CHAPTER XXXVI.

THE FAMOUS ELECTORAL COMMISSION.

THE FORTY-FOURTH CONGRESS

I

ASSEMBLES -THE GATHERING STORM -DIVISION OF PARTIES-OPINIONS ON THE MODE OF COUNTING THE ELECTORAL VOTE-PERPLEXITY OF THE PROBLEMS-COMMITTEES RAISED UNDER KNOTT'S RESOLUTION - HOW THEY WERE CONSTITUTED-THE SECRETS OF THE COMMITTEES NOW FIRST DIVULGED THEIR DEBATES AND THE RESULTS SEPARATE AND JOINT ACTION-CHANCES BY DRAWING LOTS - THE SUPREME JUSTICES CALLED IN-THE SHREWd devices OF THE REPUBLICANS— HOW THE SECRETS WERE KEPT-VARIOUS DRAFTS OF BILLS-RUMORS OF WAR PREPARATIONS FOR THE USE OF FEDERAL TROOPS FINAL REPORT TO CONGRESS AFTER THE SECRET DISCUSSIONS.

N the history of elective governments no such strain was ever put upon human nature as that which tried the patience, forbearance, and patriotism of the people of this country during the proceedings for the counting of the Presidential vote in 1876-'77. A case like that one could How the will of the people

never occur again without sanguinary results. was then defeated by malevolence, greed, fraud, and the breach of every legal bond, the sequel will show.

Clouds thick and threatening obscured the horizon when the Forty-fourth Congress met at its closing session, in December, 1876. There was an evident determination on the part of the Republican leaders not to surrender the reins of power. There was as resolute a purpose on the part of the Democracy to gather, at all hazards, the fruits of the victory which they believed they had fairly won. There seemed to be no alternative but civil The situation was indeed grave. The Congress was divided politically into hostile camps. The Senate was Republican, the House Democratic. The all-absorbing, war-threatening questions were: Had the President of the Senate, by virtue of his office, the right to count the electoral votes? Did the Constitution invest him with discretionary power to decide what were and what were not the electoral votes of a state? Must both

war.

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houses of Congress acquiesce in counting the votes of a state before they could be counted? Or would the objection of either house be fatal to any electoral returns? These questions perplexed the people at large as well as Congress. Peace, unless one or the other party surrendered its claim of victory, seemed out of the question. No middle ground appeared possible. The horrors of another civil war loomed up before the affrighted vision. In the war for the Union it was section arrayed against section; but in this which seemed to be now threatening it would be neighbor against neighbor, father against son, brother against brother.

On the third day of that session of Congress the electoral colleges met in the several states. As had been anticipated, double sets of returns were prepared and forwarded from South Carolina, Florida, and Louisiana, and two claimants appeared for one office of elector in far-off Oregon. Petitions poured into Congress from commercial organizations and good citizens of all parties and all sections, anxiously praying for a peaceful settlement of the Presidential question. In the wisdom and the patriotism of that body was now the only reliance for averting bloodshed. A few days after the meeting of the electoral colleges, December 14th, Mr. Proctor Knott, of Kentucky, then a member of the House, and now the governor of that state, known to fame as the immortalizer of "Duluth," initiated a response to the urgent demands of the country. He proposed a committee of five members whose duty it should be, acting in conjunction with a similar committee on the part of the Senate, to consider the whole question of the disputed votes, and to recommend to Congress a course to be followed. The resolution was adopted almost with unanimity. On the 22d of December, "Forefather's Day," the Speaker, Mr. Randall, of Pennsylvania, announced the select committee which the resolution called for A like committee had already been named in the Senate. Messrs. Edmunds of Vermont, Morton of Indiana, Conkling of New-York, Frelinghuysen of New Jersey, Republicans; and Thurman of Ohio, Bayard of Delaware, and Ransom of North Carolina, Democrats, composed the Senate committee. Messrs. Payne of Ohio, Hewitt of New-York, Hunton of Virginia, Springer of Illinois, Democrats; and McCrary of Iowa, Hoar of Massachusetts, and Willard of Michigan, Republicans, composed the House committee.

