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.'"