Letters and Literary Memorials of Samuel J. Tilden, v. 2

by Samuel J. Tilden

THE ELECTORAL COMMISSION AND MR. TILDEN

The following statement, in the handwriting of George W. Smith, Mr. Tilden's private secretary, was from Mr. Tilden's dictation:

"Mr. Tilden's views of the policy which the Democratic party in Congress ought to pursue in respect to the counting of the electoral votes cast for President and Vice-President in 1876 were perfectly defined and freely expressed to all who consulted him long before the meeting of Congress in December of that year. It was to stand firmly and inflexibly on the unbroken series of precedents formed by the twenty-two Presidential counts from 1793 to 1872.

"While the committees of investigation in respect to Louisiana, Florida, and South Carolina, appointed by the House of Representatives, were engaged in their duties, Mr. Tilden caused a collection of all those precedents to be made and printed. At his request the Hon. John Bigelow prepared an analytical and expository introduction which was prefixed to this volume, and they were printed together by the Messrs. Appleton in the latter part of December, 1876. Mr. Marble assisted in preparing an appendix to the introduction, containing citations of authorities on the various points. This introduction was also issued separately and used in large numbers by the Democratic National Committee. It presents a clear, strong, and well-fortified statement of the position which Mr. Tilden thought the Democratic party ought to assume.

"On the 22d December two committees of the House of Representatives were appointed: the first on the powers and privileges of the House of Representatives in respect to counting electoral votes; the second to confer with a committee of the Senate on the same subject. The Congressional Record of that date contains the following entry:

"'Committee to ascertain and report what are the privileges, powers, and duties of the House of Representatives in counting the votes for President and Vice-President of the United States: Mr. Knott, of Kentucky; Mr. Sparks, of Illinois; Mr. ——, of Virginia; Mr. ——, of Pennsylvania; Mr. Burchard, of Illinois; Mr. Seelye, of Massachusetts; and Mr. Monroe, of Ohio.

"'Committee to meet with the Senate committee as to the counting of the electoral votes for President and Vice-President: Mr. Payne, of Ohio; Mr. Hunton, of Virginia; Mr. Hewitt, of New York; Mr. Springer, of Illinois; Mr. McCrary, of Iowa; Mr. Hoar, of Massachusetts; and Mr. Willard, of Michigan.'

"During the Christmas holidays, and for some days after the 1st of January, leading members of the House of Representatives were in New York and had interviews with Mr. Tilden. He was frank, open, and earnest in his conversations with them, and with many others, in advocating the making of an issue first in the House of Representatives and then in the Senate. He was for asserting, by formal resolution, the exclusive right of the two Houses acting concurrently to count the electoral vote and determine what should be counted as electoral votes, and for denying, also by formal resolution, the pretension then set up by the Republicans, that the president of the Senate had any lawful or constitutional right to assume that function. He was for urging that issue in debate in both Houses and before the country. He thought that if the attempt should be really made to usurp for the president of the Senate a power to make the count and thus practically control the Presidential election, the scheme would break down in process of execution, and that, in any event, it was in the interest of popular elective government not to yield to the menace of usurpation, all which actual usurpation could take for itself if completely successful.

"On the request of some member of the House of Representatives, Mr. Tilden himself drew two resolutions for the purpose of making this issue. The Democratic members of the Committee on Privileges, &c., found themselves best able to agree on the simplest form of asserting their principles and deemed that most expedient. Resolutions of that character were prepared by them, transmitted to Mr. Tilden for his advice, and returned with his approval. These resolutions were reported by the Hon. Proctor Knott, chairman of the committee. They will be found in the Congressional Record of Jan. 12, 1877. They are as follows:

"This policy seemed to have been generally agreed upon by the Democratic members of the House of Representatives, and it had been recommended persistently by Mr. Tilden for weeks to all who consulted him upon the subject.

"On the afternoon of Friday the 12th of January, Senator Barnum, passing through New York on his way home for the purpose of getting his family to take them to Washington on the following Tuesday, called on Mr. Tilden and expressed his conviction that a majority of the Senators would concur in denying the right of the president of the Senate to make the count. He had not heard a word of the proposed electoral contrivance. It was afterwards ascertained that the Democratic Senator from New York had been left in equal ignorance.

