HumanitiesWeb HumanitiesWeb
WelcomeHistoryLiteratureArtMusicPhilosophyResourcesHelp
Sort By Author Sort By Title
pixel

Resources
Sort By Author
Sort By Title

Search

Get Your Degree!

Find schools and get information on the program that’s right for you.

Powered by Campus Explorer

& etc
FEEDBACK

(C)1998-2012
All Rights Reserved.

Site last updated
28 October, 2012
Real Time Analytics
A Constitutional History of the United States
Chapter XLVIII - The Election of 1876
by McLaughlin, Andrew C.


For the election of 1876, the Republicans nominated Rutherford B. Hayes of Ohio, and the Democrats Samuel J. Tilden of New York. Both were able men. The choice of either would give assurance of an honest and competent administration. It was time that something be done to clear the air, for the vulgarities of partisan strife and the corruption which had penetrated even to the center of the government at Washington were, or should have been, enough to shock the sensibilities of a self-respecting people. If these deplorable conditions are passed over in these pages with brief and insufficient comment, it is not because of an unwillingness to admit their importance even in constitutional history; for the success of a democracy and the maintenance of a reputable constitutional system must depend, not upon cunning partisan strategy, but upon the capacity of the plain people to install honest officials and support decent and honorable government.

The necessity of reform was much discussed in the campaign, and the Democrats made good use of the scandals in Congress and the administration. Many Republicans felt keenly the disrepute that had come to the party because of the misdeeds of public officials. Just how much this issue affected the outcome of the election cannot be said, but there was no return to anything like comparable conditions in the national government until another generation had come and gone.

The campaign did not, however, turn solely on the question of political reform. The panic of 1873 and the ensuing depression naturally weakened the hold of the Republicans on the average voter; the paper money issue was not entirely dead. The Republicans could with justice point with pride to the record of the party in maintaining the public credit and to their determination to resume specie payment. The party thus could rely on the support of the hard-money men. It could still be confident of the loyalty of many thousands who were devoted to the party that had "saved the union". Much of its strength came from its economic and financial conservatism.

The more advanced and radical Republican leaders sought to win support by fervid denunciation of southern lawlessness which had been vehemently denounced before the election by James G. Blaine, a prominent candidate for the presidential nomination and for years thereafter the "Plumed Knight" of the Republican cohorts. The best argument for their opponents, however, was the comparative quiet prevailing in the south.[1] Most of the reconstructed states had passed into the hands of the conservative whites. The feverish anxiety, which had been expended by northern idealists to establish and safeguard negro rights by giving the ballot, and the like anxiety of party politicians to make certain the ascendancy of their party in the nation seemed to have gone for nought. And as a matter of fact, the fruits of Reconstruction appeared to be turning to ashes in the hand.

South Carolina appears to have indulged more freely than other southern states in the grosser and more violent forms of browbeating the negro voter. There the campaign was conducted in a way to merit the name; it was carried on by the determined whites as if it were a combat between life and death.[2] Better, said the South Carolinians, violence for a time than misrule for all time.[3] At the request of Governor Chamberlain, Grant sent troops to the state in October. In the redemption of Mississippi in 1875, the whites had made use of various and effective means of intimidation which as a rule fell short of physical violence and of the more brutal forms of interference at the polls. Suggestion took the place of force in considerable measure — suggestion amplified by visible intent to proceed to realities if a negro were too willful or too stupid to read the writing on the wall. The "Mississippi plan" was hailed as a revelation and imitated, when need be, in other states.[4]

The first announcements of the election indicated a Democratic victory. Tilden had carried four northern states — New York, New Jersey, Connecticut, and Indiana. Without the votes of South Carolina, Florida, and Louisiana, the unredeemed states, he had apparently received 184 votes, one less than the requisite electoral majority. The strategic move for the Republicans was to announce their success in these crucial states, and so the telegraph wires were kept busy sending out to waiting thousands the message from the party headquarters — "Hayes has 185 electoral votes and is elected." The situation was critical; there was actual danger of tumult or more serious social disorder. A people without political discretion or a people not weary of the horrors of civil war might have easily drifted into a temporary condition of anarchy or yielded to the strong arm of a personal dictator.[5]

Conditions were serious enough to test supreme common sense. Partisan spirit ran high. There was no doubt that intimidation and chicanery had been rampant in the election. Indeed, in some of the northern states the purity evinced was nothing to boast of. In the three pivotal states of the south, the votes were so nearly evenly divided that ample opportunity was given for dispute concerning the result. South Carolina appeared to have supported Hayes by a small but probably safe majority. Florida presented its share of anxiety; it needed careful watching. Louisiana offered the most serious problem; the vote might be secured for Hayes, if the Republican officials in charge of the final canvass used their powers with cunning and ruthless determination. To watch proceedings, "visiting statesmen" hurried from the north, the Republicans at the request of President Grant, the Democrats at the request of the chairman of the national committee. The state canvassing boards, needless to say, were not deficient in acumen or in partisan zeal, but the Republican statesmen believed it unwise to leave them to their unaided devices, and some idea of prevailing conditions needed to be gathered by personal observation. Neither of these groups of visitors went with the express intention of using the grosser means of arranging the count to their own satisfaction, but partisanship is likely to be blind.[6]

In Florida, where the election had passed in comparative quiet, there was dispute concerning which side was ahead on the face of the returns sent to the state canvassing board from the counties. The Republicans claimed a majority of 45, the Democrats a majority of about 100. The state board, two of the three members being Republicans, rejected enough of the county returns to give the election to the Hayes electors by a majority in the neighborhood of 900.[7] The Democrats, however, were not willing to be counted out; and, as a result, conflicting certificates of election were sent to the President of the United States Senate.

To Louisiana must be awarded the prize for displaying the most discreditable condition and the most perplexing problem — the product of years of violence and trickery and of ruthless carpetbag government. In the campaign the "Mississippi plan" — intimidation which in the mind of the expert was not intimidation — had not been too scrupulously followed. On the face of the returns from the localities, the Hayes electors were defeated by apparently conclusive majorities. Such a state of affairs was alarming; it remained for members of the state canvassing board to show their mettle. They were well fitted for their job. The leader of the board had been described by General Sheridan some years before: "His conduct has been as sinuous as the mark left in the dust by the movement of a snake." [8] It is said that in the meantime his character had deteriorated. At least two of the remaining three members had unenviable records. On the charge of bull-dozing, intimidation, and for other reasons, the returns from various parishes were cast aside with a lavish hand.

