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electors met and cast the vote of the State for Hayes and Wheeler.
The Democratic electors also met and cast a ballot for Tilden and
Hendricks. The Democratic contention was that detachments of
the army stationed near the polls had prevented a fair and free elec-
tion. The result was two sets of returns. In Florida there were
allegations of fraud on both sides, and the result was double re-
turns, as in South Carolina. The canvassing board and the Gov-
ernor certified to the election of the Hayes electors, but the Demo-
cratic electors, fortified by a decision of the State courts, met and
voted for Tilden. In Louisiana there was anarchy that threatened to
end in civil war. There were two Governors, two returning boards,
two electoral colleges. By a trick, one electoral vote from Oregon
was also placed in the disputed column. The Democratic Governor
adjudged one of the Republican electors, who held a small postmas-
tership, ineligible, and gave a certificate to the highest candidate on
the Democratic list. Thus, the result was in actual doubt when the
44th Congress met for its last session in December, 1876.

The grave questions that confronted Congress and the country

Had the President of the Senate, by virtue of his office, the right to
count the electoral vote?

Did the Constitution invest him with discretionary power to
decide what were not the electoral votes of a State?

Must both Houses of Congress acquiesce in counting the votes of a
State before they could be counted, or would the objection of either
House be fatal to anv electoral returns?



The first two contentions were the Republican claim. Prelimi-
nary to counting the electoral votes cast at the Presidential election
of 1864, the two Houses, in February, 1865, adopted a joint rule di-
recting that " no electoral vote objected to shall be counted except
by the concurrent vote of the two Houses." The rule was not after-
ward renewed, but it was observed in counting the electoral votes of
1868 and 1872. Objection to it would have been fatal, but the ques-
tion was not raised. Now the validity of the rule was vital to Demo-
cratic hopes, for the election of Tilden would hinge upon it. Neither
contention could be satisfactory to the American people in a matter
of such supreme importance
as the election of a Presi-
dent of the United States.
According to the Republic-
an view that is, the view
of some Republicans the
Acting Vice-President, Mr.
Ferry, who was a Republic-
an, could count the votes
of the three disputed States
in favor of Mr. Hayes, and
he would be the President-
elect, in defiance of the will
of either or both Houses of
Congress. According to the
Democratic view that is,
the view of some Democrats
the House of Representa-
tives, which was Demo-
cratic, could reject the votes
of any one of the three dis-
puted States, or the dis-
puted vote of Oregon, and Mr. Tilden would be the President-elect. In-
sistence on either of these propositions meant an outbreak. The Demo-
crats especially were defiant. Threats were openly made that Hayes
should never be inaugurated, and a fiery Democratic editor, Henry
Watterson, announced that a hundred thousand Democrats would
march to Washington and install Mr. Tilden in office. The Republic-
ans were not so threatening, but not less determined, unless a practi-
cal solution of the difficulty was found. In the end, both sides aban-
doned their pretensions, and Congress sought a basis of settlement
that would be more equitable than either of these unsatisfactory prop-



Mr. McCrary, of Iowa, introduced a resolution into the House of
Representatives, providing for a committee, to act in conjunction
with a similar committee from the Senate, to consider the whole sub-
ject of the disputed votes, and to recommend to Congress a course to
be followed. This resolution was reported from the Judiciary Com-
mitte on December 14 by Mr. Knott, of Kentucky, the Chairman. The
resolution was adopted almost unanimously. The committee con-
sisted of seven members, who were named by Speaker Randall on
the 22d, as follows: Henry B. Payne, of Ohio; Eppa Hunton, of Vir-
ginia; Abram S. Hewitt, of New York, and William M. Springer, of
Illinois, Democrats; George W. McCrary, of Iowa, George F. Hoar,
of Massachusetts, and George Willard, of Michigan, Republicans.
On the 18th the Senate adopted a similar resolution, and appointed a
committee of seven, consisting of George F. Edmunds, of Vermont;
F. T. Frelinghuysen, of New Jersey; John A. Logan, of Illinois, and
Oliver P. Morton of Indiana, Republicans and Allen G. Thurman,
of Ohio; Thomas F. Bayard, of Delaware, and Matt. W. Ransom, of
North Carolina, Democrats.

