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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. 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. Better, said the South Carolinians, violence for a time
than misrule for all time. 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.
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
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.
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. 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."  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. 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. 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
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."  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."
 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".
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
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. 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. 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...." 
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
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. 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...." 
In opposition to this position, the opinion of Justice Field is perhaps
the most cogent. 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."  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. 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. 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.
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. 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; and the Tilden electors as well as the Hayes electors
voted on the 6th day of December. 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."
 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."
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
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. 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, 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."
 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.
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. 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.
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."  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."
 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
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?"  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."  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
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
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
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. 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.
 Rhodes, op. cit., VII, p. 224.
 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.
 Ibid., p. 481.
 " '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,
A charge to keep I have,
A God to glorify;
nigger don't vote for us
He shall forever
"Louisiana in 1876. Report of the Sub-committee of the United States
Senate." Senate Reports, 44 Cong., 2 sess., no. 701, p. 19.
 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.
 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.
 "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.
 Rhodes, op. cit., VII, p. 231.
 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.
 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.
 Art. II, sec. 1, para. 2.
 Art. II, sec. 1, para. 3. See also amendment XII.
 Art. II, sec. I, para. 4.
 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.
 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.
 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.
 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.
 Electoral Count of 1877, pp. 4-5.
 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.
 Electoral Count of 1877, pp. 1020, 1021, 1023.
Presidential electors are not federal officers.
 Ibid., p. 974 ff.
 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.
 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.
 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?"
 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.
 Art. II, sec. 1, para. 2.
 So asserted, and appears to be the fact. Electoral
Count of 1877, pp. 50, 78.
 Ibid., pp. 13, 25.
 Ibid., p. 982.
 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.
 "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.
 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.
 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."
 Ibid., pp. 459, 641.
 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.
 Ibid., pp. 455-457, 640-641.
 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.
 Ibid., p. 993.
 Ibid., p. 693.
 Ibid., p. 696.
 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.