The state law gave the board wide power; and there can be little doubt of its legal authority to purge the lists, but in one or two seemingly unimportant matters it quite needlessly ignored the law and its obligations; and these petty irregularities, which might have been avoided by just a little common sense and alertness, proved in the end to be the source of considerable embarrassment to the Republican cause. Probably these cunning politicians were so accustomed to the evasion of law that they could not see the advisability of obeying it when obedience would have been helpful. The result of the board's activities was a return showing, not a Tilden majority of nearly 8,000, but a majority for the Hayes electors of about 3,500.[9] The vote of these electors with the Governor's certificate was sent to Washington. Democratic indignation knew no bounds — indignation was a plentiful commodity in those days. Eight persons claiming to be the legally chosen electors of the state voted for Tilden and Hendricks, and their certificates, accompanied by one from John McEnery, who signed himself Governor of the state, were sent to the President of the Senate.[10] It is not necessary to enter upon the task of deciding which side carried the burden of the greater political immorality or to describe all the sordid details. Conditions in Louisiana were intolerable; they mocked at the pretense of constitutional government of a free people. Fortunately for the reader, constitutional history is not compelled to repeat the whole story and to disturb the dust that has settled upon the mire.

The Democrats left no stone unturned in their search for means of winning a victory which they saw slipping away from them because of what they considered high-handed and illegal practices. Although there was little hope of their winning their cause, they decided to test the validity of the Republican returns from South Carolina. The Republican canvassing board was charged with gross fraud. A certificate and the votes of the Tilden electors were forwarded, purporting to be the legitimate result of the popular election. And thus South Carolina offered another critical question to be passed upon.

Oregon rather unexpectedly offered a peculiar opportunity. The Hayes electors had received a majority of about one thousand votes, but one of the electors was at the time of the election a federal officer and was therefore ineligible. The Governor certified to the appointment of one Democratic and two Republican electors. Even if the Democratic elector was not entitled to vote, the loss of one electoral vote, from among the 185 which were claimed for Hayes, was fatal to the Republican cause: the final count would show a tie and the choice of president would devolve upon the Democratic House of Representatives. Two returns were sent from Oregon to the President of the Senate, one with the Governor's certificate showing two votes for Hayes and one for Tilden, the other showing three votes for Hayes,

Concerning the determination of disputes in an election, the Constitution is reticent. The most important constitutional provisions concerning the election of a president are as follows: "Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the State may be entitled in the Congress; but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector." 11 "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." [12] Congress is authorized to "determine the time of choosing the electors, and the day on which they shall give their votes, which day shall be the same throughout the United States." [13] This last pronouncement is the only plain statement in the Constitution of any power in the central government to control the states' authority to appoint electors; but of course, if the appointment is made by popular election, the fifteenth (and now the nineteenth) amendment affords the government the opportunity to guard against unlawful discrimination. The right of Congress to prescribe methods and formalities, which will enable the person who is authorized to count the votes to know that the certified votes come from bona fide and legally appointed electors is apparently beyond question; and an act prescribing these formalities was passed in 1792. The law named the period within which the electors should be appointed and fixed the day on which the electors should meet and vote. In 1845 a supplementary act fixed definitely the day of appointment and also declared "That each State may by law provide for the filling of any vacancy or vacancies which may occur in its college of electors when such college meets to give its electoral vote".[14] This latter declaration may be an assumption of authority by Congress, because it is not the right of the national government to intrude upon the duty of the state; but in exercising the right to determine the day of appointment Congress may properly provide that vacancies may be filled at a later time.

With conflicting certificates in the hands of the President of the Senate, the question still remained — who had the authority to count the votes? Vice-President Wilson having died, the office of President of the Senate was held in 1877 by Thomas W. Ferry of Michigan, a Republican and by no means a timid partisan. Did he have the right to count the votes and declare the result, while the two houses sat by as competent though silent witnesses that he had done so? The Constitution says, we may remind ourselves again, "The President of the Senate shall ... open all the certificates, and the votes shall then be counted." But counted by whom? There is nothing intrinsically absurd in assigning to a single officer the counting of votes and announcing the result of an election. Although there is no use in arguing now in behalf of possession of sole power in the hands of the President of the Senate, the claim to such power is by no means preposterous; it seems at least possible to decide that the framers of the Constitution assigned to him the duty and the power in question.[15]

If the two houses are authorized to count the votes, the Constitution gives no hint of how the houses shall be organized. Though occasionally the meeting of the two houses has been called a convention, they have consistently, and probably wisely (for the Constitution speaks of the two houses), refused or neglected to merge themselves into a single body with legislative or administrative authority in which conclusions would be reached by a numerical majority of the whole; rules have been passed, generally of a temporary character; the consequence has been a degree of uncertainty, and in the case of great differences of party opinion or real doubt, the problem has been left to the action of the two separate houses — a method which must be looked upon as the least desirable and feasible method of counting a vote.[16] The twenty-second joint rule, which had been adopted in 1865, provided that, if any vote were objected to, it should not be counted unless it be accepted by both houses. The rule, however, had not been reŽnacted in 1876. This complicated the situation.

But of course the pivotal question was not who should do the counting, but what votes should be counted. Past procedure, as we have seen, gave some basis for the assumption that Congress, acting in two chambers, could decide. Are there limits on such authority, or may the decision rest only upon partisan needs and ambitions? There would appear to be in theory only one safe and sane conclusion: each state has the right, free from control, to appoint electors, and if it is unable to send to the President of the Senate a list of the electors, properly certified and to be relied upon, the vote of that state cannot be counted; the vote then is lost. But that Congress can take upon itself the duty of canvassing the popular vote (or investigating the conduct of a legislature, if the legislature were by state law given the duty of appointing electors) appears not only an untenable technical position, but one fraught with difficulty and danger. The development of centralized nationalism has been so marked in the last half century, and the states have lost so much of their own self-respect, that there might now be a complacent acquiescence in congressional control of the state's power to "appoint", specifically announced by the Constitution.