The resolution declared the duty of the committee to be " to pre-
pare and report without delay such a measure, either legislative or
constitutional, as may in their judgment be best calculated to ac-
complish the desired end." The two committees, acting as one, re-
ported January 18, 1877, a bill " to provide for and regulate the
counting of votes for President and Vice-President, and the decision
of questions arising thereon, for the term commencing March 4, 1877.''
Every member of the Senate and House Committees, with the ex-
ception of Senator Morton, of Indiana, joined in this report.

The process by which the two committees reached a common
ground led each of them, acting separately, and without consultation
or knowledge of w T hat the other was doing, to almost identical con-
clusions the device of an independent tribunal. This result was
almost inevitable from the conditions. Most of the plans proposed
led directly to one of two results, which could be foreseen as its
logical consequence the seating of Mr. Tilden, or the seating of Mr.
Hayes. It was certain that the Republicans would not agree to a
plan that they knew in advance would make Mr. Tilden President.
It was equally certain that the Democrats would not agree to a plan
that they knew in advance would make Mr. Hayes President. Any
such plan, even if agreed upon by the committees, would be sure to
fail, either in the Democratic House or the Republican Senate. The
element of judicial uncertainty that would sustain the hopes of both
parties was a necessary incident to an agreement. Indeed, it may be
doubted whether the Electoral Commission would have been assented


to if each party had not believed that the political balance was so
nearly adjusted that the preponderance was to its side, without being-
visible to the other.

The draft of a bill for an independent tribunal was first sub-
mitted to the House Committee by Mr. McCrary, January 10, 1877.
Mr. McCrary w r as a lawyer of unusual ability, and as a constructive
statesman he ranked very high. According to Mr. McCrary's draft,
the tribunal was to consist of the Chief Justice of the United States
and of a certain number of the Associate Justices of the Supreme
Court in the order of their seniority. As soon as the plan came under
discussion it became apparent that Chief Justice Waite would not
be acceptable to the Democrats. It was alleged that during the
canvass he had spoken of Mr. Tilden in terms of personal hostility,
his language befitting a partisan, rather than a judge. Whether this
w r as so or not, it is certain the Chief Justice had no desire to serve on
the Commission. As the plan was finally agreed upon by the House
Committee the tribunal was to consist of the five senior Justices of the
Supreme Court. These w r ere Justices Clifford, Swayne, Davis, Miller,
and Field. Two of these w r ere Democrats and two Republicans, and
Justice Davis was not regarded as either a Republican or a Democrat.
Although appointed to the Supreme Bench by President Lincoln, Jus-
tice Davis soon ceased to sympathize with the Republican party. If
not a Democrat, he was in closer affiliation with the Democracy than
with the Republicans. The selection of Justice Davis as one of the
Commissioners was an element in the Electoral Commission bill in
all its phases. It was said at the time that Abram S. Hew T itt had
given Mr. Tilden the assurance, or a strong intimation, that Justice
Davis would be selected, and that it was thus that Mr. Tilden's as-
sent to the Commission was secured. It is certain that the Demo-
crats were led to support the bill almost unanimously because they
believed he would be selected. Republican opposition to the plan
was manifested for the same reason. That the expectation amounted
to a certainty was accepted by both sides, and its failure of realiza-
tion was due to an event that was not forseen, as will be shown here-

Apart from the selection of the tribunal, there were obstacles in
the w r ay of an agreement that were not easily removed. Mr. Mc-
Crary's bill made the decision of the proposed tribunal binding un-
less both Houses of Congress should vote to overrule it. The Dem-
ocrats insisted on an amendment to the effect that the decision should
have no binding quality unless concurred in by both Houses. To
this the Republican members of the Committee would not consent,
and the change was made by the Democratic majority. The bill


further provided that to the five eminent Judges to comprise the tri-
bunal were to be referred " the certificates objected to, together with
the objections, and all papers and evidence in the possession of the
President of the Senate, or of either of the Houses of Congress re-
lating thereto." And power was to be granted them " to send for
persons and papers, and to compel the attendance of witnesses; also
to cause testimony to be taken before one or more Commissioners,
to be appointed by them for that purpose."

