A review of Fraud of the Century: Rutherford B. Hayes, Samuel Tilden, and the Stolen Election of 1876, by Roy Morris, Jr.
and Centennial Crisis: The Disputed Election of 1876, by William H. Rehnquist
One of the less-noticed legacies of Progressivism is the abandonment of political history, or at least its demotion from pride of place. Although the founding and the Civil War retain their allure to the general public and even to professors, the histories of other eras have become specialized tastes.
To Progressive historians, the great changes that remade society resulted not from the choices of mere politicians but from social and economic movements, in which many share but none control. Indeed, the usual stuff of political history—ambition, interests, schemes, and deals—was precisely the muck that Progressives thought could be raked and discarded. The rise of democracy or (in today's preferred formula) the triumph over various forms of discrimination can, after all, make for a grand narrative, beside which tales of partisan intrigue and even individual politicians' virtue may seem idiosyncratic or ultimately futile. Ambition counteracting ambition, interests entering coalitions with other interests—these are the usual fare of American politics, but to Progressives these stories had all the suspense and consequence of a dime-store novel, and, except to political junkies, none of the romance.
For lovers of American politics who are skeptical of the dominant progressivisms, however, there is no better way to reengage the political history of the United States than to look at the disputed presidential election of 1876. And now, in the wake of the disputed election of 2000, come two books that do precisely that—fittingly, one from the Democratic perspective and one from the Republican. For the Democrats, we have an experienced writer on the era, Roy Morris, Jr., with Fraud of the Century: Rutherford B. Hayes, Samuel Tilden, and the Stolen Election of 1876; and for the Republicans, no less a figure than the Chief Justice of the United States, William H. Rehnquist, with Centennial Crisis: The Disputed Election of 1876.
There is by now little disagreement on the basic facts. Democrats had every reason to expect success in 1876. The expiring Grant Administration had been mired in scandal; the economy had been sour since the Panic of 1873; Democrats had won back the House of Representatives in 1874, for the first time since the Republican sweep of 1860; and they had won control of all but three of the former Confederate states and had reason to expect to "redeem" those state governments in '76. In Samuel Tilden, Governor of New York and a Wall Street lawyer, they had both a proven reformer who had helped break the hold of Boss Tweed on Tammany Hall and a master political tactician who as a young man had learned his trade from Martin Van Buren. An anti-slavery Democrat before the Civil War and a hard-money (indeed, quite wealthy) man after, Tilden could win votes in the South and West without bearing any taint from their heresies.
The Republicans had somehow come together at their convention to nominate everyone's second choice, Rutherford Hayes, Governor of Ohio and a Civil War veteran; but neither the party nor the candidate was confident that Hayes's personal rectitude would adequately overcome the legacy of "Grantism." And there was no denying the exhaustion of Reconstruction in the South or the momentum for change in the nation as a whole. Neither Tilden nor Hayes was surprised by the news reports on election evening that gave Tilden New York, Connecticut, New Jersey, Indiana, most of the South, and a 3% lead in the popular vote. Both apparently went to bed thinking the presidency would belong to the Democrats.
What happened next is also generally agreed upon. Late on election night, Daniel Sickles—who had been in turn an antebellum Democratic congressman, the first beneficiary of a "temporary insanity" defense for killing his wife's lover, a Union General who lost a leg at Gettysburg, and a United States minister to Spain—stopped by Republican headquarters in New York City, and, finding the national chairman already in bed, began perusing returns. Realizing that, if the three Reconstruction states still in Republican hands came in for Hayes, he would win the Electoral College 185 to 184, Sickles cabled Republicans in Florida, Louisiana, and South Carolina (and Oregon) to "hold your state." Meanwhile, John C. Reid, the managing editor of the New York Times, whose experience in Andersonville prison during the Civil War confirmed him as a staunch Republican, came to the same conclusion about the possibility, however slim, of a Hayes victory in the Electoral College. While many papers of both partisan stripes called the election for Tilden the next morning, the Times demurred, declaring it "doubtful."
"Visiting statesmen" from both parties descended on the three Southern states in question during the weeks that followed, to witness the tabulation of the vote by the state canvassing boards, which for all three states were in Republican hands, and perhaps to find a way to influence the outcome. In South Carolina, where extra federal troops had been stationed after extensive pre-election violence, the presidential votes seemed narrowly but clearly enough in Republican hands, though the Democrat Wade Hampton seemed to have won the race for governor. In Florida the preliminary vote was very close. In Louisiana Tilden led by a margin of about 7,000. The canvassing boards, however, had legal authority to disregard the votes of precincts and counties (or in Louisiana, parishes) where fraud or irregularity was discovered; and in Florida and Louisiana, allegations were made and testified to that there had been violence and the intimidation of black voters at the polls, prompting the boards to throw out enough votes to elect Republicans.
