Reconstruction and the Constitution, 1866-1876

by John William Burgess

CHAPTER XIII

THE PRESIDENTIAL ELECTION OF 1876 AND ITS CONSEQUENCES

[The Republican National Convention of 1876—The Platform]—[The Nominees]—[The National Democratic Convention of 1876—The Platform]—[The Nominees]—[The Campaign and the Election]—[The Count and the Twenty-second Joint Rule]—[Views in Regard to the Power to Count the Electoral Vote]—[The Republicans in Advantage in the Count of the Vote]—[The Electoral Commission Bill]—[The Passage of the Bill]—[The Members of the Commission]—[The Fifth Justice]—[Justice David Davis]—[The Counting of the Electoral Vote by Congress]—[The Double Returns from South Carolina, Florida, Louisiana and Oregon]—[The Counsel before the Commission]—[The Republican Position]—[The Democratic Position]—[The Decisions of the Commission]—[Mr. Hayes Declared President]—[The Truth in Regard to the Election]—[Mr. Hayes's Southern Policy]—[The Result of His Policy]—[Reconciliation between the North and the South].

When the managers of the Republican party met in National nominating convention at Cincinnati, on the 14th of June, 1876, they rightly

The Republican
National
Convention
of 1876.
The platform.

While there was no name before the convention commanding universal popular assent, as had been the case at the second nomination of

The nominees.

A fortnight after the nomination by the Republican convention of Rutherford B. Hayes for President and William A. Wheeler for

The National
Democratic
Convention
of 1876.
The platform.

Their candidate had virtually been determined on before they met. It could be nobody else than the popular Governor of New York, Samuel J.

The nominees.

Mr. Tilden quietly managed his own campaign, while Mr. Hayes left his political interests in the hands of the very astute chairman of

The campaign
and the election.

But the final count of the electoral vote must be in the presence of the two Houses of Congress assembled in one place, and the Democrats

The count and the
twenty-second
joint rule.

Some of the Republicans now claimed that the Constitution vested the Vice-President, or rather the President of the Senate, with the power

Views in regard to
the power to count
the electoral vote.

Nevertheless, the Republicans were in decided advantage. They had the President of the United States to execute by force whatever they might

The Republicans in
advantage in the
count of the vote.

The Democrats felt that they must make an effort to change the situation. They, therefore, quickly seized upon a suggestion made by a

The Electoral
Commission Bill.

The essential provisions of the bill were, first, the creation of a Commission composed of five members of the House of Representatives, five members of the Senate, and five Justices of the Supreme Court of the United States, the members from the House to be chosen by the House, the members from the Senate to be chosen by the Senate, while the Justices of the Supreme Court from the first, third, eighth and ninth circuits were designated in the bill, and they were authorized to select a fifth from among the other members of the Court; second, the fixing of the rule that the electoral vote of any "State" from which only a single return had been received should be counted unless both Houses should decide otherwise, and of the other rule that when more than one return had been received from any "State," the Commission should forthwith decide which return should be counted, and this return should be counted unless both Houses should reject the decision, or order otherwise; and third, the reservation of any right existing under the Constitution and laws to question before the courts of the United States the titles of the persons who should be declared elected President and Vice-President to these respective offices. The bill was

The passage
of the Bill.

The Senate immediately chose Messrs. Edmunds, Frelinghuysen and Morton, Republicans, and Messrs. Bayard and Thurman, Democrats, to represent it

The members of
the Commission.

Since without the fifth Justice the Commission would consist of seven Republicans and seven Democrats, it was evident that this Justice would

The fifth
Justice.

It was the general feeling throughout the discussion of the bill that the man who would be chosen was Judge David Davis. He had been a Republican and a close personal friend of Lincoln, but had latterly inclined toward the Democracy, and, it was thought, had favored the election of Mr. Tilden. He was regarded as the man of least political prejudice among a set of men of very little political prejudice. The Democrats, however, were entirely willing to risk their cause in his hands, because they believed it was strong enough on its merits to convince any unprejudiced mind, and there is little question that the Republicans were afraid to risk their cause in his hands, because they knew that they must win on every point or lose altogether, and they hesitated to take such desperate chances unless whatever political prejudice might exist in the mind of the umpire should be on their side.

But to the apparent surprise of everybody and to the consternation of the Democrats, Justice Davis was chosen by the Illinois legislature, on

Justice David Davis.

The Democrats in the House of Representatives learned of the election of Justice Davis to the Senate on the morning of the day they were to vote on the passage of the Electoral Commission bill. Even they did not fully realize that it meant that the Justice would not serve on the Commission. Moreover, they had gone to such lengths with the bill that it was too late to turn back. So far as is known the Justice did not inform them or anybody else of his intention to accept the senatorship, or of his scruples about being a member of the Commission, until after the bill became law. When he did do so, the correctness of his position was so clear that the four Justices named in the Act immediately selected Justice Joseph P. Bradley as the fifth judicial member of the Commission. Bradley was a Republican, as were the other three members of the court, Waite, Hunt and Swayne. That is, after Justice Davis was disposed of there remained only Republicans to choose from, and Bradley being regarded as the least partisan, and the most learned in the law, was selected. He fully realized the vast responsibility which had been thus unexpectedly thrust upon him, but he accepted it bravely and without flinching, and discharged it with honor and success.