While the House Committee was formulating a plan for the set-
tlement of the question in dispute, the Senate Committee reached
a conclusion that was identical with that of the House in principle,
but differed from it in detail. The Senate wanted a mixed tribunal
to be made up of representatives of the legislative as well as the
judicial branch of the Government. The Commission was to consist
of thirteen members, nine to be taken from Congress, and four from
the Supreme Court. Each House was to name five members, one
of the ten to be eliminated by lot. As the House of Repre-
sentatives was Democratic and the Senate Republican, this
would leave the political majority a matter of chance.
This plan was humorously called the " dice-box " prin-
ciple. While the House \vas ready to assent to the mixed Com-
mission, the Democrats were afraid they might lose when it came to
the elimination of the superfluous Commissioner, and they insisted if
there was to be a " lot," that it must apply to the judiciary members
of the tribunal. There was a general discussion of the grave ques-
tion whether the body to which the electoral count was to be sub-
mitted should be called a " tribunal " or a " commission," and the lat-
ter title was finally selected. It was also decided that the Commis-
sion should consist of fifteen members five from each of the bodies
represented. Then came a prolonged contest over the selection of the
five representatives of the Supreme Court. Finally an agreement was
substantially reached, which provided for taking six of the justices in
the order of their seniority Clifford, Swayne, Davis, Miller, Field,
and Strong one to be dropped by lot. This agreement was reached
on Saturday, all the members of the two committees assenting to it ex-
cept Mr. Springer, of the House. The Joint Committee adjourned
to give Mr. Springer time to think over the proposition over Sunday,
but when it again met on Monday a great change had been wrought.
In spite of the injunction of secrecy, the plan that came so near
being adopted on Saturday had been made public through the col-
umns of a New York newspaper. Among the Democratic Representa-
tives it raised a storm of objection and ridicule, and at the joint
meeting of the two committees on Monday, Mr. Payne announced


to his associates that, since their plan had become known, the op-
position to that feature which provided for selecting six Justices
of the Supreme Court and dropping one by lot, had developed to a de-
gree that satisfied him that it could never receive the sanction of the
House. Following this announcement, the assent of the House
Committee to the proposition was withdrawn, and it was again pro-
posed to take the five senior Justices outright. This plan, Mr. Payne
argued, would assure the non-partisan character of the Commission
without a resort to the lot system.

The only question really at issue was the political leanings of Jus-
tice Davis. It was claimed that he was an independent, leaning no
more to one side than to the other. To this Mr. Edmunds, sometimes
called the St. Jerome of the Senate, because of his remarkable re-
semblance to the pictures of that saint, retorted that Judge Davis
was one of those " Independents who stood always ready to accept
Democratic nominations " ; that " such men are generally the most
extreme in their partisanship," and that he " would rather intrust a
decision to an out and out Democrat than to a so-called Independent."
It was alleged, indeed, that Justice Davis was a Democrat. " Judge
Davis," said Mr. Springer, " is just about as much of a Democrat
as Horace Greeley was in 1871. He is not now, and never was, a
Democrat. His most intimate friends, among whom I may count
myself, do not know to-day whether he favored Tilden or Hayes. He
did not vote at all. They only know that he is absolutely honest and
fair." During the discussion Senator Morton was moody, glum, and
silent, but he finally rose on his crutches to cast a firebrand among his
associates. He declared that he entertained great doubt about the
power of calling in any outside tribunal to settle this momentous
question. If, however, there is such a power, " why not call in the
whole Supreme Court? Is it not more simple? It will not have the
appearance of being fixed. All parties will be satisfied. Their de-
cision would be acquiesced in by all." After the Indiana Senator
had denounced the plan as a " contrivance," Mr. Frelinghuysen, of
New Jersey, declared that to drop one judge by lot could not pos-
sibly be susceptible to the charge of " being fixed." " Those fellows,"
said Mr. Edmunds, " who believe it foreordained that Hayes is to be
President think the Constitution, as it is, sufficient for that purpose.
They will oppose any legislation whatever on the subject." Mr.
Bayard, more sanguine, perhaps, than some of the others, said: " If
we seven men of both Houses could agree, would there not be a
weight in such an agreement sufficient to carry it through? Would
it not be a most noble example of abnegation of partisanship? I am
one who believes that whatever measure is recommended by this Com-


