley continued to sit. It was a Court seriously overburdened with cases, a few of great moment, the majority of no consequence to anyone but the litigants.
But Civil Rights cases decided in 1883 were of great moment. Section 5 of the Fourteenth Amendment gives Congress the authority “to enforce, by appropriate legislation, the provisions of this Article.” What was “appropriate legislation”? Was Congress limited to simply repeating the provisions of the amendment itself—e.g., “No state shall deprive any person of the equal protection of the laws....”— or could it expand on these provisions? In 1875, it enacted the Civil Rights Act, which was in effect a nineteenth-century “public accommodations” law governing the conduct of private owners of public conveyances, theaters, and inns. The Court held the law unconstitutional, saying that the Fourteenth Amendment was directed to stage actors and not to the conduct of private owners of public accommodations. Miller, Field, and Matthews all joined the opinion of the Court written by Bradley. Only Justice John M. Harlan, appointed to the Court by Hayes, dissented.
But for every case of national importance such as these, there were hundreds that were important only to the parties themselves. This was because one of the grounds on which a party could get his case in federal trial court in the first place, rather than sue in state court, was when the plaintiff was a citizen of one state and the defendant a citizen of another. There was no federal law that governed the merits of these cases, and the federal judge hearing them would simply apply the law of the state in which the court sat. And the losing party had the right to appeal to the United States Supreme Court. As the nation grew, more and more of these “diversity of citizenship” cases were filed in the lower federal courts, and more appeals from their decisions went to the Supreme Court. Often during the 1880s, the Supreme Court would be several years behind in its docket.
For many years, Congress had been urged to create intermediate federal courts of appeals—a line of courts below the Supreme Court which could hear appeals from federal trial courts. But the effort bore no fruit until 1891. In that year, William M. Evarts, who had been Secretary of State in Hayes’ cabinet and was now a senator from New York, shepherded through Congress the Evarts Act, which created a system of intermediate courts of appeals. This law gave considerable relief to the Supreme Court.
Justice Matthews died in 1889, after a relatively short time on the Court. Miller died in 1890, Bradley in 1892, and Field in 1899. Each of these three is rated as “near great” in the principal evaluation of Supreme Court justices.8 They were the three dominant personalities on the post–Civil War Court. As the new century dawned, their successors would have to contend with even more daunting problems than they did.
Each of the participants in the Hayes–Tilden electoral dispute were creatures of the nineteenth century, not only temporally but spiritually. It was the first full century of American nationhood, ushered in by President Thomas Jefferson with the Louisiana Purchase, which extended the western boundary of the United States beyond the Mississippi River. It was ushered out by President William McKinley, with the national boundaries extending not only “from sea to shining sea” but beyond. Travel at its beginning was by horse and sail; at its end it was by rail and steamship. In its midst the nation was rent by a fratricidal civil war.
The Hayes–Tilden electoral dispute was the most contentious political imbroglio of the last half of the century. Thanks to the Electoral Commission, created by Congress and acquiesced to by Hayes and Tilden, the nation avoided serious disturbance or bloodshed and went on about its business. This outcome was a testament to the ability of the American system of government to improvise solutions to even the most difficult and important problems.
— EPILOGUE —
THE OPPROBRIUM WHICH Joseph Bradley endured for his “casting vote” on the Electoral Commission was both unusual and unjustified. But before the Electoral Commission ever began its deliberations, one or more members of the Supreme Court who served on the Commission could expect to be denounced by the party against whom that body ruled. No political event in the United States, then or now, attracts more attention than a presidential election. Millions of people participate every four years; it is foreordained that the candidate of one of the two major political parties will win and the other will lose.
An uncontested result is accepted with more or less good grace; the people have spoken. But if the result is so close as to be disputed, the final outcome of the election will not be so readily accepted. Those who decide the contest will inevitably be subjected to criticism by the party whose candidate is the loser.
No such criticism was uttered against the senators or representatives who sat on the Commission. Each of them, like Sir Joseph Porter in the Gilbert and Sullivan opera H.M.S. Pinafore, “always voted at his party’s call,” and no one was the least bit surprised that they did so. But no such tolerance was granted to the Supreme Court justices who made up the remaining members of the Commission.
Congress, in establishing the Commission, viewed the members with ambiguity. They were, on the one hand, the men who made possible the whole idea of a commission which would, in practice, have the final say as to the winner of the election. A Republican Senate and a Democratic House could never have agreed on a joint commission of only their members which had the necessary uneven number to decide the question one way or the other. To the evenly divided members of Congress on the Commission there had to be added an uneven number of members from outside Congress. The executive branch, controlled by a Republican President, offered no hope of impartiality. So Congress turned to the judicial branch.
But it did so with great care. It chose the two members of the court who had been appointed by Democratic Presidents— Clifford and Field. They chose a third and fourth member who had been appointed by a Republican President. Of these they had seven to pick from, and they did not go by seniority. Chief Justice Waite had asked not to be considered, and in any event would not have been selected because he was thought to be too close to his fellow Ohioan Hayes. Waite was no fan of Tilden; in October 1876, he wrote to a friend: “I can’t help but feel a trust in Providence. It can’t be possible that we are to be turned over to the democracy with Sam Tilden at the head. We have not sinned enough for that yet.”1 Congress eventually chose Miller and Strong, and provided that they, together with Clifford and Field, would add a fifth justice.
The tacit understanding was that it would be Davis, regarded as a genuine politica
l Independent. When Davis refused to serve, the four named members chose Bradley. None of these justices were picked for their legal learning, but for their partisan backgrounds. Bradley was the closest substitute for a political Independent as could be had among the remaining members of the Court. So on the one hand the justices were selected to add to the Commission a less obviously partisan aura than the congressional members, but they were named also with a view that the members of the Court were not wholly apolitical.
According to Strong, as related to Garfield, Field was the only one of the five justices who wanted this assignment. And Bradley must have wished it least of all; before the Commission ever sat, he was regarded in the Democratic press as the “casting vote” among its fifteen members. Waite had refused; but could or should Bradley have done likewise?
THE PRACTICE of Supreme Court justices serving in extrajudicial capacities neither began nor ended with the Electoral Commission of 1877. Justices before and after were called upon to broker treaties, sit on committees of investigation, and perform other tasks at the President’s behest. Their willingness to do so was partly a product of the Court’s increasing importance in the growing nation.
The very first Chief Justice of the Supreme Court, John Jay, undertook an extrajudicial mission at the request of President George Washington. Jay, if not in the front rank of the Founding Fathers—men such as Washington, Jefferson, Hamilton, and Madison—was at least in the second echelon of that distinguished coterie. His family was part of New York’s colonial aristocracy. He practiced his profession without public recognition until 1774, when he was elected one of New York’s delegates to the first Continental Congress in Philadelphia. At the beginning of the Revolutionary War, he was active in a state convention which instructed the New York delegation in Philadelphia to sign the Declaration of Independence.
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