Counsels of wisdom and judgment prevailed in Congress. After the end of an anxious month, an agreement was reached for the selection of a tribunal.[17] In case there were conflicting returns from a state, the "returns and papers" were to be opened and read in a joint meeting of the houses and then turned over to a commission of fifteen, which should have "the same powers, if any", possessed by the two houses, "acting separately or together, and, by a majority of votes, decide whether any and what votes from such State are the votes provided for by the Constitution of the United States, and how many and what persons were duly appointed electors in such State...." The decision concerning each one of the disputed states was to be read and entered on the journal of each house, and the counting of the votes should "proceed in conformity therewith," unless the two houses separately should "concur in ordering otherwise...." [18]

The commission was composed of five members from each house and five justices of the Supreme Court. Though there was no explicit provision concerning the party affiliation of the members chosen by the respective houses, the Senate chose three Republicans and two Democrats, the House three Democrats and two Republicans. The justices chosen were named, not personally, but by circuits — the first, third, eighth, and ninth. These four had authority to select a fifth. Of the four, Clifford and Field were Democrats, Strong and Miller Republicans. It was apparent that if the commission, including the justices, proved to be influenced by inclinations resulting from past or present party association, the decision would rest on the shoulders of the fifteenth man, the justice chosen for the unenviable job. When the make-up of the commission was under discussion in Congress, Judge David Davis, it was generally understood or supposed, would be the fifteenth member. But at the critical juncture, just before the bill constituting the commission was passed by the House (January 26), Davis was elected Senator from Illinois and thus could no longer be considered a suitable choice by the four justices. In his place, the four justices selected Justice Joseph P. Bradley; to him, the fifteenth man, was assigned the inconceivably difficult task of decision, for the other judges, though men of honor, might be expected to vote in accord with the interests of party — and such supposition proved in the end well-founded. The selection was, however, the best possible under the circumstances. Bradley had been appointed by Grant, but he was not an extreme partisan; he was a man of high character and, while on the bench, had in the decision of at least one important case shown himself out of sympathy with radical Republican legislation.

The commission met in the Supreme Court room on the last day of January and the next day entered upon its task. There were five prominent problems to be met. (1) Could the commission legally go behind the returns, that is to say, pass upon the correctness of the determination of the state canvassing board which under the law of the state had announced the result of the election? This was the critical but by no means the only troublesome question. (2) What was the effect of the provision of the federal Constitution declaring that no person holding any office of trust or profit under the United States should be appointed an elector? (3) Must the action of the legislature of Florida and the quo warranto proceedings in the Florida court, or either of these steps, be accepted by the commission as determinative of the will of the state, despite findings of a contrary character by the canvassing board? (4) Certain questions arose in the interpretation of state laws providing for the make-up and powers of the canvassing board. Was failure to act in strict conformity with the terms of the state statute fatal to the authority of the board and had the state therefore not appointed any electors? (5) Was the governor's certificate final and conclusive or could the commission question it and refuse to be bound by it? The commission, it must be remembered, had no more authority than Congress.

The right of the commission to go behind the returns was elaborately discussed in the Florida case, and the commission by a vote of eight to seven — all of the Republicans on one side and all of the Democrats on the other — refused to investigate the question whether the electors named by the board had actually received the highest number of votes; they refused to question the validity of the decision of the body which under the law of the state had the authority to decide.[19] On this matter the statement of Justice Bradley is especially noteworthy: "Each State has a just right to have the entire and exclusive control of its own vote for the Chief Magistrate and head of the republic, without any interference on the part of any other State, acting either separately or in Congress with others. If there is any State right of which it is and should be more jealous than of any other, it is this. And such seems to have been the spirit manifested by the framers of the Constitution.... The State is a sovereign power within its own jurisdiction, and Congress can no more control or review the exercise of that jurisdiction than it can that of a foreign government.... It seems to me to be clear, therefore, that Congress cannot institute a scrutiny into the appointment of electors by a State.... While the two Houses of Congress are authorized to canvass the electoral votes, no authority is given them to canvass the election of the electors themselves.... It seems to me that the two Houses of Congress, in proceeding with the count, are bound to recognize the determination of the State board of canvassers as the act of the State, and as the most authentic evidence of the appointment made by the State...." [20]

In opposition to this position, the opinion of Justice Field is perhaps the most cogent.[21] He declared the canvassing board had usurped authority; he denied that the state statutes gave the board such authority as it had assumed, and, to sustain him, he quoted the decision of the supreme court of the state, which, he declared, made plain that the powers of the board were purely ministerial, and that "their whole duty consisted, whenever they were enabled to determine the actual vote given for any officer, in simply computing arithmetically the number of votes cast, as shown by the returns [from the counties], and declaring the result by a certificate of the fact over their signatures." [22] He argued at length in behalf of the right to inquire whether the canvassers had made a mistake in addition, had been bribed, had been coerced by physical force, or had in any other way failed to register properly the will of the state; such possibilities, he put forth, not as peculiarly applicable to the Florida case, but as examples of the impropriety of asserting that the decisions of the state canvassing board could not be examined and that its decision, which might be proved to be absolutely false, must nevertheless stand as the will of the state. Such impropriety and such unwarrantable results, he said, naturally flowed from the denial of the right to go behind the returns.

Though it may be presumptuous to make a positive statement, when highly competent justices differed so radically, it seems evident that the Republican eight held the proper position on this all-important matter.[23] And if we consider, not the technical legality of the commission's decision as then announced, but the practical consequences of adopting the theory that Congress can override the determination of the state board and can itself canvass the vote, or cast out altogether the returns of counties or precincts, we must hold the commission's decision to have been wise and conservative. He would be a bold man who would affirm that, if Congress could exercise the power — which would mean in effect congressional control of presidential elections in the states — there would be no violent partisanship and no chicanery.

The decision of the commission is of importance not alone because of the part it played in the settlement of the dispute of 1876. The spectacle of a Congress in the grasp of a powerful national party exercising the right to thrust in its hand and decide presidential elections as it may choose, is not a pleasant sight to look upon.[24] And, indeed, what was the process of Reconstruction, when it reached its most sordid and lowest stage, but determination on the part of a national party intrenched in Congress to maintain itself and have its way? If the Republicans on the commission were upholding states' rights and if the Democrats were now insisting on an opposite principle, it may appear to be all very amusing; but the fact points to a return of the Republicans to common sense and sound constitutional doctrine. If they were aided in that change by partisan considerations, there is no need in our shedding tears over the prodigals' return.[25]

As we have already pointed out, the Constitution places one distinct restriction upon the state in its appointment of electors: no federal officer can be appointed an elector.[26] Three of the four cases before the commission brought up the necessity of determining the construction and application of this provision. Among the Florida Hayes electors was F. C. Humphreys, who had been United States shipping-commissioner. Whether or not he was a federal officer at the time of the November election was a matter of dispute; and in this instance the commission consented to go behind the certificates. This, of course, they were under constitutional obligation to do. They found that Humphreys had resigned his federal office before he was chosen an elector at the polls. So, for the time being, the perplexing question of eligibility did not create great difficulty. The commission in this instance did not decide on the principle to be followed in case an elector had been actually a federal office-holder when the November election was held. It may be argued that the commission was inconsistent in consenting to go behind the returns of the canvassing board at all, even to discover whether a person appointed was eligible or not. But such inconsistency can scarcely be maintained. It is one thing to claim the general right to examine into and review the decision of a state authority exercising the functions given by state law and clearly assigned to the state by the federal Constitution; and it is another thing to investigate whether the state has observed a restriction definitely prescribed by the federal Constitution. Such an investigation is not an intrusion upon the field of state authority.