A fair proportion of the wisdom and patriotism of Congress was believed to be embodied in these selections. Mr. Payne made arrangements for a preliminary examination of the precedents relating to the counting of electoral votes. Nothing else was done until after the holiday recess. The country began to breathe more easily. Congress had awakened to the situation. Each house seemed to be doing its best to avert the threatened anarchy. Still, there was sufficient uneasiness to paralyze trade and commerce. The clouds were not all dispersed. After the holiday recess was over, Mr. Payne and his coadjutors of the House committee settled down to business promptly.

The Senate committee under the lead of Mr. Edmunds, did the same. Almost at the outset it became evident that the two parties, as represented in the committees, would not agree on the question regarding the extent or limitations of the powers and duties of the President of the Senate in the matter of counting the disputed electoral votes. Several plans of accommodation were proposed, but all of them led straight to one of two results, namely, either the seating of Tilden, or the seating of Hayes. They were, therefore, sure to encounter the opposition of either the Republican Senate or the Democratic House. In this situation there was no prospect of Congress reaching a point where it would perform its constitutional duty of declaring who had been elected President. Could Congress constitutionally abrogate or delegate that high prerogative? The committees had serious doubts on this question, but some conclusion must be reached. Nine propositions were submitted at the first meeting of the House committee after New Year's Day. Among these the fifth contained the germ of thought out of which grew the famous Electoral Commission. This proposition suggested the enactment of a law creating an independent tribunal which should be authorized to count the vote, and to determine any specific questions of law or of fact which might be involved in such proceeding.

Curiously enough, each committee, acting separately, without consultation or even knowledge of what the other was doing or contemplating, took up almost simultaneously the same idea of an independent tribunal. When the House committee met on Jan. 10, 1877, Mr. McCrary, of Iowa, a lawyer of excellent ability, now a United States judge, submitted the draft of a bill for an independent tribunal. This tribunal was to consist of members of the United States Supreme Court,- the Chief Justice and a number (in blank) of associate justices, in the order of their seniority of commission. The Chief Justice was promptly ruled out. An objection was raised by a Democratic member of the committee that Mr. Chief Justice Waite had been heard, the previous summer, to express himself in terms of personal hostility to Mr. Tilden, such as better befitted a partisan than a judge. Whether this was so or not, the doubt as to his bias had its effect. It should be here said, in justice to Mr. Waite, that at a subsequent stage of the discussion a personal friend of his, speaking for him to the committee, stated that it was the Chief Justice's earnest desire that his name should not be considered in connection with the proposed commission The plan finally agreed upon by the House committee favored an independent tribunal, to consist of the five senior associate justices of the Supreme Court. These were Justices Clifford, Swayne, Davis, Miller, and Field. Two of these were known as Democrats, two as Republicans, and Mr. political affinity was in doubt. Thus the political balance so much sought for seemed to be happily attained.

Justice Davis'

Mr. McCrary's bill made the decision of the proposed tribunal binding,

SECRET COMMITTEE DELIBERATIONS.

639

unless both houses of Congress should vote to overrule it. His Democratic associates insisted on an amendment to the effect that the decision of the tribunal should have no binding quality or effect unless concurred in by both houses. To this the Republicans would not consent, and the change was made without their help. The House bill, besides providing for an evenly balanced tribunal, contemplated a hearing of the questions in dispute on their merits. To these five eminent judges were to be referred "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 thereto." Power was to be granted them "to send for persons and papers, and to compel the attendance of witnesses; also to cause testimony to be taken before one or more commissioners, to be appointed by them for that purpose." This was before the aliunde device for cheating the people had been concocted. The proposed inquisitorial power would enable the tribunal of learned justices to strip the mask from fraud, and at the same time would not bind them to admit that a lie became truth by being so labeled under sealing wax and red tape.

