include in his enlivening article copies of his telegraphic and other
correspondence with Mr. Tilden from New Orleans, and elsewhere, for
it would certainly and truly, so far as it went, throw much light on
the existing drama being displayed, as well as the plans and work
behind the curtain whereby (we may believe) it was hoped to produce
the election of Mr. Tilden. We Republicans at Washington were forced
to believe that an effort was being made, by every means that could
be employed, to overcome the Hayes majority of one. During that whole
period, so far as I personally knew or was informed, there never was
any scheme or act of the Republicans to bribe any state canvassing
board or elector by money or promise in support of Mr. Hayes’s
election. We did (if I may borrow an ancient classic simile) fear “the
Greeks bearing gifts.” We were morally certain that a large majority
of the legal voters in the States of South Carolina, Florida, and
Louisiana were earnestly in favor of the election of Mr. Hayes, and
we believed that if violence or some other kind of unlawful influence
were not brought to bear the electoral votes of those States would be
cast for him; but when the secret though bold operations of Colonel
Pelton became partly known we were astonished and alarmed, though not
disheartened, and we went forward in our efforts to provide by law for
the final act in the great drama.
The scene of action was now transferred to Washington. Mr. Watterson in
his usual charming style gives a clear description of the next steps
taken by the Democratic managers to achieve the wished-for triumph
of Mr. Tilden. He was advised by Mr. McLane--referring to the contest
over the English Reform Bill of 1832, when he had seen the powerful
impression produced by “the direct force of public opinion upon
law-making and law-makers”--that an analogous situation now existed in
America; that the Republican Senate was like the Tory House of Lords,
and that the Democrats must organize a movement such as had been so
effectual in England. But there was neither precedent nor analogy
except violence and riots, for Parliament was engaged in considering
discretionary _legislation_ enlarging and purifying the franchise, in
which peaceful persuasion and petition were right, as they would have
been for or against the passage of the Electoral Commission Bill. Mr.
Watterson tells us it was agreed that he return to Washington and make
a speech “with the suggestion that in the National Capital there should
assemble” a mass convention of at least one hundred thousand peaceful
citizens exercising the freemen’s right of petition. Mr. Watterson
tells us that it was a venture in which he had no great faith; but
that he prepared the speech, and that, after much reading and revising
of it by Mr. Tilden and Mr. McLane, to cover the case and meet the
purpose, Mr. Tilden wrote Mr. Randall, Speaker of the House, a letter
which was carried by Mr. McLane to Mr. Randall “instructing him what
to do in the event that the popular response [which did not come]
should prove favorable.” It is a great pity that this letter is lost
to the historian, for it would doubtless illuminate the real meaning
of the speech of Mr. Watterson prepared in New York and there ratified
by Mr. Tilden; for the speech that was delivered at Washington soon
after Christmas, 1876, was of such a character that “the Democrats at
once set about denying the sinister and violent purpose ascribed to it
by Republicans.” Mr. Watterson says,--I have no doubt with absolute
frankness,--that no thought of _violence_ had entered _his_ mind. But
Mr. Pulitzer, who immediately followed him in the speech-making, said
without rebuke that he wanted the one hundred thousand to come “fully
armed and ready for business.”
At the time of the delivery of these speeches action in all the States
must already have been concluded, and the documents required by law,
showing the action of the several States, had already been forwarded
to the president of the Senate to be held by him to be opened and
acted upon as required by the Constitution. These speeches, then, must
have been intended to frighten members of Congress by the threatened
presence of at least one hundred thousand men assembling at Washington,
under color of the right of petition, to persuade them by some means to
win a triumph for Mr. Tilden by procuring the rejection of some vote or
votes appearing in the electoral documents to have been cast for Mr.
Hayes. It would seem that the framers of the speech of Mr. Watterson
had overlooked the provisions in the Constitution of the United States
on the subject, which left no discretion or policy to be exercised by
any one, and the fact that so-called public opinion or partizan wishes
had no place in the procedure of receiving and counting the electoral
votes.
This great army of petitioning citizens could as well have been
assembled to influence the Supreme Court in the consideration of
some great cause, or the House of Representatives or the Senate in
an impeachment proceeding. This mode of influencing administrative
or judicial procedure, which has been and is supposed to be for the
ascertainment of the law and the truth, would be retrogression to Roman
times, when the populace sometimes flocked into the Forum to influence
by their voices and uproar the trial of causes.
I come now in my recollections (which are verified by the volume of the
“Proceedings of the Electoral Commission,” by the official “Journals”
of the two Houses, and by the “Congressional Record”) to the details
of the proceedings of the two Houses and of the Electoral Commission.