The most difficult problem in the Florida case was to decide the effect of the action of the state authorities after the election was held and even after the electoral vote was cast. Quo warranto proceedings were instituted in the circuit court of Florida to test the right of the Hayes electors to act, and the court held that they were not duly elected but on the contrary that the Tilden electors were. The writ was served on the electors before they actually voted;[27] and the Tilden electors as well as the Hayes electors voted on the 6th day of December.[28] The legislature also had passed an act (January 17, 1877) providing for a board of canvassers and ordering a new canvass, which resulted in a statement that the Tilden electors had been chosen at the November election; an act was also passed (January 26) declaring the original canvassing board had acted illegally and erroneously, that the Tilden electors were duly chosen, and that the Governor was directed to certify to their election. Such a certificate was prepared and was included in the documents presented to Congress.

Did this certificate, the legislative acts, and the decision of the state court constitute the purpose and will of the state? Must a determination thus reached be conclusive upon Congress and the commission? Most troublesome to the Republican cause were the quo warranto proceeding and the finding of the Florida court. If the canvassing board had acted illegally, could anyone assert that its work, if based on fraud, could not be undone by judicial authority? There were no entirely clear constitutional principles to start upon, as the basis of a legal argument, and, in fact, the decision of the commission seems to rest quite as much upon general considerations as upon clear-cut legal theory. At all events, the decision of the majority was based on the declaration that the Hayes electors were in legal possession of their offices; that after they had acted nothing could be done by any state authority of any kind — judicial, legislative, or executive — to annul their act; it was complete and irreversible; any other principle, if adopted as a principle of constitutional law, would involve the right of a state court, even an inferior state court, or the political branches of the state government, weeks or even months after the electors voted, to change the vote of the state, and in this way to change the results of a national election.

But in this instance as in others, the matter is presented best in the words of certain members of the commission, though nothing less than a full statement adequately presents the strength of the argument. Justice Field said: "In this case the State of Florida has furnished evidence in an authentic form and conclusive in its character, that the Hayes electors were never appointed and that the certificate of the governor and of the canvassing-board in this respect is false; and that the Tilden electors were duly appointed." [29] Justice Bradley, on the other hand, said, the action of the board involved more than a mere statement of fact; it was a determination, a decision quasi-judicial; the board, by state law, had power to canvass the returns and to cast out returns appearing to be false or fraudulent. "To controvert the finding of the board, therefore, would not be to correct a mere statement of fact, but to reverse the decision and determination of a tribunal.... If the court had had jurisdiction of the subject-matter, and had rendered its decision before the votes of the electors were cast, its judgment, instead of that of the returning-board, would have been the final declaration of the result of the election. But its decision being rendered after the votes were given, it cannot have the operation to change or affect the vote.... No tampering with the result can be admitted after the day fixed by Congress for casting the electoral vote, and after it has become manifest where the pinch of the contest for the Presidency lies, and how it may be manipulated.... Under the Florida statute, the board had power to cast out returns. They did so." [30]

On February 9 the commission reported in favor of declaring "it is not competent ... 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 ... by the board of State canvassers ... , had been appointed electors...." The report also asserted that all proceedings of the courts or acts of the legislature after the electors had voted were inadmissible as evidence to show that such electors were not appointed.

Louisiana presented so many serious questions, the whole atmosphere was so charged with miasmic vapors of fraud, cunning, and vulgarity, that the commission might well have felt its job hopeless. What was the use of passing solemnly upon legal questions when the whole situation was characterized by lawlessness? But the problems were seriously discussed and in each instance with a display of legal learning and without outward manifestation of bad temper. To surrender in despair would have been the abandonment of good sense and sober statesmanship. When all is said, decisions on the basis of law rather than passion were doubtless of lasting moment.

The problem of eligibility arose sharply in the Louisiana case. Two of the men, who were declared chosen at the election and who voted for Hayes, were at the time of the popular election federal officeholders. They resigned their offices before actually casting their votes for the presidency. The main contention of the Democratic counsel was this: the state of Louisiana was forbidden to appoint a federal office-holder; the time of appointment was the time of the popular election; and such appointment of a disqualified person was illegal and void.[31] With this opinion the majority of the commission did not agree. Justice Bradley summed up the matter in these words: "I still think ... that it is all one, whether the prohibition is that a Federal officer shall not be an elector, or, that he shall not be appointed an elector. The spirit and object of the prohibition is to make office-holding under the Federal Government a disqualification. That is all." In the opinion of this justice, the only question was whether a person acting as elector was at the moment of so acting a federal office-holder. This was an important decision, for Hayes could not lose a single vote, and there remained the Oregon case, the last hope of the Democrats, and there, too, a federal office-holder had been chosen at the election. No one can now assert with assurance that the Democratic counsel was wrong and the commission right. But the result of the whole controversy turned on that seemingly trivial point. One thing is obvious; there is one lesson to be learned: even a politician may find it advisable to know something of the Constitution.

The contention that Louisiana did not have a republican form of government,[32] and the assertion that Kellogg, the carpetbag Governor, was, by law and right, not the governor of the state, were plainly not matters that could be taken up and passed upon by the commission; such a step was impossible unless the commissioners were prepared to cast disrepute upon the series of proceedings taken by the political branches of the national government during the later years of Reconstruction. To assume such an attitude and to make such a pronouncement appear even now to have been a practical impossibility. At least, the relentless eight did not attempt, and perhaps did not desire, to pronounce the whole carpetbag regime a mere vulgar substitute for decent government.