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Hayes had been skeptical at the outset of the effort on his behalf and had kept himself scrupulously in the background, but he became convinced that there had been severe intimidation of black Republican voters, and having promised to protect the rights of blacks in his July letter accepting the Republican nomination, he grew confident in the justice of those working for his cause. Tilden, to the consternation of the Democratic Party, left the development of a post-election strategy to others, despite his past brilliance as a campaign operative, although he clearly signaled that he would have no part in any effort to install him in the presidency by force.
Instead, he concentrated on producing a volume, soon to appear on the desks of all members of the Senate and the House of Representatives, reviewing the history of counting presidential votes (the clause in the Constitution says only, "The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted"), denying the theory (subscribed to by Hayes) that the Senate president determines which votes to count in cases of ambiguity, insisting instead that the houses of Congress must each decide on the validity of certificates, and concluding that, if the houses disagree so that the votes of some states go uncounted and no candidate receives an Electoral College majority, the election recurs to the House of Representative, voting by states, as the Constitution clearly provides.
In the winter of 1876-77, the president of the Senate was Republican Senator Thomas W. Ferry of Michigan, Vice President Henry Wilson having died a year before. The Senate was in Republican hands still (in pre-20th Amendment days the terms of Congressmen and the president ended on March 4), and since senators were still chosen by state legislatures, the composition of the incoming Senate was not fully settled in any event—but the House was Democratic, not only as a body but in a majority of state delegations. It might be no surprise that the two candidates' constitutional opinions on the count corresponded to their interest in the present contest, but in fact both positions had a history that extended back to the early days of the republic. A bill to clarify the counting procedure had been introduced in 1800, but failed to pass, nor was the process elaborated in the 12th Amendment separating the presidential and vice-presidential ballots, which repeated the original language of the Counting Clause word for word. In the first three-quarters of the 19th century, there were often disputes over what votes to count, usually concerning certificates from electors in new states admitted between election day and counting day, and the custom developed of announcing the results in the alternative, once with, once without the challenged votes.
Remarkably, over all that time, such disputes never made a difference for who won the majority of electors. In 1865, with Republicans controlling both houses, a rule was accepted by both that allowed either house to discard the electoral votes of any state it considered invalid, something done several times in each of the following elections. In 1876, Senate Republicans foresaw the danger in this rule with the House now belonging to the Democrats, and they withdrew their consent to it. Thus, when the Electoral College votes began to arrive—with separate returns from Republican and Democratic electors in Florida, Louisiana, and South Carolina, as well as Oregon—Congress was, in Roy Morris's term, at a stalemate. Separate committees set up by the Senate and the House to investigate the disputes resulted in predictably partisan votes. With memories of the failure of the lame duck session in 1860 still fresh, and with no one in a mood for a resumption of civil war, writes Morris, Congress decided to seek a compromise—over the objections, by the way, of both candidates. Thus was born the Electoral Commission Act of January 1877.
Under the Act, a fifteen-member Commission was established to determine the disputed votes. The count would proceed alphabetically by state in the presence of both houses; when a state submitted multiple returns, the issue was referred to the Commission, whose decision would be accepted as binding, except in the unlikely event that the two houses concurred in reversing its decision. Five members of the Commission would be appointed by the House (three Democrats and two Republicans), five by the Senate (three Republicans and two Democrats), and five would be members of the Supreme Court. The law specified which members of the Court by naming their circuits. It appointed Democrats Nathan Clifford and Stephen Field, Republicans Samuel Miller and William Strong, and then gave these four the responsibility of choosing the fifth justice, the 15th man.
As the bill was drafted and debated, it was generally assumed that they would agree on Justice David Davis, who, despite having been Lincoln's campaign manager in 1860 and a Lincoln appointee to the Court, had since broken with the Republicans and had even entertained the prospect of running for president on a third-party ticket in 1872. On the very day in mid-January that the bill was moving through Congress, however, the legislature of Illinois surprisingly elected Davis to the Senate as a Democrat. The law was passed with bipartisan support, but from more Democrats than Republicans, and Davis announced his intention to resign from the Court after March 4, and removed his name from consideration for the 15th seat. That post went instead to Justice Joseph Bradley, a Grant appointee to the Court who nevertheless was deemed "entirely satisfactory" by the New York congressman who had managed Tilden's campaign.
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In early February the count began, stopping at Florida, the first state in dispute. The Commission heard lawyers from both sides in closed meetings, and the critical question quickly became whether the Commission would "go behind" the returns: Would the Commission admit evidence (thousands of pages had been prepared) as to which group of electors had actually been chosen by the voters in each state, or would they restrict their inquiry to determining which slate of electors came certified by the proper authorities in the state? Apparently the first 14 votes were predictable, with everything hinging on the vote of Justice Bradley, who was last to speak. He produced a characteristically closely argued opinion in favor of the latter alternative, resulting in acceptance of the Republican slate for Florida—the lame duck Reconstruction governor still having been in office on the day the Electoral College voted (December 6), although by January the Florida Supreme Court had declared his Democratic rival duly elected in the concurrent state race. One-by-one the challenges came to the Commission, and each time the decision was made not to "go behind" the certificates.
