AYES-TILDEN CONTEST 
 
 FORE THE ELECTORAL COMMISSION 
 
 THE FLORIDA CASE 
 
 ERT WILLIAM R. EWING. 
 
History and Law 
 of 
 
 The Hayes-Tilden Contest 
 
 Before The Electoral Commission 
 
 The Florida Case 
 1876-77 
 
 By ELBERT WILLIAM R. EWING, LL. B. 
 Attorney and Counsellor ofthe Supreme Court of the United States 
 
 Author of 
 
 "Legal and Historical Status ofthe Dred Scott Decision" 
 and "Northern Rebellion and Southern Secession" 
 
 Washington, D. C. 
 Cobden Publishing Company 
 
Copyright, 1910. 
 
 by 
 Cobden Publishing Company. 
 
 All Rights Reserved. 
 
 The Eddy Press Corporation 
 Winchester, Va. 
 
Contents. 
 
 CHAPTER I. 
 
 THE CANDIDATES THE ELECTION SUBSEQUENT 
 CONDITIONS. 
 
 CHAPTER II. 
 THE ELECTORAL COMMISSION. 
 
 CHAPTER III. 
 THE CERTIFICATES THE IMPEACHMENTS. 
 
 CHAPTER IV. 
 THE BATTLE BETWEEN COUNSEL. 
 
 CHAPTER V. 
 THE FINAL MAJORITY-DECISION. 
 
 CHAPTER VI. 
 THE EXECUTIVE AUTHORITY OF FLORIDA. 
 
 CHAPTER VII. 
 
 THE HAYES USURPERS. 
 
 CHAPTER VIII. 
 THE FLORIDA ELECTION LAW. 
 
 CHAPTER IX. 
 THE RETURNS AND THE CANVASS. 
 
 CHAPTER X. 
 AFTER THE BATTLE. 
 
 982239 
 
Preface. 
 
 To follow the fortunes, studying the manoeuvres, 
 of legal battle between the greatest leaders of the 
 American bar, is of itself an exercise of much delight. 
 When the occasion and the opportunity for the struggle 
 furnish a study of pre-eminent historical value, reveal 
 ing questions eminently practical to the citizen who 
 would deal intelligently with affairs of government, as 
 well as to the statesman and to the lawyer, the importance 
 of the subject cannot be overestimated. The Hayes- 
 Tilden controversy over the Presidency of the United 
 States for the term beginning March 4, 1877, gave 
 rise to a tribunal known as the Electoral Commission ; 
 and when this court came to pass upon the dis 
 puted questions affecting the succession, the fierce legal 
 battle which ensued and the treatment of the questions 
 before it by the Commission, furnish an unique chapter 
 thus replete with interest, practical value and human 
 nature. 
 
 Advocating the cause of Tilden towered Charles 
 O Conor, in his day without a peer at the bar of this 
 country perhaps without an equal abroad. Associated 
 with him were Jeremiah S. Black, once Attorney- 
 General of the United States, learned, skilful and 
 widely known ; Lyman Trumbull, long a Republican 
 Senator and an intimate personal friend of Lincoln; 
 Montgomery Blair, an able lawyer and who had been 
 of counsel in the famous Dred Scott Case; the astute 
 Ashbel Green; the distinguished Richard T. Merrick; 
 ex-Judge John A. Campbell, one of the justices who 
 concurred with Chief Justice Taney in the Dred Scott 
 decision, and who wrote several important opinions 
 
 4 
 
Preface 5 
 
 while on the Supreme Bench ; George Hoadley, and 
 William C. Whitney. 
 
 For Hayes in the place of first command appeared 
 the wrinkled, thin face, belying the powerful brain, of 
 William M. Evarts, who had been of counsel for 
 Andrew Johnson in his historic impeachment trial, 
 still more famous since his able connection with the 
 Alabama Case, and fresh from masterful achievements 
 in the Beecher trial. Aligned with him were Stanley 
 Matthews, shortly to be elevated to the Supreme 
 Bench of the United States ; Edward M. Stoughton, 
 shrewd and masterful ; and Samuel Shellabarger, Mr. 
 Hayes personal counsel all of both sides men of 
 learning, consummate skill and wide experience, Whit 
 ney then the least known of the number. 
 
 The Electoral Commission held its public sessions 
 in the present court room of the United States Supreme 
 Court. Formerly the old Senate chamber, this his 
 torical old room in the Capitol in Washington, the 
 scene of many brilliant and profound debates, some 
 notable hearings and the pilot house from which this 
 government has been guided in a degree unequalled 
 from any other source, has been the scene of no case 
 more interesting and none of greater importance to 
 popular government than was that heard by the fifteen 
 distinguished men composing this Commission. Created, 
 January 29, 1877, under peculiar conditions by an act 
 of Congress supported by Democrats and Republicans, 
 carried in the face of an obstinate fight led by giants 
 of both parties, the Commission by vote of the eight 
 Republicans to the seven D emocrats, before the fourth 
 of the following March, rendered a decision involving 
 
The Hayes-Tilden Contest 
 
 the most vital questions that can arise in the election 
 of President of the United States. 
 
 Americans entertain different views of the value of 
 that famous decision and of the nature of the title 
 resting thereon. Though Hayes "moral title to the 
 Presidency was always questioned, his legal title was 
 perfect," says Doctor James Ford Rhodes in his recent 
 study of the great controversy. Doctor Rhodes is an 
 eminent and most widely-followed representative of a 
 large class. A similar and representative view is 
 advanced by a correspondent in The Nation on March 3, 
 1881, when he says that the action of the Commission 
 "could not do more than make it decent for" Mr. 
 Hayes to accept the Presidency. 
 
 Many others believe that the defect in the Hayes 
 title was both moral and legal. These believe that the 
 decision of the majority of the Commission is a blot 
 upon American history indelible to be studied that 
 its repetition may be avoided. The Commission, by 
 the express terms of the law creating it and by its own 
 admission, was not a tribunal of last resort, and could 
 render no authoritative announcement of the law; it 
 was to proceed to consider the questions submitted 
 to it "with the same powers, if any, now possessed for 
 that purpose 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 are duly appointed 
 electors in such State, and may therein take into view 
 such petitions, depositions, and other papers, if any, 
 as shall, by the Constitution and now existing law, be 
 competent and pertinent in such consideration." With- 
 
Preface 7 
 
 out power or any right to give an authoritative con 
 struction either of the law or of the Constitution, it 
 could only measure the facts before it by the settled 
 law; the existing law, the law as it was at the date of 
 the passage of the bill, constitutional, statutory, the old 
 common law preserved to the States, as admittedly under 
 stood or announced by courts of competent jurisdiction 
 being of last resort. So this second class holds that these 
 gave the Commission well-defined vires \ and that it 
 may be indisputably established that the decision of the 
 Commission passed beyond these limits, and that its 
 pronunciamentoes became as illegal as are those of 
 any person or any tribunal doing acts ultra vires. 
 
 There is, too, a small third class, steadily growing 
 less as the light of research follows in the wake of 
 the departing party passion and prejudice, who believe 
 that Mr. Hayes enjoyed a title without either moral 
 or legal blemish. 
 
 My purpose in writing has been to aid to a clearer 
 view of the historical facts and to assist to the most 
 intelligent grasp of the law, that the powers of the 
 Commission may be understood, enabling the general 
 student to appreciate the merits of the respective views. 
 This monograph aims to gather all the material facts 
 bearing upon the questions before the Commission, so 
 that with a study of the law of the case, the student 
 may form an intelligent opinion, enjoying the play of 
 ability of the great lawyers, and get a clearer view of 
 the practical questions, both of law and of government. 
 
 The facts have been carefully and laboriously gathered 
 from the thousands of pages of government publications 
 covering the story of the great controversy. No 
 original source has been left unexplored. In stating 
 
8 The Hayes-Tilden Contest 
 
 the law I have endeavored to give a correct annuncia 
 tion of the law. I have studiously avoided writing as a 
 lawyer would in preparing his brief ; I have meant 
 rather to be judicial, that the settled and undisputed 
 rules of law might at all times be presented. 
 
 The legal questions are much the same in each case 
 submitted to the Commission. These questions in any 
 one case comprehended, those which arose in the others 
 are understood. I have selected the Florida Case for 
 testing the legal title of President Hayes, and for an 
 examination of the principles announced as the basis 
 of the decision by the Commission, because the Repub 
 lican contribution of Florida to Hayes vote, making 
 possible his success without actual resort to force, 
 presents, of all the ugly record of the disputed South 
 ern States, less moral depravity, thus leaving the mind 
 freer to study upon their merits the questions of law 
 and of government. 
 
I. 
 
 The Candidates The Election- 
 Subsequent Condition^ 
 
 FIFTEEN most strenuous years are thos-e .frqjn 
 Appomattox to 1880. No other span of time 
 of anything like similar length since the 
 first firm footing of the American people 
 on the banks of the famous old James, furnishes a 
 more thrilling chapter. In no other period of Ameri 
 can history, whatever its length, do types of our man 
 hood appear in stronger contrasts or principles of gov 
 ernment stand in bolder relief. The most malicious 
 vindictiveness, volcanic in power and of seismic destruc- 
 tiveness, dangerously menaced constitutional govern 
 ment; statesmanship waned under the rule of the 
 demagogue; morality in high places scorched its ermine 
 in the fires of unholy ambition; citizenship was be 
 smirched; and a great people writhed beneath humiliat 
 ing conditions imposed by irresistible power, its 
 bayonets fixed and brandishing the sword. 
 
 Yet hope in ultimate justice kept the right strong 
 for the battle ; at last democratic government triumphed 
 and usurpations became history. All the time the on 
 ward sweep of the private life of the entire people was 
 little retarded; literature flourished, art made possible 
 a sweeter life and added to the greatness of a remark 
 ably wonderful people. In that section of the people 
 most affected by the evil, material prosperity, wide 
 spread and generous, rewarded the brave efforts of 
 ; ts invincibles and added strength for the civil battle, 
 
io The Hayes-Tilden Contest 
 
 until out of the ruin and out of the blackness of the 
 antecedent years this vital section gradually lifted itself 
 into conditions of prosperity and of domestic peace 
 ^uch as it Jnd, not; known for more than one hundred 
 ,years v > /{ -,jE 
 
 Jn th % ^ t thrilling t story of this wonderful era, two 
 : ey<3>s , hold tbe student and teach him more than all 
 the others. Full of significance, rich in varied in 
 terests, their story is well worth its time. These are 
 the Presidential election of 1876, and the electoral 
 count of 1877. 
 
 To understand the great opportunity for the con 
 fusion and bitter conflicts which followed this election, 
 giving rise to the count, we must bear in mind that 
 then, as now, in America the voters do not directly 
 choose a President and a Vice-President. The States, 
 by organic constitutional law, were left to act as poli 
 tical individuals, as sovereign and for many purposes 
 independent units. The predominant conception of our 
 forefathers was that the States should choose a com 
 mon ruler, and not that a great National Unit should 
 choose its President. However much ideas with ref 
 erence to this act may have changed, the method of 
 its performance to this day remains. Not the majority 
 of the popular vote, but State-majority determines who 
 shall be the President and the Vice-President of the 
 United States. Not even the qualified suffragists con 
 stitute the basis for the power that any State is to 
 exercise in choosing our President. When the States 
 adopted the Federal Constitution, it was agreed in 
 section three of article one that the number of repre 
 sentatives to which each State should be entitled in 
 "a Congress of the United States" should be deter- 
 
The Election n 
 
 mined by adding to the whole number of free persons, 
 including those bound to service for a term of years, 
 and excluding Indians not taxed, three-fifths of all other 
 persons." "Three-fifths of all other persons" had 
 especial reference to the negro slaves which at that 
 time existed by local laws in all of the States. The 
 number of representatives could not be in excess of 
 one for every thirty thousand, but whatever its popu 
 lation each State was to have at least one. Art. II. 
 created the executive power and vested it in a President. 
 Paragraphs two and three provide for the manner in 
 which the executive shall be chosen. "Each State shall 
 appoint, in such manner as the legislature thereof may 
 direct, a number of Electors, equal to the whole num 
 ber of Senators and Representatives to which the State 
 may be entitled in the Congress." "The Electors shall 
 meet in their respective States, and vote by ballot for 
 two persons." "And they shall make a list of all the 
 persons voted for, and of the number of votes for each ; 
 which list they shall sign, certify and transmit sealed 
 to the seat of the government of the United States, 
 directed to the president of the Senate. 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. The person hav 
 ing the greatest number of votes shall be the President, 
 if such a number be a majority of the whole number of 
 electors appointed." The person having the next high 
 est number was to be the Vice-President. In case 
 two or more persons had equal numbers, or lacked the 
 required majority, the choice of a President fell to 
 the House of Representatives; and similarly if no 
 Vice-President should be chosen, that election fell to 
 
12 The Hayes-Tilden Contest 
 
 the Senate. Congress was given power to determine the 
 time of "choosing the electors, and the day on which 
 they shall give their votes." 
 
 Article XII. of the amendments changed the procedure 
 to the extent only that the electors are now required 
 to vote by ballot for a President and a Vice-President ; 
 the ballots are to be distinct and distinct lists are to be 
 made, signed, certified, and as previously to be sent 
 sealed to the president of the Senate, who shall, "in 
 the presence of the Senate and House of Representa 
 tives, open all the certificates and the votes shall then be 
 counted." Article XIV. of the amendments has changed 
 the basis of representation in Congress, and hence the 
 number of electors to which each State shall be en 
 titled, so that at this time "representatives .shall be 
 apportioned among the several States, according to their 
 respective numbers, counting the whole number of per 
 sons in each State, excluding the Indians not taxed." 
 
 Again, it is both interesting and important to remem 
 ber that when the electors of any State have con 
 vened for the purpose of voting, each man exercises 
 his own independent right of choice. He may cast his 
 vote for any one who meets his approval. Legally he 
 is not obliged to vote for the ticket which is the choice 
 of the majority that elected him. He may be nominated 
 and elected as a Republican elector, and yet cast his vote 
 for a Democratic candidate. But electors regard them 
 selves as under moral obligations to support the ticket 
 with which they are known to be in accord at the time 
 of the general election. So it is that the choice of 
 electors at the ballot confers upon them the power to 
 choose the President and the Vice-President, with 
 simply a request to exercise that power for the purpose 
 
The Election 13 
 
 of selecting certain men now previously named by 
 party leaders in national conventions. Electors have 
 such a high regard for that request on the part of the 
 popular voters, that as soon as it is known who have 
 been chosen electors in any State, it is known with 
 moral certainty for whom the electoral vote of that 
 State will be cast when the electoral college, as the 
 meeting of the electoral body is sometimes called, shall 
 convene and shall vote. 
 
 The State may appoint electors in such manner as 
 she pleases. For many years the electors were chosen 
 by the legislature in several States; in some the choice 
 is by districts at popular elections ; and generally now 
 the choice is by popular election by the voters of the 
 whole State. Whatever manner any State prescribes, is 
 yet entirely legal and can not be questioned by the Fed 
 eral Government or any branch thereof. 
 
 Where the choice is by popular suffrage, as was true 
 in Florida at the November election, 1876, the local 
 procedure is as follows : 
 
 First, the people vote at various places in the coun 
 ties. At sunset on election day the precinct polls, as 
 these voting places are called, are closed. The pre 
 cinct officers count the votes, certify the result and 
 forward that certificate together with the ballots of 
 each precinct to the county seat. When all the precincts 
 of the county are in, a county canvassing board certi 
 fies the total result shown by all the precinct reports. 
 This certificate is then sent to the seat of State govern 
 ment, and the ballots themselves are filed at the seat of 
 the county. At the seat of State government a State 
 canvassing board sums up all the county reports, de 
 clares the result as shown by the returns before it 
 
14 The Hayes-Tilden Contest 
 
 and issues certificates accordingly. The details thus 
 far are all left to State laws, such as, who and how 
 many shall constitute the precinct election officers; who 
 shall be permitted to vote and under what conditions ; 
 who shall constitute the county canvassing board, the 
 State canvassing board, and the manner in which each 
 shall perform its duties. The Federal law does no more 
 than prescribe the day upon which the general election 
 shall be held, the day upon which those who have been 
 chosen electors for each respective State shall vote, 
 the manner in which they shall certify the result of 
 their voting, and that three copies of their certificates 
 shall be made, two of which are sent to the seat of 
 the Federal government, one by post, the other by 
 private messenger, addressed to the president of the 
 Senate, and that the other be sent to the Federal judge 
 of the circuit within which they meet. 
 
 In selecting a successor to President Grant the con 
 test between the two great parties at the November 
 election of 1876, became most bitter. The Republican 
 party, an organization whose forces had been drawn 
 from those commercially and socially opposed to the 
 emigration of the negro, bond, or free, from the South, 
 posing as anti-slavery but who were really anti-negro, 
 went to the fight with a brilliant war record, and under 
 the prestige of official power. At its national convention 
 on June 16, 1876, it placed its standard in the hands 
 of Rutherford Birchard Hayes of Ohio, born in 1822, 
 for President; and W. A. Wheeler of New York, for 
 Vice-President. Hayes, an ex-Union soldier who had 
 reached the rank of brevet major-general, a man of 
 considerable inherited wealth, although little known 
 in national life, had given evidence of popularity in his 
 
The Election 15 
 
 own State. He was sent to Congress in 1864, elected 
 governor in 1867, and in 1875 defeated William Allen 
 who had previously been elected governor by the 
 Democrats. Personally a man of little ability, temporiz 
 ing and unaggressive, he won friends by adulation and 
 gifts. His administration proved to be characteristic 
 of the man "a bread poultice," to quote Beecher s 
 description. However, a less widely accepted view of 
 the man is that expressed by E. Benj. Andrews, who 
 says Hayes "had a resolute will, irreproachable in 
 tegrity, and a comprehensive and remarkably healthy 
 view of public affairs." * 
 
 But the most significant fact to be kept in mind in 
 studying the conditions of this period, is that the 
 National Republican party had unchained the lion in 
 its own camp. Success and power had been too in 
 toxicating for those in whose hands had been intrusted 
 the nation s welfare and honor. National credit had 
 been greatly injured abroad, Federal securities being 
 below those of many European States ; paper currency 
 was far below par and wholly unredeemable. Political 
 scandals and frauds in official circles "by almost clock- 
 like regularity" had come to light as the period of the 
 election of 1876 approached. Dr. Peck describes Grant s 
 second term as "a Phyric victory" and truthfully says 
 it "was tainted by public scandal of every description." 2 
 Even staunch Republicans began to stand aghast. The 
 truly sober and patriotic of all parties frankly admitted 
 that the government had fallen into the hands of those 
 who had in their midst a dangerous number of most 
 
 1 The U. S. in Our Own Times, 223. 
 
 2 Harry Thurston Peck, Twenty Years of the Republic, 14. 
 
16 The Hayes-Tilden Contest 
 
 disreputable thieves. The country generally ascribed 
 Hayes nomination to J. Donald Cameron, who brought 
 the Pennsylvania delegation in the convention to his 
 support at a critical and opportune time. Without 
 confidence in Cameron and his cohorts, many Repub 
 licans feared their evil influence upon Hayes. By 
 funds raised from levies upon officeholders, Chandler, 
 chairman of the National party organization, lavishly 
 supported the ticket; and rascals of the party generally 
 who had escaped criminal prosecution during Grant s 
 stained administration, so warmly supported Hayes that 
 many of the party s best men feared his election would 
 mean to the defaulters a new lease of power and a 
 repetition of its prostitution. 
 
 Hayes letter of acceptance, however, revealing "a 
 man clear in his purposes and courageous in his 
 avowal of them," as a contemporary of his administra 
 tion expressed the widely accepted view of it, became 
 a factor of considerable support, 3 doubtless contributing 
 no little in overcoming the many impediments entailed 
 upon the party by Grant and those who had been placed 
 in positions of trust. However, Hayes stood upon a 
 platform, the weakness of which his letter could not 
 hide, especially in its attitude regarding the redemption 
 of currency in coin of the United States. Too, the 
 menaces to the party that had developed in the State 
 election of 1874 projected an ugly shadow across once 
 formidable party strongholds. In that year elections 
 were held in twenty-five States, and of these "twenty- 
 three had gone Democratic ; even such Republican States 
 as Wisconsin, Ohio, Pennsylvania, and Massachusetts 
 had arrayed themselves in the Democratic column ; and 
 
 3 Atlantic Monthly, XLIV., 191. 
 
The Election 17 
 
 only a comparative handful of Republicans had been 
 returned to the House." 4 Altogether, as Professor 
 Haworth, himself a Republican, of Columbia University, 
 says: "That the government was in a deplorable con 
 dition no dispassionate student of history shall venture 
 to deny. * * * The Republican party, rendered reck 
 less by the possession of too much power, had been 
 weighed in the balance and found wanting." 
 
 The Democratic party marched to the battle under 
 the leadership of Samuel Jones Tilden of New York, 
 born in 1814, and Thomas A. Hendricks of Indiana. 
 James G. Elaine, who was not in sympathy with Mr. 
 Tilden s party, says: "Mr. Tilden was in some respects 
 the most striking figure in the Democratic party since 
 Andrew Jackson." In years comparatively an old man 
 when nominated, yet Tilden was strong mentally, and 
 more so physically than in his younger days, for his 
 boyhood was so frail that it is said he never indulged in 
 sport of any kind. Masterful and aggressive, he had 
 reached out and had seized the Democratic standard. 
 In 1874 he led a valiant fight against the famous "Tweed 
 Ring," and was elected governor of New York. He 
 showed both leadership and power in accomplishing 
 the overthrow of the thieving Tweed combination. 
 Elaine gives us a picture of this unique figure that is 
 well worth preserving: "Adroit, ingenuous and wary, 
 skillful to plan and strong to execute, cautious in 
 judgment and vigorous in action, taciturn and mysterious 
 as a rule yet singularly open and frank on occasions, 
 resting on the old traditions yet leading in new paths, 
 surprising in the force of his blows yet leaving a sense 
 
 4 Paul Leland Haworth, The Hayes-Tilden Disputed Elec 
 tion, 3. 
 
i8 The Hayes-Tilden Contest 
 
 of his reserve, Mr. Tilden unquestionably ranks among 
 the greatest masters of political management that our 
 day has seen." 
 
 Personally his cold, calculating, scheming nature ren 
 dered Tilden unlovable ; he was a man above his fellows 
 by "sheer intellect unrelieved by any of those human 
 qualities which win men s love as well as respect," is 
 Doctor Peck s picture of this really wonderful man. 8 
 A man of unimpeachable integrity, be seems to have 
 worshipped only power, using all things honest to that 
 end. Unlovable he loved no one, for in all his life, we 
 are told, "he never loved a woman." Great, but truly 
 miserable ! 
 
 When the Democratic nomination was first announced, 
 here and there over the country were heard slight 
 murmurs of discontent in the party ranks. However, 
 shortly the gaps closed and the National Democracy 
 presented a solid front. Added to this formidable force 
 were many of the discontented Republicans, of whom 
 were such men as Charles Francis Adams, Parke God 
 win, and Professor Sumner, men who had grown 
 weary of the sins of Republican misrule. Too, some 
 of the ablest independent journals of that day, such 
 as The Nation, lent strength to the Democratic ticket. 7 
 
 The approaching panic and industrial troubles cast 
 their shadow before, bringing to the Democratic cause 
 another no inconsiderable element of strength. Stand 
 ing upon a strong platform, said to have been written 
 
 8 2 Elaine, Twenty Years in Congress, 263. 
 
 6 Peck, Twenty Years of the Republic, 115. 
 
 7 The Nation, XXIII. 4; North American Review, October, 
 1876; Atlantic Monthly, XLIV., 190; Haworth, Hayes-Tilden 
 Election, 37. 
 
The Election 19 
 
 by the able Manton Marble in his best literary style, with 
 a strong and worthy leader, buoyed by the successes of 
 1874, fighting for a righteous cause, the National Demo 
 cratic party had the brighest prospects of once more 
 entrenching itself in the seat of Federal executive 
 power. The Republicans opposed no worthy barrier; 
 millions of money and the cries of myriads of en 
 dangered Federal office-holders, swelling the note of 
 the demagogue as he shouted through the press and 
 from the hustings that "not every Democrat was a 
 Rebel, but every Rebel was a Democrat," 8 formed the 
 backbone of the opposition. 
 
 As a mere matter of history the student should 
 remember that the prohibition and the American Nation 
 parties also had tickets in the field. Neither of these, 
 however, had any serious influence upon the fight 
 between the other two parties. 
 
 At sunset of November 7, 1876, the roar of the battle 
 lulled and shifted, indicating not a cessation of the 
 struggle but a change of the forces upon the scene. 
 During the night the smoke of battle slowly lifted 
 from many a questionable field of the struggle, and 
 "on the morning after the election, newspapers of all 
 parties announced the election of Tilden for presi 
 dent." 9 Led by Chandler, chairman of the National 
 Republican committee, the Republicans quickly denied 
 the accuracy of the report, challenging the returns 
 from Florida, Louisiana, and South Carolina. From that 
 moment for many weeks the country trembled upon 
 the verge of financial ruin and national disaster. 
 
 "Harper s Weekly, 1C., 170. 
 
 A. K. McClure, Our Presidents, 263; Haworth, The Hayes- 
 Tilden Disputed Election, 46. 
 
20 The Hayes-Tilden Contest 
 
 When the popular vote was counted it was seen 
 that, of the whole people voting in all the States, 
 Tilden had a vr\a jority of at least 252,224. 10 At 
 this time there were thirty-eight States, and their 
 combined electoral votes were 369. Therefore 185 
 electoral votes were necessary to a choice. The Demo 
 cratic ticket had carried New York, New Jersey, In 
 diana, and Connecticut. It "was conceded generally 
 that the Democratic ticket had, without question, 184 
 electoral votes within one of an indisputed consti 
 tutional majority of the electoral votes necessary for 
 the choice of a President and Vice-President; while 
 it was in like manner conceded that the Republican 
 ticket had 172 electoral votes ; leaving the eight electoral 
 votes of Louisiana, the four electoral votes of Florida, 
 and one electoral vote of Oregon, disputed," as 
 Alexander H. Stephens explained in The International 
 Review, January, 1878, page 103. Thus it began to 
 appear, as in other instances, that, should the Demo 
 cratic contention be found to be correct, the popular 
 will stood endangered by the cumbersome electoral 
 machinery. Not until December 6 were the electors 
 to meet in their respective States, and in the mean 
 time the official announcement declaring which set 
 of electors had been elected, rested with the respective 
 State boards of canvassers, whose functions were deter- 
 
 10 Doctor Bigelow, a warm admirer of Tilden, gives the 
 figures 
 
 Total vote for Tilden 4,300,316 
 
 " Hayes 4, 036,016 
 
 Tilden s majority 264, 300 
 
 John Bigelow, 2 The Life of Tilden, 8. Doctor Peck, following 
 Johnson, gives 250,000. Twenty Years of the Republic, 15. 
 Doctor Rhodes gives the figures as 264,000. 7 History of the 
 United States, 246. 
 
The Election 21 
 
 mined entirely by the law of the State for which they 
 acted. Readily it was foreseen that much depended 
 upon the canvass by these local boards in the disputed 
 States, and the Republicans lost no u.ne in training their 
 heavy guns upon the members. 
 
 As soon as it was known what the Democrats claimed 
 the returns upon their face showed, J. Donald Cameron, 
 Grant s Secretary of War, "with perfect frankness," 
 testifies Col. A. K. McClure, who speaks from personal 
 knowledge, averred that he meant "to force the re 
 versal" of the verdict shown by the returns of the dis 
 puted States. Whether or not there was any general 
 plot, as is charged by some, on the part of the Repub 
 licans to use all means at their command, fair or 
 foul, to secure a final decision in their favor, probably 
 may not be certainly known. The fact remains that 
 the canvassing boards, however much or little influenced 
 by Republican leaders we shall subsequently see, did 
 eliminate from the returns, as certified to them, such 
 a number of Democratic votes as led the Republican 
 electors to assert the right to cast the electoral vote of 
 South Carolina, Florida, and Louisiana. The Demo 
 cratic electors hung stoutly to the claim that they 
 alone had been rightfully and legally chosen by the 
 people and therefore had the exclusive right to cast 
 the electoral vote. Each set of electors proceeded 
 to discharge what it claimed to be its rightful functions ; 
 and so it was that from these three States two sets 
 of certificates, one claiming to cast the electoral vote 
 for Tilden and the other for Hayes, were sent to the 
 seat of the Federal government. Each set had met 
 and had voted upon the day indicated by the Federal 
 law, sending along with its respective certificate the 
 
22 The Hayes-Tilden Contest 
 
 warrant which it claimed to be the legal and valid 
 authority of the State authorizing the action. Which 
 of these should the Federal counting power accept as 
 the voice of the State? 
 
 Aside from the legal questions to which this condi 
 tion gave rise, and to review which it is our pur 
 pose, it will help to a proper historic perspective to 
 remember that the grounds upon which the Repub 
 licans claimed that the vote as returned from the 
 county officers should not be taken as indicated on the 
 face of the returns, were "that the Republicans had 
 not opportunity to vote in the South, and the only 
 way to meet such frauds was by the strong arm of 
 the government." 11 Elaine expresses the contention of 
 his party when he says : "In South Carolina and 
 Louisiana, not only was there a considerable number 
 of white Republicans, but in each State the colored 
 men (who were unanimously Republican) outnumbered 
 all the white men. The disparity in South Carolina 
 was so great that the white population was but 289,000 
 while the colored population was 415,000. /In Florida 
 the two races were nearly equal in number, and owing 
 to a large influx of white settlers from the North the 
 Republicans were in a decided majority. Upon an hon 
 est vote a Republican majority in each of the three 
 States was indisputably assured." 12 
 
 The Democrats replied that there had been an hon 
 est vote and that large numbers of the negroes had 
 voted the Democratic ticket. The truth of this latter 
 assertion was abundantly established, especially as to 
 Florida, when various congressional committees after 
 wards took evidence touching the conduct of the 
 
 1 ! McClure, 265. * 2 2 Twenty Years in Congress, 581. 
 
