Twenty Years of Congress, Volume 2 / From Lincoln to Garfield, with a Review of the Events Which Led to the Political Revolution of 1860

by James Gillespie Blaine

President Grant, noticing the condition of the public mind and giving full heed to the possibility of danger, quietly strengthened the military forces in and about Washington, with the intention simply of suppressing disorder, but as excited Democrats declared, with the design of installing Hayes by the aid of the Army of the United States. At no time in General Grant's career did his good judgment, his cool temperament, and his known courage prove more valuable to his countrymen. Every honest man knew that the President's intention was to preserve order and to see that the conflict in regard to the Presidency was settled according to law. To avert the reign of a mob he rightfully took care that the requisite military force should be at the Capital. No greater proof of General Grant's power to command was given, even on the battle-field, than the quieting effect of his measures upon the refractory and dangerous elements that would have been glad to disturb the public peace.

The portentous question which engaged the thoughts of all patriotic men was the count of the electoral votes when the certificates from the several States should be submitted to Congress. By a joint rule, adopted in February, 1865, by the two Houses, preliminary to counting the electoral votes cast at the Presidential election of 1864, it was directed that "no electoral vote objected to shall be counted except by the concurrent votes of the two Houses." This rule necessarily expired with the Congress which adopted it, but it was observed as a regulation (no one raising a question against it) in counting the electoral votes of 1868 and 1872. Certain Democrats now put forth the untenable claim that a joint rule adopted twelve years before and never renewed should be considered in full force. On the other hand, certain Republicans held that the Vice-President was clothed with the power to open and count the electoral votes and declare the result, the two Houses of Congress being present merely as spectators. According to the first construction it would be necessary only for the House of Representatives, which had a Democratic majority, to reject even one of the three disputed States from the count, and Mr. Tilden would be left with a majority of the electors. According to the second construction, the acting Vice-President, Mr. Ferry, who was a Republican, could count the three States in favor of Mr. Hayes, against the protest of either or both branches, and he would be President-elect.

It was soon found necessary to abandon both pretensions. On the 14th of December the House adopted a resolution (reported from the Judiciary Committee by Mr. Knott of Kentucky, and originally introduced by Mr. McCrary of Iowa) which, recognizing in a preamble that "there are differences of opinion as to the proper mode of counting the electoral votes for President and Vice-President," provided for the appointment of a "committee of seven members, to act in conjunction with any similar committee to be appointed by the Senate, to prepare and report without delay such a measure, either legislative or Constitutional, as may in their judgment be best calculated to accomplish the desired end; and that said committee have leave to report at any time." The Senate on the 18th of December appointed a similar committee empowered to confer and act with the committee of the House of Representatives. (1)

From the two committees acting as one, Mr. Edmunds on the 19th of January (1877) reported 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." Under the regulations of the proposed bill it was agreed that "no electoral vote or votes from any State from which but one return has been received shall be rejected, except by the affirmative vote of the two Houses," in this respect reversing the joint rule of 1865. Where more than one return had been received a reference to an Electoral Commission was provided—the Commission to be composed of five members of the Senate, five members of the House and five justices of the Supreme Court of the United States. When the Electoral Commission should decide any question submitted to it, touching the return from any State, the bill declared that the decision should stand, unless rejected by the concurrent votes of the two Houses. Every member of the Senate and House committees, with the exception of Senator Morton of Indiana, joined in the report. After an elaborate and very able debate the bill was passed in the Senate on the 24th of January by ayes 47, noes 17. Two days later it passed the House by a large majority, ayes 194, noes 86.

The mode prescribed in this act for selecting the members of the Electoral Commission was by viva voce vote in the Senate and in the House,—it being tacitly agreed that the Senate should appoint three Republicans and two Democrats,—each political party in caucus selecting its own men. In regard to the Commissioners to be taken from the Supreme Bench, it was ordered that the "Justices assigned to the First, Third, Eighth, and Ninth circuits shall select, in such manner as a majority of them may deem fit, another Associate Justice of the said Court; which five persons shall be members of such Commission." The four Justices thus absolutely appointed were Nathan Clifford, Samuel F. Miller, Stephen J. Field, and William Strong. From the hour when the Electoral Bill was reported to the Senate the assumption was general that the fifth Justice selected for the Commission would be David Davis. It was currently believed that Mr. Abram S. Hewitt had given the assurance or at least strong intimation that Judge Davis would be selected, as one of the arguments to induce Mr. Tilden to support the Electoral Bill.