On December 14, 1876, the Democratic House of Representatives passed a
resolution in the following words:
Whereas there are differences of opinion as to the proper mode of
counting the electoral votes for President and Vice-President, and
as to the manner of determining questions that may arise as to the
legality and validity of returns made of such votes by the several
States;
And whereas it is of the utmost importance that all differences of
opinion and all doubt and uncertainty upon these questions should
be removed, to the end therefore that the votes may be counted and
the result declared by a tribunal whose authority none can question
and whose decision all will accept as final: Therefore,
Resolved, That a committee of seven members of this House be
appointed by the Speaker, to act in conjunction with any similar
committee that may 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.
This resolution was sent to the Senate, and in response thereto, on
December 18 the Republican Senate passed a resolution in the following
words:
Resolved, That the message of the House of Representatives on
the subject of the presidential election be referred to a select
committee of seven Senators, with power to prepare and report,
without unnecessary delay, such a measure either of a legislative
or other character, as may, in their judgment, be best calculated
to accomplish the lawful counting of the electoral votes, and the
best disposition of all questions connected therewith, and the due
declaration of the result: and that said committee have power to
confer and act with the committee of the House of Representatives
named in said message, and to report by bill or otherwise.
On December 21 the Senate appointed, as members of its select
committee, Messrs. Edmunds, Morton, Frelinghuysen, Logan, Republicans;
Messrs. Thurman, Bayard, and Ransom, Democrats. (Mr. Logan declined
the appointment and Mr. Conkling was appointed in his place.) On
December 22 the House of Representatives appointed, as the members of
its committee, Messrs. Payne, Hunton, Hewitt, Springer, Democrats,
and Messrs. McCrary, Hoar, and Willard, Republicans. These two
committees proceeded to consider the subject separately; and they
held conferences from time to time with a view to agreeing upon one
measure to accomplish the great objects named in the resolutions
of the two Houses. After much discussion and deliberation, the two
committees agreed that there should be reported in the Senate the bill
which, without amendment in either House, became the law under which
the procedure of the two Houses and the Electoral Commission took
place. This bill was reported by me to the Senate January 18, 1877.
After much debate and the rejection of sundry amendments it passed the
Senate, January 24, by a vote of forty-seven yeas and seventeen nays.
The negative votes were nearly all cast by Republicans. The bill was
then sent to the House, where, on January 26, it was referred to the
House committee on the subject, and on the same day was reported to
the House by Mr. Payne without amendment. After debate it passed the
House without any amendment, by a vote of one hundred and ninety-one
yeas and eighty nays. The negative vote was composed, as in the Senate,
very largely of Republicans. In the Senate, before the final vote
was taken, it was perfectly understood that the bill would pass by a
large majority in the form in which it came from the committee. It
was seen, apparently, that some gentlemen who were supposed to have
hopeful visions of their political future felt that they could safely
vote against the bill, of which, if it were followed by the success of
Mr. Hayes, it could be said to be quite unnecessary; and if it were
followed by the success of Mr. Tilden it could be said that disaster to
the Republican party had been brought about by the foolish conduct of
the Republicans who supported it.
Previous to the passage of the bill no law existed providing what
should be done, when in pursuance of the Constitution the two Houses
should meet and the president of the Senate open and cause to be read
the certificates of electoral votes from the various States, if a
difference of opinion between the Houses should arise concerning the
validity of any electoral vote. Two radical and opposing contentions
were being put forward by the more excited of the two parties. One side
said that the Constitution gave the president of the Senate the power
and duty to decide the result after the state certificates should be
opened and read. The other side maintained that the president of the
Senate had no power other than to preside, open the sealed packages
received by him from the various States, and cause them to be read;
and that it was in the power of the two Houses concurrently to decide
what votes should or should not be counted. Both these contentions were
thought by the Senate committee--and I hope by the House committee
also--to be absolutely erroneous. The Constitution had not made the
president of the Senate the judge of election returns. His only duty
was to receive, preserve, open, and cause to be read and summed up the
certificates of the action of each of the States, which he had received
as provided by the Constitution. To decide what persons mentioned in
the certificates were lawful electors was no part of his duty.
If the concurrent power of the two Houses to judge of the elections
existed, no votes on which the two Houses disagreed could be counted.
In such a case how long would each House “in the heat of conflict keep
the law”? The only things certain to happen in such instances would be
reprisals, and then--anarchy and open war.
I think few sane persons of intelligence can believe that the wise
and far-seeing builders of the Constitution intended to leave open
such an avenue to destruction; and so they did provide, after granting
to Congress affirmative powers on enumerated subjects, that Congress
should have power “To make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers and all other Powers
vested by this Constitution in the Government of the United States or
in any Department or officer thereof.” On this firm rock the select
committees of the two Houses rested the provisions of the Electoral Law
which we reported.
