"A correspondent of the _World_ called upon Mr. Bigelow at his
residence at Highland Falls yesterday, and in the course of his
visit the following conversation took place:
"REPORTER. Mr. Bigelow, I understand that you prepared the
volume published by the Appletons, in December, 1877, called the
_Presidential Counts_, and particularly the analytical introduction
prefixed to it, containing what was deemed to be at the time a
semi-official Democratic view of the precedents and practice of the
government applicable to the counting of the Presidential vote. Also
that you were in frequent communication with Mr. Tilden, and in
complete possession of his views and purposes during that crisis.
"MR. BIGELOW. You are correctly informed, so far as that
publication is concerned.
"REPORTER. You doubtless read the story related recently by
Mr. Mines in the _World_, and derived by him from General Woodford.
"MR. BIGELOW. I saw that publication, and glanced over its
contents.
"REPORTER. The _World_ would like to know whether at
any time under the then existing facts of the case, Mr. Tilden
entertained any purpose of taking the oath of office as President of
the United States?
"MR. BIGELOW. That question seems to me to have been
fully answered by the analytical introduction about which you have
inquired, and which in its general scope--though, of course, not in
every detail nor in its particular expressions--may be supposed to
represent the doctrines entertained by Mr. Tilden in common with
the most eminent jurists and statesmen of the country. I do not
undertake to speak for Mr. Tilden, or in any peculiar sense as his
representative, but the very nature of the views expounded in the
analytical introduction necessarily defined the cases in which it
would have been lawful and proper for Mr. Tilden to have taken the
oath of office as President, and by inevitable implication the cases
in which it would have been unlawful and improper for him to have
done so.
"There were two contingencies in which it would have been lawful
and obligatory on Mr. Tilden to have taken the official oath as
President:
"_First._ If Congress had performed its constitutional duty of
counting the electoral votes, and had declared that Mr. Tilden was
chosen by the electoral colleges.
"The two Houses of Congress have all the powers of verification of
the electoral votes which the Constitution or the laws supply or
allow. Nobody else in the Federal government has any such powers.
This exclusive jurisdiction of the two Houses has been exercised
without interruption from the beginning of the government. It is
known to all those who come in contact with Mr. Tilden at this
period that he concurred in this view of the powers and duties of
the two Houses of Congress themselves to count the electoral vote.
He was perfectly free and unreserving in the expression of his
opinions on this subject.
"This contingency, however, never presented itself. Congress,
before the time fixed by the law for counting the electoral votes,
passed the Election bill wherein they substantially abdicated their
powers, and enacted that the electoral commission should in the
first instance make a count, and that its count should stand, unless
overruled by the concurrent action of the two Houses. The electoral
tribunal counted Mr. Tilden out, and counted in a man who was not
elected. Congress did not overrule their count; consequently, the
false count stood as law under the act of Congress.
"_Secondly._ The other contingency in which it would have been
lawful and obligatory on Mr. Tilden to have taken the oath of office
was, that the House of Representatives on the failure of a choice
of President by the electoral colleges had itself proceeded to make
the election, voting by States in the manner prescribed by the
Constitution.
"This contingency, like the first one, never occurred.
"The House of Representatives has by the express language of the
Constitution, jurisdiction, if no person has a majority of the
electoral votes, to make the election itself.
"The right of the two Houses to count the electoral votes,
and to declare that any person has a majority, is a matter of
implication, precedent, and practice. But the right of the House
of Representatives to supply the failure of a choice is a matter
of positive and express constitutional provision. It is not only
a right, but a duty. The provision is mandatory. The House is a
witness in the opening of the certificates. It is an actor in
counting the votes by its own tellers and in its presence.
"Having such means of knowledge as to the facts, enabling it to
ascertain whether a choice has been made by the electoral colleges,
it is also expressly vested with a power and duty to act exclusively
and conclusively in the event that no person be found to have been
chosen by a majority of the votes of those colleges. The House
acquires jurisdiction by the fact specified in the Constitution.
The assent of the Senate to the existence of that fact is nowhere
prescribed or required. No judgment, certification, or act of
any official body is interposed as a condition to the assuming
of its jurisdiction by the House. When the House has once acted
in such a case, no review of its action nor any appeal from its
decision is provided for in the Constitution. It is difficult to
see why the House in such a case, like all tribunals of original
jurisdiction and subject to no appeal, is not the exclusive judge
of the fact and the law on which its jurisdiction rests. It was
the fear that the Senate might lead a resistance to the rightful
judgment of the House, and that General Grant would sustain this
revolutionary policy with the army and navy and the militia of the
great States in which the Republicans had possession of the State
Governments that deterred the assertion of the rights of the House
of Representatives, and induced its vote for and acquiescence in the
electoral commission.
"But without speculating upon causes or motives, one thing is
certain. The House of Representatives did not elect Mr. Tilden
in the manner prescribed by the Constitution. On the other hand,
it did concur with the Senate in anticipating and preventing the
contingency in which it might have had to act, and in providing
beforehand an expedient which was to make its own action in
supplying the failure of an election by the colleges impossible.
It adopted the electoral law and went through all the forms of
the electoral scheme. True, it afterwards passed a declaratory
resolution condemning the action of the electoral commission,
and asserting that Mr. Tilden had been duly elected. But the
Constitution had not provided that a man should or could take
office as President on a declaratory resolution of the House of
Representatives. If that resolution could have had full effect to
abrogate the electoral law which the House had assisted to enact it
would have still been a nullity as an exercise of the constitutional
power of the House to elect. It created no warrant of authority to
Mr. Tilden to take the oath of office.
"I have been somewhat long in answering your question, because the
matter is one of importance. I might have disposed of your question
more briefly by simply saying that no contingency provided by the
Constitution ever existed in which Mr. Tilden could lawfully or
properly take the oath of office as President. The idea that Mr.
Tilden ever thought of taking the oath of office illegally is, in my
judgment, quite as preposterous as is the other idea that he would
have omitted to take it if any contingency had arisen in which it
was his right or duty to take it, or that any menace would have
had the slightest influence in preventing his performing his whole
obligations to the people. I will venture to say that if it had been
his right and duty to take the oath, he would not have done so at
the City Hall in New York surrounded by the forces which, according
to Mr. Mines, General Woodford pictured to his imagination, but
at the Federal capital, even though he had known that he would be
kidnapped or subjected to a drum-head court martial five minutes
afterwards. It is doubtless true that revolutionary ideas were
entertained by the hierarchy of office-holders in possession of the
government. General Grant did utter menaces in published interviews,
and did make a display of military force in Washington to overawe
Congress. I presume this was a part of the system of intimidation
for which he allowed himself to be used by the office-holders and
which was intended to act upon public opinion through the fear
of disturbance as well as upon Congress. But it is safe to say
that whatever other effects they produced they did not prevent
Mr. Tilden from taking the oath of office, which he never had any
lawful authority to take, in the absence of such action on the
part of the House of Representatives as would have fulfilled the
conditions prescribed by the Constitution. The fear that he would do
so, inducing the Republicans to swear their candidate into office
privately on the Saturday previous to the commencement of the term
of office besides repeating the ceremony at the inauguration, was
born of a consciousness that causes the wicked to flee when no man
pursueth. I was aware that about that time Mr. Tilden's home was
besieged by emissaries of the press and the telegraph to know if
the rumors to that effect which prevailed in Washington were true.
This was a species of curiosity which, I believe, Mr. Tilden did not
consider it any part of his duty to relieve."