- Historic Sites
The Election That Got Away
A loophole in the Constitution made it possible for the winner of the popular majority in 1876, Tilden, to lose to Hayes in the electoral college amid bitterness, fraud, and chicanery. It could happen again
October 1960 | Volume 11, Issue 6
Violent thoughts were by no means the monopoly of the Democrats. Certain Republicans—none, however, in official positions—were also threatening war. The chairman of the Iowa Republicans reported that 100,000 men were ready to back Hayes to the hilt if the Senate declared him elected. Amid all the stress and uncertainty, President Grant, viewing solemnly his responsibility for preserving the nation’s peace and safety, was not idle. Troops with light artillery were concentrated near Washington. The commander of the Army’s Eastern Department, who was suspected of harboring Democratic sympathies, was transferred elsewhere and replaced by a general in whom the Administration had absolute confidence. Internal Revenue agents were instructed to report any local happenings bearing upon the critical situation. But the Grant Administration’s several measures, it must be confessed, were by no means regarded with universal approbation. Various Democrats and not a few Republicans were fearful that Grant was merely using the crisis as a pretext to prolong his presidential term and establish himself as dictator, a kind of American Cromwell. A band of Democratic congressmen led by Fernando Wood of New York sought to impeach Grant “for misuse of the army and other offenses.” He replied that if the impeachment venture made headway in the House of Representatives, he would clap the Democratic ringleaders—all northerners—into Fort Monroe. A favorite story of the day told of two generals, both ex-Confederates, meeting in the middle of the electoral crisis and laughing joyously at the prospect of “marching into Boston at the head of the Union brigade.”
Happily, despite the menacing talk and gestures, there were also powerful forces for peace abroad in the land. The business community, mindful of the havoc of the late rebellion, was solidly opposed to war. “The Democratic business men of the country,” wrote James A. Garfield to Hayes, “are more anxious for quiet than for Tilden.” Southern Democratic congressmen had had their fill of war. In their eyes, the termination of carpet-bag rule and the restoration of local self-government clearly enjoyed a higher priority than the inauguration of Tilden. Finally, there were responsible northern legislators on both sides like Abram S. Hewitt, New York congressman and chairman of the Democratic National Committee, who clearly perceived the necessity of compromise. On the basis of a long, plain-spoken interview with Grant, Hewitt concluded that Tilden, sticking to the position of constitutional interpretation he had assumed, could be inaugurated only by force of arms. “After carefully considering the facts,” Hewitt further concluded, “I became satisfied that we could not wage war with any hope of success.”
For nearly one month, commencing in late December, peace-minded Republicans and Democrats struggled with all the parliamentary tools at their command to create and put into quick operation the machinery of compromise. Resolutions were drafted, committees appointed, caucuses held. From what was almost a miracle of swiftly achieved consensus, there sprang a law which one eminent constitutional authority, Edward S. Corwin, has called “the most extraordinary measure in American legislative history.” The act of January 29, 1877, created an Electoral Commission to solve the central issues of the crisis. The commission, as finally established, consisted of fifteen members, five from the House of Representatives, five from the Senate, and five from the Supreme Court. By interparty agreement, seven Democrats and seven Republicans were to be represented among the legislators and justices appointed to the commission; it was generally expected that as the fifteenth and, most likely, the deciding member, the presumably impartial Justice David Davis of Illinois would be chosen. The principal mandate of the commission was to decide the allocation of any disputed electoral votes; its decisions would stand unless reversed by both houses of Congress, which was quite unlikely in light of the fact that neither party controlled both.
The commission plan, be it noted, evoked no spoken praise or private admiration on the part of the two presidential candidates. At every stage, from conception to final form, the plan was sourly regarded, both at Columbus and at Gramercy Park, as “surrender.” In the end, however, both candidates regretfully accepted it as a fait accompli.
For all of Tilden’s pessimism, the Electoral Commission scheme was generally regarded as a Democratic victory. It was believed that Justice Davis, although officially regarded as more or less impartial, would side with Tilden and tip the scales of decision.
Whatever joyful expectations the Democrats were harboring were suddenly dashed by a wholly unimaginable disaster. By the day the Electoral Commission bill went to the President for signature, news arrived from Illinois that the Democratic majority of the state legislature had just elected David Davis to the United States Senate. Davis lost no time in declining the proffered appointment to the Electoral Commission.
In his place Justice Joseph P. Bradley of New Jersey was appointed as the commission’s final member. To get a line on Bradley, Hewitt had a mutual friend, John G. Stevens, confer with the Justice to feel out his attitude on the questions due to come before the commission. The conference, as it turned out, was wholly satisfactory, and Bradley’s appointment proceeded with the blessings of Hewitt and even of Tilden.