The Election 23 
 
 election. But so bitter were the parties in their de 
 nunciation of each other that intense excitement ensued. 
 Threats of violence from both parties murmured 
 ominously from various sections of the country. 13 The 
 Democrats were as profoundly in earnest as the Re 
 publicans were bitterly determined. 
 
 November 10, only three days after the election, 
 and before all the returns from the disputed States had 
 been officially reported by the county canvassers, Presi 
 dent Grant sent to General Sherman, in command of 
 the army, the following significant order : "Instruct 
 General Augur in Louisiana and General Ruger in 
 Florida to be vigilant with the forces at their com 
 mand to preserve peace and good order, and to see 
 that the proper and legal boards of canvassers are un 
 molested in the performance of their duties. Should 
 there be any ground of suspicion of a fraudulent 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 by 
 the result." 14 Within a few hours the President fol 
 lowed this with other telegrams concentrating the / 
 Federal troops in the disputed States. Thus the com- * 
 mander-in-chief of the armies of the United States 
 authorized army officers to decide who were the "proper 
 and legal boards of canvassers" and to determine the 
 grounds "of suspicion of a fraudulent count," a judicial 
 inquiry full of dangerous possibility, and in times of 
 peace by no means belonging either to the executive or 
 
 13 Cong. Record: 44 Cong., 2nd sess.; Proceedings of the 
 Electoral Commission, 3. 
 
 "Bigelow, Life of Tilden; 2 Elaine, 581. 
 
24 The Hayes-Tilden Contest 
 
 to the military arm of the government. This executive 
 stroke lent moral, if not actual physical, encourage 
 ment to the Republican majorities on the canvassing 
 boards of the disputed States. The order left the 
 unarmed Democracy of those States to contend for 
 their position under the literal muzzle of Federal guns. 
 
 As the days went by the situation became more 
 critical. Writing in 1878, Thomas M. Cooley, then 
 chief justice of the supreme court of Michigan, gives 
 a conservative picture of the country under the exist 
 ing conditions when he says : "For reasons which need 
 not be stated, the people of the country had lost confi 
 dence in many of the active men on both sides in sev 
 eral of the Southern States, and each party believed 
 that its opponent would resort to any measures, not ex 
 cluding violence to the extent of taking human lives, to 
 give the votes to their party candidates. The whole 
 country was excited by charges of crime and outrage, 
 and each party believed that wrongs were being com 
 mitted for personal and party ends, though each party 
 charged the wrongs upon its opponents. For three 
 months the country was presented with the spectre of 
 a disputed succession ; and so intense was the feeling 
 that it seemed highly probable that, at the risk of a 
 civil war, one House of Congress would declare one 
 candidate chosen, and the other would declare the 
 election of his opponent." 15 
 
 What should be done? 
 
 The President took alarm and "quietly strengthened 
 the military forces in and about Washington" and "saw 
 that the requisite military force was at the Capitol." 18 
 
 15 The International Review, V., 200. 
 2 Elaine, 282. 
 
The Election 25 
 
 While the country speculated, partizans on both sides 
 threatened; the Federal army kept busy burnishing its 
 bayonets; and in the three disputed States two sets of 
 men claimed the lawful and moral right to cast their 
 electoral votes. Marshalling its forces, the army 
 hovered about the Republican claimants, encamping 
 about the places of their action or deliberations in 
 disputed districts. The seriousness of the situation 
 was all the more increased because of the fact that the 
 best legal talent of America was apparently honestly 
 divided in opinion as to where lay the legal remedy, 
 and as to what was the proper solution of the questions 
 that had arisen and had daily continued urgently to 
 demand answer. 
 
 What could be done? 
 
 It was proposed that committees of prominent men 
 be sent to the disputed States to overlook the count 
 ing by the State canvassing boards. Distinguished men, 
 men who had or who were holding high positions of 
 honor or trust in military or civil life, and in some in 
 stances in both, from the two parties went to the 
 capitals of Florida, Louisiana, and South Carolina. 
 The Republicans who had gone for the purpose of 
 seeing "a fair count" returned to Washington declaring 
 that their brother Republicans, who were in the ma 
 jority on the boards in the disputed States, were in 
 the right in exercising judicial power by which they 
 threw out enough votes to count in the Hayes claimants ; 
 and that it was "a. fraudulent count" because a fraudu 
 lent election, by which the Democrats claimed a ma 
 jority for the Tilden men as shown by the returns. 
 "The Republicans had the whole machinery of the 
 Government" in their hands in the disputed States. 
 
26 The Hayes-Tilden Contest 
 
 "The returning boards, which had been created by the 
 carpet-bag rule of the South," 1T were sustained in every 
 instance by the visiting Republican committees, in 
 setting aside the returns on the grounds of alleged 
 fraud in voting at various precincts or in the conduct 
 of the election, and that there had been such intimida 
 tion as prevented many Republicans from even attempt 
 ing to cast their votes. The visiting Democratic com 
 mittees returned to Washington declaring with equal 
 earnestness that the face of the returns which had 
 come in from the various counties of the respective 
 States showed, not only the correct result, but a result 
 reached upon a vote fairly and honestly cast without 
 fraud or intimidation. They insisted that the canvassing 
 boards had no judicial powers, that their functions were 
 ministerial only, that the canvassing boards properly 
 could only count the votes as certified to them by 
 county officers, and that an alteration of the returns 
 under the existing facts was without warrant. As at 
 first, so the matter stood when the visiting committees 
 had completed their work. Nothing whatever in fur 
 thering a solution had been accomplished, but the popu 
 lar excitement had been greatly augmented. Each side 
 remained equally persistent and unalterably firm in 
 its contention for the right of its claims. 
 
 What was done? 
 
 As a last hope of an amicable settlement, all eyes 
 finally turned toward Congress. To Congress, or to 
 some branch of that arm of the government, or to 
 some officer of that body or some branch thereof, the 
 Constitution had left the power to count the electoral 
 votes of all the States, and if there should be a majority 
 "McClure, 264. 
 
The Election 27 
 
 for any ticket to declare the persons receiving such 
 majority respectively the President and Vice-President. 
 Congress entered upon the stupendous task; out of 
 uncertainty and clamorous discord, Congress laid the 
 foundation for one of the most peculiar chapters in 
 American history. 
 
II. 
 
 The Electoral Commission. 
 
 THE situation was entirely new to Congress. 
 Immediately after the members of the con 
 stitutional convention had signed the Con 
 stitution on September 17, 1787, the con 
 vention passed a resolution expressing the opinion that, 
 "as soon as the conventions of nine States shall have 
 ratified the Constitution, the United States in Congress 
 assembled shall fix a day on which electors shall be 
 appointed by the States which shall have ratified" the 
 Constitution, the time and place of the meeting of the 
 electors, and the time and place for commencing pro 
 ceedings under the Constitution being named; that, 
 notice of this having been given, the Senators and 
 Representatives should be elected; that the electors 
 should meet on the day fixed, and vote and transmit 
 their vote to the "Secretary of the United States in 
 Congress assembled;" that the Senators and Repre 
 sentatives should convene at the time and place; and 
 that the "Senators shall appoint a president of the 
 Senate for the sole purpose of receiving, opening, and 
 counting the votes for President; and after he shall 
 be chosen, Congress, together with the President, shall, 
 without delay, proceed to execute this Constitution." 1 
 
 The requisite number of States having ratified the 
 Constitution, the States and Congress carried out the 
 suggestions of this resolution, and on April 6, 1789, the 
 latter assembled for the purpose of counting the 
 
 *5 Elliot, 602, Note 266; 8 Ann. Stats. 251. 
 28 
 
The Commission 29 
 
 first electoral votes. A president of the Senate was 
 chosen, and one member from each House was ap 
 pointed "to sit at the clerk s table to make a list of the 
 votes as they shall be declared." 2 The counting passed 
 without dispute or important incident. 
 
 At the counting of the electoral votes cast at the 
 second election, the tellers were appointed, one from 
 the Senate and two from the House; the Vice-Presi- 
 dent, as president of the Senate, "opened, read, and 
 delivered to the tellers" the certificates of "the several 
 electors, "who, having examined and ascertained the 
 votes, presented a list of them to the Vice-President, 
 which list was read to the two Houses." With no 
 important variation, except the "twenty-second joint 
 rule," adopted, according to Colfax while speaker of 
 the House, to avoid the scenes of confusion which 
 accompanied the count in 1857,* the counting was thus 
 conducted to 1877. 
 
 In 1800 it began to appear that objections to count 
 ing certain electoral votes might arise; and the Senate 
 adopted, by a vote of 16 to n, practically what was 
 afterward embraced in the "twenty-second joint 
 rule," but the House failed to concur, and this rule was 
 not accepted until 1865.* As adopted by the two Houses 
 in February, 1865, this joint rule provided that no 
 "electoral vote objected to shall be counted, except by 
 concurrant votes of the two Houses." G But this rule 
 suggested no way for determining which votes of 
 two sets of claimants from any State should be counted. 
 The Constitution provides that where no person has 
 
 Stanwood, A History of the Presidency, 29. 
 
 3 Cong. Globe, 1066-67: 40 Cong., 3rd sess. 
 
 4 Cong. Rec.: 44 Cong., 2nd sess.; Stanwood, Hist. Pres., 67. 
 
 5 2 Elaine, 582; Cong. Rec., Id. 
 
30 The Hayes-Tilden Contest 
 
 a majority of the whole number of electors appointed, 
 the choice shall fall to the lower House where in pro 
 ceeding to elect a President the State shall constitute 
 the unit of vote. The Republicans refused to con 
 cede that this provision vested the House with the 
 power and right to determine between disputant- 
 electors as to the right to vote. 
 
 With no rule furnishing a solution, with no precedent, 
 and with the simple command of the Constitution that 
 in the presence of the two Houses the president of the 
 Senate should open the certificates of the electors, and 
 that the votes shall then be counted, when the Federal 
 counting power came to count the electoral votes in 
 1877, she found herself confronted with rival claim 
 ants respectively clamoring to speak for three States. 
 Previous to this time there had been objections to count 
 ing the electoral votes of certain States, but never 
 before and fortunately never since had the ques 
 tion arisen as to which persons a certain State had 
 appointed to cast her electoral vote. No more important 
 question to republican liberty ; no more far reach 
 ing question of American government, has ever arisen 
 than this which met the Forty-fourth Congress of the 
 United States. The members of both Houses seemed 
 to have realized the tremendous import of the situa-. 
 tion, and the greater numbers of both parties struggled 
 honestly to find a fair solution and one that would 
 bring peace to a sorely depressed country. By no means 
 were divergent opinions marked by party lines. For 
 the most part, however, as Elaine tells us, "It was con 
 tended by Republicans that the Vice-President alone 
 had power to open, count the electoral votes, and de 
 clare the result, the two Houses of Congress being 
 
The Commission 31 
 
 present merely as spectators." 8 Senator T. W. Ferry 
 of Michigan, the then pro tem. president of the Sen 
 ate (Vice-President Wilson being dead), was a loyal 
 Republican; "a partizan," Rhodes says of him, "who 
 could be depended upon to carry out the behests of 
 his party." The Democrats were unwilling to risk 
 the president of the Senate, and there was no way by 
 which the Republican view could be enforced without 
 consent of the House. The Senate repudiated the twen 
 ty-second joint rule, and being Republican while the 
 House was Democratic, a disastrous dead-lock or de 
 plorable revolution by one or the other branch was im 
 minent, and in the wake of either most certainly would 
 have followed civil war. Many truly patriotic of both 
 parties in both branches of Congress and of the country 
 generally were seriously alarmed. 
 
 Plan after plan was rejected in the conferences of 
 the respective parties. Some advocated submitting the 
 disputed questions to the Supreme Court of the United 
 States; others preferred the Chief Justice of the court 
 and a member from each House of Congress. The 
 earliest public step inaugurating the movement leading 
 directly to the result finally reached, was taken De 
 cember 7, 1876, by McCrary, Republican, of Iowa, who 
 introduced a resolution in the House of Representa 
 tives, authorizing a committee of fi^e from the House 
 to act with a like committee from the Senate "to 
 prepare and report a plan by which the electoral votes 
 can be counted and the result declared by a tribunal 
 whose authority none can question and whose decision 
 all will accept as final." T This was referred to the 
 
 8 2 Elaine, 583. 
 
 7 Cong. Rec. 91: 44 Cong., 2nd sess. 
 
32 The Hayes-Tilden Contest 
 
 committee on the judiciary. On December 14, Proctor 
 Knott, Democrat, of Kentucky, a? chairman of the 
 committee, referred the resolution back, offering a 
 substitute not materially different, and naming a com 
 mittee of seven from each House, which was adopted. 
 By special message the Senate was apprised of the 
 action of the House, and later passed a similar resolu 
 tion, naming its committee. 8 
 
 The Senate having concurred, there were appointed: 
 George F. Edmunds of Vermont, Oliver P. Morton 
 of Indiana, Frederick T. Frelinghuysen of New Jersey, 
 Roscoe Conkling of New York, Logan of Illinois hav 
 ing refused to serve, Republicans; Allen G. Thurman of 
 Ohio, Thomas F. Bayard of Delaware, and Matt. W. 
 Random of North Carolina, Democrats. For its part 
 of the committee the House appointed Representatives 
 Henry B. Payne of Ohio, Eppa Hunton of Virginia, 
 Abram S. Hewitt of New York, William M. Springer 
 of Illinois, Democrats; George W. McCrary of Iowa, 
 George F. Hoar of Massachusetts, and George Willard 
 of Michigan, Republicans. This joint committee were 
 directed to discover and report for the consideration 
 of Congress "a measure, either of a legislative or other 
 character, as may, in their judgment, be best calculated 
 to accomplish the lawful counting of the electoral votes 
 and the best disposition of all questions connected 
 therewith, and a due declaration of the result." 
 
 It seems that the two committees, rather the two 
 branches from the respective Houses, held separate 
 meetings. When the House committee met January 3, 
 
 8 Ib. 215, 275, 373. For a brief chronological outline of the 
 proceedings, see Ascher C. Hinds, 3 Precedents Ho. Rep., 240 
 et seqr. : Ho. Doc. 355, 59 Cong., 2nd sess. 
 
The Commission 33 
 
 1877, the same differences manifested themselves that 
 had previously developed in party ranks. Payne was 
 strongly committed to the proposition that the function 
 of the president of the Senate should be limited to 
 simply opening the returns. Hunton pressed this propo 
 sition upon the consideration of the committee. Hoar 
 and McCrary declared: "We are unwilling to commit 
 ourselves to the principle of the Payne resolution. We 
 can conceive of a condition of things wherein somebody 
 might have to take the bull by the horns and count the 
 vote, or the country would be plunged into anarchy 
 and chaos. Suppose that the House should insist that 
 there had been no election and refuse to participate 
 in the count. This might constitute an emergency 
 where the president of the Senate, in the absence of 
 any legislation restricting his duties under the Con 
 stitution, might be called upon to act." "Tn such a con 
 flict," retorted Hewitt, "between the president of the 
 Senate and the House of Representatives, would you 
 sooner intrust the liberties of the people to a single 
 Senator, who happened to be president of the Senate, 
 than to the representatives of the entire American 
 people ?" 9 However, Payne seems to have known the 
 failing of the obdurate members. He prepared a colla 
 tion; "under the genial influence of the food and drink 
 and kindly manner of the host, the members of the 
 committee began to thaw out," and it was finally agreed 
 that a commission consisting of the five senior associate 
 justices should be constituted to decide the contro 
 verted question. But on January 12 a joint meeting 
 
 9 Milton H. Northrup, Secretary of the House Committee, 
 Century Magazine, October, 1901, 925, 926, who is also quoted 
 by Rhodes. 
 
34 The Hayes-Tilden Contest 
 
 of the committee was held, when it was agreed that 
 there should be appointed a commission of fifteen; 
 five from each House and five from the Supreme Court. 
 The names of Justices Clifford, Swayne, Davis, Miller, 
 Field, and Strong were to be put into a hat. One 
 was to be withdrawn and the others were to constitute 
 the judicial members of the commission. Decided 
 opposition on the part of the Democrats to the lot 
 feature developed. They declared they would not 
 "consent that the great office of President should be 
 raffled off like a Thanksgiving turkey," whereupon the 
 plan reported was finally adopted. 10 
 
 On January 18 this committee reported, recommending 
 a bill that provided that at one o clock post meridian on 
 the first Thursday in February, 1877, both Houses of 
 Congress should meet in the Hall of the House of 
 Representatives at the Capitol. The president of the 
 Senate was named as the presiding officer. The papers 
 from the several States purporting to be the certificates 
 of the electoral votes, were to be opened in the pres 
 ence of the two Houses; tellers, two appointed by 
 each House, were to read the papers in the presence 
 and hearing of the gathering and make a list of the 
 votes as they appeared from these certificates. In case 
 there was only one return from a State, the president of 
 the Senate was required to call for objections. Should 
 there be objections, they were required to be in writ 
 ing, concise and without argument, and to be signed 
 by at least one member from each House. When all 
 objections so made were received, the two Houses 
 were to separate and then act thereon under the re 
 striction: "No electoral vote or votes from any State 
 
 10 See Northrup s article and Bigelow s Life of Tilden. 
 
The Commission 35 
 
 from which but one return has been received shall be 
 rejected, except by the affirmative vote of the two 
 Houses." 
 
 Where there should be "more than one return, or 
 paper purporting to be the certificates of electoral votes 
 given by persons claiming to be duly chosen electors," 
 all such returns and papers were required to be opened 
 "in the presence of the two Houses when met as afore 
 said, and read by the tellers, and all such returns and 
 papers shall thereupon be submitted to the judgment 
 and decision as to which is the true and lawful electoral 
 vote of such State, of a commission constituted as 
 follows, namely:" five Senators appointed by the Sen 
 ate; five Representatives appointed by the House; five 
 associate justices of the Supreme Court of the United 
 States, four respectively assigned to certain judicial 
 circuits specifically named, who were to select the 
 fifth, thus taking five of the nine members of the 
 court. The members of the Commission were re 
 quired to take a prescribed oath, and when organized 
 either House was forbidden to dissolve the commis 
 sion or to withdraw any of its members. Objections 
 were to be submitted under the same restrictions as 
 in case of one return. 
 
 The law defined the powers of the Commission thus : 
 "When all such objections so made to any certificate, 
 vote, or paper from a State shall have been received, 
 and read, all such certificates, votes, and the papers so 
 objected to, and all papers accompanying the same, 
 together with such objections, shall be forthwith sub 
 mitted to said Commission, which shall proceed to con 
 sider the same, with the same powers, if any, now 
 possessed for that purpose by the two Houses acting 
 
36 The Hayes-Tilden Contest 
 
 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, and may therein 
 take into view such petitions, depositions, and other 
 papers, if any, as shall, by the Constitution and now 
 existing law, be competent and pertinent in .such 
 consideration." n The decision was to be in writing and 
 to be entered upon the journal of each House. The 
 counting of the votes was then to proceed in conformity 
 therewith, "unless, upon objection made thereto in 
 writing by at least five Senators and five members of the 
 House of Representatives, the two Houses shall sep 
 arately concur in ordering otherwise, in which case such 
 concurrent order shall govern." 
 
 Debate developed an earnest and extensive opposition 
 that was not confined to either party. Roscoe Conkling, 
 Republican, made a lengthy argument strongly urging 
 the measure ; Bayard, Democrat, of Delaware, declared 
 the bill offered "a peaceful conquest over partizan 
 animosity," being "grounded on reason and justice." 12 
 James A. Garfield, Republican, of Ohio, declared the 
 proposed law dangerous and cumbersome, and vigor 
 ously protested that it was "unwarranted by the Consti 
 tution ;" while Thurman, Democrat, his colleague, lent 
 his influence to the bill, pointing out his opposition to 
 an attempt either by Congress or the Commission to go 
 to the bottom of the election, saying that the proposed 
 law contemplated no more than to learn the decision of 
 the State as between her contesting electors. Foster 
 
 11 Proceedings of the Commission, 5. 
 "Cong. Rec., 800; 44 Cong., 2nd sess. 
 
The Commission 37 
 
 of Ohio wanted to submit the questions to the Supreme 
 Court; while Frelinghuysen offered as an amendment 
 a measure by which, in cases where the two Houses 
 should disagree as to which of disputed votes should 
 be counted, the question would be submitted to the 
 decision of the president of the Senate, the speaker of 
 the House, and the Chief Justice of the Supreme Court 
 of the United States. Twenty Republican Senators 
 voted with him for this amendment, but it was lost. 
 Morton, Republican, in fairness disqualified himself 
 for the place he was afterward given on the Commission, 
 by saying: "I believe that Rutherford B. Hayes has 
 been elected President of the United States; he has 
 been elected under the forms of law and according to 
 law, and that he is elected in the hearts of the people." 
 He bitterly opposed the bill, pointing out that the mem 
 bers of the Commission named by it would decide along 
 party lines, and that the promoters of the bill had 
 admitted this in naming the Supreme Court judges in 
 the manner proposed by the bill; that this selection by 
 circuits rather than by name was "a harmless little sham 
 that deceives nobody." 13 Altogether, Morton s speech, 
 the only opposition by a member of the committee re 
 porting the bill, presented the strongest and clearest 
 arguments against it. Sherman, speaking more truly 
 than was suspected, said that most likely the decision 
 of the Commission would be determined by the fifth 
 member of the Supreme Court. Hoar, while advocating 
 the bill, admitted that as one of the committee who 
 drew it he had been actuated by party reasons in the 
 manner of naming the members of the Supreme Court. 
 
 Each day of debate in Congress only added to the ten- 
 
 13 Ib. 799, 800, 802, 973. 
 
38 The Hayes-Tilden Contest 
 
 sion of the country generally; and, before debate had 
 ended, business interests in all sections brought their 
 weight to bear upon the members of Congress in urgent 
 appeals for the passage of the bill. Merchants and 
 citizens from New York petitioned for a favorable vote ; 
 thirty-seven Republicans, of whom Benjamin Harrison, 
 already prominent in national politics and an ex- 
 governor, was one, with three Democrats of Indiana, 
 sent an urgent appeal for Republican support. Citizens 
 of Richmond, Virginia, added their appeal, calling 
 also attention to the languishing condition of com 
 merce. 14 
 
 The Constitution makes no specific provision for 
 the President holding his office longer than the term for 
 which he is elected. It simply says : "He shall hold 
 office during the term of four years." There was no 
 little uncertainty in Republican quarters as to what 
 would result should the succession be undetermined 
 until after the expiration of Grant s term. Some feared 
 that he might be forced to proceed by quo warranto to 
 find someone to whom he could deliver the government. 
 
 Altogether, such weight was brought to bear upon 
 Congress as that on vote January 29, 1877, the bill was 
 passed, signed by the President, and became a law. 
 In the House it was supported by 191 to 86, 14 not 
 voting. Of the majority 158 were Democrats and 33 
 were Republicans; of the negative 68 were Republicans 
 and 18 were D emocrats. In the Senate an amendment 
 which forbade the commission "to go behind the 
 returns" was lost by vote of 18, Republicans, to 47, 27 
 of the latter being Democrats. Then by vote of 47 to 
 17 the Senate passed the bill. Of the affirmative 26 
 
 "Ib. 805, 869, 870, 1040. 
 
The Commission 39 
 
 were Democrats and 21 were Republicans, the one 
 Democrat voting in the negative. 15 
 
 A most remarkable law! Congress shifted its re 
 sponsibility in cases where there were two or more 
 sets of opposing claimants to the right of exercising 
 the electoral power of certain States, imposing the 
 burden upon ten members, calling to their assistance 
 five of the justices of the Supreme Court of the United 
 States; and this Commission was only empowered to 
 act "with the same powers, if any, now possessed for 
 that purpose by the two Houses acting separately or 
 together." The vast majority of the people s representa 
 tives relinquished their rights to a small committee of 
 their brethren, and this committee, having no powers 
 or rights the whole body of Congress did not possess, 
 was sent to its task with no new light and in associa 
 tion with such a number of the highest branch of the 
 Federal judiciary as precluded the defeated party avail 
 ing itself of the saving clause of the law, to wit: 
 "nothing in this act shall be held to impair or affect 
 any right now existing under the Constitution and 
 the laws to question, by proceeding in the judicial 
 courts of the United States, the right or title of the per 
 son who shall be declared elected," "if any such right 
 shall exist." For if any such right existed, the Supreme 
 Court of the United States was disqualified from act 
 ing thereon as the highest branch of the Federal 
 judiciary, by virtue of the fact that five of its nine 
 members sat with, deliberated upon the questions which 
 came before, voted with, and adjudicated with the 
 Commission. A farce it were to have poor, frail, parti- 
 zan man review his own decision especially under 
 
 Ib. 913, 1056. 
 
40 The Hayes-Tilden Contest 
 
 conditions giving rise to the Electoral Commission ! A 
 wonderful act, this bill made a law by the Congress of 
 the United States and approved by President Grant 
 on January 29, 1877 ! 
 
 Pursuant to the provisions of this compromise act, 
 the Senate appointed as its members of the Commission : 
 George F. Edmunds of Vermont, Oliver P. Morton of 
 Indiana, F. T. Frelinghuysen of New Jersey, Thomas F. 
 Bayard of Delaware, and Allen G. Thurman of Ohio. 
 Senator Thurman sat during the Florida case; but, 
 having become unable longer to act, was replaced by 
 Senator Francis Kernan of New York, February 26. 
 The House of Representatives named the following: 
 H. B. Payne of Ohio, Eppa Hunton of Virginia, Josiah 
 G. Abbott of Massachusetts, James A. Garfield of 
 Ohio, the latter afterward our President, and George 
 F. Hoar of Massachusetts. Morton, ex-governor of 
 Indiana, was the only member of the joint committee 
 who did not sign the report proposing the Commission. 
 
 The four justices of the Supreme Court assigned 
 respectively to the first, third, eighth, and ninth circuits 
 were made members of the Commission by the terms of 
 the law; and these four were required to select a fifth 
 from the remaining five associate justices of their bench. 
 Hon. Joseph P. Bradley was selected and accepted the 
 position. Of the judicial members of the Commission 
 this gave : Nathan Clifford of Maine, Democrat, ap 
 pointed by President Buchanan, Democrat; Samuel F. 
 Miller of Iowa, a prominent Republican and known to 
 be a decided partizan; 16 Stephen J. Field of California, 
 Democrat, appointed by President Lincoln as a Re 
 publican ; William Strong, Republican ; and Joseph P. 
 
 "Century, 930, Oct., 1901. 
 
The Commission 41 
 
 Bradley, Republican. 17 Of the fifteen, eight, Miller, 
 Strong, Bradley, Edmunds, Morton, Frelinhuysen, Gar- 
 field, and Hoar, were Republicans ; the others were 
 Democrats. 
 
 Aside from the fact that the Southern wing of the 
 Democratic party naturally shrank from the results of 
 another war, aside from the duress under which the 
 party generally stood in view of the certainty that 
 should a dead-lock occur when it came to counting the 
 votes the president of the Senate would undoubtedly 
 declare Hayes President, whereupon Grant would em 
 ploy the Federal forces to sustain that declaration, it 
 is certain that the Republicans who favored the bill 
 obtained Democratic support by what proved to be an 
 ignis fatuus. Though the Democrats felt so absolutely 
 sure that their cause had undoubted right behind it, 
 and were willing to submit to any fair method of set 
 tlement, it is hard to determine just what weight the as 
 surances which had a share in alluring them to their ruin 
 had upon the final vote. The Democrats fully expected 
 that Judge David Davis of Illinois would be selected 
 as the fifth man from the Supreme Bench. They were 
 not so sure of Davis politics as they were of his sterl 
 ing honesty. Blaine tells us : "From the hour when 
 the Electoral Bill was reported to the Senate the as 
 sumption was general that the fifth justice selected for 
 the Commission would be David Davis. It was cur 
 rently believed that Mr. Abram S. Hewitt had given 
 the assurance or at least strong intimation that Judge 
 
 17 Proceedings; Blaine, 2 Twenty Years in Congress, 584; 
 McClure, Our Presidents, 263; John Bigelow, Life of Tilden; 
 J. S. Black, Essays and Speeches; Foulke, Life of Morton; Edw. 
 F. Spencer, Life of Thomas F. Bayard; J. P. Bradley, Miscel 
 laneous Writings; James A. Garfield, Works. 
 
42 The Hayes-Tilden Contest 
 
 Davis would be selected, as one of the arguments to 
 induce Mr. Tilden and the Democrats to support the 
 Electoral Bill. 
 
 "Originally a Republican, Judge Davis had for some 
 years affiliated with the Democratic party, and had in 
 this late election preferred Mr. Tilden to Mr. Hayes. 
 Without any imputation of improper motives there 
 could hardly be a doubt that the Democrats, in their 
 almost unanimous support of the Electoral Bill, be 
 lieved that Judge Davis would be selected." 18 E. Benj. 
 Andrews says Davis was "a neutral with Democratic 
 leanings, who had been a warm friend of President 
 Lincoln s but an opponent of Grant." 1 In the joint 
 meeting of the committees that drew this bill Thurman 
 and Payne said Davis was neither Democrat nor Re 
 publican, while Frelinghuysen regarded him nearer a 
 Democrat. 20 Illinois historians tell us that Davis never 
 claimed to be a Democrat; and that he was not a 
 Democrat is to some extent established by the fact 
 that when Vice-President Arthur succeeded to the 
 Presidency the Republicans made Davis president of 
 the Senate. 21 
 
 Rhodes says that H. B. Payne told him that Conkling 
 had informed Hewitt that Davis "would certainly be 
 the fifteenth man." * 2 Northrup, the House clerk of the 
 special committee, confirms that as having been the 
 general understanding. 
 
 A large number of the Democrats having committed 
 
 18 2 Elaine, 584. 
 