"On the evening of Saturday, 13th of January, Mr. Marble called on Mr. Tilden, found him in receipt of the McCrary House bill with the amendments proposed by Mr. Hewitt, and a letter from Mr. Hewitt informing him that his counsel would be asked the next day about this bill. Mr. Tilden and Mr. Marble sat late into the night analyzing it. Mr. Tilden invited Mr. Marble to come the next day when Mr. Hewitt should be there to consider this bill, which was supposed to be the axis upon which the deliberations of the House were revolving.

"Mr. Marble was therefore present on the following day, which was the 14th of January, when Mr. Tilden received from Mr. Hewitt his first information that the other measures had been abandoned, and that the subject upon which he wished to confer was the Electoral bill.

"Before he read the new bill Mr. Tilden was told that the Democratic members of the Senate committee were already absolutely committed to this bill, and would concur with the Republican members of the committee in reporting it to the Senate whether the House committee should concur or not.

"'Is it not rather late, then, to consult me?' said Mr. Tilden.

"'They do not consult you,' replied Mr. Hewitt. 'They are public men and have their own duties and responsibilities. I consult you.'

"The examination and analysis of the bill then proceeded. Mr. Tilden said, in the progress of the conference, 'I can't advise you to agree to the bill. I will advise you as to its details.'

"In respect to the provision by which six judges were to be described in the bill and one of them to be eliminated by lot, Mr. Tilden said, emphatically, 'I may lose the Presidency, but I will not raffle for it.'

"Mr. Tilden further said, if an arbitration were to be adopted, the tribunal ought to be fixed in the bill itself and not left to chance or intrigue.

"He said, also, that if an arbitration were to be adopted, the duty of the arbitrators to investigate and decide the case on its merits should be made mandatory and not left as a question of construction.

"With both the vital points, the choice of men to compose the tribunal and a function to be performed by the tribunal, left at loose ends, he treated the whole thing as a sort of gamble.

"In the course of the discussion Mr. Tilden said: 'If you go into a conference with your adversary and can't break off because you feel you must agree to something you cannot negotiate—you are not fit to negotiate. You will be beaten upon every detail.'

"Replying to the apprehensions of a collision of force with the executive, Mr. Tilden thought them exaggerated, but said: 'Why surrender now? You can always surrender. Why surrender before the battle, for fear you may have to surrender after the battle is over?'

"Mr. Tilden was pressed to say that if the bill could be modified so as to fix the five judges by a position provision, he would give it his approval, and it was urged that a modification could not succeed unless it was stated that that would make the bill acceptable. He firmly declined.

"Mr. Hewitt stated that the committees of the two Houses were to meet that evening at the house of Senator Bayard, and that he was expected to telegraph them the result of his interview.

"It was perfectly evident that what was sought was not Mr. Tilden's advice, but Mr. Tilden's adhesion. His refusal to give it caused the meeting for that evening to fall through.

"Mr. Tilden condemned the proposed action as precipitate. It was a month before the time for the count, and he saw no reason why there should not be an opportunity afforded for consideration and consultation by the representatives of the people. He treated it as a panic in which they were liable to act in haste and repent at leisure. He did not ask any time for himself or time to decide what he would do in respect to the proposed means. He never for a moment evinced the slightest hesitation or doubt about that; he was clear and inflexible, but he advised more deliberation upon the part of those who were to act in Washington. He believed in publicity and discussion and a wider consultation. He had an inherent and incurable distrust of the scheme, and has frequently said since that so great a stake as the government of forty millions of people with immense civil expenditures and a hundred thousand office-holders to be disposed of by a small body sitting in the Capitol would become the sport of intrigue or fraud.

"Mr. Tilden also disapproved of the secrecy with which the proceedings were shrouded. He thought it unwise to compromise the rights of the members of the two Houses without consulting them, by taking a hasty step which left no different policy practicable than the one thus imposed. Two days later, in a telegram to Mr. Hewitt, he expressed himself again and decidedly on this subject.