Thus far the two committees were in ignorance of each other's movements. Each preserved its own secrets inviolably. Mr. Payne, of Ohio, the chairman of the House committee, was then a member of the Committee upon Banking and Currency, of which the writer was chairman. They met every day, in their historic room the Speaker's room when the House sat in the old hall; the room in which John Quincy Adams saw the "last of earth." Mr. Payne and the writer held close relations. These began in 1855, when Mr. Payne was a candidate for governor against Mr. Chase. But this and other olden intimacies growing out of the Douglas and anti-Lecompton contest had not magic sufficient to open the cave where the mysterious ingots of political opulence were hidden in 1877. The clerk of the Banking and Currency committee was Mr. Milton H. Northrup, of Syracuse, New-York. He had been appointed by the writer. His trustworthiness led Mr. Payne to appoint him as clerk to the House committee upon the electoral count. He was, and still is, the custodian of the archives of that remarkable star chamber. Whether he has since divulged them to any one, the authenticity of this relation should divulge to the logical mind. But from neither the chairman, Mr. Payne, nor his clerk, Mr. Northrup, could the writer, at that time, by any torture of inquisition, obtain the least hint of the proceedings. The secrets of that prison-house were so well kept that not even the acutely-scenting press correspondents had been able to learn that such a bill was being considered. The first intimation the writer, or any one outside the committee, had of its propositions, was from the bill itself, after it had received its consummation of bud and bloom and been printed by order of the committees.

In response to an invitation from the chairman of the Senate commit

tee, Mr. Edmunds, the House committee on the 12th of January journeyed over to the Senate wing of the Capitol. They were ushered into the Judiciary Committee room, and into the presence of the ambitious statesmen who then sat around its long table. A comparison of notes followed. Each committee was found equipped with a plan. Each plan was a cure for the disorder under which the country staggered. The Senate plan was decidedly complex. While the House was content to submit the dispute to the five senior associate justices, the Senate wanted a mixed tribunal whose elements should come from the legislative as well as the judicial branch of the government. The Senate committee had arrived at a "third draft” of a bill. They had made revision after revision. They had at last agreed to submit a plan to their brethren of the lower house. It was this: A commission to consist of thirteen members. Nine to be taken from Congress and four from the Supreme Court. Each house of Congress to name five of its members to sit upon the Commission. One of the ten so designated was to be eliminated by lot. Under this plan the Senate would appoint five of its Republican members and the House of Representatives five of its Democratic members, and as the four Supreme Court judges were expected to be evenly balanced, the only way to break the inevitable deadlock in the Commission was to "draw cuts." The grave and reverend Senators who proposed this Biblical and happy-go-lucky mode of settling a Presidential succession by the intervention of Providence through the "chances," were the objects of occa sional raillery from the members of the other committee. This return to primitive customs was humorously styled the "dice-box" principle.

The House committee readily accepted the Senate idea of a mixed Commission. It would give to Congress itself a representation on the tribunal to be created. But the Democrats of the committee strenuously insisted that if there was to be a "lot," it must apply to the judiciary rather than to the congressional members of the Commission-leaving the political part of it divided between the two parties. After general discussion it was gravely decided that the term "commission,” rather than “tribunal," should be the title of this body. It was also decided that it should consist of fifteen membersan equal number from each of the three bodies represented. The Senate committee promptly acquiesced. Thenceforward the discussion related not so much to the plan as to the personnel of the Commission. It was assumed that, so far as the legislative part was concerned, the Commission would be a "stand off" between the parties. How to divide five judges equally between the two parties without doing violence to any one of those venerable wearers of the ermine, required such a nice mathematical calculation as to absorb the entire time of the great minds there assembled for several days. The Democrats claimed but two members of the Court, Justices Clifford and Field; the Republicans had, perhaps, all the rest. Still, Mr. Justice Davis was of uncertain political preferences. Was it unreason