 18 The U. S. in Our Own Times, 218. 
 
 20 Northrup, Century, 929, Oct., 1901. 
 
 31 Alex. Davidson and Bernard Stuve, Hist. 111., 970. 
 
 23 Rhodes, 7 History of the United States, 263. 
 
The Commission 43 
 
 themselves to the support of the bill, it was agreed that 
 a vote should be taken with as little delay as possible. 
 On January 25, the day the bill was introduced in the 
 House, the legislature of Illinois elected Judge Davis 
 to the United States Senate. Whether, all things con 
 sidered, this was a bit of .strategy resorted to in the 
 hope of embarrassing Davis so that he would decline 
 to act upon the Commission, thus giving it another more 
 partizan Republican, is not, it seems to me, certainly 
 known. If this were the purpose of the Illinois Re 
 publicans, who, of course, in such case must have acted 
 under the influence of the national party leaders, it 
 succeeded admirably. A contemporary Republican 
 writer ascribed the election of Davis to the Inde 
 pendents assisted by Democrats, 23 and Rhodes sees no 
 reason for rejecting that claim. 24 The majority in the 
 Illinois legislature was Republican. 28 His election was 
 clearly within the power of the Republicans. How 
 ever, as Davis term of service in United States Sen 
 ate would not begin until the following fourth of 
 March, the Democrats in Congress did not believe that 
 this election should or would prevent his service upon 
 the Commission, especially in view of the fact that 
 before the time for the term to begin the Commission 
 must of necessity have terminated its work. And so 
 in good faith the Democrats carried out their agree 
 ment to support the bill, relying upon the promise of 
 the Republicans that Judge Davis should and would 
 serve. In fact, as Northrup says : "It had gone too 
 13 Appleton s Annual Cyclopaedia, 1877, 383. 
 
 24 7 History of the United States, 263. 
 
 25 Bigelow, The Supreme Court and the Electoral Commis 
 sion, 15. 
 
44 The Hayes-Tilden Contest 
 
 far for either party to recede with dignity or with 
 honor," 26 especially as, before the vote, there was 
 nothing to indicate that Davis would not serve. Why 
 his service upon the Commission should have been of 
 doubtful propriety, as Rhodes suggests it would have 
 been, it seems to me only a partizan Republican can 
 comprehend; but it is said that Davis himself insisted 
 that such service would be improper. 27 This was after 
 the bill became a law; in so long remaining silent he 
 proved himself as strong a Republican ally as though he 
 had served and had held with the Republican majority. 
 When the four justices met for the purpose of nam 
 ing the fifteenth man, Strong announced that Davis 
 would not .serve. "I will not believe it," Clifford is 
 said to have retorted, "unless I should absolutely have 
 it from his lips or over his hand." Whereupon, it is 
 said, Strong later brought a statement signed by Judge 
 Davis in which he refused to serve. 28 
 
 Judge Bradley of New Jersey seemed to offer the only 
 other opportunity of finding from the Supreme Bench 
 a man at all acceptable to the Democrats. Pleasing 
 in his personality, he had ingratiated himself with 
 the Southern people by his judicial opinion holding 
 what is known as the Enforcement Act unconstitutional ; 
 and for some time he had presided acceptably over 
 the Southern Federal circuit. He was aware of the 
 fact that his brothers of the bench had been chosen 
 because of their political predilections, and he felt 
 keenly the fact that upon his opinion would rest the 
 
 2 62 Century, 934. 
 
 27 Stanwood, A History of the Presidency (1904), 388. 
 
 28 Conversation of H. B. Payne with Rhodes: 7 Hist. U. S. 
 264. 
 
The Commission 45 
 
 responsibility for the decision that the Commission 
 should reach. 28 However, when notified that he had 
 been selected, he accepted the position. 
 
 January 31, 1877, the Commission organized, Mr. 
 Justice Clifford presiding. A brief set of rules was 
 adopted providing for the submission of evidence and 
 that counsel might be heard. On February I, as pro 
 vided in the law, the two Houses met in joint meet 
 ing in the Hall of the House of Representatives, the 
 president pro tempore of the Senate presiding. Both 
 Democrats and Republicans presented the most cheer 
 ful front, and confidence and general good humor 
 prevailed. 30 At three o clock of the same day the 
 Commission met in the Supreme Court room in 
 another part of the Capitol; the judges, wearing their 
 judicial robes, sat in the center, with the Senators on 
 the right and the Representatives to the left. Presi 
 dent Clifford notified the president of the Senate and 
 the speaker of the House that the Commission was 
 "ready to proceed to the performance of its duties." 
 
 29 Joseph P. Bradley, Miscellaneous Writings, 7, 9. 
 80 Monroe, 531. 
 
III. 
 
 The Certificates The 
 Impeachments, 
 
 ON February i the president of the Senate, 
 presiding over the two Houses in joint meet 
 ing, was proceeding to open communica 
 tions purporting to be the electoral votes 
 from the several States, that the votes might be counted. 
 Florida having been reached, he certified to the Com 
 mission : "More than one return or paper purporting 
 to be a return or certificate of the electoral votes of 
 the State of Florida having been received and this day 
 opened in the presence of the two Houses of Congress, 
 and objections thereto having been made, the said 
 returns, with all the accompanying papers, and also 
 the objections thereto, are herewith submitted to the 
 judgment and the decision of the Commission, as 
 provided by law." 1 So important is it that we get 
 a clear comprehension of this evidence, that the fol 
 lowing detailed description is justified. 
 
 First. Certificate No. I, as numbered by the presi 
 dent of the Commission, was the certificate of M. L. 
 Stearns, dated Dec. 6, 1876: 
 
 "Pursuant to laws of the United States, I, Marcellus 
 L. Stearns, governor of Florida, do hereby certify that 
 Fred C. Humphreys, Chas. H. Pierce, William H. 
 Holden, and Thomas W. Long have been chosen 
 electors of President and Vice-President of the United 
 States, agreeably to the provisions of the laws of 
 
 1 Proceedings, 29, 34. 
 
 46 
 
The Certificate 47 
 
 said State and in conformity to the Constitution of the 
 United States of America, for the purpose of giving 
 in their votes for President and Vice-President of the 
 United States, for the term prescribed by the Consti 
 tution of the said United States, to begin on the fourth 
 day of March," 1877. Accompanying this was the cer 
 tificates of these men that they had met pursuant to 
 this authority and had cast their votes for Hayes for 
 President, and for Wheeler for Vice-President. 
 
 Second. Certificate No. 2, dated on the same day and 
 at the same place: "I, William Archer Cocke, attorney- 
 general of the State of Florida, and as such one of the 
 members of the board of State canvassers of the 
 State of Florida, do certify that, by the authentic re 
 turns of the votes cast in the several counties of the 
 State of Florida, at the general election held on Tues 
 day, November 7, 1876, said returns being on file in the 
 office of the secretary of State, and seen and considered 
 by me, as such member of the board of State can 
 vassers of the State of Florida, it appears and is 
 shown that Wilkinson Call, Jas. E. Yonge, Robert B. 
 Hilton, and Robert Bullock were chosen the four 
 electors of President and Vice-President of the United 
 States; and I do further certify that under the act of 
 the legislature of the State of Florida establishing 
 said board of State canvassers, no provision has been 
 enacted, nor is any such provision contained in the 
 statute law of this State, whereby the result shown 
 and appearing by said returns to said board of State 
 canvassers can be certified to the executive of said 
 State." 
 
 Accompanying this certificate are the jurats of the 
 men named therein as electors, wherein they swear 
 
48 The Hayes-Tilden Contest 
 
 to protect the Constitution of the United States, etc., 
 and that they are entitled to hold office under the 
 constitution of Florida, and that they will well and 
 faithfully perform the duties of electors; and their 
 certificate, in the regular form, casting their votes as 
 electors for Tilden and Hendricks; and following this 
 the further certificate : "And we further certify that, 
 having met and convened as such electors, at the time 
 and place designated by law, we did notify the gov 
 ernor of the State of Florida, the executive of said State, 
 of our appointment as such electors, and did apply to 
 and demand of him to cause to be delivered to us three 
 lists of the names of the electors of the said State, 
 according to law, and the said governor did refuse to 
 deliver the same to us." The date is the same. 
 
 Third. Certificate No. 3, is dated January 29, 1877, 
 and is made by Geo. F. Drew, governor. Governor 
 Drew had succeeded Governor Stearns, had entered 
 upon the duties of his office and was unquestionably 
 recognized as the rightful executive. He certified that, 
 wHereas, pursuant to an act of the legislature of Florida 
 approved Jan. 17, 1877, a canvass of the returns of the 
 election of November 7, on file in the office of the 
 secretary of State, had been made by the State can 
 vassing board, "according to the laws of the State 
 and the interpretation thereof by the supreme court," 
 and that at such canvass it had been "duly determined, 
 declared, and certified," that the men as named in num 
 ber two, the Tilden men, had been duly, as shown by 
 said returns, elected electors; and, whereas, in a quo 
 warranto proceeding wherein the Tilden men were 
 relators and the Hayes men respondents, the circuit 
 court of Florida, "after full consideration of the law 
 
The Certificate 49 
 
 and the proofs produced on behalf of the parties re 
 spectively, by its judgment determined that said relators 
 were, at said election, in fact and law, elected such 
 electors as against the said respondents and all other 
 persons : 
 
 "Now, therefore, and also in pursuance of an act of 
 the legislature entitled, An act to declare and estab 
 lish the appointment by the State of Florida of electors 
 of President and Vice-President of the United States, 
 approved January 26, 1877," the governor certified the 
 Tilden men the electors "chosen, appointed, and de 
 clared as aforesaid." 
 
 Following this was again the certificate of the Tilden 
 men, wherein they recite the last above mentioned 
 certificate, set out their action on December 6; and that, 
 having counted their votes cast as electors on the said 
 6th day of December, it was seen that all four were 
 for Tilden and Hendricks. This certificate was dated 
 January 26th, 1877. 
 
 Then immediately follows a certified copy of the 
 act of the Florida legislature approved January 17, 
 1877. This is also accompanied by the official certifi 
 cate of the canvass of the State board as made on 
 January 19, 1877, pursuant to the said act of the legis 
 lature, wherein the vote is shown by counties, the re 
 turns being those from the counties and on file in the 
 office of the secretary of State, and it is certified that the 
 Tilden men received : 
 
 Call 24.437. 
 
 Yonge 24.440. 
 
 Hilton 24.437. 
 
 Bullock 24.437. 
 
50 The Hayes-Tilden Contest 
 
 and the Hayes men : 
 
 Humphries 24.349, 
 
 Pearce 24.345, 
 
 Long 24,344, 
 
 Holden 24,350. 
 
 Also accompanying this certificate is the further 
 certificate of the governor that these certificates of the 
 secretary of State are in due form and made by the 
 proper officer. 
 
 The last paper with this certificate is a certified 
 copy of the act of the legislature approved January 26, 
 1877, "to declare and establish the appointment by the 
 State of Florida of electors," the Tilden men being 
 therein named as" such. 2 
 
 To this evidence various Senators and Representatives 
 submitted objections as follows: 
 
 To No. i, the certificate of Governor Stearns, and 
 the one on which the Hayes men stood, that it "was 
 and is in all respects untrue, and was corruptly pro 
 cured and made in pursuance of a conspiracy" be 
 tween Governor Stearns and the Hayes men; and that 
 if said certificate and the acts of the Hayes men there 
 under had ever had any validity, it had been annulled 
 and completely destroyed by the above mentioned acts 
 of the legislature and the adjudications of the Florida 
 courts, especially the judgment in the quo warranto, 
 wherein the court determined that upon the day and 
 date the Hayes men attempted to cast the electoral vote 
 of the State, they were "mere usurpers, and that all 
 and singular their acts and doings as such were and 
 are illegal, null, and void;" and that said court had 
 further determined that the Tilden men on the 6th 
 
 8 Proceedings, 11 to 28. 
 
The Certificate 51 
 
 day of December, and at all times since, were the duly 
 appointed electors and entitled at all times to perform 
 the duties as such. 
 
 To No. 2 the Republicans objected on the ground that 
 it was not "authenticated according to the requirement 
 of the Constitution and laws of the United States," 
 so as to entitle the votes stated therein to be counted; 
 and that there was with it "no certificate of the execu 
 tive authority of the State of Florida of the list of names 
 of said electors," nor any "valid certification or authenti 
 cation of said electors." 
 
 To Nos. 2 and 3 there was the joint objection that 
 the Tilden votes could not be counted because "by 
 a certificate of the electoral vote of the State of Florida, 
 in all respects regular and valid and sufficient under 
 the Constitution and laws of the United States, and 
 duly authenticated as such and duly transmitted to 
 and received by and opened by the president of the 
 Senate in the presence of the two Houses of Congress," 
 it was shown that the Hayes men were the electors. 
 
 To No. 3 there was the further objection on the 
 ground that Gov. Drew was not holding the office of 
 governor at the time the electors were appointed 
 nor when their functions as electors were exercised; 
 and because the proceedings as recited in his certificate 
 "as certifying the qualifications of the persons therein 
 claiming to be electors are ex post facto, and are not 
 competent under the law as certifying any right in the 
 said" Tilden men; and, last, on the ground that "the 
 said proceedings and certificates are null and void 
 of effect as retro-active proceedings." 
 
 Art. II., section I, of the Constitution, authorizing 
 electors, provides that "no Senator or Representative, 
 
52 The Hayes-Tilden Contest 
 
 or person holding an office of trust or profit under the 
 United States, shall be appointed an elector." The 
 Democrats alleged that on December 3, 1872, Humphries, 
 one of the Republican claimants, was appointed United 
 States shipping-commissioner for the port of Pensa- 
 cola. This is an office of trust and profit under the 
 United States. The Democrats asserted that Hum 
 phries was yet holding this office on December 6, the 
 day on which he attempted to act as an elector. Upon 
 this ground they objected to the vote cast by him, should 
 it be decided that the Republican votes were to be 
 counted, on the ground that he could not be consti 
 tutionally appointed an elector. 3 
 
 With the positions of both sides thus plainly defined 
 in the objections that had been submitted in writing, 
 this record and these objections passed for the time 
 into the jurisdiction of the Commission. What that 
 jurisdiction was remained to be discovered, a ques 
 tion no less difficult than was that concerning a 
 proper, just, and legal disposition of the questions raised 
 upon the objections. 
 
 Friday, February 2, the Commission entered upon 
 a consideration of the Florida case. This tribunal, 
 theretofore unknown to the American Constitution, the 
 result of a most bitter national party struggle, the 
 resort of a coerced Democracy, had before it a case 
 as much without a precedent in jurisprudence or admin 
 istrative procedure as was the Commission without 
 express warrant in the fundamental charter. Two sets 
 of litigants presented themselves, each represented by 
 the best legal talent of the day, and each bitterly un 
 compromising in the intensity with which it insisted 
 
 3 Ib. 28. 
 
The Certificate 53 
 
 upon the right of its claims. The Tilden men claimed 
 that on December 6th, 1876, having been duly elected 
 at the election of November 7, and having been so 
 declared, they cast for the Democrats the electoral vote 
 of Florida; while the Hayes men insisted that on the 
 same day of December they had cast the electoral vote 
 of the State, having been duly authorized, for the Re 
 publican ticket. How should the Commission deter 
 mine which, if either, of these votes should be counted? 
 How far back is the chain of the electoral title, and 
 by what kind of evidence, was the Commission to pro 
 ceed? There was no exact precedent, it is true; but 
 the questions involved fundamental principles of our 
 government and legal rules that were plain and 
 axiomatic. With these greater lights uncovered it re 
 mained to the majority power of the Commission to 
 answer these questions, questions which affected not 
 alone the succession to the Presidency, but which in 
 volved definitions of the nature of our dual government, 
 and which might become precedents by which to measure 
 the rights of the States and the powers of the Federal 
 government in some most vital matters. 
 
 The Commissioners, not entirely to the satisfaction 
 of either side, determined the order of the battle. 
 Two objectors, members of Congress, on each side, 
 were required to open the case by stating the ground 
 upon which the party they respectively represented 
 relied for supporting its contention. 
 , David Dudley Field, of New York, a Republican who 
 had supported Hayes at the polls but who became con 
 vinced of the right of Tilden s case, a member of the 
 House, and J. Randolph Tucker, of Virginia, another 
 member of the House, opened the case for the Demo- 
 
54 The Hayes-Tilden Contest 
 
 cratic objectors. Field spoke first. He began by call 
 ing attention to the fact that the majority of the votes 
 in Florida at the election on November 7, 1876, had been 
 cast for the men who claimed the right to cast the 
 electoral vote of that State for Tilden, saying: "Never 
 theless, a certificate comes here signed by the then 
 governor of the State certifying that the Hayes electors 
 had a majority of the votes. By what sort of jugglery 
 that result was accomplished I now take it upon me 
 to explain." 4 
 
 He then charged fraud on the part of certain county 
 canvassing boards, that of Baker county especially, 
 resulting in a return for the Hayes men, and quoted 
 the evidence upon which his charge was based, and 
 offered it in the event the Commission should decide 
 to go behind the action of the State canvassing board. 5 
 Passing to the canvass by the State canvassing board, he 
 charged that it was by sustaining the gross frauds of 
 the county board of Baker county that the State board 
 had been able to declare in favor of the Hayes electors. 
 He charged that the State board knew the fraud of the 
 county board, and that it had sustained the county 
 fraud through a confederacy entered into by the Re 
 publican majority of the State board, the county board, 
 and Governor Stearns, and that the governor upon that 
 fraud had issued to the Hayes men the objectionable 
 certificate. He said that, should the Commission decide 
 that the action of the State board was open to inquiry, 
 it would be shown that the second canvass made by 
 the pro-Hayes board, made under a mandamus as we 
 shall see, as to the Presidential electors "used in all of 
 
 *Ib. 35. 
 
 Ib. 30 and 37. 
 
The Certiiicate 55 
 
 its falsehood," the Baker county returns. He said 
 that these charges had been sustained by the State of 
 Florida, first, in a mandamus proceeding against the 
 board that had made the pro-Hayes report, in which 
 proceeding the supreme court of the State held that the 
 action of the State board by which alone the Hayes 
 men could claim authority had been determined to have 
 been an usurpation; second, by a proceeding in the 
 nature of a quo warranto, begun and served before the 
 Hayes men voted as electors, as were the mandamus 
 and injunction begun and served before the State 
 board had rendered its pro-Hayes rinding, against the 
 men themselves who claimed to be the electors and 
 who voted for Hayes, in which action the court held 
 that the attempt by the Hayes claimants to exercise the 
 functions of electors, to be a usurpation and their action 
 in toto and ab initio null and void, and in which action 
 it was alone held by the court that the acts by which 
 the State board had claimed to reach a pro-Hayes result 
 were unlawful and invalid; and, third, he pointed out 
 that this charge had further been sustained by certain 
 acts of the legislature of Florida, in the exercise 
 of her right of appointment, in which the judgment of 
 the court had been ratified, and the void nature of the 
 pro-Hayes actions affirmed. 
 
 He contended that these acts of the State, subse 
 quent to the election, had settled the question of title 
 as between the Hayes and Tilden claimants, and in favor 
 of the latter. In conclusion he asked : 
 
 "Who is it whose acts we are now seeking to im 
 peach? It is the then governor of Florida, Stearns; 
 * * * Stearns, the man who controlled the State 
 
56 The Hayes-Tilden Contest 
 
 canvassing board sitting to certify whether he and they 
 were to continue in office. 
 
 "Is it a true proposition of law," he asked, "that you 
 cannot inquire whether he has acted fraudulently? If 
 it be true that the certificate of the governor is con 
 clusive evidence that these persons were elected, then 
 it follows that the certificate would be sufficient if 
 there were no election at all. * * * 
 
 "Here is the certificate," he concludes ; "one feels 
 reluctant to touch it. Hold it up to the light. It is 
 black with crime. Pass it round ; let every eye see it ; 
 and then tell me whether it is fit to bestow power and 
 create dignity against the will of the people. One of the 
 greatest poets of the palmy days of English literature, 
 writing of the coming of our Savior has said : 
 
 And ancient fraud shall fail, 
 Returning Justice lift aloft her scale. 
 
 Ancient fraud ! Was there ever fraud like this ? In previ 
 ous ages fraud has succeeded only because it has been 
 supported by the sword, and protesting peoples have 
 been powerless before armed battalions. Never yet in 
 the history of the world has a fraud succeeded against 
 the conscience and will of a self-governing people. If 
 it succeeds now, let us hang our heads for shame; let 
 us take down from the dome of this Capitol the statue 
 which every morning faces the coming light ; let us 
 clothe ourselves with sackcloth and sit in ashes for 
 ever." 8 
 
 It seems that the fair order of procedure would have 
 been to have had a Republican representative state the 
 case for that side, but Representative Tucker was re- 
 
 Ib. 44, 45. 
 
The Certificate 57 
 
 quired to follow, thus giving the Republican objectors 
 an opportunity to answer both the Democratic ob 
 jectors while the latter had no opportunity to reply. 
 He called attention to the objections filed against the 
 Hayes claimants, which alleged that the purported votes 
 of the Hayes men "did not truly represent any votes 
 or lawful acts," and, like the Stearns certificate, "were 
 made out and executed in pursuance of the same fraud 
 ulent conspiracy." Succinctly he referred to the sixth 
 objection filed against the Hayes votes, in which objec 
 tion is set out "the quo warranto proceeding initiated 
 prior to the votes given for Hayes and Wheeler by 
 these pretended electors on the 6th day of December," 
 which proceeding resulted in a judgment which de 
 clared the said acts of the Hayes men utterly null and 
 void, and "that they were usurpers and pretenders to 
 said office." 
 
 "We object to these votes being counted," he said, 
 "because we say that these men were not elected ac 
 cording to the law of Florida, and not being so elected 
 can have no title to the office ; * * * Is the power 
 of a returning board, tainted with fraud, based upon 
 lawlessness, to conclude the judgment of the American 
 people and put a usurper in the seat of Washington? 
 That is the question. * * * 
 
 "I apprehend that the powers of the two Houses of 
 Congress and of this tribunal as their substitute are 
 not less in this inquiry than the powers of a court upon 
 a quo warranto proceeding. We are now standing as 
 the guards to the entrance of the executive department, 
 and we are to let no man pass that has not the pass 
 word of the people of the United States. We have a 
 
58 The Hayes-Tilden Contest 
 
 right to question his title, and if he has no title never 
 to permit him to enter." 
 
 Those who followed Tucker made capital to some 
 extent out of his statement that the powers of the Com 
 mission were not less than the powers of a court upon 
 a quo warranto proceeding. But there is nothing what 
 ever inconsistent in that position. A quo warranto pro 
 ceeding inquires for the title, whether there ever were 
 any title, in the claimant. That is exactly what the Com 
 mission did. The Democrats insisted that one thing 
 established title, gave valid credentials, while the Re 
 publicans stood upon another ground and that which was 
 sustained by the majority. They differed as to what 
 was the proof of the title. Watch Tucker s argument: 
 
 "Who appoint electors? Each State shall appoint. 
 What is the meaning of that? I apprehend that the 
 word State in the Constitution has three or four mean 
 ings, one indicating the territory in which the popula 
 tion lives; another the people themselves as an organic 
 body-politic, and another the State government. In 
 this particular case I apprehend that it means the State 
 as a body-politic, as an organic society, not its govern 
 ment, because the next sentence says that each State 
 shall appoint in such manner as its legislature may 
 direct. There you have the functional power of elec 
 tion in the State as a body-politic; the manner of the 
 election to be prescribed and directed by its legislature. 
 The law-making power of the State directs the manner ; 
 the substantial power is in the State. * * * In every 
 appointment or election two elements enter; first, the 
 exercise of the elective function ; second, the exercise 
 of the determining function. * * * I therefore say 
 that in Florida the elective function was in the body 
 
The Certificate 59 
 
 of the people of the State; whoever the body of the 
 people of the State elected to be its electors were its 
 electors and had title to the office, according to the 
 language of the Federal Constitution, the authority I 
 have read. The question of whether they should have 
 been determined to have been elected by the board of 
 canvassers is an entirely different question. If the 
 board of canvassers, either contrary to law or tran 
 scending their legal authority, fraudulently counted in 
 as elected those who were not elected by the people, 
 their act was void. * * * The power of determin 
 ation can never be valid where it usurps the elective 
 function which is vested by the law in any other body." 
 
 Notice, as he proceeds, where he places the power to 
 determine finally the validity of the action of the State 
 canvassing board: 
 
 He insisted that the laws of Florida made the State 
 judicial power "the ultimate determinant authority" in 
 a review of the acts of the State canvassing or return 
 ing board ; and that Congress must "give force and 
 validity to the action of the returning board as re 
 viewed by the judicial authority and as adjudged by 
 the judicial authority of the State," because "the judi 
 cial procedure in that case becomes a part of the de 
 terminant authority in the election provided by the 
 State, and therefore you say that a man is elected in 
 the manner prescribed by the State law, when he is 
 determined to be elected by the State law, and that 
 determination is revised and adjudged before the State 
 judiciary. * * * Therefore I say to gentlemen here, 
 if they want to stand upon the ground of not being 
 permitted to go behind State authority in these mat 
 ters, they must take the whole of the State authority. 
 
60 The Hayes-Tilden Contest 
 
 * * * Shall you hold the commission which the 
 State of Florida has declared to be invalid, to be valid, 
 in order to stifle the elective power of the people and 
 give power to the determinant functions of the oli 
 garchy? That is the question." 7 
 
 Tucker having concluded for the Democratic objec 
 tors, the Commission took a recess until three in the 
 afternoon of the same day. On convening, Shellabarger 
 by request laid before the Commission "the Senate re 
 port upon Florida containing the law of Florida and 
 other matters pertinent to this discussion," which mat 
 ter was taken as part of the Republican statement. 
 
 John A. Kasson, a representative from Iowa, opened 
 the case for the Republican objectors. He confined 
 his arguments to the objections made to the Stearns 
 certificate, alleging that in reaching a pro-Hayes result 
 the State officers had been guilty of no fraud; and that, 
 so far as fraud at the election was concerned, when 
 the Democrats pointed to a Republican fraud in one 
 county, the Republicans would invite them to a Dem 
 ocratic fraud in another ! And as an instance he said 
 go to "Alachua county and find at one precinct a rail 
 road train of non-resident passengers getting off on 
 their passage through and voting" the Democratic ticket. 
 
 He argued that the power of the Commission ex 
 tended no further than "to do the ministerial act of 
 counting the votes in the stead of the president of the 
 Senate." 8 He said the power "to count" carried a "nar 
 row circuit of discretion" and only broad enough to 
 ascertain whether the papers before the Commission as 
 certificates were genuine, not counterfeit, duly verified 
 
 *Ib. 46 to 51. 
 Ib. 55, 58. 
 
The Certificate 61 
 
 by State authority, and as required by the Constitution 
 and laws. "It is broad enough to ascertain whether the 
 electoral college has complied with the law. This is a 
 ministerial examination," he insisted, and that the Com 
 mission must determine from the face of the certificates 
 offered by the two sets of claimants "which is the true 
 certificate, more in compliance with law, and bearing 
 upon its face greater evidence of its authenticity." In 
 determining "which is the authentic certificate and the 
 authenticated vote," his position was that the answer 
 given by the State canvassing board as first made by 
 it must be taken as final and conclusive. "There is," 
 he said, "necessity in public affairs, and, in the very 
 organization of society and of political communities, 
 an absolute necessity to have .some final jurisdiction. 
 There must be somewhere an authority by which we 
 stand, even if it be impeached by charges of fraud. 
 Where is that authority? Is it here? Is it in the gov 
 ernor? Is it in the canvassing boards? Is it in the 
 State legislature? Is it in the State judiciary? Where 
 is it?" 
 
 He answered these questions by finding that the final 
 jurisdiction was by the laws of Florida reposed not in 
 the judiciary, not in the executive, not in the legisla 
 ture. His position differed from the Democratic con 
 tention as to the interpretation to be given the local 
 laws of Florida and as to the forum from which the 
 final and accepted interpretation should eminate. 
 
 George W. McCrary, a representative from Iowa, fol 
 lowed, closing for the Republican objectors. At once 
 he addressed himself to the question, "How far can 
 this Commission go in this inquiry?" 
 
62 The Hayes-Tilden Contest 
 
 Answering he said : "Gentlemen have argued, and 
 this whole case rests upon the argument, that the ap 
 pointment of the electors is by the votes of the people 
 at the polls ; and that, therefore, the Commission must 
 inquire how the people voted at the polls in order that 
 Congress may decide who have been appointed elec 
 tors." 
 
 The most casual reader will readily see the distortion 
 thus given the Democratic contention. One can hardly 
 see why an honest man should have made such a state 
 ment before so learned a body who had just listened 
 to the opening statements of the other side, other than 
 that the speaker must have felt the weight of the logic 
 of Tucker and the eloquence of Field, and blundered in 
 groping for an avenue of escape. 
 
