XXIV.

THE ELECTORAL COUNT.

A Severe Test of Republican Government-Both Sides Claim the Election-Disputed Votes in the Southern States-Question as to the Rights of the President of the Senate-Various Propositions With Reference to the Count-An Electoral Commission Decided Upon-Constitution of the Commission-Democratic Disappointment as to Judge Davis-Several Votes of Eight to Seven--Hayes Declared Elected-Disclosure of Attempts to Buy Electoral Votes.

In the space of twenty years the Government of the United States was subjected to three very severe tests: The contest over the Slavery question and the asserted right of Secession, which, combined, actually brought war; the assassination of President Lincoln and the succession to the Presidency of a man who was not in accord with the views of the people that elected him, nor with the Congress which fairly represented their purpose; and the contest over the close and doubtful election of 1876. The last was a much severer test than the second, and in any other Republic that has ever, either temporarily or permanently, existed in the world, would have brought on a revolution. The fact that it was peaceably settled by Congress and the result acquiesced in by the country is the best tribute ever paid to the fitness of the people of the United States for self-government.

After the Electoral Colleges had met in the several States there was left room for serious disputes as to the returns from four States, besides objections of lighter weight to single votes in several other States. In Oregon, which gave the Republican electors an unquestioned majority, one of the electors was postmaster at the time of the election and therefore disqualified, but the disqualification was removed by his resigning both the postmastership and his place in the Electoral College. When the latter met in December, he was chosen to fill the vacancy in accordance with the law authorizing such action.

The case in three Southern States gave better ground for serious disputes than the Oregon case. The colored voters were, at that time, Republicans, almost to a man, and as they far exceeded the whites in numbers in Louisiana and South Carolina, there was no question but that the votes of those States, honestly cast and counted, would be for Hayes. In Florida, the whites and blacks were more nearly equal in numbers, but there was a larger proportion of white Republicans there than in any other of the Gulf States, and with an honest count, there was as little doubt about this State as about the two others mentioned. But almost immediately after election ugly rumors were heard of a purpose to nullify the will of the people in these states, by false count or trumped up certificates of election. At the suggestion of the Chairman of the Republican National Committee, President Grant, three days after election, sent to General Sherman, a dispatch saying: "Instruct General Augur in Louisiana. and General Ruger, in Florida, to be vigilant with the force at their command to preserve peace and good order, and to see that the proper and legal boards of canvassers are unmolested in the performance of their duties. Should there be any grounds for suspicion of a fraudu lent count on either side, it should be reported and denounced at once. No man worthy of the office of President should be willing to hold it if counted in or placed there by fraud. Either party can afford to be disappointed in the result. The country cannot afford to have the result tainted by the suspicion of illegal or false returns." Soon after this eminent men of both parties, afterwards called "the visiting statesmen," were sent to the three States mentioned above, to watch the count and see that it was honestly and fairly conducted.

All these precautions, however, did not prevent the preparation of two sets of Electoral returns from all three of the States. It is doubtful if there had been an honest election in Louisiana since 1844, when the "Plaquemine Frauds" were depended upon to carry the State for Polk against Clay. There was no concealment of the fact that after the adoption of the Fifteenth Amendment, frauds were committed at every election; first, to nullify the votes of the enfranchised blacks, and after that to free the State from "carpet-bag" rule. As one of the Democratic papers blandly stated it: "Election methods were resorted to, which under other conditions would have been unnecessary, but which then became indispensable;" and again, "much of what has been called Southern lawlessness, was, in reality,

simply a determined and energetic effort to keep the law and the law-making power in the hands of the intelligent and virtuous classes." It was under these "intelligent and virtuous classes" that, in 1868, a small majority for Grant was turned into a very large majority for Seymour. At that time the Republicans did not need the vote of the State and it was of no use to the Democrats. The fraud was, therefore, permitted to go unrebuked. Now a correct count was a matter of vital importance. Since 1872 the State had been more or less under the rule of two contemporaneous Executives, Governor Kellogg and Governor McEnery, while, a portion of the time, New Orleans had been ruled by General Anarchy. The State was pacified by the "Wheeler Compromise" in 1875, but, after the election, had fallen into its normally chaotic condition. There were two Governors, and two returning boards, two Electoral Colleges, and two sets of Presidential Electors.

In Florida and South Carolina there were charges of fraud on both sides, and the further claim was set up by the Democrats that the presence of United States troops near the polls amounted to intimidation, and prevented a free and fair election, and there were two sets of returns from both these States.

Under these conditions it became a grave question as to exactly what were the respective powers of the President of the Senate and of the two Houses of Congress in counting the Electoral vote. Many Republicans, and among them the Chairman and a majority of the National Committee, held that the President of the Senate, by virtue of his office, had the right to count the Electoral vote, and that he was vested by the Constitution with discretionary power to decide which were, and which were not, the Electoral votes of a State. They urged the President of the Senate should exercise this right, and were confident that the President and the army would support him in it. This would have been placing very arbitrary power in the hands of one man. If attempted, it would certainly have been resisted by the Democratic House, up to the point of revolution.