Other serious difficulties of a technical character arose in the Louisiana case in addition to those we have just discussed. The authority of the canvassing board to act at all was strenuously denied by the Democratic counsel. Four members of the board, all of one party, made the canvass and the return, though the law provided there should be five members and that different parties should be represented on the board. As the vacant place was not filled, the board thus constituted, it was contended, was not a legal board and was without authority to act as such. "I do not insist", said Trumbull, one of the Democratic counsel, "that the whole five must have been present; but I do insist that where the authority existed in the four to supply the vacancy they had no authority to go on and make the canvass without supplying the vacancy." [33] The majority of the commission refused to support the validity of this position.

The last substantial hope for Democratic success was offered by Oregon, for, though the South Carolina controversy remained, there was little likelihood of any change in the commission's main position. The Oregon problems were not so confusing or so complicated as those involved in the disputes we have already considered, but there was, or appeared to be, a good fighting chance that the previous decisions of the commission — the determination not to go behind the state returns as certified by the Governor — would make necessary the elimination of at least one Hayes elector. Three days — February 21, 22, 23 — were taken up with arguments and with the discussions of the commission. There was no question concerning the result of the popular election. As we have seen, the Governor of the state, however, certified to the election of two Hayes electors and one, Cronin, Tilden elector. The basis for this certificate was the ineligibility of Watts, a Republican, because at the time of the November election he was a federal postmaster. The Governor's conclusion was that Cronin received the vote of the people, the vote cast for Watts being entirely lost. The Republican electors refused to act with Cronin; so, not to be outdone, he appointed two new electors who would deign to act with him; and the electoral college thus constituted cast two votes for Hayes and one for Tilden. Two of the three Hayes electors appointed Watts to fill the vacancy which occurred because of his own disqualification at the time of the election; he had resigned his post-mastership and also surrendered his office of elector (by resignation to the electoral college) before the electoral college voted.[34]

Could the commission, with any show of consistency, inspect the validity and question the conclusiveness of the Governor's certificate? It is sometimes said that in this case the commission turned its back upon preceding decisions; but such is not the fact. On several occasions, in the preceding discussions, the right to examine the Governor's certificate, to ascertain whether it correctly presented the decision of the canvassing board (deemed to be the will of the state), had been stated clearly.[35] The distinction between the decision of the returning board and the Governor's certificate may be no real distinction (though it appears plain enough), but it was not a new invention when the Oregon case came up for decision.

By the law of Oregon, the Secretary of State was given authority to canvass the vote. There appears no substantial reason for doubting this. The certificate of the Governor naming Cronin and not Watts was attested by the Secretary of State. But the Hayes electors procured from the Secretary of State a statement which showed that the three Hayes electors had actually received the majority at the election; and he accompanied this with a certificate to the effect that the foregoing tabulated statement was the vote "as opened and canvassed in the presence" of the Governor. The commission — once again, by an 8 to 7 vote — decided to ignore the Governor's certificate and to accept the Secretary's statement as to who were in fact the electors chosen, on the ground that he and no one else had the duty under the law of Oregon to canvass the returns, and the act of the Governor in giving Cronin a certificate was without authority of law.[36]

But the defenders of the Democratic cause did not despair, and their most cogent declaration was this — not to the effect that Cronin, the Democratic candidate, was elected because Watts had not been, and not, therefore, that the Governor's certificate declaring Cronin to be an elector was final and valid — but to the effect that inasmuch as Watts was ineligible, only two electors were chosen: "there was a failure on the part of the State to appoint a third elector." [37] Even, however, if there were a failure to choose more than two electors at the popular election, could not the vacancy be filled by these electors legally chosen? Justice Field answered this question in the negative; he declared that while Oregon had by law given the electors authority to fill vacancies, the law referred to filling a vacancy only after the office had once been filled; and inasmuch as the office, in Field's opinion, had not been filled at the election, there was no such vacancy as the Oregon law contemplated. He endeavored to maintain his position by reference to the general law of Oregon, which contained a statement that an office should become vacant under certain circumstances and did not mention ineligibility. But the Oregon law covering the duties of electors read: "If there shall be a vacancy in the office of an elector, occasioned by death, refusal to act, neglect to attend, or otherwise [italics not in the original], the electors present shall immediately proceed to fill, by viva voce and plurality of votes, such vacancy in the electoral college." [38] Needless to say the stalwart eight did not accede to Field's construction of the Oregon statute; and indeed the law appears to have given the electors ample authority to do just what the Republican electors did. Oregon's three votes were held by the commission to have been cast for Hayes.

South Carolina remained to be considered. Having met with defeat in the three preceding cases, the Democratic counsel could have little or no hope of persuading the commission to change its position. The Republican certificates, as presented, were scrupulously correct in form; to persuade the commission to go behind the returns was a hopeless undertaking. Arguing for the Democratic cause, Montgomery Blair made a powerful though unavailing attack on the political conditions in the state, which showed that the voice of the people had not been freely expressed; he referred to the "criminals", who by military force held South Carolina in thraldom, and made an impassioned plea to the commission to cast out the vote of the state, where only a travesty of popular government had been indulged in: "Can it possibly be a free State authorized to vote and decide a presidential election when the State is covered with deputy marshals and troops, and voters have to pass through files of armed men to the polls? Now I assert that we shall be able to show you they had a deputy marshal for every ten negroes, with labels on their shoulders, and marched their squads of ten up before the soldiery and swore them to vote the whole republican ticket, then marched them to the polls and stood by them till they voted.... Can you justify yourselves in counting that vote?" [39] Jeremiah S. Black, presumably without hope of any change in the commission's opinion, indulged in a reckless assault, which probably furnishes an excellent example of the outraged feelings of the Democrats throughout the nation: "We may struggle for justice; we may cry for mercy; we may go down on our knees, and beg and woo for some little recognition of our rights as American citizens; but we might as well put up our prayers to Jupiter, or Mars, as bring suit in the court where Rhadamanthus presides." [40] As in other cases, the commission by the customary majority decided in favor of the Hayes electors: the failure of the legislature to provide a registration system did not render void all elections held under laws otherwise sufficient; there was in the state a government republican in form; the troops were placed there by the President to suppress insurrection at the request of the proper state authorities; there existed no power either in the commission or in Congress to inquire into the circumstances under which the vote for electors was given; the votes to be counted were those of the electors presented by the state.