Originally a Republican, Judge Davis had for some years affiliated with the Democratic party, and had in the late election preferred Mr. Tilden to Mr. Hayes. Without any imputation of improper motives there can hardly be a doubt that the Democrats, in their almost unanimous support of the Electoral Bill, believed that Judge Davis would be selected, and by parity of reasoning the large Republican opposition to the bill might be attributed to the same cause. But an unlooked-for event disturbed all calculations and expectations. On the 26th of January the House was to vote on the Electoral Bill, and a large majority of the members were committed to its support. To the complete surprise of both parties it happened that Judge Davis was elected senator from Illinois on the preceding afternoon, January 25th. Chosen by the Democratic members of the Legislature, reckoned as a Democratic senator elect, there was an obvious impropriety, which Judge Davis saw as quickly as others, in his being selected; and the four judges unanimously agreed upon Joseph P. Bradley as the fifth judicial member of the Commission.(2)

The Electoral Commission was organized on the thirty-first day of January, 1877. Eminent counsel were in attendance on both sides,(3) and the hearing proceeded with regularity.

The case of Florida was the first adjudicated before the Commission, and the electors supporting Hayes and Wheeler were declared to have been regularly chosen. Only eight of the Commission certified the result—Justices Miller, Strong, and Bradley, Senators Edmunds, Morton, and Frelinghuysen, Representatives Garfield and Hoar—the eight Republicans. It was confirmed by the Senate by a vote of 44 to 24. The House voted against confirming it; but, according to the Electoral law, the decision of the Commission could not be set aside unless both Houses united in an adverse vote. The cases of the two other States, Louisiana and South Carolina, were in like manner decided in favor of the Republican electors.

The complication in Oregon was next decided. As soon as Mr. Tilden's campaign managers began to fear that the electoral votes of the three Southern States might be given to Hayes and Wheeler, they turned their attention to securing an electoral vote elsewhere for Tilden and Hendricks. The plan devised was to find in some Northern State (with a Democratic Governor) an elector who might be disqualified under some technical disability. Oregon seemed to furnish the desired conditions. One of the Republican electors, John W. Watts, was postmaster in a small office, and was therefore declared to be ineligible; and Governor Grover gave the certificate to E. A. Cronin, who had received 1,049 fewer votes than Watts, but who had the largest number of the three Democratic candidates for electors. On the 6th of December, the day appointed for the meeting of the Electors, the two Republican Electors to whom Governor Grover had given certificates (W. H. Odell and J. C. Cartwright) refused to meet with Cronin or recognize him in any way; whereupon the officially certified list of votes and certificates of election were, by Governor Grover's order, delivered to Cronin and withheld from the Electors legally chosen by the voters of the State. The two Electors who had received certificates of their election then obtained a certified copy of the returns, met and elected Watts to fill the vacancy, and then proceeded to cast three votes for Hayes. Cronin thereupon immediately elected to fill the vacancies, two men who had not been voted for at all by the people, organized a fraudulent Electoral College, and went through the farce of casting his own vote for Tilden, while his two confederates (J. N. T. Miller and John Parker) voted for Hayes. The extraordinary and illegal action of Governor Grover had been urged through telegrams by Mr. Abram S. Hewitt, Chairman of the Democratic National Committee and by Mr. Manton Marble, a close personal friend of Mr. Tilden. The Electoral Commission summarily condemned the fraudulent proceedings and gave the three Electoral votes of Oregon to Hayes and Wheeler. The Democratic members of the Commission united with the Republicans in rejecting the factitious votes cast by the men associated with Cronin, but at the same time they voted to deprive Hayes of Watts' vote and to give the vote of Cronin to Tilden.

The proceedings in the Commission and in Congress were not closed until the second day of March (1877). Meanwhile the capital and indeed the country, were filled with sensational and distracting rumors: First, that the Democratic majority in the House would "filibuster" and destroy the count; second, that they had agreed not to "filibuster" by reason of some arrangement made with Mr. Hayes in regard to future policies in the South. Every mischievous report was spread; and for five weeks the country was kept in a state of uneasiness and alarm, not knowing what a day might bring forth. But in the end the work of the Commission was confirmed; and Mr. Hayes was declared to have been elected by the precise vote which Mr. Chandler, on behalf of the Republican National Committee, claimed the day after the polls closed in November—185 Republican electors, 184 Democratic electors. It was the first instance in the history of the country where a succession to the Presidency had been disputed. Differences of opinion in regard to the legality and regularity of the election in single States had arisen in more than one Presidential election; but it happened in these cases that the counting of the vote of the disputed States either way would not affect the decision, and therefore no test was made.