The Houses of Congress, and also the Electoral Commission, met on the 1st day of February to count the electoral vote. The Democrats still

The counting of
the electoral vote
by Congress.

When the returns were opened by the President of the Senate two sets of returns were found from each of the four "States," Florida, Louisiana,

The double returns
from South Carolina,
Florida, Louisiana
and Oregon.

The Oregon case was more complicated. The three Republican electors received the highest number of votes, as reported by the Secretary of State, who by the laws of Oregon was the "State" canvassing officer, to the Governor. But one of them, Watts, held the office of postmaster in a small place at the time of his election, and the Constitution of the United States provides that "no Senator or Representative, or person holding any office of trust or profit under the United States, shall be appointed an elector." The Democratic Governor of Oregon decided in his own mind that Watts was not eligible, and made out his certification to include, beside the two Republican electors who were eligible, one Cronin, the Democrat receiving the highest number of votes for elector, although the number received by him was a minority of all the votes cast for the electoral tickets. This certificate was attested by the Secretary of State, and was given to Cronin. When the day for the meeting of the electors came around Cronin presented himself holding the Governor's certificate, the only certificate which had been issued to the electors by Governor Grover. But in spite of the fact that he had this technical advantage, the two Republican electors, whose names were included in the Governor's certificate, refused to act with him, and he refused to let them have the certificate to attach to their return of the electoral vote to the President of the Senate of the United States unless they should so act. Both parties persisted in their refusals. Whereupon Cronin selected one J. N. Y. Miller and one John Parker to fill up the electoral college of Oregon and these three cast two electoral votes for Hayes and Wheeler and one for Tilden and Hendricks, and, after attaching the Governor's certification to the record of their vote in due form, sent this return to the President of the Senate of the United States, as required by the Constitution. At the same time the two Republican electors, Odell and Cartwright, met to cast the electoral vote of the Commonwealth. Watts was also present. He had resigned his office of postmaster, and now he resigned his position as elector. The other two accepted his resignation, and immediately chose him an elector. The three then cast the electoral vote of the Commonwealth for Hayes and Wheeler. As we have seen, they did not have the certification of their election by the Governor to attach to their votes, as required by the law of the United States, but they procured from the Secretary of State a certified copy of the canvass of the votes for the electors, which showed the election of the three Republican candidates, and sent this, and also a copy of their proceedings in accepting the resignation of Watts, and then electing him an elector, along with their report of the vote of the electors for President and Vice-President, to the President of the Senate.

Both the Republicans and the Democrats were represented by most able counsel before the Electoral Commission. William M. Evarts, Stanley

The counsel before
the Commission.

The Republicans took their stand at the outset upon the principle that Congress could not go behind the returns of the "State" Canvassing

The Republican
position.

It did not appear to them necessary to do this in order to win their case. One single electoral vote from any one of the four "States," from

The Democratic
position.

The view of the counsel for the Republican candidates prevailed with a majority of the Commission. By a majority of a single vote the

The decisions of
the Commission.

In the early morning of March 2d, the count was completed, and Hayes and Wheeler were proclaimed by the presiding officer of the Senate, Mr.

Mr. Hayes
declared
President.

The truth in regard to the whole transaction of the election probably is that the Democrats did in some places in the South intimidate

The truth in
regard to
the election.

During the counting of the electoral vote it was suspected that the friends of Mr. Hayes were giving some assurances to the Southerners in

Mr. Hayes's
Southern policy.

The result was that, although the Republican candidates for Governor and for the members of the legislature in these three "States" received

The result of
his policy.

Order and peace were quickly established everywhere, and the plundered and impoverished South could at last take hope and feel courage to make a new effort to recover some degree of prosperity and some measure of domestic content. For ten years the dark night of domination by the negro and adventurer had rested upon the unhappy section, until it had been reduced to the very abomination of desolation. Broken in health and fortune, sick at heart, conscious of the terrible degradation which had been imposed upon them, and politically ostracized, the better part of the white population of the South had staggered and groped through the hideous experiences of this period, and such of them as had not perished during the awful passage had now at last been relieved of the frightful scourge, and half dazed, as if just recovering from a terrible nightmare, found themselves again in the places of power and responsibility. But they brought with them, as their dominant passion, undying hatred of the Republican party as the author of all their woes, and as their dominant policy, the stern and unbending resolve to stand together as one man against every movement which had even the slightest tendency toward a restoration of the hated conditions from which they had escaped. No sane mind can wonder at "the solid South," or at the Democratic South. Life, property, happiness, honor, civilization, everything which makes existence endurable demanded that the decent white men of the South should stand shoulder to shoulder in defending their families, their homes and their communities from any return of the vile plague under which they had suffered so long and so cruelly; and human instinct determined that this should be done in connection with that party which was hostile to the Republican party. The differences which lead to a fair fight and the wounds which are received in it are easily healed, but indignities heaped upon a fallen foe create a bitterness of heart that lasts so long as life endures.

Slavery was a great wrong, and secession was an error and a terrible blunder, but Reconstruction was a punishment so far in excess of the

Reconciliation between
the North and the South.