 McCrary continued : "But, may it please the Com 
 mission, the appointment of the electors is not by the 
 vote of the people at the polls. That may possibly be 
 one of the steps required by the laws of the State, but 
 the appointment of the electors is by the vote of the 
 people cast at the polls, by the action of such tribunals 
 as the State laws have created, canvassing, determin 
 ing, and ascertaining the result of that vote, and by 
 the issuing in pursuance of that canvass of the evi 
 dence showing the election of the electors. The State 
 acts through its officials, through its constituted au 
 thorities, and the State declares who has been appointed. 
 Therefore, when the Constitution says that we shall 
 inquire who have been appointed electors by the State 
 in accordance with the laws of the State or as directed 
 by the legislature of the State, we are simply to inquire 
 what persons have been declared to be electors by the 
 
The Certificate 63 
 
 tribunal and the authority which the State law has 
 created for that purpose." 9 
 
 Thus the Republican objectors planted their strong 
 hold upon the position that the ascertainment and de 
 claration "by the tribunal and authority which the 
 State law has created for that purpose," was final, 
 whether fraudulent, mistaken or otherwise: and differ 
 ing from the Democrats, a difference wide and vital, 
 in the designation of what were "the tribunal and 
 authority which the State has created" "for the purpose 
 of ascertaining and declaring the result of the popular 
 election." The Republicans stopped short of the State 
 courts as one "of such tribunals as the State laws have 
 created" for such purposes. By stopping at the State 
 canvassing board the Republicans dismissed the pro 
 ceeding in quo warranto, and rid themselves of the 
 construction given the State law by the supreme court 
 in the mandamus proceeding against the State canvass 
 ing board and the injunction served upon it before the 
 pro-Hayes finding, and to reach which finding the two 
 Republicans of the State board disobeyed the injunc 
 tion and were afterwards held in contempt of court. 
 While the Democrats contended that the Commission 
 should "take the whole of the State authority;" that 
 the judicial procedure "becomes a part of the deter 
 minant authority in the election provided by the State, 
 and therefore you say that a man is elected in the man 
 ner prescribed by the State law, when he is determined 
 to be elected by the State law, and that determination 
 is reviewed [when, of course, it has been called in 
 
 9 Ib. 66. 
 
64 The Hayes-Tilden Contest 
 
 question] and adjudicated upon by the State judici 
 ary." 10 
 
 McCrary argued that the Democrats were wrong in 
 contending that the judgment, rendered after the day 
 on which the electors voted, in a quo warranto pro 
 ceeding begun and served upon the defendants before 
 the vote, but after they had assumed the duties of the 
 office they claimed the right to fill, "relates back to the 
 date of the filing of the petition and vacates and 
 vitiates everything that was done in the meantime. 
 That, I think," he said, "is not the law." His reason 
 for his conclusion was that "at the time of the judg 
 ment every function of the office of Presidential elector 
 had been exercised. The office had ceased to be. The 
 officer had ceased to be and was functus officio."^ 
 
 If he were never the officer, what? retorted the Demo 
 crats, but the answer will be fully discussed in a 
 subsequent chapter, where the grounds will be examined 
 upon which the Democrats contended that what the 
 Republicans called credentials were not such, and that 
 therefore the Hayes men did not, as McCrary insisted 
 his clients had done, "discharge every function that 
 belonged to them under the Constitution and laws on 
 the 6th day of December," because on that day no 
 electoral function belonged to the men thus attempting 
 to cast the Florida electoral vote for Hayes. This 
 fact, they said, was established by the proceedings 
 in the Florida courts, especially the quo ivarranto, an 
 action incorporated by the legislature of the State 
 into her judicial procedure from the common law of 
 England, and that the prime purpose of such an action 
 
 "Ib. 48. 
 "Ib. 66, 67. 
 
The Certificate 65 
 
 was to determine the nature and validity of credentials 
 in cases of this very kind ; and that for this reason, 
 no limit having been fixed by any Federal provision 
 beyond which such cases might be tried, the adjudication 
 was part of the appointment, the final credential proving 
 the will of the State in its act of appointment of electors. 
 
IV. 
 
 The Battle Between Counsel. 
 
 THE objectors having concluded their arguments, 
 the president of the Commission inquired of 
 the Democratic objectors whether they pro 
 posed before argument of counsel to offer 
 evidence. Representatives Field and Kasson each en 
 deavored to answer, but the president and Commissioner 
 Edmunds interrupted, the latter submitting "that the 
 objectors have exhausted their functions, and the rest 
 of the case belongs to counsel." Whereupon Merrick, 
 at the request of O Conor, of counsel for the Democrats, 
 stated that they expected to offer evidence prior to 
 argument by counsel, continuing: "We have been under 
 the impression that the evidence was already before 
 the Commission, without any necessity for a further 
 offer on our part." Commissioner Miller promptly 
 asserted that he did not understand that any evidence 
 had been admitted in the case, and suggested that by 
 the next day counsel who expected to offer evidence 
 prepare a brief synopsis of it. Then Evarts for the 
 Republicans declared that they had "no evidence to 
 offer, unless there should be a determination to admit 
 evidence inquiring into facts, and evidence should be 
 introduced against us which we should then need to 
 meet." 
 
 After some further immaterial talk the Commission 
 adjourned to meet the following day. Having con 
 vened pursuant to adjournment, Charles O Conor of 
 New York, Jeremiah S. Black of Pennsylvania, Richard 
 66 
 
The Legal Battle 67 
 
 T. Merrick of Washington, Ashbel Green of New Jer 
 sey, and William C. Whitney of New York, appeared 
 in opposition to the Stearns certificate ; and William 
 M. Evarts of New York, E. W. Stoughton of New 
 York, Stanley Matthews of Ohio, and Samuel Shella- 
 barger of Ohio appeared in opposition to certificates 
 numbers two and three, the credentials upon which 
 the Tilden men relied. 
 
 The president stated that under the rule two counsel 
 on a side would be heard, and suggested that the Demo 
 cratic counsel "should make their offers of proof in a 
 concise, well-arranged classified form;" and that the 
 Republican counsel would then make "their provisional 
 offers of proof in case there shall be a decision that 
 proofs are admissible." But the proposition startled 
 Evarts; he did not propose thus to show his hand; he 
 was naturally quite willing to see what his enemy held, 
 but his own forces he preferred to hold in reserve and 
 under cover. Commissioner Edmunds came to his sup 
 port, saying: "I do not think it is understood, Mr. 
 Evarts, certainly it is not by myself, that supposing you 
 object to the proof offered by Mr. O Conor you are 
 necessarily called upon at the same time to state what 
 you expect to prove in reply if his proofs shall be re 
 ceived. * * * You will not be called upon to offer 
 proofs on your own side, so far as I understand, be 
 cause it may not be necessary." 1 
 
 O Conor took grave exceptions to the proposed pro 
 cedure indicated by Edmunds, pointing out that upon 
 the question of the admissibility of the evidence it 
 would be necessary to argue the whole case, submitting 
 that "all the needful evidence should come in subject 
 
 1 Proceedings, 72-6. 
 
The Hayes-Tilden Contest 
 
 to such questions as to its competency and its effect 
 as may exist, for the reason that they necessarily in 
 corporate themselves with the main question that you 
 have finally to decide." But the president stopped him 
 and required him to state what he proposed to offer 
 in evidence. He then, having been forced to prepare 
 it hurriedly, read a statement of what the Democrats 
 regarded "as desirable matter in the nature of evidence 
 to be laid before this Commission as distinct, and as 
 succinct, and as brief, and as explanatory and intel 
 ligible a statement as, by the utmost effort, I could pos 
 sibly make," he explained, as follows : 
 
 "First. On December 6, 1876, being the regular law 
 day, both the Tilden and Hayes electors respectively 
 met and cast their votes, and transmitted the same to 
 the seat of government. Every form prescribed by the 
 Constitution, or by any law bearing on the subject, 
 was equally complied with by each of the rival electoral 
 colleges, unless there be a difference between them in 
 this : The certified lists provided for in section 136 of 
 the Revised Statutes were, as to the Tilden electors, 
 certified by the attorney-general; and were, as to the 
 Hayes electors, certified by Mr. Stearns, then governor. 
 All this appears of record, and no additional evidence 
 is needed in respect to any part of it. 
 
 "Secondly. A quo warranto was commenced against 
 the Hayes electors in the proper court of Florida on 
 the 6th day of December, 1876, before they had cast 
 their votes, which eventuated in a judgment against them 
 on the 25th of January, 1877. It also determined that 
 the Tilden electors were duly appointed. The validity 
 and effect of this judgment is determinable by the 
 
The Legal Battle 69 
 
 record ; and no extrinsic evidence seems to be desirable 
 on either side, unless it be thought (first) that the 
 Tilden electors should give some supplemental proof 
 of the precise fact that the writ of quo ivarranto was 
 served before the Hayes electors cast their votes, or 
 (second) unless it be desired on the other side to show 
 the entry and pendency of an appeal from the judgment 
 in the quo warranto. [However, the appeal was settled 
 in favor of the Tilden men and known to the Commis 
 sion before its final vote.] 
 
 "Thirdly. To show what is the common law of 
 Florida and also the true construction of the Florida 
 statutes, the Tilden electors desire to place before the 
 Commission the record of a judgment in the supreme 
 court of that State on a mandamus prosecuted on the 
 relation of Mr. Drew, the present governor of that 
 State, by force of which Mr. Stearns was ousted and 
 Mr. Drew was admitted as governor. This judgment, 
 together with the court s opinion, is matter of record, 
 and they require no other proof; nor is there any 
 technical rule as to the manner in which this Commission 
 may inform itself concerning the law of Florida. 
 
 "Fourthly. The legislation of Florida subsequently to 
 December 6, 1876, authorizing a new canvass of the 
 electoral vote, and the fact of such new canvass, the 
 casting anew of the electoral votes, and the due formal 
 transmission thereof to the seat of government, in per 
 fect conformity to the Constitution and laws, except 
 that they were subsequent in point of time to Decem 
 ber 6, 1876, are all matters of record and already regu 
 larly before the Commission. 
 
 "Fifthly. The only matters which the Tilden electors 
 
70 The Hayes-Tilden Contest 
 
 desire to lay before the Commission by evidence actually 
 extrinsic will now be stated. 
 
 "I. The board of State canvassers, acting on certain 
 erroneous views when making their canvass, by which 
 the Hayes electors appeared to be chosen, rejected 
 wholly the returns from the county of Manatee and 
 part of the returns from each of the following counties, 
 to-wit: Hamilton, Jackson, and Monroe. 
 
 "I trust I have omitted none, but I have had no con 
 sultation. 
 
 "In so doing the said State board acted without jur 
 isdiction, as the circuit and supreme courts in Florida 
 decided. It was by overruling and setting aside as not 
 warranted by law these rejections, that the courts of 
 Florida reached their respective conclusions that Mr. 
 Drew was elected governor, that the Hayes electors 
 were usurpers, and that the Tilden electors were duly 
 chosen. No evidence that in any view could be called 
 extrinsic is believed to be needful in order to establish 
 the conclusions relied upon by the Tilden electors ex 
 cept duly authenticated copies of the State canvass, that 
 is the erroneous canvass as we consider it, and of the 
 returns from the above named three counties, one 
 wholly and the others in part rejected by the State 
 canvassers. 
 
 "II. Evidence that Mr. Humphries, a Hayes elector, 
 held office under the United States." 
 
 Mr. Evarts for the Republicans objected to this "evi 
 dence now offered," as he expressed it. Whereupon 
 Mr. Black, for the Democrats, said: "We insist that 
 the whole of the evidence, including this mentioned by 
 Mr. O Conor in this paper of his, has been given 
 already, and is a part of the record. A question arose 
 
The Legal Battle 71 
 
 before the two Houses of Congress whether certain 
 votes offered for President and Vice-President ought 
 to be counted or not. Whether they ought or not de 
 pended upon the question whether they were votes or 
 papers falsely fabricated. Not with any purpose of 
 going behind the appointment of the electors, but for 
 the purpose of ascertaining what electors had been 
 appointed, who were the true agents of the State in 
 casting its vote, the two Houses proposed to use their 
 verifying power. Their purpose was not to entertain an 
 appeal from the decision of the State, but to ascertain 
 what that decision was. This involved a question of 
 fact. It was absolutely necessary that the conscience 
 of the two Houses should be informed concerning the 
 truth of the case which they were to decide, and ac 
 cordingly they took a perfectly legitimate and proper 
 mode of ascertaining it. They sent their committees 
 and had evidence taken. These committees collected 
 the documents, put the whole thing into a proper form, 
 and then came back and offered it to the two Houses, 
 by whom it was received and made part of the record 
 of this case. And when you were appointed as a sub 
 stitute for them x and became the keepers of their con 
 science, they required you to tell them what they 
 ought to do and to make the decision which upon the 
 evidence that was before them they ought to make. 
 That evidence, I say, was put in, and the portion of 
 it which was taken by committees of the House of 
 Representatives was laid before that House after a 
 fierce struggle and the filibustering of half a night to 
 keep it out. The president of the Senate, the president 
 of the two bodies, handed this evidence, all of it, over 
 
72 The Hayes-Tilden Contest 
 
 in bulk to be used here by this Commission. You have 
 seen it * * *" 
 
 On motion of Judge Miller it was decided that counsel 
 be allowed two hours on each side "to discuss the ques 
 tion raised by Mr. Evarts objection to testimony, as 
 to whether any other testimony will be considered by 
 this Commission than that which was laid before the 
 two Houses by the president of the Senate, and, if 
 so, what evidence can properly be considered ; and also 
 the question what is the evidence now before the Com 
 mission." z 
 
 An amendment proposed by Judge Field was lost. 
 His proposition was that counsel be heard "on the 
 effect of the matters laid before the two Houses by the 
 president of the Senate and of the offer of testimony 
 made by Mr. O Conor and objected to by Mr. Evarts." 
 The vote upon this and the motion submitted by Judge 
 Miller is not reported. 
 
 Mr. Merrick of Washington made the opening argu 
 ment of counsel for the Democrats. He first dis 
 cussed the powers of the Commission. He asserted 
 that the Commission, having the power for such pur 
 poses possessed by the two Houses acting separately 
 or together, as the law provided, might investigate the 
 truth of the governor s certificate, and ascertain which 
 are the votes cast by the men bona fide chosen or 
 appointed by the States as electors. "Having ascer 
 tained what are the votes," he said,"you count those 
 votes, throwing aside whatever ballots you may find 
 that are not votes. * * * We therefore submit that 
 any legitimate evidence going to determine what are the 
 true votes cast by the electors duly appointed by the 
 Ib. 78, 82, 85. 
 
The Legal Battle 73 
 
 State is proper and competent evidence before this 
 tribunal." 
 
 As an important precedent for contending that, not 
 withstanding the day had passed upon which electors 
 were by law directed to vote, the Federal counting power 
 could by evidence inquire whether those claiming to 
 vote had been by the /aw of the State legally chosen, 
 Merrick cited the evidence and the report of the com 
 mittee sent out to learn the facts concerning the men 
 who claimed to be the electors of Louisiana prior to 
 the count of 1873. That Republican committee, of which 
 Senator Morton, one of the Commission, was chair 
 man, went behind the returns of the State canvassing 
 board and inquired whether it had acted pursuant to 
 the requirements of the State law. Reporting Feb. 
 10, 1873, this committee declared: "We find that the 
 official returns of the election of the electors, from the 
 various parishes of Louisiana, had never been counted 
 by anybody having authority to count them." 3 Having 
 separately acted upon this report and the accompanying 
 evidence, each House in the Senate upon the motion 
 of Carpenter of Wisconsin and in the House upon 
 the motion of James A. Garfield of Ohio by large 
 majorities refused to count the electoral vote of 
 Louisiana. 
 
 Florida presented a much stronger claim for the 
 rejection of the Hayes electoral votes. Said Mr. 
 Merrick : 
 
 "But, may it please your honors, in the case of the 
 State of Florida we shall not ask for evidence going 
 behind the certificate. The case presents itself to the 
 court in a peculiar aspect. The evidence which we 
 
 Cong. Globe, pt. 2, 1218: 42 Cong., 3d sess. 
 
74 The Hayes-Tilden Contest 
 
 shall offer and which we claim to be admissible as to 
 that State, is evidence furnished by the State herself 
 as indicated in the proposition read by the distinguished 
 gentleman with whom I have the honor to be asso 
 ciated, Mr. O Conor." He then pointed out as had 
 O Conor that the State, by her quo warranto, her 
 mandamus, her legislature, and through her executive, 
 had ascertained that Governor Stearns certificate was 
 either given in mistake or fraud, and "that the electors 
 to whose votes we object, were not the duly appointed 
 electors of Florida; and, through all her departments of 
 government, Florida therefore comes to the United 
 States Congress and begs that you (for you now 
 exercise that power and it is vested in you) will pro 
 tect her people from the enormity of having their voice 
 simulated by parties never appointed to speak in her 
 behalf." 
 
 Judge Black, also for the Democrats, followed. Upon 
 the main issue, among other things, he said : "There has 
 been much talk here about getting behind the action of 
 the State. I do believe firmly in the sovereign power 
 of the State to appoint any person elector that she 
 pleases, if she does it in the manner prescribed by 
 the legislature ; and, after she has made the appoint 
 ment in that manner, no man has a right to go behind 
 her act and say that it was an appointment not fit 
 to be made. A man, whether he be an officer of the 
 State or an officer of the general government, who 
 undertakes to set aside such an appointment is guilty 
 of a usurpation and his act is utterly void. Therefore, 
 if the governor of the State of Florida, after this 
 appointment of electors was made by the people, under 
 took to certify that they were not elected and put 
 
The Legal Battle 75 
 
 somebody else in the place which belonged to them, 
 his act is 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. This is a 
 question of evidence. Who are the electors?" Calling 
 attention to the acts of the State making known this 
 invalidity of Governor Stearns certificate, Black closed 
 by referring to the "Buckshot war" in Pennsylvania in 
 1838-39, and the result of the contest, as a precedent 
 to prove that a fraudulent vote can be questioned "even 
 though it came wrapt in the forms of law." * 
 
 Mr. Matthews opened for the Republicans. He 
 argued that the election of President consists, not of 
 one act, but of a series of acts; that the President is 
 elected by men chosen who have a right to make a 
 selection as well as an election, and that it is a mistake 
 to consider this electoral body as delegates representing 
 a State or the people of a State, as agents accomplish 
 ing their will. He said that the manner of the ap 
 pointment of the electors lay within the control of the 
 State up to the day upon which Congress had pro 
 vided the electors should vote, and that after that day, 
 the act of appointment, "so far as the State authority is 
 concerned, has passed beyond the limit of its control. 
 It then becomes a Federal act. It then becomes one 
 of those things which pass into the jurisdiction, what 
 ever that may be, of Federal power. It is the deposit 
 of the vote of the elector in the ballot box of the 
 United States, and the Nation takes charge of the 
 ballot box;" and after that time whatever power is 
 exerted must be by the Federal government. He 
 
 * Proceedings, 96, 98, 100. 
 
76 The Hayes-Tilden Contest 
 
 said : "I maintain that there is no law, either State or 
 Federal, whereby that [elector s] title can be judicially 
 investigated and determined after he has cast his vote." 
 When the person appointed, or who appears to have 
 been appointed, having in his possession formal evi 
 dence of his appointment," acts, the matter passes 
 beyond the State. The "actual question before this 
 Commission is not which set of electors in Florida 
 received a majority of the popular votes ; it is not 
 which set appears from the return of the votes made 
 at the primary voting-places to have had a majority 
 of the votes so returned ; it is not which set, by looking 
 at the county returns, appears to have had a majority 
 of the votes so compiled ; but it is this : which set, by 
 the actual declaration of the final authority of the 
 State charged with that duty, has become entitled to 
 and clothed by the forms of law with actual incumbency 
 and possession of the office." That final authority he 
 found to be alone in the State canvassing board and 
 as by that board exercised prior to December 6, i876. 5 
 
 Mr. Stoughton, more widely known, more able, and 
 more weighty with courts, followed. His attention was 
 first directed to a consideration of the jurisdiction 
 and powers of the Commission. He said : 
 
 "There are some facts of which this tribunal can 
 take judicial notice. One is, the laws of the State of 
 Florida. What are they in reference to this subject, 
 and what was done in pursuance of them, and what is 
 proposed to be done by testimony as it is called for 
 the purpose of overthrowing what was done in pur 
 suance of the laws of that State? 
 
 "In the first place, its statute authorized 
 
 s lb. 102, 108. 
 
The Legal Battle 77 
 
 the creation of an ultimate returning board having 
 capacity to certify the number of votes cast for electors 
 and who were elected; and, if that board performed 
 its duty, however crowded with error, however mis 
 taken, however, if you please, tainted by fraud, if that 
 board discharged the duty cast upon it by law, and 
 did ascertain and did declare how many votes for par 
 ticular sets of electors were cast, and did certify and 
 declare who were the persons elected electors, that 
 ends all inquiry here, assuming that you may go behind 
 the governor s certificate, unless, indeed, you may re 
 treat behind the action of the returning board, the 
 final tribunal for that purpose created by the laws of 
 the State, and ascertain whether it did or did not, 
 according to your judgment, faithfully return the votes 
 cast and faithfully declare who were the persons 
 elected." 
 
 Here he read from the Florida statute of 1872, 
 creating the State board and defining its powers, and 
 continued : 
 
 "There was committed to this board by that statute 
 a capacity to determine and decide finally and con 
 clusively how many lawful votes were cast and who 
 were elected electors * * * Then, may it please 
 your honors, your jurisdiction is to count the electoral 
 votes ; your power is in counting to resort to such proof, 
 if any, as the Constitution and laws permit. You 
 are dealing with a delicate subject when the question 
 of jurisdiction is reached. You are dealing with the 
 supremacy of a State when you undertake to touch its 
 final tribunal for the purpose of overhauling and up 
 setting its action. * * * " 
 
 Briefly he discussed the quo warranto, and the sub- 
 
78 The Hayes-Tilden Contest 
 
 sequent acts of the legislature, contending that the acts 
 of the Hayes men were those of de facto officers, and 
 could not be invalidated by "subsequent judicial action 
 or ex post facto legislation," and in conclusion said : 
 
 "The alleged fault of the lawful returning board 
 was not fraud at which my friends are so shocked 
 but mistake. After electors are thus appointed law 
 fully, but possibly by a mistaken view of the law by 
 the board declaring their election, its conclusion must 
 forever stand." 6 
 
 Hon. William M. Evarts, yet more distinguished, 
 with the prestige of an international reputation behind 
 him, in sentences rather involved yet adroit, was the 
 next Republican speaker. He added no new argu 
 ment to what had proceeded. He contended that the 
 Commission could not "entertain any subject of ex 
 traneous proof. The process of counting must go on. 
 If a disqualified elector has passed the observation of 
 the voters in the State, passed the observation of any 
 sentinels or safeguards that may have been provided in 
 the State law ; when these are all overpassed and the 
 vote stands on the presentation and authentication of 
 the Constitution that is, upon the certificates of the 
 electors themselves and of the governor it must stand 
 unchallengeable and unimpeachable in the count." He 
 argued that the Commission had no judicial powers, 
 and could neither compel witnesses nor hear their testi 
 mony. He contended that the Hayes men were de facto 
 officers and, overlooking the applicability of the quo 
 warranto where one even theatens to exercise the func 
 tions of an office, that the Florida quo warranto ad- 
 8 lb. 109 to 112. 
 
The Legal Battle 79 
 
 mitted the Hayes men to be in possession and exercise 
 of the office of electors. 
 
 Under the Federal Constitution, he argued "in the 
 first place, the only transaction of choosing a Presi 
 dent begins with the deposit, so to speak, in the 
 Federal urn of the votes of certain persons named and 
 described in the Constitution as electors. From the 
 moment of that deposit the sealed vote lies protected 
 against destruction or corruption in the deposit pro 
 vided for it, the possession of Federal officers in 
 Federal offices. The only other step, after that, is the 
 opening of those votes and their counting. All that 
 precedes that deposit of the votes by electors relates to 
 their acquisition of the qualifications which the Con 
 stitution prescribes. These qualifications are nothing 
 but appointment by the State, and with that the act 
 of Congress and the Federal Constitution, with due 
 reverence to State authority, do not interfere. * * * 
 
 "These electors, not being marked and designated 
 by any but political methods, are by the Constitution 
 made dependent for their qualifications upon the action 
 of the State. If the State does not act there are no 
 qualified electors. If the State does act, whatever is 
 the be-all and the end-all of the State s action up to the 
 time that the vote is cast is the be-all and the end-all 
 of the qualification of the elector, and he is then a qual 
 ified elector depositing his vote to accomplish its pur 
 pose, and to be counted when the votes are collected." 
 
 He contended that the "end-all" of the State s action 
 under the State law of Florida was reached with the 
 determination of the "political canvass," of which there 
 could be no reconsideration and no judicial review by 
 the Commission, because "every step and stage of that 
 
8o The Hayes-Tilden Contest 
 
 action, rightly or wrongly, honestly or dishonestly, 
 purely or fraudulently, has conferred qualifications such 
 as the Federal Constitution requires in the appointment 
 by the State through the methods that it has provided." 
 
 He offered no new reasons for the Republican posi 
 tion; he gave no light upon his interpretation of the 
 Florida law; he seemed to stand in abject terror of 
 what he called interpolating judicial inquiries "into this 
 scheme of popular sovereignty in its political action," 
 lest it "will make it as intolerable in its working, will 
 so defraud and defeat the popular will, by the nature 
 of the necessary consequence of the judicial interven 
 tion, that, at last, the government of the judges will 
 have superseded the sovereignty of the people, and 
 there will be no cure, no recourse but that which the 
 children of Israel had, to pray for a king." 7 
 
 A strange argument for Evarts ! ! The very facts, 
 which he so diligently sought to keep from the Com 
 mission and which he did not attempt to deny, were 
 a powerful contradiction to what might otherwise have 
 been an argument. Surely Evarts the man and citizen, 
 rather than the partizan counsel who piloted the Re 
 publican case through all the hearings of the Com 
 mission down to the decision of the Oregon contro 
 versy, would not prefer the government of the State 
 canvassing board, more narrow than courts, without 
 the means of investigation which belonged to courts, 
 and which in its pro-Hayes report actually "superseded 
 the sovereignty of the people !" 
 
 Upon this part of the case O Conor concluded for 
 the Democrats. Proceeding to define the powers of 
 the Commission, he quoted the law creating the Com- 
 
 7ib. 117 to 124. 
 
The Legal Battle 81 
 
 mission which declared that it should have "the same 
 powers, if any, now possessed by the two Houses acting 
 separately or together," and said : 
 
 "Now, that no power of any description deserving the 
 name of a power to investigate and define resides in 
 the president of the Senate is most plain from the very 
 words of the Constitution. * * * He has no means 
 of taking testimony * * * and I humbly submit 
 that it is most manifest that he has none but the 
 merest of clerical powers * * * he is to open all the 
 certificates * * * But when we come to the pre 
 scription that there shall be a count, we are not told 
 that there shall be a count of all the certificates, but 
 that there shall be a count of the votes. This, I 
 humbly submit, introduces a necessary implication that 
 somehow and by some authority there shall be made, 
 if necessary, a selection of the actual votes from the 
 mass of papers produced * * * This is left to an 
 implication that it is to be exercised by those who 
 may have occasion to act officially on the electoral 
 vote. * * * The competency of each House to as 
 certain the truth is unquestionable. Each has com 
 plete powers of investigation ; they can take proof 
 through their committees or otherwise as to any mat 
 ter on which they may be obliged to decide * * * 
 Our construction thus recognizes in those two bodies 
 on such a contingency as is here presented full power 
 to do whatever may be needful to the accomplishment 
 of justice." 
 
 In answer to the question, "How far are we to go in 
 this case?" he asserted it would be necessary to go no 
 further than "to make a correction of the unlawful 
 extra-judicial acts of the canvassing board." He said 
 
82 The Hayes-Tilden Contest 
 
 that the quo warranto proceeding and all of the sub 
 sequent acts upon which the Democrats relied were 
 admissible to show the illegal act of the pro-Hayes 
 claimants and the illegal nature of the State board, 
 pointing out that as State officers the canvassing board 
 was subject to correction by the State, and that the 
 quo ivarranto, commenced in due season, had deter 
 mined the pro-Hayes report to be utterly void, having 
 annulled it before the time for the count of the 
 electoral vote by the Federal power. 8 
 
 Thus the issues were made, and the evidence by 
 which the Democrats proposed to sustain their positions 
 was clearly indicated. The Commission met in secret 
 session and debated among themselves for several 
 hours. There is no record of those debates; and the 
 only record we have of the views expressed by the 
 members is left us in their several opinions in which 
 most of them expressed themselves on all the questions 
 involved. The next light we have upon the proceedings 
 is when Judge Miller moved that the Commission 
 order: 
 
 "That no evidence will be received or considered by 
 the Commission which was not submitted to the joint 
 convention of the two Houses by the president of the 
 Senate with the different certificates, except such as 
 relates to the eligibility of F. C. Humphries, one of 
 the electors." 
 
 By vote of eight Republicans to the seven Demo 
 crats, the motion was sustained. 
 
 Partizan, indefinite in language as to what evi 
 dence was submitted to the joint convention, a viola- 
 sib. 124 to 126. See The Nation, February 8, 1877, p. 84, 
 for a contemporary appreciation of O Conor s powerful speech. 
 
The Legal Battle 83 
 
 tion of Congressional precedents, this order clearly 
 foreshadowed the end. 
 
 Its partisan nature for one thing is shown in this: 
 The peculiar language used by Judge Miller in this 
 order that "no evidence will be received," except such 
 as relates to the eligibility of F. C. Humphries, "one 
 of the electors," placed the Democrats on the Commis 
 sion in an unfair position. If they voted for that reso 
 lution, they voted for the language which stated that 
 Humphries was "one of the electors." In voting 
 against it, it left the matter unavoidably indefinite as 
 to what evidence they wished the Commission to 
 hear and has left them in a position which some 
 writers misrepresent as a desire on their part to use 
 the power of Congress to override State action. But, 
 believing as they did that no action of the sovereign 
 power of the State of Florida had determinedHumph- 
 ries to be "one of the electors," they could not support 
 a resolution from which any inference whatever could 
 be drawn to the effect that they did not rely fully upon 
 what are termed the subsequent acts of the State and 
 upon the position that the pro-Hayes report of the 
 State board was not the act of the State. On the other 
 hand, the inconsistency of the Republicans is shown in 
 their action on the very next motion. Commissioner 
 Abbott, immediately following the vote upon the above 
 resolution, moved: "That in the case of Florida the 
 Commission will receive evidence relating to the eli 
 gibility of Frederick C. Humphries, one of the persons 
 named in certificate No. I, as an elector." 8 Whereupon 
 all the Republicans except Bradley voted in the nega 
 tive. There is a vast difference between the two state- 
 Proceedings, 139. 
 