The Democratic claim was that both Houses of Congress must acquiesce in counting the votes of any State, and on the objection of either House, the vote of such State must be rejected. In accordance with this idea, the Thirty-eighth Congress, when counting the Electoral vote in 1865, adopted a joint rule that "no Electoral vote objected to, shall be counted, except by the concurrent vote of the two Houses.” This rule had not since been renewed. In such a

case as the one now in question it might readily have led to disintegration, for with a Democratic House to reject the returns from one State, and a Republican Senate to reject those of another, the process of elimination might have been carried on, until there was little left of the Electoral vote.

Under these two claims the excitable men of both parties began to talk about armed resistance, and one of the Democrats of this class, Henry Watterson, of the Louisville Journal, vouched for one hundred thousand Democrats, who would be ready to march to Washington, and install Mr. Tilden in office. The only perceptible result of this threat was to bring out advice from Republican papers to the valiant editor, to put ice on his head and cool off, and that was what, figuratively speaking, Congress did for itself. It promptly discarded the extreme claims of both parties, and set about the work of finding some impartial tribunal which could settle all disputed points. A few days after the Electoral Colleges met, Representative McCrary, of Iowa, introduced in the House a resolution, providing for a committee, to act with a similar committee from the Senate, to consider the subject of fairly disposing of the disputed votes, and "to prepare and report, without delay, such a measure, either Legislative or Constitutional, as may, in their judgment, be best calculated to accom plish the desired end." The resolution was adopted with great unanimity, the Senate concurred and the committee was appointed as follows: Senate-George F. Edmunds, of Vermont; Frederick T. Frelinghuysen, of New Jersey; John A. Logan, of Illinois, and Oliver P. Morton, of Indiana, Republicans, and Allen G. Thurman, of Ohio; Thomas F. Bayard, of Delaware, and Matt W. Ransom, of North Car olina, Democrats. House-Henry B. Payne, of Ohio; Eppa Hunton, of Virginia; Abram S. Hewitt, of New York, and William M. Springer, of Illinois, Democrats; George W. McCrary, of Iowa; George F. Hoar, of Massachusetts, and George Willard, of Michigan, Republicans. For ability and calm judgment this committee would rank with the best ever appointed in any Congress. January 18, 1877 the two committees, acting as one, reported a bill "to provide for and regulate the counting of votes for President and Vice-President, and the decision of questions arising thereon, for the term commencing March 4, 1877." The report was signed by every member of the two committees except Senator Morton.

Although the bill was finally reported with such unanimity, the conclusion was not reached without developing a great variety of

views and propositions. The committees of the House and Senate at first acted separately. Both started with the idea that a separate tribunal must be established, as there was little prospect of the two Houses agreeing upon the disputed votes. In the House committee Mr. McCrary, who had moved the appointment of the committee, was the first to present the draft of a bill, proposing that the tribunal should consist of the Chief Justice of the United States, and a certain number of the Justices of the Supreme Court in the order of their seniority. The Democrats objected to this on the ground that Chief Justice Waite could not be considered an impartial Judge in the case, inasmuch as, during the campaign, he had spoken of Mr. Tilden in an extremely partisan way and in terms of personal hostility. The tribunal, as finally agreed upon by the House committee, omitted the Chief Justice and named the five senior Justices, Clifford, Swayne, Davis, Miller and Field. Mr. McCrary's bill proposed that the decision of the tribunal should be binding unless both Houses voted to overrule it. The Democratic majority on the committee changed this so as to provide that it should not be binding unless both Houses voted to concur. The bill further provided that the certificates objected to, together with the objections and all papers and evidence in the possession of the President of the Senate, or of either of the Houses of Congress relating to the subject, should be referred to the tribunal.

The Senate committee started with the idea of a mixed tribunal, which should contain members chosen from the two Houses of Congress, as well as from the Supreme Court. The first proposition was that it should consist of thirteen members, of whom nine should be from Congress and four from the Supreme Court. In order to give an equal chance to both parties, five members were to be chosen from each House, making ten in all. It was expected that the Senate would appoint five Republicans and the House five Democrats. Of these, one was to be dropped by lot, thus leaving it to the Lord or to chance to deride upon the political complexion of this part of the tribunal. Then the Democrats insisted that if they were to cast lots on the Congressional members they should also do it on the Supreme Court members. Accordingly an agreement was reached that the six senior Justices should be taken, and one of them be eliminated by lot. This was agreed upon by all the members of both committees, except by Mr. Springer, and the committees, after deciding that the proposed organization should be called a Commission, instead of a Tribunal, adjourned from Saturday till Monday, in the hope that Mr. Springer would fall into line.