A complication came in Oregon, where the voters had indisputably gone for Hayes but one of his electors was discovered after election day to be a fourth-class postmaster, made ineligible by the Constitution as a federal officeholder from serving as elector. The problematic man had resigned his postmastership, then had been reappointed elector by his two colleagues, and the three had cast their votes for Hayes. The Democratic governor of the state, acting in concert with party officials in New York, had refused to recognize him, insisting instead that the fourth highest vote-getter, a Tilden elector of course, should fill the vacancy of the ineligible man—thus clinching the race for Tilden even if Hayes was awarded every disputed Southern vote; or, if the seat was declared vacant, at least throwing the election to the House, where Tilden could presume a victory.
The Commission, however, voted to go behind the Oregon governor's certificate far enough to determine who under Oregon law was charged with certifying the vote, and settling on the secretary of state rather than the governor, called Oregon, too, for Hayes. Although the Speaker of the House and some members of his party sought to delay the inevitable, a coalition of Republicans and Southern Democrats allowed the count to conclude in the wee hours of March 2. Hayes, whose train from Ohio had waited in Harrisburg, Pennsylvania, until the counting was complete, finally came to town, dined with the outgoing president at the White House, and on Monday, March 5, took the presidential oath on the Capitol steps.
Roy Morris, like his democratic fore-bears, does indeed "go behind" the formalities of the Electoral Commission, and one is glad he does, for he tells a fascinating tale. Indeed, he is at his most entertaining in his chapters on the nominating conventions in June 1876; and his portraits of his main protagonists are judicious and insightful. He gives Hayes his due as a man of personal valor in war and studied moderation in peace, upright in conduct if not immune to the chief political prejudices (e.g., anti-Catholicism) of his party in his place and time. Morris admires Tilden—first for his intelligence and devotion to the principles of the Democratic Party, second for his skill in political organizing, and third for his graciousness in defeat—but remains puzzled at Tilden's disengagement, first from the campaign for the presidency, then from the battle over the count. Even if the mores of the time did not permit active campaigning on one's own behalf, this successful railroad lawyer surely knew how to orchestrate his own staff and how to defend his apparent popular victory. Morris sees the irony that a campaign run on the issue of "reform" should come down to a contest of partisan intransigence, and no doubt Tilden did, too, perhaps slackening his will for the fight.
Probably the most significant part of Morris's book is his attempt to undercut the generally accepted claim that the Democrats had intimidated freedmen's voting in South Carolina, Florida, and especially Louisiana. To be sure, Morris holds no brief for the Old South. Like most modern historians of the election, he discredits the former commonplace that the Republicans cut a deal in 1876 to win the presidency in exchange for ending Reconstruction. The last Reconstruction legislation had passed the lame-duck Congress in early 1875, before Democrats took control of the House. "Redeemer" governments (hostile to Reconstruction) controlled most of the Southern states. Grant's refusal, in 1875, to support the Republican governor of Mississippi when he asked for federal troops in the aftermath of a race riot had signaled, in effect, the federal government's acquiescence in eventual "redemption." And the same session of Congress that was weighing the election refused to appropriate money to pay the troops before the new Congress was set to reconvene. More to the point, there was never any question that a Democratic victory in the presidential election would mean the end of Reconstruction.
Still, Morris looks at some of the evidence introduced in Louisiana and pronounces it lacking. Not only was the credibility of one of the most sensational witnesses to pre-election violence suspect, but census figures show that the Republicans overestimated the size of the black population and so made too much of the shortfall of Republican votes. Moreover, the canvassing boards overlooked other explanations besides the intimidation of black voters. In at least one instance, no votes were cast for Republicans in a Louisiana parish because the GOP had failed to print any ballots (the rule in those days was to bring one's own), and Morris adduces evidence as well of Redeemer Democratic efforts to win black votes. To be sure, his aim is narrative, not systematic, so he does not try to turn his anecdotes into statistics. It is enough to discredit the Republican argument, he thinks, and to let rumor and inference do the rest.
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Fraud of the Century is weakest where Rehnquist's book is strongest, in its account of the work of the Commission itself. Though the Chief Justice carefully supplies the context needed to assess the arguments made in Washington that February, nicely reviewing the ups and downs of the Grant Administration, supplying short biographies for every major character, and even previewing the Hayes Administration's eventual success, his point is not so much to explain the election as to vindicate the Commission's role in it, and that means especially to vindicate the judgment of Justice Bradley.
