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.'"

Letters and Literary Memorials of Samuel J. Tilden, v. 2 · 第 84 / 295 题