In framing this act the two committees carefully and intentionally
refrained from changing in any way any law then existing that might
affect either way the fundamental merits of the existing controversy;
and so, when the bill was under debate in the Senate, and Mr. Morton,
a member of the committee, who did not concur in its report or in the
passage of the bill, moved to amend the same by providing “That nothing
herein contained shall authorize the said commission to go behind the
finding and determination of the canvassing or returning officers of
a State authorized by the laws of the State to find and determine the
result of an election for electors,” I moved to amend the amendment so
as to make it declare that the commission should have authority to go
behind the returns. The purpose of my motion was to make it impossible
that any inference should exist from Mr. Morton’s proposition being
rejected that the commission should be granted by the act any authority
either way that did not already exist. I, of course, voted against my
own amendment and only one senator voted for it. The amendment of Mr.
Morton was defeated by a majority of more than two to one. Thus the
bill passed without any amendment at all, as before stated.
The act provided that the Electoral Commission be composed of
fifteen members consisting of five justices of the Supreme Court of
the United States, five senators, and five members of the House of
Representatives. The members of the commission were the following:
Justices, Clifford from Maine, Miller from Iowa, Field from California,
Strong from Pennsylvania, and Bradley from New Jersey; Senators,
Edmunds of Vermont, Morton of Indiana, Frelinghuysen of New Jersey,
Bayard of Delaware, and Thurman of Ohio; Members of the House,
Payne of Ohio, Hunton of Virginia, Abbott of Massachusetts, Hoar of
Massachusetts, and Garfield of Ohio.
The law provided that the fifth of the five justices to compose that
part of the commission was to be selected by those justices assigned to
the First, Third, Eighth, and Ninth Circuits, and that the senior in
service should be president of the commission. It required that each
House, by a _viva voce_ vote of its members, should appoint the five
senators and the five representatives provided by the law, which was
done. Mr. Watterson says that it was believed by the Democratic members
of the House that justice Davis of Illinois would be appointed as the
fifth justice composing the commission, and that it was also believed
that Justice Davis would be “sure for Tilden.” I had no belief upon the
subject other than that founded upon my knowledge of the capacity and
character of Justice Davis; and that led me to believe that he, as well
as the other justices, would follow what they thought, after hearing
the cases, was the law; and I believed that neither the Constitution
nor the law authorized the commission to overthrow the regular returns
of any State and make what must necessarily be an endless inquiry into
what the votes of the people of any State had been in point of numbers,
either for or against the Republican or Democratic electors. That
right, by the letter and the spirit of the Constitution, was given to
the States alone.
After the Electoral Act had been passed Justice Davis was elected
senator from Illinois and consequently became ineligible; and the
four justices selected Justice Bradley (from New Jersey) as the fifth
justice of the commission. Mr. Watterson thinks that if Justice Davis
had been a member of the commission he would have voted as Justice
Bradley did. I agree with him in that belief.
Although the act made no provision in respect of the political
character of the members of either House to be appointed, it was
agreed by those representing the two parties in each House that the
members selected for the commission should be three Republicans and two
Democrats of the Senate and three Democrats and two Republicans of the
House. Each side had faith enough in the honor of the other to be sure
such would be the case, as it was. Thus the Electoral Commission was
formed.
The commission met and organized January 31, 1877, only thirty-four
days before the final ceremony of the election of the President must
take place.
All its members were present, and the certificates of the appointments
of its members, before named, were presented and recorded, showing
that the Senate had by a unanimous vote appointed the persons before
mentioned to be members of the commission, and that the House had
appointed as its members of the commission the gentlemen named above.
All the members of the commission took and subscribed the oath of
office required by the statute--that they would “impartially examine
and consider all questions submitted to the Commission and a true
judgment give thereon, agreeably to the Constitution and the Laws.”
The commission adopted simple rules of procedure and notified the two
Houses that it was ready for business.