84 The Hayes-Tilden Contest 
 
 ments, and why all the Republicans but the one should 
 have voted against Abbott s resolution, for other than 
 the most inexcusable partizan reasons, I cannot see. 
 The Abbott resolution left the question whether 
 Humphries was "one of the electors" open without ex 
 pressing an opinion, since the eligibility as an elector 
 is quite distinct from the question as to whether one 
 is an elector. Then, the resolution as proposed by Judge 
 Miller and sustained by the Republicans, in its use 
 of the words "one of the electors" as to Humphries, 
 was entirely untimely, for the case as to who were 
 electors had not yet been presented upon its full merits, 
 and the argument was not concluded for two days there 
 after. 
 
V. 
 The Final Majority Decision. 
 
 WHEN the Commission, having entered the 
 order concerning the evidence, again con 
 vened on February 8, George Hoadly of 
 Ohio, Ashbel Green of New Jersey, and 
 William C. Whitney of New York, appeared for the 
 Democrats along with the counsel theretofore present. 
 The evidence concerning Humphreys was heard; 
 Hoadly and Green then argued the whole case for the 
 Democrats, and Shellabarger and Evarts for the Re 
 publicans. Judge Hoadly made a learned argument 
 inquiring for the right of the Federal counting power 
 to question the eligibility of electors. Green followed, 
 presenting a very clear and forcible survey of the 
 papers before the Commission that had been certified 
 by the president of the Senate. Shellabarger and 
 Evarts replied for the Republicans, and Merrick, for 
 the Democrats, closed the discussion, and the Florida 
 Case went for the last time into the secret councils of 
 the Commission. Since these concluding arguments 
 developed no change of position on the part of coun 
 sel, we now pass to a consideration of the final deci 
 sion. 
 
 It was February 9 when the decision was put into 
 writing, signed by the eight Republicans concurring 
 therein, and transmitted to the president of the Senate. 
 Reciting the caption of the act under which the Com 
 mission sat, the report is in these words : "The Electoral 
 Commission mentioned in said act, having received 
 
 85 
 
The Hayes-Tilden Contest 
 
 certain certificates and papers purporting to be certifi 
 cates, and papers accompanying the same, of the 
 electoral votes from the State of Florida, and the ob 
 jections thereto submitted to it under said act, now 
 report that it has duly considered the same, pursuant 
 to said act, and has decided, and does hereby decide, 
 that the votes of Frederick C. Humphreys, Charles H. 
 Pearce, William H. Holden, and Thomas W. Long, 
 named in the certificate of M. L. Stearns, governor of 
 said State, which votes are certified by said persons, as 
 appears by the certificate submitted to the Commission as 
 aforesaid, and marked number one by said Commission, 
 and herewith returned, are the votes provided for by the 
 Constitution of the United States, and that the same 
 are lawfullly to be counted as therein certified, namely: 
 four (4) votes for Rutherford B. Hayes, of the State 
 of Ohio, for President, and four (4) votes for Wil 
 liam A. Wheeler, of the State of New York, for Vice- 
 President. 
 
 "The Commission has also decided, and hereby de 
 cides and reports, that the four persons first before 
 named were duly appointed electors in and by said State 
 of Florida. 
 
 "The ground of this decision, stated briefly, as re 
 quired by said act, is as follows : 
 
 "That it is not competent under the Constitution and 
 the law, as it existed at the date of the passage of said 
 act, 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 and 
 declaration of their appointment by the board of State 
 
The Decision 87 
 
 canvassers of said State prior to the time required for 
 the performance of their duties, had been appointed 
 electors, or by counterproof to show that they had not, 
 and that all proceedings of the courts or acts of the 
 legislature or of executive of Florida subsequent to the 
 casting of the votes of the electors on the prescribed day, 
 are inadmissible for any such purpose. 
 
 "As to the objection made to the eligibility of Mr. 
 Humphreys, the Commission is of opinion that, with 
 out reference to the question of the effect of the vote 
 of an ineligible elector, the evidence does not show that 
 he held the office of shipping-commissioner on the day 
 when the electors were appointed. 
 
 "The Commission has also decided, and does hereby 
 decide and report, that, as a consequence of the fore 
 going, and upon the grounds before stated, neither of 
 the papers purporting to be certificates of the electoral 
 votes of said State of Florida, numbered two (2) and 
 three (3) by the Commission, and herewith returned, 
 are the certificates or the votes provided by the Con 
 stitution of the United States, and that they ought not 
 to be counted as such." 1 
 
 What the report gives as "ground" is hardly ground 
 more properly it is the conclusion reached in arguing 
 from the ground or major premise upon which the 
 majority based its reasoning. The true ground, of 
 vital importance in reaching the legal value of the 
 decision, can only be learned by an examination of the 
 individual opinions filed by the several members of the 
 Commission. From these it will be seen that what 
 some historians claim is the true ground of the deci 
 sion is misleading; and that the real ground lies 
 
 1 Proceedings, 196. 
 
The Hayes-Tilden Contest 
 
 behind the question why the specified evidence was 
 held to be incompetent. 
 
 It is striking that no reasons whatever are given for 
 the decision reached upon what the majority held to be 
 competent evidence. Why the majority regarded the 
 certificate of Governor Stearns as of more dignity 
 that that of the attorney-general; and why the "deter 
 mination and declaration of the" appointment of the 
 Hayes electors by the board of State canvassers, was 
 regarded as having unimpeachable dignity and was 
 credited with elective power, is nowhere intimated in 
 the majority report. 
 
 To get at the real ground upon which the majority 
 professed to stand, we must read the decision in the 
 light of the opinions and arguments filed by those who 
 therein concurred. 
 
 As between the certificate of the governor and the 
 attorney-general, Judge Strong said that the latter had 
 no power to certify that the Tilden men were electors. 2 
 That is, he agreed with the contention of counsel and 
 the objectors that there was "no executive authority" 
 in the attorney-general. Frelinghuysen said the attor 
 ney general s "certificate has in law no more validity 
 than a letter from any other citizen of Florida would 
 have, and cannot be recognized by this Commission." 3 
 
 This conclusion, it must be kept in mind, was reached 
 by an interpretation of the laws of Florida. There 
 was no other source from which and no other way by 
 which it could be known what were the powers of the 
 attorney-general. The correctness of the Republican 
 position on this point will be examined in a subsequent 
 
 Ib. 999. 
 3 Ib. 850. 
 
The Decision 89 
 
 chapter, "The Executive Authority of Florida." This 
 question arises upon the papers which the Commission 
 held to be properly before them, and upon which 
 they rested their decision. 
 
 Next, why was no evidence "aliunde the papers opened 
 by the president of the Senate in the presence of the two 
 Houses" admissible to prove that other persons were 
 electors rather than those certified by Governor Stearns 
 "in and according to the determination and declaration 
 of" the State canvassing board made prior to the time 
 when the electors were, by the Federal law, required 
 to vote? Why were the proceedings of the courts and 
 acts of the legislature and of the executive of Florida 
 subsequent to the day prescribed for the voting of the 
 electors, inadmissible to show that the finding of the 
 State board upon which Governor Stearns rested his 
 certificate, was illegal, a usurpation, and not the act 
 of the State? What were the reasons assigned by the 
 Republicans for holding that the pro-Hayes report of the 
 State canvassing board was conclusive against the 
 world? 
 
 Garfield held that the authority in the State to ap 
 point electors carried with it the power to provide the 
 mode, as by popular election, and also to "provide by 
 what means the result of such election may be verified 
 and declared," and that the laws of Florida had made 
 the provision, vesting in the State board of canvassers 
 the right of "final determination and declaration of the 
 result." Interpreting the State law so as thus to lodge 
 the final power, the inevitable conclusion was that the 
 pro-Hayes report of the State board was final as against 
 the State, whether acting through her judicial agencies 
 or otherwise ; and, hence, "the final determination of 
 
go The Hayes-Tilden Contest 
 
 the result of the election having been declared by the 
 authority -empowered to determine and declare it, 
 that act becomes the act of the State." 
 
 This conclusion was Garfield s interpretation of the 
 Florida law as found in section four of the act of 
 February 27, 1872.* 
 
 Strong said that a State "may provide in any way to 
 purify her elections, and may devise means to correct 
 an erroneous canvass, or throw out illegal votes. She 
 may do this in the most summary way. She may 
 accomplish it completely before the day for casting 
 the electoral vote arrives. * * * [But] in all elec 
 tions there are and there must be finalities. There 
 must be an ultimate canvass and ascertainment of the 
 result. That must be final and conclusive until reversed, 
 though it may not be in exact accordance with the 
 actual facts. 
 
 "The Florida statute provides that its presidential 
 electors shall be appointed by a popular vote, and it 
 directs that the result of that vote shall be determined 
 and declared by a State board of canvassers constituted 
 as directed. That board is made by the statute the 
 ultimate determinant and declarant of what the vote 
 was and of its results, and it has power in certain 
 cases to exclude county returns. The board is to 
 determine and to declare. Such is the plain direction 
 of the act. * * * 
 
 "I admit the declaration and determination of the. 
 board may be set aside by any authority the State may 
 designate to try contested elections. It may be shown 
 to be erroneous on the trial of a quo warranto. But 
 
 *Ib. 963, 966. 
 
The Decision 91 
 
 until thus reversed it is and must be final, obligatory 
 upon the governor as upon all others." 
 
 Such being, in Judge Strong s opinion, the Florida 
 law, and since the quo warranto had not been con^ 
 eluded and the other acts of the State upon which the 
 Democrats relied provided, before the day upon which 
 the Hayes men claimed to have cast the electoral 
 vote of the State, he took the ground that they had 
 "all the insignia of title;" that is, they had the gov 
 ernor s certificate and what Strong held to be "the 
 judicial determination and declaration of the State 
 canvassing board that they had been elected." There 
 fore, he reasoned, "having at the time of their action 
 all the evidences of right known to the law," theirs 
 was "an act rightfully done" and must stand unques 
 tionable. 5 
 
 Hence Judge Strong s interpretation of this same 
 Florida law vests in the board of State canvassers : 
 
 1. The judicial power they exercised in reaching 
 the pro-Hayes report; 
 
 2. That the board by the statute law is the ultimate 
 determinant and declarant of the result of the popular 
 election. 
 
 Upon the ground as thus deduced he held that the 
 subsequent acts of Florida were inadmissible and not 
 competent to show anything contradicting the authority 
 of the Hayes men and showing the invalidity and 
 illegality of all they had assumed to do. 
 
 Judge Miller also quoted the law of February 27, 
 1872, and held that it empowered the State board to 
 review and reject "the poll of any voting precinct;" 
 that it had more than mere ministerial power; and, 
 
 s lb. 997-999. 
 
92 The Hayes-Tildcn Contest 
 
 since the board had exercised judicial power in reach 
 ing its pro-Hayes report, notwithstanding that in so 
 doing it had actually rejected the entire poll of several 
 precincts, the person named by it in the certificate of the 
 result "is from that moment a duly appointed elector," 
 because, on the ground, "the fact of his appointment, 
 that is, his election, has been ascertained and declared 
 by the tribunal, and the only tribunal, to which the duty 
 and power of so declaring has been confided by law." 6 
 
 Therefore Judge Miller concluded that on this ground 
 the pro-Hayes report was final against both the State 
 and the Federal counting power. 
 
 Judge Bradley held that the Federal counting power 
 must "ascertain whether the State has made an ap 
 pointment according to the form prescribed by its 
 laws." Looking for the law and measuring the acts 
 of the State officers thereby, he, too, held that the 
 Commission acting for Congress in counting the 
 electoral votes "are bound to recognize the determina 
 tion of the State board of canvassers as the act of the 
 State, and as the most authentic evidence of the ap 
 pointment made by 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. They cannot sit as a court of appeals on the 
 action of that board." 
 
 This conclusion of Bradley is on the ground that 
 the action of the board "involved the exercise of deci 
 sion and judgment * * * a decision quasi-judicial." 
 So he argued that neither the Federal counting power 
 nor the State by quo warranto or otherwise could ques- 
 
 6 Ib. 1008, 1010. , * I" 7 ! 
 
The Decision 93 
 
 tion the determination of the board, because "to cor 
 rect the finding of the board, therefore, would not be to 
 correct the mere statement of fact, but to reverse the 
 decision and determination of a tribunal." 7 
 
 Hoar .said: "It is true votes are to be counted [i. e., 
 the electoral votes]. But it is the votes of those per 
 sons whom the proper authority has determined and 
 certified were entitled to cast them." He held that 
 the proper authority to determine and certify who 
 were entitled to cast the electoral votes, lay entirely 
 in the State board ; and that the statute of the State 
 vested this power in the board subject to no review. 
 He admitted that there could be no question of de facto 
 action, since neither set of claimants was "more fully 
 clothed with the office than their competitors. "Each 
 of the sets of electors who claimed to have cast their 
 votes in Florida did everything which was necessary 
 to the entire execution of the office of presidential 
 elector." 8 
 
 I have permitted the participants the objectors, the 
 counsel, and the Commissioners to define the issues 
 and to set forth the grounds of their conclusions in 
 their own words because of the fact that even the 
 Republicans themselves and some writers since are 
 incorrect in their assertions as to the ground of the 
 majority decision. As I pointed out when presenting 
 the arguments of counsel, the issue was as to where 
 the State law lodged the power to act finallv for the 
 State in ascertaining who had been appointed electors; 
 and when, with reference to the day on which the 
 Federal law required the electors to vote, the final steps 
 
 T Ib.l022, 1024. 
 Ib. 956, 958. 
 
94 The Hayes-Tilden Contest 
 
 might be taken by the State; and, last, by what should 
 and must the Federal counting power, in the case 
 before us, the Commission, be led to know the law 
 of the State that defined the credentials of the true 
 electors. 
 
 When Senator Hoar in his "Autobiography of 
 Seventy Years" says : f^The simple doctrine on which 
 the Commission proceeded was that the right to deter 
 mine absolutely and finally who are the duly chosen 
 presidential electors is committed by the Constitution 
 to the States," 9 he does not give an intimation as Jo 
 the true ground ~upon which^ the~Republicari majority 
 a^ifid. His statement is misleading at least to the 
 casual reader. Yet it is representative of assertions 
 made in reference to this question by his party, and by 
 members of the Commission. 
 
 James Ford Rhodes, in his most recent history of this 
 subject, follows the empty claims of the Republican 
 majority, "steals the livery of the court of heaven in 
 which to serve the devil," as Abbott aptly put it in his 
 argument in the secret session of the Commission. Dr. 
 Rhodes says that it is remarkable how ardently the 
 former opponents of States rights argued for them. 
 Then he continues : 
 
 "On the other hand the Democrats were equally in 
 consistent. As a party they had been defenders of 
 State s rights and their Southern wing had carried the 
 doctrine to a bitter extremity, but now they invoked 
 the power of Congress to override State action and 
 right a grievous injustice committed by what they 
 had formerly maintained was a sovereign authority." v 
 
 Vol. 1, 378. 
 10 7 History of the United States, 240. 
 
The Decision 95 
 
 As to the position of the Democrats, the very re 
 verse is true. The Democrats asked the Federal count 
 ing-power to accept as final the adjudication of the 
 State as "the valid or lawful certification or authenica- 
 tion" of the Florida electors as that adjudication was 
 expressed by the judgment in a quo warranto, and con 
 firmed by an act of the Florida legislature. Or, should 
 this be refused, should the Commission hold that it 
 had power to determine what it would recog 
 nize as the elector s credentials, then the Demo 
 crats asked the Federal power to take that as the 
 action of the State which had been done according to 
 the State law, according to the manner provided by 
 her, as her high courts interpreted and enforced it; 
 that that interpretation defining the provided manner 
 of the choice, given by the State herself, be taken as 
 the law the definition of the elector s credential; since 
 a law is none other than its interpretation and applica 
 tion to the facts. For this interpretation the Demo 
 crats pointed to decisions of the State s highest courts, 
 the settled enforcement of those decisions, the opin 
 ion of the court in the mandamus in this case, and 
 to the common law applicable to the situation and in 
 force in Florida. The injustice of which the Demo 
 crats complained had not been committed by "State 
 action," they proposed by these means to show. The 
 power of Congress was invoked by the Democrats "to 
 override" nothing done by the State. The power of 
 Congress, in proceeding to count the electoral votes, 
 was asked to recognize "the sovereign authority" of 
 the State of Florida. 
 
 The Republicans insisted that the Federal power 
 should ignore or reverse the adjudications of the State 
 
96 The Hayes-Tilden Contest 
 
 courts and their legislative confirmation. Then, hav 
 ing treated these as not the act of the State, they 
 insisted that the Commission, as in fact it admitted it 
 must do, should interpret the local State laws and deter 
 mine therefrom where resided the State s sovereign 
 power; and that the power of Congress should be 
 exercised to weigh the various acts of the State and 
 those who claimed to act for her, and from them deter 
 mine, regardless of State action with reference thereto 
 and heedless of her interpretation thereof, which act 
 constituted the act of the State and an exercise of her 
 sovereign power. By thus interpreting her laws and 
 measuring certain acts, the Republicans sustained the 
 pro-Hayes report of the State canvassing board, hold 
 ing that it had been made in conformity to the State 
 law, and that that action had become the act of the 
 State under the law of 1872, which defined the functions 
 of the State board. Thus the Stearns certificate was 
 sustained and the Hayes electoral votes counted. And 
 this was done, permit me to repeat, not by constru 
 ing or interpreting and applying any Federal law or 
 any part of the United States Constitution; for, as 
 General Lew Wallace stated in his report of the pro 
 ceedings before the State board, the legality and 
 validity of the board s action must be determined en 
 tirely by the local statute of the State. 11 The con 
 struction given by the majority of the Commission, 
 acting for Congress, as I have said and as I hope 
 fully to show, was entirely at variance with the settled 
 law and construction as long recognized by Florida. 
 It was the Republicans "who invoked the power of 
 Congress to override State action," by which they 
 "Wallace, Autobiography, 903, 909. 
 
The Decision 97 
 
 sustained those who "had committed a grievous in 
 justice." 
 
 Just two quotations from Commissioners I put in 
 evidence here for the Democrats upon this point. 
 
 Said Thurman : 
 
 "I understand it to be asserted by those who claim 
 the election or the appointment of the Hayes electors, 
 that the governor s certificate is not conclusive unless 
 made in accordance with the decision of the can 
 vassing board; * * * This raises the question 
 whether the decision of that board can be impeached. 
 I maintain that it can. * * * It will be found suf 
 ficient for the decision of this case that it is impeached 
 for want of jurisdiction in the board to do that which 
 it did; and the effect of which was to change the 
 apparent result of the election. * * * 
 
 "Now, upon the county returns it is not denied, and, 
 indeed, appears by evidence already before us and not 
 contradicted that the Tilden electors received a ma 
 jority of the votes of the people of Florida; and it 
 also appears that it was by throwing out the votes of 
 certain polls or precincts that an apparent majority 
 was shown for the Hayes electors. Had the canvassing 
 board of Florida any authority to throw out those 
 votes? This question has been decided by the highest 
 judicial tribunal of that State, interpreting the statute 
 creating that board and defining its powers. * * * 
 It is perfectly conclusive of the meaning of the statute, 
 as much so as if it were written in the statute in so 
 many words. It follows then that if we are to respect 
 the statute of Florida, which everybody admits must 
 govern the case, the canvassing board, in throwing 
 out the votes for the Tilden electors and thereby giv- 
 
98 The Hayes-Tilden Contest 
 
 ing an apparent majority for the Hayes electors, acted 
 without jurisdiction, and their act was, therefore, 
 absolutely null and void." 12 
 
 Commissioner Abbott, a Representative from Massa 
 chusetts, in concurring with the other Democrats said: 
 
 "Let me not be misunderstood. It is claimed by the 
 Senator from Indiana and those agreeing with him, 
 that the doctrine of State rights bars the way to any 
 inquiry into the question whether the persons from any 
 State claiming to cast its vote are the true electors and 
 compels Congress to confine itself merely to counting. 
 I have always been a true and faithful disciple of the 
 great doctrine of State rights. I have always believed 
 in it, and always expect and hope to remain steadfast 
 in my faith. From day to day I am more assured 
 that there is no way known to man by which our govern 
 ment can be preserved, except by the strictest and 
 firmest maintenance of all the rights of the State. I 
 yield to no man in my fidelity to the doctrine of State 
 rights, but I am not willing to carry it to the extent 
 of doing in its name the greatest wrongs to the States, 
 instead of upholding their rights. There never was a 
 clearer case of stealing the livery of the court of 
 Heaven to serve the devil in, than in thus attempting 
 to wrest the doctrine of State rights to excuse and 
 justify this great wrong to States. * * * 
 
 "I submit that there is no ground," he continues, 
 "upon which the votes of the Hayes electors can be 
 counted. They were, in fact, never elected. To count 
 their votes would be to set aside the judgment of the 
 supreme court, the legislature, and the governor of 
 the State of Florida; it would be to give to the 
 
 12 Proceedings, 834. 
 
The Decision 99 
 
 certificate of two ministerial officers, made by law 
 merely prima facie evidence, a power and effect and 
 conclusiveness not given to the judgments of the highest 
 courts of law; a result never before heard of in the ad 
 ministration of justice. To count those votes would be 
 to declare elected to the high office of President a per 
 son who never received the votes of the people as 
 required by the Constitution, but whose title would 
 depend simply on the illegal, fraudulent action of two 
 State canvassers in Florida. If it were intended to 
 encourage fraud and to show that there was no way 
 known to the law to prevent its perpetration, no bet 
 ter way to do it could be devised." 13 
 
 Thus reasoned and even pleaded all the Democrats. 14 
 
 "Ib. 934, 938. 
 
 "Proceedings: Field, 977; Hunton, 906; Bayard, 873; Clif 
 ford, 1056. Payne did not leave any written argument in the 
 Florida case, but he voted with his brother Democrats, and all the 
 way through the proceedings took an active part. 
 
VI. 
 
 The Executive Authority of Florida. 
 
 NO objection, it will be remembered, to count 
 ing the votes of the Tilden men was based 
 upon any charge of fraud. The point raised 
 by the Republicans against the Tilden 
 electors was that their / certificates or papers were not 
 authenticated according to the Constitution and laws 
 of the United States ;"/ that is, they alleged that the 
 certificate of their electoral votes .sent to the president 
 of the Senate by the Tilden men, "was not accom 
 panied by any certificate of the executive authority of 
 the State of Florida." This objection was based upon 
 the Federal law of March i, 1792, which required "the 
 executive authority of each State to cause three lists 
 of the names of the electors of such State, to be made 
 and certified and to be delivered to the electors ;" one 
 of these was to be annexed to each of the three cer 
 tificates of their votes. 1 As we have seen, the cer 
 tificate of the votes cast by the Tilden men was ac 
 companied, in the first instance, by the certificate of 
 the attorney-general of Florida, certifying to their 
 
 1 On page 733 of the Proceedings, Ashbel Green, of counsel 
 for the Democrats, omits the word "authority when attempt 
 ing to give the law of 1792. A glance at the original act, 1 
 Statutes at Large, 239, 240, shows the omission to be an error. 
 As seen by the quotation from the Revised Statutes, given, for 
 instance, by Mr. Justice Field on page 979 of the Proceedings, 
 the word "authority" was omitted in copying the language of 
 the law of 1792. No one, it seems, compared the words of the 
 compiled work with the original act, and so the full force of 
 the law as undoubtedly meant by those who provided it, was 
 lost, though, of course, in the Revised Statutes the word 
 "authority" is clearly implied. 
 
 100 
 
Executive Author! ty 101 
 
 election. In the second place, the Tilden men presented 
 themselves with a certificate of the governor, the suc 
 cessor of Gov. Stearns, certifying to their election as 
 fully as the law required, but the Republicans objected 
 to the competency of this, first, because they alleged 
 that Gov. Stearns certificate was "in all respects regu 
 lar and valid and sufficient under the Constitution and 
 laws of the United States," and showed that no other 
 person or persons than the Hayes men were duly ap 
 pointed to cast the electoral vote of Florida; and, 
 second, also because they alleged that the governor s 
 certificate, made after the day on which the electors 
 were to vote, "and the proceedings as recited there 
 in as certifying the qualifications of the Tilden men, 
 are ex post facto and retroactive." 
 
 We shall first examine the objection based upon the 
 claim that the Tilden men had no "certificate of the 
 executive authority of the State of Florida," in its 
 application to the certificate of the attorney-general. 
 
 What constituted "the executive authority of the 
 State of Florida?" 
 
 It seems generally to have been taken for granted 
 by both the Commission and the counsel that the gov 
 ernor constituted the sole executive officer of Florida. 
 Neither the law of March i, 1792, upon which the Re 
 publicans relied, nor any other Federal law, attempted 
 to define the executive authority of any State. And it 
 will be noticed that the Republicans insisted that the 
 Federal law and Constitution were the sources upon 
 which they based their objections to the sufficiency of 
 the Tilden certificates, "upon the ground that the said 
 certificates or papers are not authenticated according 
 to the requirements of the Constitution and laws of the 
 
102 The Hayes-Tilden Contest 
 
 United States, so as to entitle them to be received or 
 read, or votes stated therein, or any of them, to be 
 counted, in the election of President of the United 
 States." z Who should exercise "the executive au 
 thority of Florida" or where it should be vested, was 
 left to be determined and denned by the local consti 
 tution and laws of the State. The Constitution and 
 laws of the United States merely assigned the duty 
 of certifying or causing to be certified the election of the 
 electors, and that such certificates, three in number, 
 should be delivered to each elector, by the "executive 
 authority," leaving the State to determine by whom and 
 how that authority should be exercised. 
 
 The Florida constitution of 1868 was the fundamental 
 law of that State at the November election and during 
 the sitting of the Commission. It defines the executive 
 authority. Art. VI., section I, declares that the "su 
 preme executive power shall be vested in a chief magis 
 trate who shall be styled the governor of Florida." 
 This wording suggests the division of executive author 
 ity that we actually find in the constitution. We find 
 that power vested in different officers , which, of 
 course, have different duties, all indicated by the con 
 stitution and the laws pursuant thereto. Notice the 
 language of the Federal Constitution : "The executive 
 power shall be vested in a President of the United 
 States." In the Federal instrument the executive au 
 thority is lodged with one officer; in the Florida in 
 strument that power is distributed, being vested in more 
 than one officer. Each instrument defines the nature 
 and extent of the power. Section 17 of this Art. VI. 
 of the constitution of Florida, which defines the "execu- 
 
 3 Proceedings, 26. 
 
Executive Authority 103 
 
 tive department," says : "The governor shall be as 
 sisted by a cabinet of administrative officers, con 
 sisting of a secretary of State, attorney-general, comp 
 troller, treasurer, surveyor-general, superintendant of 
 public instruction, adjutant-general, and commissioner 
 of immigration." Art. VIII. reiterates these executive 
 officers, and concludes by saying that they "shall assist 
 the governor in the performance of his duties." 3 
 
 What were the governor s duties? What were the 
 duties of the attorney-general? The United States law 
 said that the "executive authority" should "cause three 
 lists of the names of the electors to be delivered" to 
 them ; that is, the governor, as executive authority, 
 should see that the electors received not necessarily 
 from his own hand or under his own signature the 
 evidence of their election; and this they were required 
 to transmit along with the lists of their votes as evi 
 dence to the Federal counting power of authenticity 
 and authority. Whatever means the State had pro 
 vided for the authentication of the votes, it was the 
 governor s duty to have furnished. Said Judge Miller, 
 one of the ablest of the Republican members : 
 
 "It is manifestly the duty, and therefore the right, 
 of the State, which is the appointing power, to decide 
 upon the means by which the act of appointment shall 
 be authenticated and certified to the counting power 
 and to the electors who are to act on that authority. 
 To this proposition I have heard no dissent from any 
 quarter. This evidence of appointment must in its very 
 nature vary according to the manner in which the 
 electors are appointed. If elected by the legislature, as 
 they may be, an appropriate mode would be the signa- 
 
 3 Poore, Charters and Constitutions, 351, 355. 
 
104 The Hayes-Tilden Contest 
 
 tures of the presiding officers of the two Houses to the 
 fact of such appointment, or a certified copy of the act 
 by which they were elected. If appointed by the 
 governor his official certificate with the seal of the 
 State would be an appropriate mode. If elected by 
 popular suffrage, that election should be ascertained 
 and authenticated in the mode which the law of the 
 State prescribed for that purpose." * 
 
 The attorney-general, by the act of the legislature 
 approved February 27, 1872, the law under which the 
 election of November 7, 1876, was held, was made a 
 member of the State canvassing board. Section four 
 says : 
 
 "On the thirty-fifth day after holding any general or 
 special election for any State officer, member of the 
 legislature or Representative in Congress, or sooner if the 
 returns shall have been received from the several coun 
 ties wherein elections shall have been held, the secre 
 tary of State, attorney-general, and comptroller of pub 
 lic accounts, or any two of them, shall meet at the 
 office of the secretary of State pursuant to notice to be 
 given by the secretary of State, and form a board of 
 State canvassers, and proceed to canvass the returns 
 of said election, and determine and declare who shall 
 have been elected to any such office, or any such mem 
 ber, as shown by said returns." B 
 
 One branch of the executive authority, therefore, 
 ascertained who had been elected ; it was the governor s 
 duty to see that a certificate of the result shown by 
 the returns reach the electors. If he made the certificate 
 himself as the Florida act of Aug. 6, 1868, had au- 
 
 * Proceedings, 1010. 
 