The results announced by the commission in the four critical cases were of course conclusive. The House refused its consent to counting the votes as reported; the Senate consented; and under the terms of the provision for deciding the controversy, as both houses did not reject the commission's reports, its findings were accepted. On the whole, despite intense feeling and acrid partisanship, the politicians acted as statesmen. The division of the commission reflected, of course, the force of party affiliations; but there is also evident such strong argument on each side, particularly on the more technical questions — and especially on the question arising out of the miasmic morass of Louisiana — that even a faint breeze of unconscious party feeling was sufficient to direct the course of an honest judge. It seems obvious that the refusal to go behind the returns was not a mere subterfuge adopted for purely partisan purposes; nor was that determination reached only in order to escape the necessity of examining actual conditions during the election and actual fraud at the polls; the refusal was good law and good sense. On the very troublesome questions which arose in the Louisiana case, the Republican commissioners had at the least a position defended by strong argument. The main decision in the Oregon dispute seems to rest on unquestionable grounds.

As suggested in an earlier page, one constitutional principle appears to be plain: Congress must leave to the state its constitutional authority to appoint electors. But there remains a corollary: the state is under constitutional obligation to certify the appointments and to do so without harassing ambiguity. If a state cannot make a plain law, carry it out and make a conclusive and intelligible announcement of the fact of appointment, there is no reason why its dereliction should embarrass Congress or lead that body into temptation; under such circumstances the state should lose its electoral vote. There is, however, no need of our commenting at length upon what ought to be the law and the accepted principle. Ten years after the disputed election, Congress passed an act covering the subject in considerable detail (February 3, 1887). The act is too long and complex to be fully exposed in these pages, but it gives in most respects substantial recognition of the state's primary responsibility to settle its own disputes in accordance with prescribed state law.

The election of 1876-1877 is commonly spoken of as the stolen election or as the crime of 1876. Comment is unnecessary. The criminality indulged in, notably in Louisiana, like good wine needs no bush. The Republicans throughout the nation pointed to the methods whereby negroes having the constitutional right to vote were prevented by intimidation or violence; and such illegality justified in the minds of the more intense partisans any amount of high-handed procedure, not to say legerdemain, on the part of the returning boards. The Democrats, on the other hand, dwelt on the rascality of the carpetbag politicians and the menace of African domination.

The total product of the whole disagreeable and humiliating controversy was this: the situation, as it really was, had been disclosed in all its nakedness and deformity. The end of the business was at hand. The discussions that had taken place in Congress, the arguments before the commission, and the offers of proof to establish corruption, though much had been said before, were doubtless enlightening and the people were weary of the spectacle. The decisions of the commission are of profound significance, because, by a strange turn of the wheel of fortune, pronouncement of the doctrine of states' rights was made by members of the Republican party. But that was not all: they had given a body blow to the idea that it was proper for a political party holding the reins at Washington to attempt to interfere with certain sacred and presumably untouchable rights of a state; and though the fourteenth and fifteenth amendments still stood, the southern states were left without serious interference to work out the grievous problems begotten by slavery, by racial differences, by the disasters of war, and by the ignominy of Reconstruction.

Before the end of the commission's work, conferences between certain Democratic and Republican leaders in Washington had resulted in an agreement on the one side to go on counting the votes and to refrain from violence in the south; on the other, to induce the administration and, if possible, Grant, to withdraw the troops.[41] On the whole, it appears fortunate that the withdrawal of the troops should have been the act of a Republican President, aware of the impossibility or the unrighteousness of maintaining free government by force. Soon after the inauguration, President Hayes began the process of removing the federal troops and allowing the southern states to manage their own affairs. The era of Reconstruction was over. The negro, we may again remind the reader, had been given the suffrage partly because the ballot was thought a necessary support for his civil liberties; but events proved he could not maintain his hold upon the suffrage without the army; the use of the army was found to be intolerable, pernicious. The courts might still do something. The pronouncements of the first section of the fourteenth amendment were not and are not without meaning even with respect to the negro, for whose sake they were chiefly enacted.


[1] Rhodes, op. cit., VII, p. 224.

[2] D. H. Chamberlain, a Massachusetts man, thus wrote twenty-five years later: "The progress of the canvass developed ... not only into violence of words and manner, but into breaches of the peace, interference with public meetings called by one party, and latterly into widespread riots.... It is not now denied, but admitted and claimed, by the successful party, that the canvass was systematically conducted with the view to find occasions to apply force and violence." "Reconstruction in South Carolina," The Atlantic Monthly, LXXXVII, p. 480.

[3] Ibid., p. 481.

[4] " 'Intimidation'," says Dunning, "... was illegal. But if a party of white men, with ropes conspicuous on their saddlebows, rode up to a polling place and announced that hanging would begin in fifteen minutes, though without any more definite reference to anybody, and a group of blacks who had assembled to vote heard the remark and promptly disappeared, votes were lost, but a conviction on a charge of intimidation was difficult." This is an illustration of the suggestive method. W. A. Dunning, "The Undoing of Reconstruction," The Atlantic Monthly, LXXXVIII, pp. 440-441. Such an incident as this in Louisiana is fairly typical: "Q. Do you know anything about armed bodies of men riding through your parish, or any part of it, during the day or night? — A. Yes, sir.... They rode through the parish. I heard them come by my house when I was in the field, afraid to stay in the house, singing,


A charge to keep I have,
A God to glorify;
If a nigger don't vote for us
He shall forever die."


"Louisiana in 1876. Report of the Sub-committee of the United States Senate." Senate Reports, 44 Cong., 2 sess., no. 701, p. 19.

[5] The people of that generation knew the realities of war. The south had learned the lesson even more surely than the north. One Kentuckian in Congress said if there should be a war, it would be the work of northern Democrats, "while Benjamin Hill of Georgia referred cuttingly to a section of the party who were 'invincible in peace and invisible in war.'" P. L. Haworth, The Hayes-Tilden Disputed Presidential Election of 1876, p. 176.

[6] Dunning sums up the situation by saying, "... some of the Republican visitors were obliged to ignore or connive at notorious cheating, and some of the Democrats to involve themselves in bargains for bribes. Rumors and charges of these things were incessant during the struggle over the count, but most of the clear evidence about them was revealed only two years later." Dunning, Reconstruction, p. 312.

[7] "Florida Election, 1876. Report of the Senate Committee on Privileges and Elections." Senate Reports, 44 Cong., 2 sess., no. 611, p. 3; House Reports, 44 Cong., 2 sess., no. 143, pt. 1, p. 3, pt. 2, p. 33. "Frauds in the count and return of votes were unquestionably committed on both sides. In this kind of work the Republicans had the advantage of having a small majority of the election officers, but this was probably counter-balanced by the ease with which shrewd Democrats could hoodwink the illiterate negroes who acted as election officers in many places. On the whole, it is not improbable that an unpartisan board, acting on the same theory of its powers as did the actual board, would have held that the returns did not in all cases correspond to the votes in the ballot-boxes, would have thrown out some returns contrary to the interests of each party, but would in the end have found a small majority for Tilden." Haworth, op. cit., pp. 74-75. Haworth says, however, that a "free election" might have resulted in a victory for Hayes, while a "fair count" might have had the opposite result. Ibid., p. 76.