"In the whole of this conference Mr. Tilden was never asked to advise what the two committees should do jointly or what the Senate committee should do. He was expressly and repeatedly told that the Senate committee, including the Democratic members, Messrs. Bayard, Thurman, and Ransom, had already determined upon their course whatever his advice or wishes might be. The difficulty on the part of the House committee, in carrying out an independent policy, was pressed upon him as a reason for advising their acquiescence. No argument or persuasion could extract from him a word of personal sanction to the scheme. If, however, it was to be adopted, if it was a foregone conclusion, he manifested a desire that the provisions of the bill should be made to operate as much good and as little mischief as possible, both in their legal effect and in the manner of their execution. He was willing to advise and help in respect to specific provisions, but took care, in doing so, not incidentally to adopt the bill.

"The next day, Jan. 15th, Mr. Hewitt telegraphed from Washington to Mr. Edward Cooper:

"'Washington, Jany. 15, 187-.

"'To E. C.

"'The Senate committee will probably reject five- and report six-judge plan immediately. Our Senators feel committed to concur. House committee will not concur, and for present will probably not report.'

"The answer was as follows:

"'N. Y. Jany. 15, 187-.

"'To A. S. H.

"'Procrastinate to give few days for information and consultation. The six-judge proposition inadmissible.

"'E. C.'

"On the following day Mr. Hewitt telegraphed again:

"'Washington, Jany. 16, 187-.

"'To E. C.

"'After protracted negotiations Senator receded from six-judge. Declined five-judge and offered four senior associate justices who are to choose the fifth judge excluding chief justice. Our Senate friends earnestly favor acceptance, because they don't believe it possible to pass over Field. The Democrats on the House committee believe this is the last chance of agreement. We cannot postpone beyond eleven to-morrow, and if we decline Senate committee will report their original plan to which our friends are committed. Telegraph your advice.'

"To this telegram the following answer was sent:

"'N. Y., Jany. 17, 2 a.m.

"'Be firm and cool. Four-judge plan will not do. Perhaps worse than six. Complaints likely to arise of haste and want of consultation with members, and embarrassment in exercise of their judgment after plan is disclosed by premature committal of their representatives. There should be more opportunity for deliberation and consultation. Secrecy dangerous; probably mistake in itself, and if it results in disaster would involve great blame and infinite mischief.'

"In the evening of Tuesday, the 16th of January, Mr. Marble went to see Mr. Tilden and found him in his library. Several other gentlemen were present. The foregoing telegrams were read. The situation was freely canvassed. In their presence, Mr. Tilden dictated another and longer telegram, which was sent to the committee-room for transmission to Washington. As it was translated into cypher at the committee rooms and had to be retranslated at Washington, it was not delivered until after the committees had taken definitive action. It was not addressed to Mr. Hewitt and therefore was not seen by him. The only value of this telegram now is as a record made at the time in the presence of half a dozen well-known gentlemen, of Mr. Tilden's views, similar to those he had habitually expressed and somewhat fuller than in the other telegrams.

"Mr. Marble having seen all these telegrams at the time, and being familiar with them, requested copies for the present occasion. In assenting to that request, Mr. Tilden desired Mr. Marble, in any use he might make of them, to say explicitly that Mr. Tilden has never doubted Mr. Hewitt's perfect good faith in the transaction to which the telegrams relate, and believes him to have been actuated by the most patriotic motives.

"'Jany. 17, 1877 Midnight.

"'No need of hot haste, but much danger in it. Some days' interval should be taken; the risk of publicity harmless. No information here nor any opportunity to get information which could justify abstinence from condemning such an abandonment of the Constitution and practice of the government, and of the rights of the two Houses and of the people. Nothing but great and certain public danger not to be escaped in any other way could excuse such a measure. We are overpressed by exaggerated fears and forget that the other side will have greater troubles than we unless relieved by some agreement. They have no way out but by usurpation; are bullying us with what they dare not do or will break down in attempting. So long as we stand on the Constitution and settled practice we know where we are. Consequences of new expedient not enough considered. Only way of getting accessions in the Senate is by House standing firm—and judicious friends believe in that case we will go safely through. Opportunity to consult such friends should be given before even tacit acquiescence, if that is contemplated. Though details may be properly discussed, final committal by House committee should be firmly withheld.'"