 8 Laws of Fla., 1872, p. 19. 
 
Executive Authority 105 
 
 thorized, he could only base it upon the information 
 furnished by the canvassing board. His information 
 was secondary, while that of every member of the 
 State canvassing board as to the men shown by the 
 returns before them to have been elected was primary 
 and direct. For this reason, among others, the Re 
 publicans admitted that it was proper to go behind 
 Governor Stearns certificate and see upon what facts, 
 if any, he had based it. "If a certificate is based on 
 anything else than the legal evidence, it is without legal 
 validity, and that without regard to whether fraudu 
 lently, ignorantly, or a mere casus omissus,"* was the 
 admittedly applicable rule for testing the certificate of 
 the governor. Said Stoughton, of counsel for the 
 Republicans, the distinguished New York lawyer: 
 "Undoubtedly, upon questions of forgery, upon ques 
 tions of mistake, upon many questions, this tribunal 
 could deal" with "the governor s certificate." 7 Said 
 Bradley, "the fifteenth man:" "I consider the gov 
 ernor s certificate of the result of the canvass as 
 prima facie evidence of that fact, but subject to exam 
 ination and contradiction." 8 And again: "While it 
 must he held as a document of high nature, not to be 
 lightly questioned, it seems to me that a State ought 
 not to be deprived of its vote by a clear mistake of fact 
 inadvertently contained in the governor s certificate, 
 or (if such case may be supposed) by a wilfully false 
 statement. It has not the full sanctity which belongs 
 to a court of record, or which, in my judgment, be- 
 
 8 2 Ells, 433, Chester H. Rowell, Dig. Contested Elec. Cases, 
 660. 
 
 7 Proceedings, 112. 
 Ib. 1030. 
 
io6 The Hayes-Tilden Contest 
 
 longs to the proceedings and recorded acts of the final 
 board of canvassers." 9 And Republican Commissioner 
 Strong: "I admit that the governor s certificate is not 
 unimpeachable." 10 
 
 In 1868 the supreme court of Florida, in State vs. 
 Gleason, said: 
 
 "The attorney-general is the legal guardian of the 
 people * * * his duties pertain to the executive 
 department of the State, and it is his duty to use 
 means most effectual to the enforcement of the laws, 
 and the protection of the people, whenever directed by 
 the proper authority, or when occasion arises." 1 And 
 the attorney-general, conscious of his high duties, 
 himself recognized that he was part of the executive 
 authority of his State. 12 
 
 Under the laws of his State, which defined the 
 duties of all officers thereof, the attorney-general could 
 not have refused to give his certificate without 
 perjuring himself. His knowledge of the facts and his 
 view of the law gave the occasion indicated by the 
 supreme court when it declared that the duty of the 
 attorney-general was "to use means most effectual to 
 the enforcement of the laws, and the protection of the 
 people." 
 
 Now, since the attorney-general was by the con 
 stitution and law a part of the executive authority of 
 Florida, and had been so recognized by the courts long 
 before 1876; and since it was a part of his executive 
 duty to know of his own inspection and count of the 
 
 9 Ib. 1023. 
 
 10 Ib. 998. 
 
 12 Fla. 190, 212. 
 
 18 Sen. Rep. 611, Evidence, 35: 44 Cong., 2nd sess. 
 
Executive Author! ty 107 
 
 returns who had been elected, I submit two conclu 
 sions follow: i. The attorney-general s certificate was 
 from and by the executive authority of Florida; 2. Be 
 ing executive authority and issued upon direct and 
 primary information as to what the returns showed, and 
 issued in discharge of a legal duty, issued for the pro 
 tection of the people and for the maintenance of the 
 majority voice of the voters of the State, it was suf 
 ficient to indicate that Governor Stearns certificate 
 was based upon something that was either a fraud or 
 a usurpation or a mistake. Its least proper weight 
 necessitated the admission of evidence excluded from 
 the record upon which the Republicans left their de 
 cision; being the certificate of the executive authority 
 of Florida, it was, under the State law and under the 
 Federal Constitution, of no less dignity than that of 
 the governor and amply counterbalanced his authentica 
 tion. 
 
 Upon the record, therefore, the objection that the 
 Tilden men s votes were not accompanied by any cer 
 tificate of the executive authority of the State of 
 Florida, is without warrant in the facts and wanting 
 in legal validity. This is the first serious legal defect 
 in the majority decision, and affects the validity of Mr. 
 Hayes title. A study of the facts in relation to the 
 quo warranto and mandamus actions will develop, I 
 submit, even graver legal errors. 
 
 Before entering these latter subjects, to make the 
 historical story complete we need to notice a little 
 more fully the result of the inquiry into the eligibility 
 of Humphreys. He appeared in person as a witness 
 before the Commission, admitted holding the office of 
 United States shipping-commissioner, and stated that 
 
io8 The Hayes-Tilden Contest 
 
 he had resigned as such officer, and exhibited letters 
 tending to show that his resignation had been accepted 
 October 5, 1876, by Judge W. B. Woods, the judge of 
 the United States circuit court for the northern dis 
 trict of Florida. It was in this court in open session 
 that the appointment was made. The resignation had 
 been mailed to Judge Woods and received by him 
 while visiting in Newark, Ohio, and from the latter 
 point Judge Woods had written and mailed what pur 
 ported to be an acceptance of the resignation. The 
 Democrats claimed that this act was not a valid accept 
 ance, but was the act of an individual and not the act 
 of the court. Judge Woods admitted that he could 
 fill the office only while actually holding court; and 
 it was insisted that the resignation could be accepted 
 by the court only when in legal session. 13 
 
 After the matter had been fully considered, Thur- 
 man, as mentioned in the preceding chapter, offered 
 the resolution : "That F. C. Humphreys was not a 
 United States shipping-commissioner on the 7th day 
 of November, 1876." Then the record says, "After 
 debate, Mr. Commissioner Thurman withdrew his 
 resolution." What the Democrats of the Commission, 
 other than Thurman, thought as to Humphrey s eligi 
 bility there is nothing in the proceedings to show. 
 
 That all the Democrats regarded Humphreys as 
 eligible, a question entirely apart from whether or not 
 he had been elected, I feel sure ; for the conclusion em 
 bodied in Thurman s resolution, in the light of the 
 evidence, is at least supported by the equity of the 
 matter. There is important authority in America that 
 an officer may resign at pleasure without the assent 
 
 "Proceedings, 186. 
 
Executive Authority 109 
 
 of the appointing power, although this doctrine is 
 not supported by perhaps a majority of cases. By the 
 acts of April 10, 1869, and of March 3, 1871, the 
 power and jurisdiction of Federal circuit judges are 
 limited to their respective circuits. 14 Outside of his dis 
 trict and in Ohio, Judge Woods had no official power. 
 The "general doctrine is that all judicial business must 
 be transacted in court," and therefore the attorneys 
 who argued that the act of Judge Woods in attempting 
 to accept the resignation while in Ohio, was the act of 
 an individual and not that of a judge, is supported 
 by good authority. 15 But Humphreys had at least 
 meant to resign, had ceased to use the office, and had 
 in all good faith become a candidate for Presidential 
 elector. If he were elected his vote was properly 
 counted, under the circumstances. The case in its real 
 merits, in my opinion, rests on the question as to his 
 election. 
 
 Had the Commission gone into a hearing of the evi 
 dence that had been gathered by the Congressional 
 committee and that the Democrats asked the Com 
 mission to consider, a far more serious difficulty would 
 have been encountered as to the eligibility of another 
 one of the Hayes claimants, C. H. Pearce. Although 
 the facts upon which it was claimed that Pearce was 
 ineligible as an elector were contained in this report 
 and the evidence accompanying it made by a com 
 mittee, whose majority was Republican, sent out by 
 the Senate for the purpose of gathering the facts con 
 cerning the electors, or those who claimed to be 
 electors, and although this report and its accompanying 
 
 14 4 Fed. St. Anno., 39, 16 St. L. 44, 494. 
 
 19 Am. & Eng. Enc. Law, 562 s; 4 Enc. PL & Pr. 337. 
 
no The Hayes-Tilden Contest 
 
 evidence was submitted to the Commission by Shella- 
 barger, one of the Republican counsel, and had been 
 taken as part of the Republican statement, 10 the facts 
 were never considered by the Commission, except in 
 so far as they were a part of the evidence rejected 
 by the Republican majority. 
 
 Before the election Pearce had been convicted in 
 the Florida courts of felony. He had been found 
 guilty of "corruptly offering a sum of money to a 
 legislative officer of the State of Florida," a bold at 
 tempt at the most unpardonable bribery, than which 
 few crimes are more reprehensible. 
 
 He had, previous to the election, been pardoned, at 
 least prima facie; but it was claimed that he had not 
 been restored to civic rights, since under the laws of 
 Florida, as is true in other States, one convicted of 
 felony is deprived of his right to hold office or to vote. 17 
 Prior to that time the United States Supreme Court in 
 United States vs. Wilson, 7 Peters, 150, had held that 
 a mere pardon does not restore to civic rights. 18 
 
 However, so far as the will of the people of Florida 
 is concerned, the right or the wrong of counting the 
 votes of these Republicans, rests on the fact of bona 
 fide appointment by the State. 
 
 16 Proceedings, 53. 
 
 17 Senate Report 611, Minority Report, 13: 44 Cong., 2nd 
 sess; 14 Fla., 153, where Pearce s case is fully reviewed by the 
 supreme court of Florida. 
 
 18 See also Virginia supreme court, 2 Leigh, 724; and the 
 Illinois court, Foreman et al vs. Baldwin. 24 111. 298. 
 
VII. 
 
 The Hayes Usurpers. 
 The Florida Quo Warranto Proceeding. 
 
 THE Republican majority of the Commission 
 decided that it was not competent under the 
 Constitution and the law to admit the "pro 
 ceedings of the courts or acts of the legisla 
 ture or of the executive of Florida subsequent to the 
 casting of the votes of the electors on the prescribed 
 day" to question "the determination and declaration" of 
 the board of State canvassers made by that board 
 before the day upon which the electors were by law 
 directed to perform their duty. The Democrats in 
 sisted most earnestly upon both the competency and 
 sufficiency of this evidence thus ignored. To these 
 respective positions, involving what are known as the 
 States subsequent acts regarded by the Commission 
 as aliunde the papers opened by the president of the 
 Senate in the presence of the two Houses, we now 
 direct our attention. 
 
 Shellabarger, eloquent and full of bold fire, made a 
 representative assault upon the Democratic position. He 
 insisted: "Therefore every act of the State in the 
 way of exercising power must be appointment and 
 appointment in the very nature of the case cannot 
 follow the day when the first and the last and the 
 only act of the functionary must, by the Constitution 
 and the law, be completely and forever discharged. Is 
 it not plain, therefore, thus far, that it was the design 
 of the Constitution, is the express requirement of the 
 in 
 
H2 The Hayes-Tilden Contest 
 
 Constitution, that every act of the State, being all ap 
 pointment and appointment only, shall antedate the 
 vote?" 
 
 Commissioner Thurman, since well-known as the 
 Democratic Vice-Presidential candidate, formerly chief 
 justice of the supreme court of Ohio, interrupted with 
 a question representative of the Democratic and what 
 is believed to be the true ground : "Suppose," asked 
 Senator Thurman, "it be granted that every act which 
 constitutes the appointment must be done before the 
 day when the electors cast their votes, does it follow 
 that there can be no inquiry afterwards as to whether 
 there was any appointment made?" 
 
 "That is a fair question," replied Attorney Shella- 
 barger. "It deserves a fair, frank, and square answer, 
 and I shall make it as I proceed as well as I can." 
 
 Watch his argument. Proceeding with his answer, 
 he says: "If an elector on the voting day is endowed 
 with all the insignia of right, with all the apparent 
 title of office that can, according to the then existing 
 State machinery, he held on that day, he is, to every 
 possible legal intent, as against the State, the elector 
 both de facto and de jure. * * * I wish to state it 
 with the utmost care about my words when that po 
 litical transaction by the State has been discharged ac 
 cording to the requirements of the law of the State 
 as it existed upon the day of voting, then the power 
 of the State over the subject-matter is an accomplished 
 process of government on the part of the State, and 
 the power of the State over the subject-matter has 
 passed forever away." 1 
 
 Constantly and in every conceivable form this argu- 
 
 i Proceedings, 167, 172. 
 
The Hayes Usurpers 113 
 
 ment was repeated by the Republicans. The argument 
 is a petitio principii. 
 
 Had the Hayes men "insignia of right?" Whether 
 the Hayes claimants were usurpers or men having "all 
 the insignia of right," depended upon what the "ex 
 isting machinery" made it proper to be done so as to 
 give even "apparent title of office." The argument is 
 fatal in that it ignores the "apparent title of office" 
 held "on the voting day" by the Tilden claimants. The 
 argument is erroneous in that it assumes that the 
 acts of the Hayes claimants and of the pro-Hayes 
 canvassing board constituted the "political transaction 
 by the State." What were "the requirements of the 
 law of the State as it existed upon the day of voting?" 
 Certainly it is true that if the acts of the Hayes men 
 constituted the State s political transaction, we may 
 concede that then there had been an "accomplished 
 process of government." But the Democrats insisted 
 that the acts of the Hayes claimants had not become 
 the State s political transactions; that they were 
 usurpers, and had not acted according to the require 
 ments of the law of the State as it existed before and 
 on the day of voting. The Democrats argued that 
 what the Hayes men claimed to be an "insignia of 
 right," was null, void, and of no force whatever. The 
 Democrats based their claims, among others, upon 
 the ground that the Constitution of the United States 
 guaranteed to each State the common law remedy 
 known as a writ in the nature of a quo warranto, or 
 simply the quo warranto, its synonymous equivalent, 
 as we often term the action; that that action was then 
 the law of Florida, and that it had been invoked to 
 determine the rights as between the two sets of 
 
ii4 The Hayes-Tilden Contest 
 
 electoral claimants. They insisted that this remedy, 
 as to which the rights of the State under the Consti 
 tution remained unchanged, belonged to ihe courts of 
 the State; that it was applicable as between the Hayes 
 and Tilden claimants; and that the judgment therein 
 not only determined the rights of the claimants parties 
 thereto, but that that adjudication determined con 
 clusively which acts, if any, of those parties had be 
 come and were the acts of the State, defined as 
 against the world whether or not, and if so wherein, 
 there had been a political transaction by the State. 
 And, being definition and determination of appointment 
 preceeding, might properly be reached and announced 
 after the day upon which electors were required to 
 meet and to vote. 
 
 Which contention was correct? A satisfactory 
 answer to this question may be had by determining: 
 (i) What was then the law of QUO warranto actions 
 as settled in America in general and in Florida in 
 particular. (2) Having found the law, by seeing 
 whether the Federal Constitution denies to a State 
 the right to apply any part thereof to a quo warranto 
 proceeding inquiring who had been appointed her 
 electors of President and Vice-President. 
 
 First, then, of the action and its scope and time 
 of judgment. 
 
 A view of the facts of the case should be clearly 
 seen before we examine the law. Judge Field cor 
 rectly tells us : 
 
 "As soon as it was known that the canvassers had 
 certified to the election of the Hayes electors, the 
 Tilden electors filed an information in the nature of 
 a quo warranto against them in one of the circuit 
 
The Hayes Usurpers 115 
 
 courts of the State, to determine the validity of their 
 respective claims to the office of electors. This pro 
 ceeding was commenced upon the day on which the 
 canvass was completed, and process was served on the 
 Hayes electors before they had cast their votes. The 
 circuit court had jurisdiction of the proceeding by the 
 constitution of the State, the eighth section of which 
 provides in terms that the circuit court and the 
 judges thereof shall have power to issue writs of 
 quo warranto. In the information the Tilden electors 
 alleged that they were lawfully elected to the office of 
 electors, and that the Hayes electors were not thus 
 elected, but were usurpers. The Hayes electors ap 
 peared to the writ, and, first upon demurrer, and after 
 wards upon an investigation of the facts, their right 
 to act as electors was determined. And it was adjudged 
 that the Hayes electors were never appointed, and 
 were never entitled to assume and exercise the func 
 tions of that office, and were usurpers; but that the 
 Tilden electors were duly appointed at the election on 
 the 7th of November, and were entitled on the 6th 
 of December to receive certificates of election, and 
 on that day and ever since, to exercise the powers and 
 perform the duties of that office." 
 
 The writ, let the reader remember, for it is im 
 portant in a legal aspect, was served upon the Hayes 
 men before their vote, but after they had attempted 
 to exercise the functions of the office of electors. They 
 appeared to the writ, and the questions raised were 
 fought before the courts until final judgment by the 
 supreme court of the State, which was rendered before 
 the Federal count. The best obtainable local and 
 visiting counsel appeared in the case. General Lew 
 
ii6 The Hayes-Tilden Contest 
 
 Wallace, as the special counsel for the National Re 
 publican committee, led the fight for the Republicans, 
 appearing personally in the case both before the cir 
 cuit court and before the supreme court, as he after 
 ward stated under oath. 2 
 
 Upon these facts Judge Field, in common with the 
 other Democrats on the Commission, concluded: "That 
 action seems to me to be conclusive of the case, * * * 
 especially when considered in connection with the ac 
 tion of the legislature of the State." 3 
 
 With splendid logic Bayard argued: "There can 
 be no doubt that under the constitution and laws of 
 Florida the court had jurisdiction, had the parties be 
 fore it, and entered judgment in accordance with the 
 law and the facts. This proceeding was commenced 
 on the day on which both sets of electors assumed to 
 act, on which day the board of canvassers rendered a 
 decision which was declared by the courts to be erro 
 neous and fraudulent, but which did not prevent the 
 true electors from acting upon the fact of their elec 
 tion and casting the votes according to the Constitu 
 tion and the laws of the United States. There was 
 in this case no retroactive force of law. The fact had 
 been determined on the 7th of November, 1876, by the 
 citizens of Florida at the polls, who were the elec 
 tors ; the function of electors was discharged by those 
 whom that election has proven to have been elected 
 on the 6th day of December. It is no case, as has 
 been suggested, of reconsideration by the tribunals and 
 legislature of a State, changing the result of an elec 
 tion; it is no question of violation of the requirements 
 
 *Ho. Miscl. Doc. No. 31, p. 516: 45 Cong., 3rd sess. 
 3 Proceedings, 983. 
 
The Hayes Usurpers 117 
 
 of the Constitution that the votes should all be cast 
 on the same day through the United States. The 
 votes were cast on the day named by the act of Con 
 gress, and shall it be because some false votes were 
 cast by pretended electors on the same day that the 
 true votes were cast by the real electors, that, there 
 fore, the action of the latter is to be nugatory? There 
 is no want of performance of every constitutional and 
 legal requirement by Call and his three associates, the 
 Tilden electors. -By the judgment of the courts of 
 Florida the fact is conclusively fastened upon the 
 knowledge of this tribunal, and its effect is binding 
 upon them, that on the 7th day of November, 1876, 
 Wilkinson Call and his three associates were duly 
 and truly chosen, in the manner prescribed by the 
 legislature of the State of Florida, electors for Pres 
 ident and Vice- President, and that on December 6, 
 1876, they lawfully performed the functions of their 
 said office, which they certified duly to the two Houses 
 of Congress." 
 
 Upon these facts, then, let us find the laws govern 
 ing quo zvarranto in its application to electors of Pres 
 ident and Vice-President. 
 
 The writ of quo warranto comes to us through the 
 common law from England. It originated in 1198, 
 during the reign of Richard I. In the course of time 
 the procedure underwent some change and came to 
 be known as "the information in the nature of a quo 
 warranto." This latter is the form of the writ now 
 used in England and in the States of the United States. 
 In America "quo warranto" and "writ in the nature 
 of a quo warranto," are used as "synonymous and 
 convertible, the object and end of each being sub- 
 
ii8 The Hayes-Tilden Contest 
 
 stantially the same."* This construction was held in 
 terms by the Florida court at least as early as i868. s 
 The purpose of the action is to correct the "usurpa 
 tion of a public office or corporate franchise by try 
 ing the right and ousting the usurper." 8 As High, 
 a well-known legal authority, tells us, this procedure 
 is "employed to test the actual right to an office or 
 franchise." 7 Its purpose is not to correct wrongs by 
 an officer, or one who claims to be an officer, nor is 
 it applicable "where a public officer threatens to exer 
 cise power not conferred upon him by law." There 
 must be some use of the function or right claimed, 
 before the grounds upon which the writ can be in 
 voked shall have been complete. In such cases, as 
 expressed by one of our latest standard authorities, 
 the action lies "either where a person has usurped an 
 office, a franchise, or a liberty, or where, having had 
 such office or franchise he has by non-user or abuse 
 forfeited it." 8 
 
 In Florida, as well as Arkansas, California, Connect- 
 cut, Dakotas, Georgia, Illinois, Indiana, Kansas, Ken 
 tucky, Maine, Massachusetts, Michigan, Mississippi, 
 Montana, Nevada, New Hampshire, New Jersey, New 
 York, North Carolina, Ohio, Pennsylvania, Rhode Is- 
 and, South Carolina, Texas, Virginia, and England, 
 there are scores of unbroken decisions establishing 
 beyond dispute that a quo warranto or "an information 
 
 17 Enc. PI. and Prac. 383. 
 
 8 State vs. Gleason, 12 Fla., 190, 208. 
 
 6 Com. vs. Murray, 11 S. & R. (Pa.), 73; 14 Am. Dec., 614; 
 State vs. Portland, &c., 58 N. H., 113. 
 
 7 Ext. Legal Rem., 2nd ed., sec. 618. 
 
 8 17 Enc. PI. & Pr., 393; Atty.-Gen. vs. Salem, 103 Mass., 
 139; People vs. Bristol, 23 Wend. (N. *.), 223. 
 
The Hayes Usurpers 119 
 
 in the nature thereof, is the proper remedy to try the 
 title to a public office against one who usurps the 
 same and to oust the usurper." 9 This action "lies 
 against a person claiming an office under a commission 
 from the governor," no less than in cases where the 
 authority under which the office is held comes directly 
 from the people. 10 
 
 There can, therefore, be no question that the pro 
 ceeding in the nature of a quo warranto, which was 
 employed to test the question of title as between the 
 Tilden and Hayes claimants, was the correct remedy. 
 It not only belonged to the common law 11 and became 
 the common heritage of the American States, but it 
 belonged to the courts of Florida by specific authority 
 of her constitution, and had been long the machinery 
 recognized by the legislature and courts for the very 
 purposes for which it had been created and so long 
 preserved. Long before the Hayes-Tilden contest the 
 courts of Florida had resorted to the remedy for the 
 correction of wrongs similar to those charged in the 
 case before us. In 1868 the supreme court in the case 
 of the State vs. Gleason held that a proceeding in the 
 nature of a quo warranto was the only remedy known 
 either to the common or statute law of the State for 
 correcting the usurpation of a public office. 12 The 
 court said: "Our legislature has not seen fit to make 
 any change in the common law rule." 13 In 1873 again 
 
 9 17 Enc. PI. & Pr., 398; Ames vs. Kansas, 111 U. S. 449, 
 cited in Foster vs. Kansas, 112 U. S. 206; Sparf vs. U. S. 
 156 U. S. 129; Bachman vs. State, 34 Fla. 57. 
 
 10 17 Enc. PI. & Pr., 399. 
 "3 Bla. Com. 263. 
 
 "12 Fla., 190, 211. 
 13 Ib. 213. 
 
120 The Hayes-Tilden Contest 
 
 the supreme court of Florida in Robinson vs. Jones, 
 announcing the rule, said: "The effect of the State 
 Code is simply to affirm and to continue the common 
 law rule as to the right of action, at the same time 
 authorizing that right of action to be asserted through 
 the instrumentality of a civil action under its pro 
 visions. We have heretofore held that the Code does 
 not in such a case as this exclude or abolish the remedy 
 by information (in the nature of a quo warranto.)" 
 The rule in this respect thus laid down is the settled 
 law of Florida. 14 
 
 It is not a little strange, therefore, in the light of the 
 quo warranto law as universally applied in America 
 and as it had been so long settled in Florida, that 
 we find some of the Republicans of the Commission, 
 especially Judge Miller, insisting that this proceeding 
 was not, at any time in this case, the proper remedy. 15 
 While some of them admitted the remedy, had the 
 judgment been rendered a physical impossibility under 
 the circumstances before the claimants to the right 
 of electorship had cast, sealed, and despatched their 
 votes, all of the Republicans united in insisting that 
 the fact that the quo warranto judgment was not 
 reached by the court until several days after the 
 claimant-electors had exercised the functions which 
 they claimed to be rightfully theirs, rendered the judg 
 ment entirely without validity. It is probable that this 
 contention that the judgment was void because it was 
 "a post hack decision," as they called it, had more 
 weight than any other at the time in leading the public 
 
 "Robinson vs. Jones, 14 Fla. 256; State vs. Gleason, 12 Fla. 
 190; State vs. Jones, 16 Fla. 306; State vs. Anderson, 26 Fla. 
 240. 
 
 18 Proceedings, 999, 1008, 1024. 
 
The Hayes Usurpers 121 
 
 to accept the decision of the Commission as founded 
 upon some show of legal right; yet this contention has 
 no more foundation in law than the assertion that 
 Hayes received a majority of the popular votes in 
 Florida at the election, had in truth. 
 
 The right to proceed to judgment after the expira 
 tion of the office and after the time when the functions 
 of the office either have been or should have been 
 exercised, always obtains where there is some sub 
 stantial right to be subserved by such a judgment. 
 Than this no principle in America is more correctly 
 or more firmly settled. 10 
 
 Until the electoral votes of a State have been counted 
 by the Federal counting power, the State yet has a 
 right in fieri : the substantial right to have her bona fide 
 authoritative votes counted. 
 
 Now the quo warranto proceeding as applied in this 
 case by Florida, the final determinant procedure under 
 her law in appointing her electors, was "to obtain a 
 judicial declaration and enforcement of existing rights, 
 not to create or destroy them." This is, let us not 
 forget, the prime purpose of the action, as it has been 
 since its origin. 17 The quo warranto determined the 
 question: Which was the political action of the State?" 
 It did not revoke any act of electors , it did not at 
 tempt to do so ; it ascertained whether there had been 
 an act of the State. As pointed out by Commissioner 
 Hunton : 
 
 "Although the electors had voted before the judg- 
 
 18 17 Enc. PI. & Pr., 485; Com. vs. Swasey, 133 Mass. 540; 
 Dean vs. Miller (Neb. 1898), 76 N. W. Rep. 555; People vs. 
 Rogers, 118 Cal. 394; State vs. Pierce, 35 Wis. 101. 
 
 "19 Am. Eng. Enc. Law, 663. 
 
122 The Hayes-Tilden Contest 
 
 ment in quo warranto, yet that judgment was rendered 
 in time to instruct us on the point which we are to 
 decide and determine, which set of electors has been 
 duly appointed." 18 The judgment determined which 
 set of votes the State had the right to have counted. 
 
 In other words, the judgment was rendered in time to 
 oust a fraudulent claim on the one hand, and on the 
 other to give a "judicial declaration of an existing 
 right" the right of Florida to be represented by the 
 Tilden electors, a right created by the ballot on No 
 vember 7, 1876, and which, at the rendition of the judg 
 ment, was yet to be made known to the Federal count 
 ing power. 
 
 The acts involved, therefore, in the quo warranto 
 proceedings were of the very highest public nature, 
 and were yet potential. In such cases the law of 
 Florida, and in America generally, in all cases of pub 
 lic servants, the elector being no exception, makes 
 applicable the quo warranto even where the term of 
 the office has expired. This is especially true where, as 
 in the Florida Case, the application for the writ is 
 made at the earliest possible opportunity, the action 
 being necessary to determine the validity of the acts 
 of which the relators complain. 
 
 The certainty of the grounds of the writ is heightened 
 where the acts of which complaint is made are in 
 tended to confer rights upon others. The acts of the 
 Republican claimants in attempting to cast the electoral 
 vote of Florida were intended to confer upon Hayes 
 the right to the Presidency of the United States. At 
 the time of the court s judgment he had not been in 
 vested with that high right: the Tilden men in the 
 
 18 Proceedings, 906. 
 
The Hayes Usurpers 123 
 
 quo warrant o arrested it at its source ; the court, at 
 their instance, held up the cloak and exposed to view 
 the fraud for the information of the Federal counting 
 power. The mischief of which the Tilden men com 
 plained had not been consummated when the quo zvar- 
 ranto judgment was handed from the bench; it was 
 arrested in transitu, and the Federal counting power 
 was shown that the Republicans had no right to cast 
 for Hayes the electoral vote of Florida. That judg 
 ment destroyed no right in the Hayes pretenders; it 
 was the search-light of the State locating her political 
 act as defined by her laws provided before this bitter 
 contest, by which laws alone it could be her act. This 
 judicial illumination created no right in the Tilden 
 claimants: it discovered to the Federal counting power 
 an existing right and pledged the faith and power of 
 the Commonwealth of Florida to enforce recognition 
 of that right: it made plain that that right was the 
 function of the Tilden men to cast for Florida her 
 electoral vote. 
 
 Then, having jurisdiction over the remedy by quo 
 warranto, having had jurisdiction and service upon the 
 parties, it only remains to see the scope that the court 
 might take in the case. The Republicans on the Com 
 mission held that the pro-Hayes report of the State 
 canvassing board constituted the act of the State ; and, 
 therefore, that the State canvassing board was the 
 final determinant of the question as to who had been 
 elected at the election of November 7, 1876. This 
 conclusion of the Commission was in violation of the 
 jurisdiction in such cases accorded courts in quo war 
 ranto actions, since the very origin of the action. That 
 courts may go behind the return of the canvassers and 
 
124 The Hayes-Tilden Contest 
 
 investigate all the facts of the election, is the un 
 doubted jurisdiction of the court. Basing a deduction 
 of the rule upon a long line of well-recognized au 
 thorities, High says : 
 
 "It is now the well-established doctrine, that in pro 
 ceeding upon information to test the title to a public 
 office, the return or certificate of the canvassing officers 
 as to the result of the election, is not conclusive as to 
 the result or to the title to the office. Such officers 
 are, in general, held to be only ministerial officers, 
 vested with no judicial functions whatever, and their 
 return is, at the most, but prima facie evidence in favor 
 of the incumbent to the office. The courts will there 
 fore go behind such return, and will investigate the 
 facts of the election, the number of votes cast, and the 
 legality of the action of the canvass. * * * But as 
 between the actual ballots cast at the election, and the 
 canvass of those ballots by the canvassing officers, the 
 ballots constitute the primary and controlling evidence 
 of the election. So the fact that the incumbent de 
 facto of an office holds a commission, therefore, is not 
 conclusive as to his right, since the title is derived from 
 the election and not from the commission." 19 As 
 shown more fully elsewhere herein, the rule as thus 
 stated was the law of Florida at the time of this case. 
 It was not only the well-recognized jurisdiction of the 
 court as founded upon the common law rules, but it 
 was a part of the fundamental law of the State. Sec 
 tion 16, article 16, of the Florida constitution provides: 
 "A plurality of votes given by the people at an election 
 shall constitute a choice." When the law of 1872 
 
 "Extra. Legal Rem., 2nd ed., sees. 638, 639a, 76; 19 Am. 
 & Eng. Enc. Law, 673. 
 