mittee will be adopted." Mr. Hewitt, who, as Chairman of the Demo-
cratic National Committee, was credited with representing the views
as well as the interests of Mr. Tilden, was pressed by Mr. Conkling to
suggest a way out of the entanglement. " My colleague," replied
Mr. Hewitt, " is aware of the disadvantages I labor under in making
suggestions. He has doubtless observed that I have little to say in
this discussion. Owing to my peculiar relations, I am un-
justly supposed to speak for another. But my per-
sonal views are not always necessarily in harmony with
those of the person for whom I am supposed to speak."
He stated his conviction, however, that the bill with the " lot " fea-
ture could never pass. The Committees were unable to agree, and
when they met again on Tuesday morning they took up the dis-
cussion w T here they had left it the day before. Mr. Payne again urged
the House plan, and was supported by Mr. Hewitt, who said his idea
was, to take five from each body, namely, five from the Senate, five'
from the House, and five from the Judiciary. " In selecting the
latter," he said, " there is an obvious propriety in selecting those
longest on the bench, as farthest removed from the passions of the
party politics of the day. Those recently appointed on the bench are
too fresh from the domain of politics to have gotten over a natural
bias that they took with them." " The proposition of the House
Committee," Mr. Frelinghuysen said, " is really to make a Com-
mission of eight Democrats and seven Republicans. Judge Davis
has twice aspired to the nomination by the Democrats for the Presi-
dency. Perhaps he has now aspiration for the future. His vote
might turn the Government over to the Democrats, or retain the
Republicans in power. It is not a fair proposition." Mr. Hewitt
declared that to the best of his information, Judge Davis was " neu-
tral." " The best evidence of his neutrality," said Senator Ed-
munds, "'is the same as that of Greeley and Chase. He is fishing
after Democratic nominations." At this point Senator Thurman
suggested an even number of judges. " I do not believe," he said,
" they would range themselves on party lines. No doubt they would
decide as they believed right." Then came a suggestion supported
by Mr. Hoar and Mr. Willard, for " an evenly divided Commission,
which, in case of inability to decide, should be empowered to call in
an outsider, some eminent American not in public life, as umpire."
Then the Senate Committee came forward with a new proposition.
It was to take the four senior Justices Clifford, Davis, Swayne, and
Miller and these to select a fifth. This, it seems, had the ac-
quiescence of the Democratic members of the Senate Committee. It
was not approved, however, by the House Democrats. " I confess,"


said Mr. Payne, " that I am at a loss to understand how this last
proposition is based on any assumption that the Commission should
be equal. Judge Davis is not a Democrat. You ask us to take as a
Democrat one who is not more than half a Democrat against two ab-
solute Republicans. I can see no equality in such a proposition." This
later plan, however, had the support of Senator Bayard, who said:
" To me it is rather saddening that the agreement should hinge on
the quantum of bias in Judge Davis. I know Judge Davis only
slightly; know him only as a lawyer of limited practice knows judges
who sit on the bench before him. I believe he is no more of a Demo-
crat than a Republican on existing issues. I can not but believe that
in this hour of great danger to the institutions of the country there
will be evolved a feeling above party, a feeling that shall regard the
country as paramount to all merely partisan ends or considerations.
Party view is not the only view to take, nor the strongest. For that
reason I have voted for this proposition, though not fully meeting my
views. . . . All this weighing and balancing may turn out to
be perfectly useless. The mere fact of their selection under the cir-
cumstances would of itself tend to make them non-partisan." The
day again ended without an agreement.