[8] Rhodes, op. cit., VII, p. 231.

[9] These figures are substantially those given by the Democratic objection presented to Congress. Electoral Count of 1877, p. 213. But the exact figures have no special significance. See also Haworth, op. cit., pp. 113-114.

[10] Speaking at a later time of Louisiana and in regard to the decision of the commission, Seelye of Massachusetts, a Republican member of the House, said, "... it seems to me perfectly clear that the charges made by each side against the other are, in the main true. No facts were ever proved more conclusively than the fraud and corruption charged on the one side and the intimidation and cruelty charged on the other. Which of the two sides went the farther, did the worst in this wrong-doing, would be very hard to say. The corruption of the one side seems as heinous as the cruelty of the other side is horrible, and on both sides there does not seem to be any limit to the extent they went, save only where the necessities of the case did not permit or the requirements of the case did not call for any more." Congressional Record, 44 Cong., 2 sess., V, p. 1685.

An interesting, though possibly extreme, illustration of the feeling animating the impassioned Republican partisans and strongly held by many men of probity is found in a speech delivered after Seelye closed. "Mr. Speaker, since I came into this House, one year ago last December, I have continually heard this howl about republican extravagance, republican fraud, and republican corruption.... And much of this, sir, I am pained to say, has come from men who now occupy seats in this Hall through the mercy and magnanimity of the party they slander and malign." After referring to the fact that the Republican party saved the country — the inevitable appeal — the orator turned his attention to the fraudulent intent and practices of the Democrats. "The whole scheme to elect the Grand Fraud of Gramercy Park [Tilden] to the Presidency in the late election was a superb democratic cheat.... The States of Mississippi, Georgia, and Alabama were carried for Tilden by an organized system of violence and intimidation which shocked humanity and caused cruelty even to blush. And you attempted to carry South Carolina, Florida, and Louisiana in the same way, but you have not succeeded." Ibid., p. 1686. The orator might well have listened to Seelye's reference to the saying of Niebuhr, that no nation ever died except by suicide and that the suicidal poison is engendered by the immoral practices of a people. Ibid., p. 1685.

[11] Art. II, sec. 1, para. 2.

[12] Art. II, sec. 1, para. 3. See also amendment XII.

[13] Art. II, sec. I, para. 4.

[14] The term "college of electors", we may notice, seems to have been first used officially in 1845; neither that term nor its equivalent is known to the Constitution, but it was in more or less common use from an early day. The words are of significance only as suggesting or implying the organization of the electors into a body, and such organization may indeed be implied by the constitutional obligation to meet and make a list of the persons voted for, "which list they shall sign and certify". The term was used by Abraham Baldwin in 1800, and by John Randolph in 1809. "Counting Electoral Votes," Miscellaneous Documents of the House of Representatives, 44 Cong., 2 sess., no. 13, pp. 692, 38.

[15] A study of the history of counting the votes discloses the way in which the houses gradually assumed the power to count, by the appointment of tellers. It discloses also the conditions which resulted in the assumption that they had the right to decide what votes should be counted. The information is contained in "Counting Electoral Votes," loc. cit.

[16] Speaking of the counting in 1869, when there was a difference of opinion between the two houses, McKnight says: "To provide that two equal and independent bodies shall canvass the votes, is an absurdity of which the Fathers would never have been guilty; it subverts every political and parliamentary principle, as well as the dictates of common sense." D. A. McKnight, Electoral System of the United States, p. 311. "My judgment is that neither House of Congress, nor both combined, have any right to interfere in the count. It is for the Vice-President to do it all." Hayes to Samuel Shellabarger, December 29, 1876. C. R. Williams, The Life of Rutherford Birchard Hayes, I, p. 513, note 1. See also, a letter to John Sherman, January 5, 1877. Ibid., I, p. 522.

[17] The vote in each house showed strong Democratic support. In the Senate 26 Democrats and 21 Republicans voted affirmatively; 16 Republicans and one Democrat voted in the negative. In the House 159 Democrats and 32 Republicans supported the measure, while 18 Democrats and 68 Republicans opposed it. The figures given by different authorities vary slightly.

[18] Electoral Count of 1877, pp. 4-5.

[19] The Florida law providing for the canvass said the board "shall canvass the returns of said election, and determine and declare who shall have been elected to any such office, or as such member, as shown by such returns. If any such return shall be shown, or shall appear to be, so irregular, false, or fraudulent, that the board shall be unable to determine the true vote for any such officer or member, they shall so certify, and shall not include such return in their determination and declaration." Ibid., p. 1010. Senator Bayard, a Democrat, a member of the commission, and a man of high character, had made a significant statement in the Senate two years previously (February 25, 1875). Referring to the act of 1792, he said that by this act "the certification, the authentication of the electoral vote, was confided wholly and unreservedly by the Constitution to the States.... If the Congress of the United States, either one or both houses, shall assume, under the guise or pretext of telling or counting a vote, to decide the fact of the election of electors who are to form the college by whom the President and Vice-President are to be chosen, then they will have taken upon themselves an authority for which I, for one, can find no warrant in this charter of limited powers.... 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 in the States in that election as certified by the electors whom they have chosen." "Counting Electoral Votes," loc. cit., pp. 472-473.

[20] Electoral Count of 1877, pp. 1020, 1021, 1023. Presidential electors are not federal officers.

[21] Ibid., p. 974 ff.

[22] Ibid., p. 977. Jeremiah S. Black, one of the counsel for the Democratic cause, said in argument, "We are not going behind the action of the State; we are going behind the fraudulent act of an officer of the State whose act had no validity in it whatever." Ibid., p. 98.

[23] Field's statement, in which he referred to the decision of the Florida court denying that the canvassing board had the authority it actually exercised, may have had some basis, but the powers granted the board were pretty sweeping.

[24] There is an old story, which appears not improbable, that Thad Stevens, when a contested case involving representatives came before Congress, would pay no attention to evidence or argument, but when the time came for the vote he would go to a colleague and say, "Both of them are rascals. Which is our rascal?"