The Hayes Usurpers 125 
 
 provided that electors of President and Vice-Presi 
 dent of the United States should be "elected," this 
 provision of the constitution made the plurality of the 
 actual legal ballots cast at the election the controlling 
 evidence of the election. 
 
 Therefore, when the State court exercised jurisdic 
 tion to determine whether or not the pro-Hayes report 
 of the State canvassing board was valid, it was fully 
 within its jurisdiction and right as defined by the 
 State constitution and law. The judgment of the court 
 and not of the canvassing board was the credential 
 upon which the Federal counting power should have 
 relied in counting the electoral votes of Florida, unless 
 there were some prohibition in or authorized by the 
 Constitution of the United States rendering some ele 
 ment of the State law or procedure unavailable in the 
 case of Presidential electors. 
 
 Then, second, in reference to Presidential electors, 
 does the Federal Constitution forbid or authorize Con 
 gress to prohibit to a State the use of any one of these 
 rules of quo warranto? 
 
 The only provisions of a Federal nature bearing upon 
 this point are in the Constitution which says : "The 
 Congress may 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 ;" 20 and in the law, pursuant to this 
 provision, which indicates the time of the choice and 
 names the day for the meeting of the electoral college. 
 
 Now, remembering that the fundamental principles 
 of quo warranto are neither new nor peculiar to 
 Florida, having been the law long before the Hayes- 
 
 80 Art. II., sec. 1. 
 
126 The Hayes-Tilden Contest 
 
 Tilden contest, and being well known at the formation 
 of the Constitution, let us see if any fair interpretation 
 will serve to render the State functus offlcio to deter 
 mine which of claimant parties were the rightful 
 electors, by proceeding after the day upon which the 
 rival claimants had attempted to cast the electoral vote 
 of the State. 
 
 Let us find whether or no electors are Federal or 
 State officers, and what powers the Federal government 
 may exercise over electors. Defining the powers of 
 the Federal government over electors, Commissioner 
 Garfield correctly said : 
 
 "To sum up these limitations in brief, in obedience 
 to the Constitution, Congress fixes the day for choosing 
 the electors, and the day when they must vote. It 
 prescribes the number of electors for each State, and 
 limits their qualifications. These are the only limita 
 tions upon the authority of the States in the appoint 
 ment of electors of the President. Every other act 
 and fact relating to their appointment is placed as 
 absolutely and exclusively in the power of the States, 
 as it is within their power to elect their governors or 
 their justices of the peace. Across the line of these 
 limitations Congress has no more right to interfere 
 with the States than it has to interfere with the election 
 of officers in England." 21 
 
 "The appointment and mode of appointment belong 
 exclusively to the State. Congress has nothing to do 
 with it, and no control over it," said. Judge Bradley 
 concurring with Garfield. 22 The appointment of 
 
 21 Proceedings, 965-6. 
 
 22 Ib. 1020. 
 
The Hayes Usurpers 127 
 
 electors belongs by the Constitution wholly to the 
 States, "who shall appoint in such manner as the legis 
 latures thereof may direct," said Judge Miller. 32 Said 
 Judge Strong: "The appointment of electors however it 
 may be is peculiarly and exclusively a State affair. 
 * * * She has entire control over the elections, 
 over the returns, and over the canvass." 24 
 
 Hence, it has long been settled that, "although the 
 electors are appointed and act under and pursuant to 
 the Constitution of the United States they are no more 
 officers or agents of the United States than are mem 
 bers of the State legislature when acting as the 
 electors of Federal Senators or the people of the States 
 when acting as the electors of Representatives in Con 
 gress," as the Supreme Court of the United States said 
 in the case of Green, where the question was directly 
 in issue. 25 
 
 Therefore, being so peculiarly a State office, the 
 Federal government most certainly cannot protect it 
 against usurpation. The framers of the Constitution 
 and the States that ratified it well knew that the 
 common law remedy by the writ in the nature of a 
 quo warranto was the remedy by which the sovereign 
 protected against "usurpation or intrusion into, or 
 unlawfully holding and exercising," all offices or fran 
 chises created by the sovereign power and filled either 
 by the king or by the people. They knew that since 
 1710 the statute of Qth Anne had given private persons 
 the right to have and prosecute this writ in such man- 
 
 23 Ib. 1009. 
 
 24 Ib. 997. 
 
 2 In re Green, 134 U. S., 377, 379-80. 
 
128 The Hayes-Tilden Contest 
 
 ner as is usual in cases of information in the nature of 
 a quo warranto. 20 
 
 It was well-known that in such cases, prosecuted 
 either by the sovereign or by private relators, the 
 courts were authorized and empowered to give judg 
 ment of ouster and also to impose a fine upon the 
 defendant; and that the relators might have in their 
 favor judgment against the defendants for costs. Amer 
 icans knew that Blackstone had said: "The judgment 
 on a writ of quo warranto (being in the nature of a 
 writ of right) is final and conclusive, even against the 
 crown;" 27 and that though not so conclusive in later 
 English practice, it was the common law s great in 
 strument for protecting against usurpation and in 
 trusion all "offices and franchises by punishing the 
 usurper or intruder," no less than to recover to the 
 State a usurped office or franchise; and that it was 
 both penal and civil in its nature. 28 
 
 Punishment must succeed the wrong. The power 
 to punish inherently carries the power to determine 
 the rights of those over whom the jurisdiction extends. 
 The Constitution gave the elector a function on a 
 definite day, one day; the common law writ in the 
 nature of a quo warranto gave the court having juris 
 diction over the party exercising that function the 
 power to protect it by punishing usurpers or in 
 truders. The jurisdiction of the quo warranto, the 
 nature of punishment; the brevity of the time for 
 exercising the function of the office, all render it im 
 possible for a court to proceed to judgment upon a 
 
 26 9 Anne, ch. 20. 
 
 "3 Cooky s Bla. 264. 
 
 4 Bla. 312. 
 
The Hayes Usurpers 129 
 
 writ of this nature before the expiration of the time 
 for the act by the elector. 
 
 Then, the limitation of the Constitution as to the 
 day upon which the elector must act, left the State not 
 alone with "entire control over the elections, over the 
 returns, and over the canvass," but with the power of 
 protecting the office. Such a right is inherent in the 
 very nature of government, as the Supreme Court of 
 the United States in 1865, in Territory vs. Lock-wood, 
 said. 29 Such a right being inherent in government ; 
 and, unquestionably not in the United States govern 
 ment as to the office of Presidential electors, 80 must 
 adhere in the State government: the elector is the 
 officer of the State and his office is under the protec 
 tion of the State. Since it is undisputed that an 
 elector is exclusively a State officer or representative 
 and his office or function peculiarly and exclusively 
 under the protection of the State ; and since it was 
 well known that the quo warranto was only available 
 where there had been user or attempt at user; and 
 since user or attempt could occur only and solely on the 
 day, the one day, certain and fixed by Congress ; and 
 since there was no other remedy of a like adequate 
 nature known to the common law; and since the 
 United States Constitution provided no Federal remedy 
 for protecting the office of elector, it seems to me an 
 irresistible conclusion that the Federal Constitution pre- 
 . vs. Lockwood, 3 Wall. 236, 240. 
 
 30 In harmony with the general principles of interpretation, in 
 the act of Congress of May 31, 1870, conferring upon 
 Federal circuit courts jurisdiction of suits to recover offices, 
 electors of President and Vice-President are excepted, thus 
 again giving emphasis to the fact of State jurisdiction. 16 St. 
 L. 146, 4 An. S. 235. 
 
130 The Hayes-Tilden Contest 
 
 serves to each State the fullest power to determine sub 
 sequently to the electoral day which of disputants 
 exercised on that day her office, which determination 
 in the very nature of the case under the long settled 
 common law quo ivarranto rules can only be post hac. 
 
 Why have I gone to the common law as understood 
 in America at the adoption of the Constitution for the 
 rules by which to construe that instrument? The 
 lawyer need not be told; and all students now generally 
 know that the words and terms of the Constitution are 
 to be construed and enforced in the sense in which 
 they were understood by those who proposed and those 
 who adopted that instrument, or an amendment at the 
 time of its incorporation. 31 
 
 Following the early and uniform decisions, as the 
 Supreme Court said in Bain s case in 1887, in construing 
 the Constitution "we are to place ourselves as nearly 
 as possible in the condition of the men who formed that 
 instrument." 32 The condition of the parties who framed 
 and adopted the Constitution may be most certainly 
 known, and the instrument may be more clearly under 
 stood, it is now unquestionably settled, by the light 
 of the common law. "The Constitution of the United 
 States, like those of all the original States (and in 
 fact of all the States now forming the Union, with 
 the exception of Louisiana) presupposed the existence 
 and authority of the common law," said the court in 
 Lynch vs. Clark in i844. 33 These rules are now uni- 
 
 w The Huntress (1840), 2 Ware, U. S., 89, 12 Fed. Cases, 
 No. 6,914. 
 
 32 Ex parte Bain, 121 U. S. 12; Brown vs. Maryland (1827), 
 12 Wheat. 137. 
 
 38 1 Sandf. Ch. (N. Y.) 662. 
 
The Hayes Usurpers 131 
 
 versally recognized. 84 "The adoption of the Constitution 
 did not deprive the people of the several colonies of 
 the protection and advantage of the common law. The 
 Constitution itself recognizes the fact of the con 
 tinued existence of the common law, and indeed it is 
 based upon the principles thereof, and its correct 
 interpretation requires that its provisions shall be read 
 and construed in the light thereof," as we find the law 
 affirmed in Murray vs. Chicago, &c., in iSg^ 36 
 
 It is interesting that at the adoption of the Consti 
 tution Blackstone s Commentaries, which brought the 
 law of England down to that day, and which is one of 
 our greatest and most satisfactory expositions of the 
 common law, were more generally known in America 
 than in England; and "familiar not only to the pro 
 fession, but to all men of the general education of the 
 founders of our Constitution." * 
 
 The Federal law enacted February 3, 1887," was 
 meant to limit the time within which any State may 
 determine any controversy or contest concerning the 
 appointment of all or any of her electors. It provides 
 that such determination shall be conclusive and shall 
 govern in counting the electoral votes of that State, 
 only when the determination shall have been made 
 at least six days prior to the time fixed for the meet- 
 
 "Schick vs. U. S. (1904), 195 U. S. 68; U. S. vs. Wong Kim 
 Ark (ISygj, 169 U. S. 654; Smith vs. Alabama (1888), 124 U. 
 S., 478, and many others in an unbroken line; Ewing, Legal and 
 Historical Status of the Dred Scott Decision, 12. 
 
 36 62 Fed. R. 27, 92 Fed. R. 868. See also Frank Hendrick, 
 The Power to Regulate Corporations and Commerce. 256 et 
 seqr. 
 
 ^Knote s Case (1874), 10 Ct. Cl. 397, affirmed (1877) by 
 Supreme Court U. S., 95 U. S. 149; Schick vs. U. S. (1904), 
 195 U. S. 68. 
 
 37 6 Anno. Statutes. 17, 24 Statutei at L. 373. 
 
132 The Hayes-Tilden Contest 
 
 ing of the electors. This statute has, of course, no 
 bearing upon the Florida contest, except in so far as it 
 may be taken as an admission that before its enactment 
 a State might provide such means as her laws recog 
 nize, finally and conclusively to determine such ques 
 tions after the day upon which electors by the Federal 
 law are required to meet. However, the student will 
 be interested in the observation that the constitutionality 
 of this law is questionable. In effect the law is utterly 
 destructive of the proceeding in the nature of a quo 
 warranto : and for the simple reason that this action 
 cannot be invoked until there has been some user, or 
 threat or attempt of user, by the party against whom 
 the writ is aimed. Had this provision of 1887 been 
 the law at the time of the pro-Hayes report by the 
 State canvassing board of Florida, the courts, the 
 final determinant provided by the law for reviewing 
 such actions by the State board, would have remained 
 powerless, since the State canvassing board did not 
 conclude its labor until after one o clock of the morning 
 of the day upon which the electors by the Federal law 
 were required to meet. This restrictive Federal meas 
 ure, therefore, is inconsistent with the true American 
 conception of State sovereignty ; and of that part of 
 such sovereignty preserved by the Federal Constitution 
 necessary to protect the State office of Presidential 
 elector. It is unwise and unfair because it restricts 
 the State to limits too narrow as compared with the 
 great interests to be served. 
 
 It is, for these reasons, confidently believed that the 
 judgment of the Florida court rendered in the quo 
 warranto proceeding was final as to the rights of the 
 parties claiming to be electors; and that its conclusion 
 
The Hayes Usurpers 133 
 
 that the Hayes claimants were and at all times had 
 been mere usurpers, whose acts were null and void, 
 was binding upon the Commission; and that that 
 judgment embodied an authoritative and conclusive 
 construction of the Florida law, by which law the Com 
 mission claimed to be governed, and that that con 
 struction should have been respected. 
 
VIII. 
 
 The Florida Election Law. 
 
 WE are now to examine the decision of the 
 last question, as the majority shaped the 
 situation, before the Commission in the 
 Florida Case. Rejecting the acts of the 
 State subsequent to the electoral day, the majority of 
 the Commission assumed to determine for the State 
 which acts of her election officers were according to 
 her laws, and thus had become the act of the State. 
 So, entirely aside from the question whether a State 
 is functus officio as to her electors after the day upon 
 which the Federal law requires electors to cast their 
 votes, we come to the question whether the Republicans 
 were right in the last analysis in deciding that the 
 board of State canvassers "is made by the statute 
 the ultimate declarant of what the vote was and of its 
 results;" and that the board s jurisdiction over the 
 returns "is not merely to count up and compare the 
 returns, but upon all the facts submitted to them to 
 determine, that is, to decide, who is elected." 
 
 Resting alone upon this majority interpretation of 
 the State election law, the correctness of that inter 
 pretation is most vital to the Hayes title. Hence to 
 find the true interpretation of the State law, and to 
 measure the actions of the State board by that law, 
 that we may see if the majority was right in holding 
 that the law was such that the pro-Hayes report was 
 the act of the State, we must see just what the State 
 134 
 
The Florida Law 135 
 
 board did. With the acts of the board and the law 
 both before us, we may grasp firmly the points involved. 
 
 We remember that two claims were made by the 
 State canvassing board. First, that upon their face the 
 returns before the board showed a majority for the 
 Hayes claimants. An examination of this claim is re 
 served for a subsequent chapter. Second, that after 
 having been canvassed, the returns yet gave the State 
 to Hayes, though by somewhat different figures. So 
 the board did not merely add up the vote as shown by 
 the returns before them, but they canvassed those re 
 turns; they took such action as brought before them 
 evidence which they believed justified them in altering 
 the returns, amending some by subtractions and chang 
 ing others by additions ; while still others were en 
 tirely rejected in toto. Upon this canvass they ren 
 dered the pro-Hayes report; and this is the report and 
 canvass that the Republicans sustained, holding that 
 under the lav/ that determination and declaration of 
 the board was within its jurisdiction, that by the law 
 the board was the final, ultimate determinant and 
 declarant of what the vote was and of its result; and 
 that, therefore, the pro-Hayes report was the act of 
 the State. 
 
 The record left us in the action of Drew vs. the 
 Board of Canvassers by mandamus, tried in the su 
 preme court of the State before the Commission met, 
 furnishes one of the best sources from which to 
 learn what was done by the pro-Hayes board in its 
 canvass, while it affords also the best opportunity to 
 study the statute. We thus get the interpretation of 
 the local law as given by the highest court of the State; 
 and this interpretation measured by prior local well- 
 
136 The Hayes-Tilden Contest 
 
 settled law, and by the general rule in America, may 
 then be properly valued, which necessarily places a 
 correct estimate upon the construction by the Re 
 publicans of the Commission and, of course, upon their 
 decision of the Florida case. 
 
 There was practically no difference between the votes 
 cast for the presidential electors and for the State 
 candidates. The same canvass which resulted in a 
 pro-Hayes determination also resulted in a pro-Re 
 publican decision for the candidates for State offices. 
 Thus the Republican governor, Stearns, was declared 
 re-elected, and the election of a Republican legislature 
 and other State officers appeared along with the pro- 
 Hayes finding. An interpretation of the acts which led 
 to the Republican decision in the State election, is an 
 interpretation of the acts which led to the pro-Hayes 
 report. The board had no more and no less jurisdic 
 tion in the one case than in the other, and as to each 
 performed the same acts ; and the facts in the one case, 
 unchanged in any respect whatever, are the facts of the 
 other. 
 
 In several aspects of this case it is important to know, 
 as preliminary to the main study, that in such cases as 
 the one instituted and prosecuted by Drew, the su 
 preme court of Florida had undoubted jurisdiction to 
 proceed in mandamus against the board of State can 
 vassers. Jurisdiction is given in such cases by Art. 
 VII., sec. 5, of the constitution of I868, 1 then the funda 
 mental law of the State. Long before the Hayes- 
 Tilden contest, the supreme court held that the action of 
 mandamus was the proper and only efficient remedy 
 to enforce the performance of duties by ministerial 
 
 1 Poore, Charters and Consts., 353. 
 
The Florida Law 137 
 
 officers or officers having whatever power the State 
 board had; 2 and in Bloxam vs. the Board of State 
 Canvassers, decided in 1871, the identical point raised 
 in the Drew case was before the court on a writ of 
 mandamus to compel the board to perform the same 
 act and duty which Drew sought to enforce in 1876. 
 The court sustained its jurisdiction and sanctioned the 
 remedy. 3 It is claimed that the jurisdiction of the 
 State board in 1871 was not the same as in 1876, as 
 to which we shall see more fully presently; but let us 
 remember that no one has ever questioned that the 
 supreme court had the same jurisdiction by mandamus 
 in 1876 than it had in 1871 and long before that time. 
 The rule laid down by the court in 1868 was yet the 
 rule in 1876: that "a proceeding in reference to the 
 highest officers of the State, is almost universally in 
 stituted in the highest courts of the State or nation." 4 
 In the petition filed December 13, 1876, Drew gave 
 as the grounds upon which he asked the writ that the 
 State board had usurped jurisdictional functions and 
 powers in "that they went behind the face of the election 
 returns from divers counties of the State, and did, upon 
 certain affidavits, or pretended affidavits, and upon 
 other pretended evidence discard the vote of the county 
 of Manatee, and did refuse to canvass and count and 
 enumerate the votes of the counties of Jackson and 
 Hamilton, as shown by the returns of and from the said 
 counties of said election * * * and that they should 
 have confined their canvass of said returns to what 
 was shown or appeared on the face of the said re- 
 
 2 Commissioners vs. King, 13 Fla. 451. 
 
 3 13 Fla. 55. 
 
 4 State vs. Gleason, 12 Fla. 190, 202, 212. 
 
138 The Hayes-Tilden Contest 
 
 turns, the same not appearing to be unintelligible or 
 fraudulent, but genuine and bona fide."* 
 
 The two Republican members of the board, McLin 
 and Cowgill, filed an answer; while the Democratic 
 member, Cocke, filed a separate answer. The Re 
 publicans denied any usurpation, and alleged that as to 
 Manatee "it appeared from the return of said county 
 and from evidence received by said board, that the 
 return was so irregular and false and fraudulent that 
 said board was unable to determine the true vote, and 
 so did not include it in the count upon which they 
 based their determination and declaration." As to the 
 counties of Jackson, Hamilton, and Monroe, they said 
 "it was shown by evidence that the returns there 
 from were severally false and fraudulent, and that the 
 board determined from the evidence, with reference 
 to each of said counties, what the true vote therein 
 was * * * and the result of such determination was 
 acted upon in declaring the result." 
 
 On motion the court required this "answer to be 
 amended so as to set forth the specific causes and 
 grounds of such rejection in each and every instance 
 of such rejection." On December 18 the defendants 
 complied with the order of the court. 
 
 In the amended answer the majority of the board, 
 the two Republicans, said that they did not include 
 in their count the returns from the county of Manatee 
 "upon the ground of irregularity and fraud in the 
 conduct of the election on said 7th day of November, 
 1876." The irregularity, they charged, consisted in 
 receiving the votes of persons not registered, and 
 
 16 Fla. 19, 22, 30. 
 
The Florida Law 139 
 
 that this was shown by evidence entirely apart from the 
 returns before them. 
 
 They include the county of Clay in the amended 
 answer, and say they added 29 votes to those cast for 
 Drew and 6 to those cast for Stearns upon the ground 
 that said votes had been improperly rejected by the 
 county canvassers. They deducted four Drew votes 
 and two Stearns votes "upon the ground that said 
 votes were cast by non-residents of the county." 
 
 As to Hamilton county they said they deducted the 
 vote of precinct number two from the returns from 
 said county "upon the ground of gross violation of the 
 election law, and fraud in the conduct of the election," 
 "as appeared from the returns." 
 
 Five votes cast in Hernando county were rejected; 
 two from the vote cast in Leon county; seven from 
 the Orange county vote, on the ground that "said votes 
 were illegal or illegally cast." 557 votes were deducted 
 from the returns before the board, from the vote of Jack 
 son "upon the ground of irregularity and gross fraud 
 in the conduct of the election." 61 votes were de 
 ducted from the votes "as they appeared from the re 
 turns" of Jefferson upon the ground that they were 
 "fraudulently cast." The vote of one precinct in Mon 
 roe was deducted from the county "vote as it appeared 
 on the face of the returns" on the "ground of irregu 
 larity in the conduct of the election and fraud in the 
 conduct of the inspectors of said election in said pre 
 cinct." 8 
 
 Five votes were deducted from the returns from 
 Hernando county on the ground that said votes were 
 illegally cast. From the vote of Leon two deductions 
 
 Ib. 30, 31. 
 
140 The Hayes-Tilden Contest 
 
 were made ; on the ground that they were illegal." 
 From the Orange county returns seven were taken 
 on the ground that they were illegally cast. 
 
 Now, with these admitted acts of canvass by the 
 Republican members of the State board, with which the 
 Democratic member did not concur, in mind, let us 
 get down to strictly judicial consideration of this 
 canvass to find whether such acts were within the 
 jurisdiction of the board. Governor Drew and the 
 Democrats insisted that these acts by the majority 
 of the board were ultra vires; and if so, then even 
 the Republicans admitted them to be invalid. The 
 Democrats also contended that since the board had not 
 complied with the law, it might be required to re 
 convene and recanvass within its jurisdiction. So the 
 investigation upon this point will determine, first, the 
 jurisdiction of the board; and second, whether, hav 
 ing adjourned before judgment in a mandamus pro 
 ceeding, it may be required to reconvene and recanvass 
 according to the law under which it acts as that law 
 is construed by the court. 
 
 Bear in mind that the county canvassing board, com 
 posed of the county judge, the clerk of the circuit 
 court, and a justice of the peace, was required to can 
 vass the votes "as shown by the returns on file in the 
 office of the clerk or judge." These were the returns 
 received from the officers at the precincts where the 
 votes themselves are cast by the voters. The county 
 board was required to make and sign duplicate certifi 
 cates, to be recorded by the clerk, one of which was 
 to be sent to the governor and the other to the secre 
 tary of State. These returns from the various coun 
 ties thus filed in the office of the secretary of State 
 
The Florida Law 141 
 
 were the returns that were canvassed by the State 
 board. The duties of the precinct officers and of the 
 county canvassing board, in the election of 1876, are 
 defined by the acts of i868. 7 The act of February 27, 
 1872, was merely amendatory of the law of 1868, and 
 leaves unchanged the provisions governing precinct 
 officers and county canvassers. The most important 
 change in the law is that found in section four of 
 the amendment, defining the jurisdiction of the board 
 of State canvassers. Upon its interpretation depends 
 the justification or excuse for the decision of the Com 
 mission, granting the Commission the right of interpre 
 tation its majority assumed. 
 
 This amendatory section creates a board of State 
 canvassers similar to the board as it existed under the 
 law of 1868, directs the time and place of meeting; and 
 gives jurisdiction "to proceed to canvass the returns 
 of said election" "received from the several counties 
 and "to determine and declare who shall have been 
 elected" "as shozvn by such returns." 
 
 Now, was the State board limited to an inspection 
 of the face of these returns that were on file in the 
 office of the secretary of State; or, had they juris 
 diction to reject and refuse to count any numbers 
 certified therein because they believed there was an 
 illegal and fraudulent vote as the basis of the certified 
 results? 
 
 Our labor is much simplified by keeping before the 
 mind the admissions made by the Republicans in their 
 answers to the mandamus petition. They make no 
 charge whatever that any grounds upon which they 
 refused to ratify or accept the certified count of the 
 
 7 Laws of 1868, 67. 
 
142 The Hayes-Tilden Contest 
 
 various Tilden votes appeared upon the returns before 
 them made by the county canvassers. They charge no 
 fraud against the county canvassing officers; and not 
 once is it claimed or alleged that any such return was 
 irregular, ambiguous, or shown to be a false or fraudu 
 lent canvass of the returns received by the clerk and the 
 judge from the precinct officers of the respective coun 
 ties. Not only are these confessions made in the 
 answers to the mandamus but the minutes of the State 
 canvassing board show that no ground upon which the 
 pro-Hayes majority of the State board rejected enough 
 Tilden returns to report the final result in favor of 
 the Hayes electors, appeared upon the face of the 
 returns made by the county canvassers or in connec 
 tion with their canvass. When the returns from the 
 counties, Democratic votes from which were rejected 
 by the State board, were compared with the returns 
 on file in the respective offices of the clerks, they were 
 found to correspond exactly with the polls and with 
 the returns by the precinct officers. Every single 
 charge went to matters that did not arise upon the 
 face of the returns that were before the State board, 
 and no evidence impeached or questioned them as 
 true and honest returns of the votes given. 
 
 Hence, but the one question is involved: Had the 
 State board jurisdiction to reject returns because they 
 believed there was an illegal and fraudulent vote be 
 hind them; or because they believed the election itself 
 had not been legally held or conducted ? In other 
 words, had the State board jurisdiction over the whole 
 subject? 
 
 The Republicans based their affirmative answer to these 
 questions upon two grounds. Judge Miller and others 
 
The Florida Law 143 
 
 contended that the words of the statute authorizing the 
 board "to determine and declare" gave jurisdiction 
 "over the whole subject." 3 Our first concern, then, is 
 to find the proper construction of these words. 
 
 The law of 1868 under which the State board acted, 
 provides that this board "shall proceed to canvass the 
 returns of such election, and determine who shall have 
 been elected, by the highest number of votes, to any 
 office, as shown by said returns. They shall make and 
 sign a certificate declaring the result," which shall be 
 sent to and recorded in the office of the secretary of 
 State. 9 This is in legal effect the language of the amend 
 ment of 1872. In both acts jurisdiction is given the 
 State board to determine and to declare the result as 
 shown by the returns, and to certify who shall have 
 been elected. 
 
 In 1871 the supreme court of the State handed down 
 a decision in the case of The State vs. the Board of 
 State Canvassers, defining the jurisdiction and power 
 of the State board under the law of 1868. In that 
 case it was shown that the State board, just as did 
 the board in reaching a pro-Hayes report, had not in 
 cluded in the enumeration upon which they based their 
 certificate or declaration of the result all the returns 
 as shown by the certificates from the county canvassers. 
 As did the pro-Hayes board in the Florida case, so in 
 that case the board had adjourned sine die. The court 
 had directly before it the two questions, the most im 
 portant of which was : Has the board, in "determining 
 who shall have been elected, power to reject or ne 
 glect any county returns" because they believe the re- 
 
 8 Proceedings, 1010, 1011. 
 
 9 Bush, Dig. Fla. Laws, 1868, 305; Laws of 1868, p. 8. 
 
144 The Hayes-Tilden Contest 
 
 jected returns represented votes that had been fraudulent 
 ly given, or that there was fraud on the part of the pre 
 cinct officers in conducting the election? Along with 
 an answer to this question the court also decided the 
 other, which was likewise directly in issue : Having 
 adjourned, after having exercised jurisdiction to re 
 ject returns by reason of something connected with the 
 votes or the conduct of the election, can the board be 
 compelled by mandamus to reconvene and recanvass, 
 and required to include all the returns as certified by 
 the county canvassers? 
 
 Deciding these questions the court said: "The ob 
 ject of the law is to ascertain the whole number of 
 votes cast, and who had received the highest number 
 of such votes, so that the choice of the majority of the 
 votes might be ascertained and reflected." Then the 
 court held that the State board had no jurisdiction 
 to reject any returns as shown by the certificates of 
 the county canvassers, and that, having neglected or 
 refused to include in its final determination and de 
 claration any such returns, they had "neglected to per 
 form their duty, and therefore did not comply with 
 the law, in which case they did not conclude their 
 duties as canvassers, nor put an end to their powers as 
 canvassers by an adjournment sine die. Their duties 
 and functions are mainly ministerial," the court force 
 fully proceeds to hold, "but are quasi judicial in so 
 far as it is their duty to determine whether the papers 
 received by them purporting to be returns were in 
 fact such, were genuine, intelligible, and substantially 
 authenticated as required by law; in other words, 
 whether they contained within themselves evidence that 
 they were authentic returns of the election. If, as 
 
The Florida Law 145 
 
 is alleged, the respondent [the State board] neglected 
 to examine and include returns, duly and legally made 
 from several of the counties, and therefore but parti 
 ally performed what they were by law required to do, 
 it must be considered that they have not complied 
 with the law, and that they may be required to do 
 so by means" of a mandamus. 10 
 
 Therefore, long before the Hayes-Tilden contest, it 
 had been settled in Florida by the highest court of 
 the State and was a recognized law that power "to 
 determine and declare" did not vest jurisdiction "over 
 the whole subject." Power to determine and declare 
 limited the State board to an inspection and canvass 
 of the returns before them, the returns made by the 
 county boards and on file in the office of the secretary 
 of State. When such returns were genuine, that is 
 made by the officers of the county authorized by law 
 to make them, intelligible and substantially authenti 
 cated as required by law, the State board had no jur 
 isdiction to reject or refuse to enumerate any of them, 
 no matter what the board may have believed with ref 
 erence to the conduct of the election and the basis 
 upon which the county returns were predicated. Where 
 there is no ground for rejection other than that which 
 is alleged to have occurred at the polls or on the part 
 of precinct officers, the county returns must all Be enu 
 merated and be the sole basis for the declaration of 
 the board. Having rejected certain returns because 
 of what the board believed to have occurred at the 
 polls, the pro-Hayes report of the State board finds 
 no justification in the mere fact that that board was 
 directed to determine and to declare. Unless there 
 
 "13 Fla. 55, 73. 
 