On the following day a proposition originating with Mr. Hewitt
was made, providing that Justice Clifford, a Democrat, and Justice
Swayne, a Republican, should name two Commissioners, and these
four should name the fifth. This proposition was summarily re-
jected. Finally it was determined to take the Associate Justices
from the First, Third, Eighth, and Ninth : Judicial Circuits, and let
these four name a fifth member of the Supreme Court to sit upon the
Commission. " This plan," said the Vermont Senator, " has the
merit of being based on geographical considerations, Justice Clif-
ford representing New England, Justice Strong the Middle States,
Justice Miller the Northwest, and Justice Field the Pacific slope."
This plan avoided the selection of the judges by name, and received
the sanction of the Committees. Before the Committees adjourned
for the day, after reaching an agreement, Mr. Edmunds and Mr.
Thurman were directed to prepare an address to accompany the sub-
mission of the bill to Congress. When they again met the next
morning, January 18, 1877, for the last time, the address was consid-
ered and adopted, with such changes as were considered necessary.
The critical Representative from Massachusetts, Mr. Hoar, raised an
objection to the phrase that " it is comparatively unimportant who is
President." " In my opinion," he said, " it is of immense impor-
tance which party rules the country." Senator Conkling announced
the broad proposition that it is " always unwise, in large transactions,


to do anything unnecessary." He then proceeded to criticise the
phrase in the address, " If such jurisdiction is not invested by the
Constitution, this bill creates it." He maintained that no jurisdic-
tion was created by the Constitution which is not vested somewhere.
" Can we," he asked, " by a legislative act create a jurisdiction? We
may create a tribunal to exercise jurisdiction; but can we create the
jurisdiction itself? " " This report," he said, " is to be put under a
microscope. It is to be examined with great care. No man can
vote for this bill unless he believes the power bestowed exists some-
where." Mr. Hoar suggested the following phraseology: " If the
Constitution, requiring the exercise of this jurisdiction, does not
designate a tribunal or officer to execute it, this bill provides such a
tribunal." " I prefer," replied the New York Senator, " to say just
what we mean. If w r e have that right, it is because the Constitu-
tion requires both Houses to do it; or, the Constitution not making
such requirements, expects the law-making power to provide it. This
is our pediment. Take that from under us and we are gone. This
bill goes to the theory of regulating and adjusting the power already
held. Mr. Hoar's amendment implies that the law-making power is
vested in the tribunal. That is not my theory. Mine is that the
Constitution requires Congress to declare a President. The two
Houses employ this tribunal as an auxiliary, as eyes and hands. We
do not delegate this power. We keep it all. This is our own minis-
tration." Senator Bayard closed the discussion.

The bill went through the two Houses with impetuous promptitude.
Mr. Cox wrote afterward: " Its chief opponents in the Senate were
Mr. Morton and Mr. Sherman, and in the House, Mr. Garfield, of
Ohio, and Mr. Mills, of Texas. Almost the first response to the sub-
mission of the bill came from Massachusetts, where a prolonged
struggle over Senator Boutwell's seat was suddenly ended in the tri-
umph of Mr. Hoar. Speeches of rare eloquence and power were made
for the bill in both Senate and House. Mr. Conkling spoke for two
days. Among other things, he riddled to shreds the pretension that
the Vice-President had the right to ' count ' the electoral votes.
Senator Hill, of Georgia, made a speech of unusual cogency. It
breathed throughout the true patriotic spirit. He favored the ex-
pedient with all his acumen and eloquence. His enthusiasm kindled
a lambent flame charged with electric force. As he reached his
peroration he was handed a telegram, announcing that the protracted
contest for Senator in his State had just ended in the senatorial toga
being again placed on his shoulders. The popular tide was now all
one way. It was irresistible. What would be the consummation?
The Democrats felt secure in the justice of their cause. No matter


to them who might be the fifth judge whose choice was to determine
the party bias of the Commission. No one doubted, however, that
the choice of the fifth judge would fall upon Mr. Justice Davis. He
was the only one left on the bench on whom the two Democrats and
the two Republican judges could possibly unite. He was, to be sure,
an unknown element, but notwithstanding this, the Democrats had
more confidence in his impartiality than the Republicans seemed to

How the action of a Commission so equipoised might have eventu-
ated must be a subject for speculation, and speculation only. Justice
Davis, whose political leanings were so fruitful a theme of discus-
sion in the committees, and in whom centered alike the hopes of
Democrats and the fears of Republicans, was not born to sit on the
Electoral Commission. The bill was passed in the Senate on January
24 by 47 ayes to 17 nays, and by the House two days later by 191 ayes
to 86 nays. The mode prescribed in the act for selecting the Elec-

Online LibraryGeorge Oberkirsh SeilhamerHistory of the Republican party (Volume 1) → online text (page 38 of 61)