[25] One of the reasons for not going behind the returns — though that reason did not play a conspicuous rŰle — was the impracticability of making an examination of the actual operations at the polls in the various counties of the various states, in other words, of doing the work which the canvassing boards were supposed to do or did do. See the statement of Justice Miller, Electoral Count of 1877, pp. 1006-1007. Referring to papers which had been presented in great quantities, he said, "No reference is made to anything by which these papers can be identified. There is nothing to hinder alterations or substitutions among them. They may be ex parte affidavits taken in the morasses of Florida, the slums of New York, or the private office of retained counsel in this city." Ibid., p. 1007.

[26] Art. II, sec. 1, para. 2.

[27] So asserted, and appears to be the fact. Electoral Count of 1877, pp. 50, 78.

[28] Ibid., pp. 13, 25.

[29] Ibid., p. 982.

[30] Ibid., pp. 1024-1025. Miller, objecting to the argument in favor of giving effect to the Florida court decision, said: "In New York there are thirty-two judges of the supreme court of that State, a court which exercises original jurisdiction all over the State. Under the principle asserted any one of these thirty-two judges may issue his writ of quo warranto, or of injunction, or other appropriate writ, the day before the votes must by law be cast for President and Vice-President, and by this exercise of his power prevent the 35 votes of the State from being given or counted in the election." Ibid., p. 1008. Justice Strong maintained that the Hayes electors were not merely officers de facto: "Neither the action of the legislature, nor a post hoc decision of a court, can affect an act rightfully done, when it is done and completed before the legislature and the court attempted to annul the authority for it.

... The electors of the State of New York cast the votes of the State on the 6th of December last. Can those votes now be nullified by any subsequent action of the New York legislature declaring that the persons who voted were not elected, or creating a new board to make a new canvass, or by the judgment of an inferior court, or any other court, that other persons were entitled to cast the votes of the State?" Ibid., pp. 999-1000.

[31] "The Constitution of the United States," said Senator Trumbull, "in the grant of power has said to the State of Louisiana, 'You may appoint certain persons as electors for President, but you shall not appoint O. H. Brewster.' Now, I say, when the Constitution says that to the State of Louisiana, it is binding upon the legislature and upon every citizen of Louisiana." Justice Bradley asked Trumbull if he intended to prove that Brewster was an office-holder at the time of giving his vote. To this Trumbull answered, "No, sir; at the time of his appointment; he was appointed at the time of the election." Ibid., pp. 336-337.

[32] Notice Thurman's comments upon the assignment of vast power to the canvassing board: "The board is in effect constituted the State — to govern it according to its own arbitrary will and discretion. There is no republican government in Louisiana. There can be no republican government in that State so long as this returning-board is upheld. An oligarchy more corrupt, more odious, more anti-republican, never before existed on this globe." Ibid., p. 837.

[33] Ibid., p. 335. Bradley's views on this matter are cogent, perhaps convincing. Ibid., p. 1029. He said, among other things, "Can it be contended that the resignation or death of one of the members, who happened to be alone in his party connections, deprives the remainder of the power to act? I think not."

[34] Ibid., pp. 459, 641.

[35] For example, Justice Field, supporting the Democratic cause, said in the Florida case, "that in the absence of positive law declaring its effect to be otherwise, a certificate of any officer to a fact is never held conclusive on any question between third parties; it is always open to rebuttal." Ibid., p. 980. Black, arguing for the Tilden electors in the Florida case, came near giving the whole case away: "Therefore, if the governor of the State of Florida, after this appointment of electors was made by the people, undertook to certify that they were not elected and to put somebody else in the place which belonged to them, this act was utterly void and false and fraudulent. We are not going behind the action of the State; we are going behind the fraudulent act of an officer of the State whose act had no validity in it whatever." Ibid., pp. 97-98. Both Field and Black were of course anxious to prove that they could go behind the decision of the canvassing board, and they made no distinction between the pronouncement of the board and the Governor's certificate. The right to go behind the Governor's certificate was distinctly stated by Evarts in the Florida case, Ibid., p. 116, and by Stanley Matthews, Ibid., p. 107. See also pp. 101 and 581. Justice Bradley in the Florida case, said: "But the Houses of Congress may undoubtedly inquire whether the supposed certificate of the executive is genuine; and I think they may also inquire whether it is plainly false, or whether it contains a clear mistake of fact, inasmuch as it is not itself the appointment, nor the ascertainment thereof, but only a certificate of the fact of appointment...." In proceeding "with the count, [the two houses of Congress] are bound to recognize the determination of the State board of canvassers as the act of the State ...; and that while they may go behind the governor's certificate, if necessary, they can only do so for the purpose of ascertaining whether he has truly certified the results to which the board arrived." Ibid., p. 1023. He made statements to the same effect in the Louisiana case. Ibid., p. 1030. Stoughton, one of the counsel for the Republican cause, said in the Florida case, "I have said that the purpose of the testimony offered is to go behind, not merely the governor's certificate — for that undoubtedly, upon questions of forgery, upon questions of mistake, upon many questions, this tribunal could deal with — but, designing to get behind that, the purpose is to get behind the action of that tribunal which the State has set up, and to cancel its finding...." Ibid., p. 112.

[36] Ibid., pp. 455-457, 640-641.

[37] Motion by Field. Ibid., p. 638. See also Field's motion to the effect that, as there was no valid election of a third elector on the day prescribed by the act of Congress, only two electors were chosen. Ibid., p. 639. The position of Justice Field, stating one phase of the Democratic case, is as follows: "The question then arises, Watts being ineligible, whether the person receiving the next highest number of votes, he being eligible, was elected. Governor Grover held that such person was elected.... In his action in this respect he followed the rule which obtains in England.... There are numerous decisions by courts of the highest character in this country to the same effect.... But I do not yield my assent to them; they are not in harmony with the spirit of our system of elections.... The weight of judicial opinion in this country is, that votes given for an ineligible candidate are merely ineffectual to elect him, and that they are not to be thrown out as blanks, and the election given to the eligible candidate having the next highest number of votes." Ibid., pp. 991-992.

[38] Ibid., p. 993.

[39] Ibid., p. 693.

[40] Ibid., p. 696.

[41] Dunning, Reconstruction, p. 339; Haworth, op. cit., pp. 268-270; C. R. Williams, The Life of Rutherford Birchard Hayes, I, p. 533 ff. Hayes appears to have come practically, if not wholly and distinctly, to the position that the south should not be ruled by force. Haworth op. cit., p. 268; see also, Williams, ut supra.

Personae

Terms Defined

Referenced Works