Bradley was bitterly reviled at the time, accused of changing his mind overnight on the crucial Florida vote because "during the whole of that night Judge Bradley's house in Washington was surrounded by carriages of visitors who came to see him"—an accusation given some credence by modern historians because of a "secret history" completed by Tilden's campaign manager, Abram Hewitt, shortly before his death 25 years later. Hewitt's account included the tale of one reputed visitor, John G. Stevens, who claimed he had visited Bradley after midnight, and had read the Justice's draft opinion in favor of the Tilden electors, only to hear Bradley read the opposite to the Commission the following day.
Reprinting Bradley's subsequent public letter denying both that he had received any visitors at all that evening and that he had written an opinion contrary to the one he later gave, Rehnquist carefully impeaches the charges against Bradley. Invoking the hearsay rule, the Chief Justice argues that Hewitt's version of Stevens's account was less than credible, because it was taken in secret years after the event from an eventual suicide who was known for fits of depression, because it came with instructions that it not be published until all the parties concerned had died (and thus were unavailable for comment), and because it was inconsistent with Bradley's known work habits and the justices' usual practice of secrecy in preparing their legal opinions. Morris, whose book appeared first, repeats the old charge, as well as another based on circumstantial evidence linking Bradley to a railroad magnate apparently active on Hayes's behalf in the post-election campaign—a charge the Chief Justice dismisses without mention and that Morris himself does not pursue.
More interesting from the point of view of the present is Rehnquist's defense of the Committee's substantive decision not to "go behind" the states' electoral votes. He points out that members of the parties had taken different positions on this issue in previous instances or when considering general legislation without an actual contest at stake. He describes the character of 19th-century federalism, contrasting it to our usual assumptions of federal competence and capability today. He patiently alerts the reader to the suspicion of the electoral process that might have ensued had the federal government claimed the responsibility to investigate national elections. And he carefully avoids drawing parallels between the dispute in 1876 and the dispute in 2000, in which he played, of course, so significant a role. In short, he defends the good faith of the Commissioners and defends as well the formal constitutionalism of their decision, without quite defending the substantive justice of the outcome, for even as a historian he does not undertake to reassess the findings of the canvassing board in Louisiana, much less to vindicate their deeds. If one sees in this choice a formula that also explains some aspects of the jurisprudence of his Court, one would not be altogether off the mark.
Each book has the virtue of taking seriously the political purposes and constraints of the men whose deeds they recount, and together they reproduce the perspectives of the age they study. But they share a common limit: both authors refrain from drawing out the larger lessons in the tale. While this may be a welcome corrective to accounts that dismiss the episode as sordid proof of the need for Progressive refurbishment of American constitutionalism, it is also a missed opportunity. For starters, every aspect of the 1887 statute that now structures the process for Electoral College voting (about which we all learned in 2000) can be explained as a remedy for some specific mischief in the embarrassment of 1876-1877—for example, the "safe harbor" deadline, requiring certification of electors six days before their scheduled vote. This measure would prevent a recurrence of the situation in Florida in December 1876, when the canvassing board announced its results on the very day the electors were to vote.
Moreover, though Rehnquist does not say so and only hints at it obliquely in an epilogue, the contemporaneous dissatisfaction with the Commission process (evidenced in there being no such machinery established in the 1887 law) may have influenced the justices' decision in 2000 to take the case judicially, figuring that otherwise they might have been called individually to play a role in the dispute's eventual political settlement and that, given the precedent, it was better to act quickly and from the bench. And what student of American government can fail to marvel at the surprising parallels? Both disputes involved Florida, included accusations of intimidation of black voters, and entailed the Republicans' stressing official channels and the Democrats' insisting on "going behind" the forms.
If the story of America is not the Progressive tale of the cooperative commonwealth, but a complex matter of competing interests and ambitions, one wonders what other deep patterns lurk in our political history that might illuminate our politics today. Does the fact that Reconstruction ended in a fiasco teach us something about moral passion's ugly underside in politics? Did Republican success in 1876-77 show something about the strength of moral confidence even in the face of recalcitrant majority will? And in the end, was the result so unsatisfactory given the circumstances—and in comparison to our recent debacle? After all, the coalition that Hayes had to assemble in order to win was the beginning of a coalition that he needed in order to govern, because both depended on Congress, not a deus ex machine like our modern Court.
Whatever their limits, both books can be read with profit by students of American politics today. Who can fail to admire the Chief Justice for undertaking this study—and for humbly submitting his views in a form accessible to the general reader, even at the risk of disproving his point that extrajudicial service is now inadvisable for a busy modern judge? And thanks too go to Roy Morris and those like him who persist in writing political history, reminding us that the shrill excesses of our present partisanship are at once nothing new and something to be expected, especially if we learn nothing about the past except what our fellow partisans think fit for us to hear.