On the first day of February the two Houses met in the Hall of the
House, and the opening of the electoral certificates was begun,
proceeding in alphabetical order, as the act required. The votes of
the States of Alabama, Arkansas, California, Colorado, Connecticut,
and Delaware were read without objection and recorded as returned. The
next State alphabetically was Florida. Three separate packages, which
had in due course come to the hands of the president of the Senate from
that State, were presented by him, the first one of which, purporting
that the electors of the State had voted for Mr. Hayes, was objected to
by Democratic members of the House and Senate in the manner authorized
by the Electoral Act; and objections to the other certificates were
in like manner made by Republican members of both Houses. Whereupon
all these papers and objections were transmitted to the commission
for consideration and decision. The case was correctly understood to
involve substantially the same questions that would arise in respect of
Louisiana and South Carolina; and the case was argued on both sides by
eminent counsel and patiently heard by the commission until February
9, when, after consultation and discussion, the majority of the
commission decided that the certificate showing the election of Hayes
and Wheeler was the true and lawful certificate of the State of Florida
and should be counted as such, upon the ground stated, as required
by the act; “That it is not competent under the Constitution and the
law, as it existed at the date of the passage of said act, to go into
evidence aliunde the papers opened by the president of the Senate in
the presence of the two Houses, to prove that other persons than those
regularly certified to by the Governor of the State of Florida, in and
according to the determination and declaration of their appointment by
the board of state canvassers of said State prior to the time required
for the performance of their duties, had been appointed electors, or by
counter-proof to show that they had not.”
The members of the commission voting in favor of this decision
were (alphabetically stated) Mr. Justice Bradley, Messrs. Edmunds,
Frelinghuysen, Garfield, Hoar, Mr. Justice Miller, Mr. Morton, and Mr.
Justice Strong. Those who voted in the negative were Messrs. Abbott,
Bayard, Mr. Justice Clifford, Mr. Justice Field, and Messrs. Hunton,
Payne, and Thurman.
In the course of the discussions in the consultations of the commission
on the Florida case, Senator Frelinghuysen, in support of his view
that there was no power to go behind the regular returns, called the
attention of the commission to the debates in the Senate on January
7, 1873, as reported in the “Congressional Record,” to the opinion
expressed by Senator Thurman in the consideration of a resolution
authorizing an investigation as to whether the election for President
and Vice-President had been conducted in Louisiana and Arkansas in
1872 in accordance with the laws of the United States, in which Mr.
Thurman was reported as saying, “There seems to be no way provided by
Congress, and no way, I believe, that Congress, as the Constitution
stands, can provide to try the title of an elector to his office”; and
he proceeded to say, “I take it that the entire control over the manner
of appointing the electors is one of the reserved rights of the State.”
Mr. Thurman, on hearing this read by Mr. Frelinghuysen, said: “I
have changed my mind.” Mr. Frelinghuysen, also quoting from the
“Congressional Record” reporting the proceedings of the Senate on
February 25, 1875, in considering the bill then pending to provide for
counting the votes for President and Vice-President, read from the
speech of Senator Bayard on the subject, in which Mr. Bayard said,
“There is no pretext that for any cause whatever Congress has any
power, or all the other departments of the Government have any power,
to refuse to receive and count the result of the action of the voters
of the States in that election, as certified by the electors whom they
have chosen.” (See official report of the Proceedings of the Commission
compiled and printed by order of Congress, page 847.)
But it is a duty and a pleasure to say that I am sure both Mr. Bayard
and Mr. Thurman voted with perfect honesty and sincerity. Thus it will
be seen that the fundamental and controlling question in the three
disputed elections before mentioned was not new.
That these decisions of the majority of the commission, recognizing the
conclusive authority of the several States in holding elections and
determining the result of their choice of Presidential electors, were
fully in accordance with the Electoral Act and with the Constitution,
is absolutely confirmed by the non-partizan action of Congress
itself--at a time when there was no possible party bias or emotion upon
the subject--in the passage of the act of February 3, 1887, wherein
the very principles controlling the decisions of the majority of the
commission were recognized and adopted, and whereby the very substance
and almost the very form of the Electoral Act was enacted into law so
far as it respected the rights of the States and the proceedings of the
two Houses, without the intervention of an Electoral Commission. (See
Supplement to the “Revised Statutes of the United States,” 1874-91,
page 525.) If the Republican members of the Electoral Commission needed
any vindication of their action, I feel sure (though the “Journals”
of 1887 are not available in the city where I write) that this act of
Congress, passed without party division, gives it completely.
The case of Florida having been thus disposed of, that of Louisiana was
sent to the commission on February 12, and was decided upon the same
principle governing the Florida case; but it was not finally determined
and the vote counted until February 20. From that time until the
second day of March, at four o’clock in the afternoon, when the final
declaration of the election of Hayes and Wheeler was made, there was
a continual and successful effort, growing more and more intense and
violent, by the Democratic majority of the House of Representatives to
delay final action by the two Houses in counting the whole electoral
vote; and in the last case but one the House of Representatives
rejected the vote of one of the Vermont electors by a party vote
including, I think, that of Mr. Watterson; while the Senate, by a
_unanimous_ vote on the yeas and nays, declared that the vote should be
counted, which under the law validated the disputed vote. (See “Journal
of the House,” and the “Congressional Record.”)