There was no federal agency with power to determine which sets of electors were to be counted, and the fact that the federal Senate was Republican and the House Democratic seemed to preclude the possibility of legislation on the subject. No such critical situation had ever resulted from an election, and a means of settlement must quickly be discovered, for only three months would elapse after the electoral votes were sent to Washington, before the term of General Grant would expire. The means devised was the Electoral Commission. This body was to be composed of five senators, five representatives, and five justices of the Supreme Court. The Senate and the House were each to choose their five members, and four members of the Court were designated by the Act which established the Commission, with power to choose a fifth. It was understood that seven would be Republicans, seven Democrats and that the fifteenth member would be Justice David Davis, an Independent, who would be selected by his four colleagues. On him in all probability, the burden of the decision would fall. On the day when the Senate agreed to the plan, however, the Democrats and Independents in the Illinois legislature chose Justice Davis as United States Senator and under these circumstances he refused to serve on the Commission. It was too late to withdraw, and since all the remaining justices from whom a commissioner must be chosen were Republicans, the Democrats were compelled to accept a body on which they were outnumbered eight to seven.
The Electoral Commission sat all through the month of February, 1877. Its decisions were uniformly in favor of Hayes electors by a vote of eight to seven, always along party lines, and on March 2, it was formally announced that Hayes had been elected. The disappointment of the Democrats was bitter and lasting, for their candidate had received over a quarter of a million popular votes more than his opponent, and yet had been declared defeated. For a time there was some fear of civil war. Tilden, however, accepted the decision of the Commission in good faith, and forbade his friends and his party to resist. Moreover, close friends of the Republican candidate assured southern Democratic politicians that Hayes if elected would adopt a conciliatory policy toward the South, and would allow the southern states to govern themselves unhampered by federal interference. Peaceful counsels prevailed, therefore, and the closing days of President Grant's administration were undisturbed by threats of strife.
The question whether Hayes was fairly elected is a fascinating one. There is no doubt that there was fraud and intimidation on both sides, in the disputed states. In Louisiana, for example, the Democrats prevented many negroes from voting by outrageous intimidation, while the Republicans had many negroes fraudulently registered. Little is known, also, of the activities of the "visiting statesmen," as those politicians were called who went to the South to care for their party interests. It is known that they were well provided with money and that the boards of canvassers contained many unscrupulous men. Nor is it likely that politicians who lived in the days of the Credit Mobilier and the Whiskey King would falter at a bargain which would affect the election of a president. Republicans looked upon the Democrats as being so wicked that they were justified in "fighting the devil with fire." Democrats looked upon the election as so clearly theirs that no objection ought to be made to their taking what belonged to them. It seems certain, however, that Hayes had no hand in any bargains made by his supporters. As for Tilden, his wealth was such that he could have purchased votes if he had desired to do so, and the fact that all the votes went to his rival indicates that he did not yield to the temptation. Moreover, one of his closest associates, Henry Watterson, the journalist, tells of one occasion when the presidency was offered to Tilden and refused by him. Perhaps a definitive statement of the rights and wrongs of this famous election will never be made; for one after another the men most intimately associated with it have died leaving some account of their activities, but none of them has told much more than was already known.
BIBLIOGRAPHICAL NOTE
Dunning, Rhodes and Schouler, together with most of the works referred to at the close of Chapter 1, continue to be useful. L.A. Coolidge, Ulysses S. Grant (1917), is not as partisan as most of the biographies of the time and is valuable despite a lack of a thorough understanding of the period. The following are valuable for especial topics: H. Adams, Historical Essays (1891); C.F. Adams, Jr., and H. Adams, Chapters of Erie (1886), (gold conspiracy); C.F. Adams, Jr., Charles Francis Adams (Treaty of Washington); C.F. Adams, Jr., "The Treaty of Washington" in Lee at Appomattox, and Other Papers (1902); James Bryce, American Commonwealth (vol. II, various editions since 1888, contains famous chapter on the Tammany Tweed ring); A.B. Paine, Thomas Nast, His Period and His Pictures (1904), (Tweed ring). P.L. Haworth, Hayes-Tilden Disputed Presidential Election of 1876 (1906), is a thorough study; on this election, see also John Bigelow, The Life of S.J. Tilden (2 vols., 1895), and C.R. Williams, Life of Rutherford B. Hayes (2 vols., 1914).
* * * * *
[1] The closing months of Johnson's administration found him almost in a state of isolation. The incoming President refused to have any social relations with him, or even to ride with him from the White House to the Capitol on inauguration day. After the installation of his successor, Johnson returned to Tennessee but was later chosen to the Senate, where he served but a short time before his death.
[2] In 1884, a year before his death, the dishonesty of a trusted friend left him bankrupt, while a painful and malignant disease began slowly to eat away his life. Nevertheless, with characteristic courage he set himself to the task of dictating his Memoirs, or more often penciling sentences when he was unable to speak, in order that he might repay his debts with the proceeds.
[3] There was also a technical question concerning one elector in Oregon, which was easily settled.