146 The Hayes-Tilden Contest 
 
 can be found something broader in the law of 1872 it 
 is clear that the board in rejecting enough of the 
 Democratic returns from certain counties of the State 
 to reach a pro-Hayes declaration, "had not complied 
 with the law." 
 
 Was there anything in the law of 1872 giving the 
 State board broader power or jurisdiction than it 
 had under the law of 1868? The Republicans con 
 tended, in effect, that there was; and Haworth seems 
 to retain this position. 11 Let us see. 
 
 This law enacted February 27, 1872, governing the 
 State board, is as follows : 
 
 "On the thirty-fifth day after the holding of any 
 general or special election for any State officer, mem 
 ber of the legislature, or representative in Congress, 
 or sooner if the returns shall have been received from 
 the several counties wherein elections shall have been 
 held, the secretary of State, attorney-general and comp 
 troller of public accounts, or any two of them, together 
 with any other member of the cabinet who may be 
 designated by them, shall meet at the office of the sec 
 retary of State, pursuant to notice to be given by the 
 secretary of State, and form a board of State canvass 
 ers, and proceed to canvass the returns of said elec 
 tion and determine and declare who shall have been 
 elected to any such office or as such member, as shown 
 by such returns." 
 
 Up to this point in the statute no fair minded person 
 will contend that the State board had any broader 
 powers or wider jurisdiction than given by the law 
 of 1868. The rule laid down by the supreme court 
 of the State in 1871, is undoubtedly the rule by which 
 
 11 The Hayes-Tilden Disputed EL, 66. 
 
The Florida Law 147 
 
 the canvassing board was to determine its jurisdiction 
 as given under this wording of this statute. The 
 statute plainly limits the board to the returns sent 
 to the secretary of State by the canvassing boards of 
 the several counties. The State board was to determine 
 and declare the result "as shown by such returns." 
 The supreme court of the State having determined 
 that power "to determine and declare" did not carry 
 "jurisdiction over the whole subject," this amendment 
 leaves the board thus far with precisely the same juris 
 diction which it enjoyed under the law of 1868. Thus 
 far this amendment charges the State board with the 
 simple ministerial duty of enumerating the votes given 
 for each candidate as shown by the returns "received 
 from the several counties wherein elections shall have 
 been held." 
 
 Most of the Republicans relied strongly upon the 
 remaining paragraph of this law as amended in 1872, 
 which immediately says : 
 
 "If any such returns 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 returns in their determination and 
 declaration; and the secretary of State shall preserve 
 and file in his office such returns, together with such 
 other documents and papers as may have been re 
 ceived by him or by said board of canvassers. The 
 said board shall make and sign a certificate containing, 
 in words written in full length, the whole number of 
 votes given for each office, the number of votes given 
 for each person for each office and for member of the 
 legislature, and therein declare the result, which cer- 
 
148 The Hayes-Tilden Contest 
 
 tificate shall be recorded in the office of the secretary 
 of State." 12 
 
 Whatever this additional wording may mean, there 
 was no ground in the case before the board for the 
 exercise of any broader jurisdiction than that conferred 
 by that part of the law first above given. "If any 
 such return shall be shown or shall appear to be so 
 irregular, false or fraudulent," indisputably refers to 
 the returns received by the secretary of State from the 
 canvassing boards of the several counties. These were 
 the only returns before the State board, the only re 
 turns they were authorized to canvass, and the only 
 returns they claimed to have jurisdiction to canvass. 
 The State board, as is conclusively established by the 
 Republican answers to the petition for the mandamus, 
 made no claim that these returns before them and 
 which they proceeded to canvass were or were shown 
 to be "irregular, false or fraudulent." The canvass 
 upon which Hayes was declared elected admitted that 
 the changes which the State board made and which 
 gave the majority to the Hayes claimants, were based 
 upon matters entirely extrinsic to the returns before 
 the board from the county canvassers. Admitting the 
 legality of what is known as the Coxe returns from 
 Baker county, the certified results from the county 
 canvassing boards corresponded exactly with the polls 
 and with the returns from the precincts and on file in 
 the clerks offices of the respective counties. It was not 
 the county returns that the pro-Hayes report im 
 peached, but the election which lay behind those re 
 turns and which formed their basis. The pro-Hayes 
 canvass did not attempt to justify the changes that it 
 
 "Proceedings, 976; McClellan s Fla. Dig. 498. 
 
The Florida Law 149 
 
 made in favor of Hayes on the grounds that any 
 returns were or were shown to be irregular, false or 
 fraudulent. 
 
 The lawyer need not be told that falsehood, fraud or 
 irregularity in an election, occurring at the polling places 
 or committed by those who conduct the election, con 
 stitutes no fraud in the county board who aggregate the 
 results of the precinct returns, and certify the total 
 vote of the county to the secretary of State. 
 
 Now, as we have seen, under the statute of 1868 
 the State board unquestionably had no jurisdiction 
 over the manner in which the voting was conducted. 
 No one would contend that under that statute the 
 board s jurisdiction extended over the whole sub 
 ject; under that statute they had no jurisdiction, ex 
 cept to see that the returns before them were in 
 telligible, properly authenticated, and without fraud on 
 the part of the county canvassing officers not the 
 precinct or election officers. These requirements being 
 met, the State board, beyond a peradventure, had no 
 discretion: it must do no more than add the votes 
 shown by such returns and declare the election of 
 him having a plurality. Any other than a mere enumer 
 ation in such cases rendered a result resting thereon 
 and reached thereby ultra vires, ipso facto, null, void, 
 and, of course, giving no insignia of right. 
 
 Looking at the statute as amended in 1872, no word, 
 phrase, or sentence can be found that even suggests 
 that the jurisdiction of the State board is changed as to 
 that over which it is to be exercised. 
 
 Clearly, the statute limits the board to definite action, 
 the same action that it might take under the old law, 
 except that the amendment defines what the board must 
 
150 The Hayes-Tilden Contest 
 
 do should it, on account of irregularity, want of in 
 telligibility, falsehood, or fraud in connection with the 
 county returns be unable to determine the true vote 
 given at the election as certified by the election officers. 
 No grounds for the exercise of the jurisdiction con 
 ferred by the amendment arising upon the face of the 
 returns, or being attributed or shown with reference 
 thereto, the board must count the whole number of 
 the votes as given upon the face of the papers before 
 them, and declare the result in a certificate con 
 taining the whole number of votes thus shown to have 
 been given for each office, and the number of votes thus 
 shown to have been given for each person for each 
 office. Neglecting or refusing thus to include in their 
 declaration of the result all the votes as certified upon 
 the face of such returns, failing "to give a certificate of 
 the result of the election, as appeared by the returns 
 in their possession at the time they made their final 
 statement," to use the words of the supreme court in 
 deciding the case against Gibbs, 13 in 1871, they "there 
 fore do not perform what they by law are required 
 to do, and it must be considered that they have not 
 complied with the law." Therefore the pro-Hayes 
 report, being the result of acts ultra vires, was not 
 the act of the State, and furnished no "insignia of 
 title." 
 
 Hence, when the supreme court of the State in its 
 judgment in the mandamus prosecuted by Governor 
 Drew against the State board of canvassers decided 
 that the board should have included and should have 
 counted in its report of the result, all the county re 
 turns that it rejected, the decision was in harmony with 
 
 13 Fla. 55, 74. 
 
The Florida Law 151 
 
 the long settled law of the State. This interpretation 
 rather than that of the majority of the Commission, 
 was correct. 
 
 Not only was that decision in the mandamus in har 
 mony with the settled law of Florida and a correct 
 view of its statute, but it was an expression of the 
 law defining the jurisdiction of State canvassers, as 
 almost universally enforced in America. Says a recog 
 nized authority: "The State canvassers can act only 
 upon the certified statements of the county canvassers 
 returned by the several county clerks to the secretary 
 of State, and have no authority to procure corrected 
 returns or to go behind the returns thus made, or to 
 receive testimony aliunde either to sustain or to in 
 validate them." 1 * As did the State board to reach the 
 pro-Hayes result, "they have no right to reject any 
 returns because they beleive there was an illegal or 
 fraudulent vote behind them." 1J 
 
 The reasons for this rule are patent. Canvassing 
 boards are not courts ; they have no means of investigat 
 ing all the facts incident to a charge of illegality per 
 taining to the votes, or fraud or dishonesty in the 
 conduct of the election. Such questions are left to 
 courts in quo warrant o, mandamus, or proceedings by 
 contest. The reason for the enforcement of the rule 
 in the case of the Florida State board was pre-eminent. 
 A decision of such questions can be reached only after 
 the full evidence of the facts has been adduced. There 
 can be no evidence without witnesses or their duly 
 
 14 15 Cyc. 385, citing numerous authorities; 10 Am. Eng. Enc. 
 Law, 2nd ed., 746, giving a yet larger list of authorities formu 
 lating this long settled doctrine; 14 Am. Eng. Enc. Law, 19S, 
 note. 
 
 15 6 Am. Eng. Enc. Law, 311, and note 2 wherein are gathered 
 all the leading cases upon this point. 
 
152 The Hayes-Tilden Contest 
 
 taken depositions. The Florida State board had no 
 power to command either. From the very first all of 
 its members conceded this fact, and to escape it the 
 Republican members agreed that they would receive 
 as evidence ex parte affidavits. Yet, admitting it had 
 not adequate power to do what it assumed to do, the 
 board plunged into a fierce investigation of the election 
 and the conduct of the precinct officers. The result 
 was the most farcical and disgraceful canvass ever left 
 upon record by a State board. It is not strange that, 
 the excitement incident to the struggle having sub 
 sided, McLin, the secretary of State, should have said 
 under oath : "If the board had acted in accordance 
 with the decision of the supreme court of the State, 
 defining the powers and duties of the board in ref 
 erence to throwing out precincts, since rendered, there 
 is no question of the fact that Mr. Tilden would have 
 been entitled to the vote of Florida." 16 And since the 
 opinion of which he here speaks, was a mere re 
 statement of the law as theretofore understood and 
 enforced in Florida with reference to throwing out 
 precincts, if the board had acted in accordance with 
 the settled law of the State there is no question of the 
 fact that Tilden would have been declared to have 
 received the electoral vote of Florida. 
 
 Following the older decisions, the supreme court in 
 its judgment upon the facts brought before it in the man 
 damus prosecuted by Governor Drew, ordered a recanvass 
 in accordance with the law as expounded by the court. 
 This judgment was reached in Januar} , 1877, and 
 resulted, because it recognized the bona fide vote, in 
 establishing the election of the Democrats; but, as to 
 
 16 Ho. Miscl. Doc., No. 31, pt. 2, 98: 45 Cong., 3 sess. 
 
The Florida Law 153 
 
 the Presidential electors, it is of most importance for 
 the facts showing the actual jurisdiction exercised by the 
 board and the power which that body assumed in 
 reaching the pro-Hayes report. The court held that 
 the Florida election law did not give the State board 
 authority to determine whether an election was legally 
 held or the vote legally cast ; and pointed out that the 
 phrase "the true vote given" meant the vote actually 
 cast, as distinguished from the legal vote. 
 
 The interpretation given to the State law by the 
 State court both prior and subsequent to the action 
 of the board in this case, was in common with that 
 of the other States, was in harmony with the American 
 law upon this subject, therefore; while that of the 
 Commission was strained and unnatural, entirely at 
 variance with the spirit of the election laws of this 
 country. Yet were it a mere question as between the 
 two interpretations, the situation would be less serious. 
 There is another principle, to ignore which is to sub 
 vert a most vital factor in the government as under 
 stood and enforced in America, by which the decision 
 of the Commission must also be measured. As early 
 as 1847 the Supreme Court of the United States laid 
 down this axiom of our government thus : "The Su 
 preme Court of the United States will always feel 
 itself bound to respect the decisions of the State 
 courts, and from the time they are made will regard 
 them as conclusive in all cases upon the construction 
 of their own constitution and laws." 1T On January 
 
 17 Rowan vs. Runnels, 5 How. 139; Webster vs. Cooper, 14 
 Howard, 488; Darlington vs. Jackson county, 101 U. S. 688, 
 note; Marshall vs. Ladd, 131 U. S. LXXXIX. Appx.; Enfield 
 vs. Jordan, 119 U. S. 680; McElvaine vs. Brush, 142 U. S. 
 155, are a few of the leading cases announcing this unquestioned 
 rule. 
 
154 The Hayes-Tilden Contest 
 
 18, 1909, Mr. Justice Day, delivering the unanimous 
 opinion of the Supreme Court of the United States in 
 Palmer vs. Texas, the well known Waters-Pierce Oil 
 Company case, where the construction of a local law 
 by the State court was directly involved, said: "The 
 Texas courts have a right to construe their own 
 statutes, and their judgment in such matters is con 
 clusive upon the Federal courts." 212 U. S. 118, 131. 
 The leading and earlier decisions to the same effect 
 have been cited not only often since by the Supreme 
 Court of the United States, but hundreds and hun 
 dreds of times by State and inferior courts all over 
 this country. This rule obtains in all the relations 
 involving the powers of the State and Federal govern 
 ments. There is but one exception, and that is in 
 respect to commercial law and general jurisprudence. 18 
 The exception most certainly has no place in deter 
 mining the powers of the State canvassers, all parties 
 agreed. The rule is so well recognized and so wise in 
 its operation that the decision of the State court con 
 struing statutes of the State is followed even where 
 in a subsequent case the same court uttered doubt as 
 to the correctness of the construction. 19 Not only 
 had there been no doubt expressed by the highest 
 court of Florida as to its construction of the statute 
 governing the election canvassers, but the construction 
 given at an earlier day had been confirmed in the 
 same case being heard by the Commission. And so 
 vital to the American government, a government in 
 which each State is as real and sovereign in its sphere 
 
 "Presidio county, Texas, vs. The Noel- Young, &c. (1909), 
 212 U. S. 58, 73, and authorities. 
 
 19 Waggoner vs. Flack (1903), 188 U. S. 600, and authorities. 
 
The Florida Law 155 
 
 as the United States is in its, 20 that in questions of State 
 law within the sphere of the State, the Federal gov 
 ernment accepts the construction given by the highest 
 court of a State to a statute in determining whether 
 the statute violates the Federal Constitution. 21 
 
 Let no one make the mistake of thinking that the 
 rules and principles recognizing the conclusiveness 
 of constructions of local statutes by State courts, are 
 applicable only to litigation coming before the Supreme 
 Court of the United States. The constructions by the 
 State court were no less binding upon the Commis 
 sion, because "the construction given to the statute of 
 a State by the highest judicial tribunal of such State 
 is regarded as a part of the statute, and is as bind 
 ing as is the text." 22 This is true because it is the 
 construction that makes a law, a constitution, or any 
 instrument, what it is; in other words, a law is only 
 what that power enforcing it construes it to be. Con 
 struction by the Commission, a body representing, and 
 having no power or authority not possessed by, "the 
 two Houses acting separately or together," divested the 
 State of that exclusive and absolutely independent con 
 trol over the manner of choosing her electors that was 
 and is one of the chief characteristics of the dual 
 American government. 
 
 80 Ewing, Legal and Historical Status of the Dred Scott Deci 
 sion, 9 et seqr. 
 
 ^Tullis vs. Lake Erie & W. R. Co., 175 U. S. 348, 353; 
 Cargill vs. Minn., 180 U. S. 452. 
 
 23 Leffingwell vs. Warren, 2 Block, 599; Douglas vs. Pike 
 county, lOi U. S. 677; 111. C. R. Co. vs. 111., 163 U. S. 142; 
 Taylor vs. Ypsilanti, 105 U. S. 60, widely cited with approval 
 and as authority; are but a few of the many decisions resting 
 upon this rule. 
 
IX. 
 
 The Returns and the Canvass. 
 
 NOVEMBER 27, 1876, broke in splendid quiet 
 over the little capital at Tallahassee. But 
 its citizens and numerous guests were rest 
 less and anxious. A notable crowd gathered 
 about the little chamber in which the State canvassing 
 board was about to begin opening and counting the 
 returns. Here and there the blue uniform of a Federal 
 soldier reminded the Democrats that President Grant 
 had the army marshalled at strategic points through 
 out the South. By order of Governor Stearns part of 
 these Federal troops were placed about the State 
 house while the canvassing board was in session. 1 
 It was not the first time Grant had thrust the bayonet 
 into the civil affairs of the Southern States ; and few 
 Southerners, at least, had any doubt as to which side 
 the army would take should the Republicans decide 
 that their cause needed the roar of cannon to insure 
 success. That the Republicans meant to inaugurate 
 Hayes, right or wrong, else precipitate a real civil war! 
 there can be no reasonable doubt. The Republicans 
 of the canvassing board, McLin afterwards testified, 
 had been assured of the "forthcoming of money and 
 troops if necessary in securing the victory for Mr. 
 Hayes." 2 
 
 Civil victory is cheaper than the trophies of war; 
 and therefore Republican leaders had determined upon 
 
 iHo. Miscl. Doc. No. 31, pt. 2, p. 147: 45 Cong., 3rd sess. 
 
 8 Ib. 98. 
 
 156 
 
The State Canvass 15? 
 
 the most terrific civil battle in American history. Not 
 content to leave Florida to determine quietly and in 
 her own way the result of the election; unwilling to 
 trust the two Republicans of the three members of the 
 canvassing board, at President Grant s suggestion prom 
 inent men, some holding important Federal offices, from 
 every quarter were sent to lend moral support ; and 
 astute lawyers, skilled in the subleties of legal tech 
 nicalities, went to seize upon every available point of 
 the law. So the little room in which the board first 
 began its work was not ample: many visitors and 
 residents were unable to find .space inside, and a con 
 siderable crowd gathered in the corridors and about 
 the building to await results. General Lew Wallace 
 and Governer Noyes of Ohio were present and acting 
 as leaders for the Republicans. It was made known 
 that Noyes particularly represented Hayes and "spoke 
 with the authority of a warm personal friend com 
 missioned with power to act in his behalf." They were 
 supported by General F. C. Barlow and William E. 
 Chandler from New York, Attorney-General Little of 
 Ohio, J. P. C. Emmons, H. Bisbee, Jr., Ampt, cor 
 respondent for the Cincinnati Commercial; D. W. 
 Sellers, a leading lawyer of Philadelphia, and others 
 took an active part on behalf of the Republicans. The 
 Democrats, equally ardent and bravely undaunted, were 
 forced to follow the Republican initiative, and in their 
 voluntary presence the Democrats found able advocates 
 and splendid legal ability in such men as G. W. 
 Biddle of Philadelphia, Governor Joseph E. Brown 
 of Georgia, the Brilliant Manton Marble, editor of 
 the New York World; George P. Raney, Levitt Salton- 
 stall, Malcolm Hay, P. Pasco, Robert L. Campbell, and 
 
158 The Hayes-Tilden Contest 
 
 others in all of both sides about thirty active lawyers 
 and participants ! 3 Eagle-eyed and vigorously alert, 
 these men of ability, many enjoying national reputa 
 tions, scrutinized every act and word of Attorney- 
 General Cocke, Secretary of State Samuel McLin, and 
 Comptroller Cowgill, the State board of canvassers, 
 as they opened, read, and then for days proceeded to 
 canvass the returns sent in from the county boards 
 and on file in the office of the .secretary of State. A 
 remarkable assembly which left for us a most wonder 
 fully interesting record of its proceedings! 
 
 Writing of that memorable canvass shortly there 
 after, General Lew Wallace, who took part therein 
 for the Republicans at the request of Hayes, 4 said; 
 "I doubt if in any State or county such a trial was ever 
 witnessed; and yet throughout there was not a dis 
 courteous word ; while the deportment of the board 
 was the theme of common remark and compliment." 6 
 
 What did this important body, more excited than 
 honored, as the sequel proved, by the presence of such 
 a bar, find in the several sealed returns as they were 
 opened? 
 
 Having organized, the board adopted rules, one of 
 which is as follows : 
 
 "The Secretary of State shall open the returns from 
 each county, whereupon the board will proceed to 
 examine the same, and determine from the face thereof 
 subject to final review, whether the legal formalities 
 and requirements with respect thereto have been com- 
 
 s Sen. Rep. No. 611, Arguments, pp. 18, 104, 462, 463, 466: 
 44 Cong., 2nd sess. 
 
 4 Ho. Miscl. No. 31, 138; 45 Cong., 3rd sess. 
 8 Autobiography, 905. 
 
The State Canvass 159 
 
 plied with; and upon an affirmative determination of 
 such matters, the chairman shall announce the vote 
 of the county." 
 
 This rule embodied the contentions of the Demo 
 crats as to the jurisdiction of the board. Had it been 
 followed, the result reached would have reflected the 
 will of the State. But to have followed it would have 
 given the State to Tilden; and therefore the Hayes 
 influence brought such weight to bear upon the board 
 as induced it to believe that it had jurisdiction to hear 
 and determine a contest concerning the returns or any 
 part thereof from any county. This position of the 
 board led to the adoption of another rule authorizing 
 contests for any cause or upon any ground, however 
 regular, however in conformity with the legal formali 
 ties and requirements, the questioned returns upon their 
 face appeared to be. Contestants were permitted to 
 submit evidence tending to impeach any return upon 
 ground entirely beyond the question as to whether the 
 county boards had properly and correctly returned the 
 votes as reported from the precincts ; and thus was 
 opened up an inquiry which led to an investigation of 
 the conduct of the election itself at the precincts. 
 Biddle of Philadelphia led the Democratic fight against 
 this assumption of power by the board ; 7 and the Demo 
 crats generally pointed out that, aside from an inter 
 pretation of the statute under which the board was act 
 ing, a contest of such a broad and far reaching nature 
 was ultra vires as shown, among other things, by the 
 fact that the board had no power to compel witnesses 
 to attend or to testify. Power to hear such contests 
 
 8 Sen. Rep. 611, 3: 44 Cong., 2nd sess. 
 
 T Ho. Miscl. No. 31, pt. 2, 137: 45 Cong., 3rd sess. 
 
160 The Hayes-Tilden Contest 
 
 belongs to the jurisdiction of the regularly established 
 courts in which rests the power to compel the at 
 tendance of witnesses and to enforce the proper testi 
 mony. Admitting its limitations, yet undaunted, the 
 board promulgated another rule which provides that, 
 "in view of the fact that the board has no power to 
 compel the attendance or examination of witnesses, 
 it will receive in evidence any proper affidavits" bear 
 ing upon any questions concerning either the returns 
 or the election. 8 This rule, an admission that the 
 board was about to go beyond its legal jurisdiction, 
 opened the way for a batch of rottenness most dis 
 graceful. 
 
 From the early part of the board s session up to 
 the evening of December 4, they received evidence and 
 counter-evidence, mostly ex farte affidavits, and heard 
 written arguments by the lawyers. Every function of a 
 court was assumed in covering this sweeping field. 
 Cowgill, the Republican comptroller, was correct when 
 later before an investigating committee of Congress 
 he on oath said: "We exercised judicial functions." 9 
 
 McLin, Republican secretary of State, affirmed that 
 the returns had been kept by him under lock and key 
 just as he had received them from the several county 
 returning boards, and that no one except himself had 
 had access to his files. 10 Beginning with the counties 
 in alphabetical order, he opened and read the papers 
 from each county. From the minutes of the board s 
 meeting which were made by a stenographer, and 
 which are given in full in Senate Report number 
 
 8 Sen. Rep. 611, 4: 44 Cong. 2nd sess. 
 
 Ib. 5. 
 
 10 Ib. 428. 
 
The State Canvass 161 
 
 six hundred and eleven, forty-fourth Congress, second 
 session, we learn what occurred as the work progressed. 
 
 The first return read that was questioned was from 
 Baker county. McLin opened a paper and read there 
 from one hundred and thirty Hayes and eighty-nine 
 Tilden votes. The Democrats at once challenged this 
 report. Said the speaker: "We give notice that we 
 shall contest that return as fraudulent." "We have a 
 certified copy of returns from Baker county which 
 are entirely and absolutely different." 11 The reading 
 then proceeded quietly until Clay county was reached. 
 With the returns the county board reported from pre 
 cinct number 8, number n poll, "that there was no 
 evidence of the inspectors of the election being sworn, 
 or that the clerk was sworn ;" and that the vote from 
 said precinct was 29 for Tilden and 6 for Hayes, 
 "which we did not count in our return." 12 
 
 The report from Duval county was signed by the 
 clerk and a justice, it appearing upon the face of the 
 paper that the judge, the third member of the county 
 board, had refused to sign that report of the can 
 vassers. The Democrats contested on the ground that 
 this upon its face was not lawful or proper returns. 
 Then McLin announced the votes as therein certified 
 as 2,367 for Hayes and 1,437 for Tilden. The reading 
 and the announcement of the votes then went on with 
 out incident, now and then one side or the other, with 
 out apparent cause and without suggesting any ground, 
 simply announced a contest of the vote as reported, 
 until Manatee county was reached. At once Martin, 
 
 nib. 417. 
 13 Ib. 418. 
 
162 The Hayes-Tilden Contest 
 
 for the Republicans it was well-known that the county 
 was largely Democratic arose and announced : 
 
 "We contest the whole return from Manatee because 
 we understand there was no clerk of the county, no 
 sufficient notice of the election, no registration lists 
 for the voters to vote on, and there were other ir 
 regularities ; * * * " 
 
 To this McLin replied : "As there is nothing ap 
 pears on the face of the return indicating what has 
 been alleged, we deem it proper to read it, under the 
 rule established;" and, there being no further ob 
 jection, announced 26 Hayes and 262 Tilden votes. 13 
 
 Before announcing the votes of Orange county McLin 
 said: "I will mention the fact that the return from 
 Orange county does not state from what county it 
 comes. It is signed by William Mills, county judge, 
 Orange county, and that is the only place that in 
 dicates that the return comes from Orange county." 
 No one objected or challenged the return, and its vote 
 was announced. 14 
 
 Without further incident the returns from the vari 
 ous counties were concluded. As thus read, "by what 
 appeared upon their face," as General Barlow and 
 others, notably General Wallace, 18 have testified, the 
 added figures gave 
 
 Hayes 24.527 
 
 Tilden 24.287 16 
 
 The Republicans lost not a moment in establishing 
 
 "Ib. 420. 
 
 "Ib. 421. 
 
 18 Autobiography, 904. 
 
 18 Sen. Rep. 611, pt. 4, 13: 44 Cong., 2nd sess. 
 
The State Canvass 163 
 
 the first impression upon the public mind: without 
 waiting to see the outcome of the charge that the 
 return as read from Baker county was fraudulent, the 
 Republicans wired their newspapers and party leaders 
 that "upon the face of the returns Hayes has a ma 
 jority of the electoral votes of Florida." Before night 
 this impression had been implanted upon the mind of 
 every person who read the evening papers; and on 
 down through the years the false cry has been caught 
 up by writers. 
 
 The snake lay coiled in the returns from Baker 
 county as read by McLin. Hissing it raised its yellow 
 head menacingly when the Democrats assaulted its 
 hiding place. The battle which followed the assault 
 as we find it pictured in the original record left in 
 the minutes of the board, of no little historical value, 
 is well worth following. 
 
 Having read the returns as produced by McLin, the 
 board took a recess ; and on re-convening Pasco, for the 
 Democrats, said: 
 
 "If the board please, before we enter upon any pro 
 ceedings this afternoon we desire to have the returns 
 from Baker county re-read and a mistake noted, and 
 to ask if there are any other returns from Baker 
 county in the office of the secretary of State." 
 
 To this Martin replied : "The only return received 
 has been read, I presume." But McLin at once said : 
 "There are other papers from Baker county." Chandler 
 saw the danger and interposed: "I suppose there are 
 many papers, are there not, of various kinds, affidavits 
 and others, returned to the secretary s office?" McLin 
 answered: "Oh, yes; there are quite a number of 
 affidavits, and other evidence, and papers of different 
 
164 The Hayes-Tilden Contest 
 
 characters produced." Again Chandler tried to escape 
 what he foresaw, but Pasco pressed the question : 
 
 "Now, has there been any other paper purporting to 
 be a return from Baker county received? If so, it will 
 be in accordance with the proceedings of the board 
 under the rule to have it read. I understand, from the 
 proceedings this morning, that all returns should first 
 be read over. I ask if they are all read over?" 
 
 Again McLin dodged: "We have read all the re 
 turns except from one county Dade." (The D ade 
 county returns were received later in the session.) 
 But Pasco would not down ; again he put the pointed 
 question: "Is there another return from Baker county?" 
 This time McLin replied: "As I understood, the board 
 decided that this paper was not a true return." 
 
 Which paper? When had the board so decided? 
 No other paper from Baker county than the one McLin 
 first read had been before the board, and most surely 
 no decision of the board had been made at that time 
 upon the nature of any paper purporting to be a re 
 turn, and this McLin himself was shortly forced to ad 
 mit when he said, "The board has taken no final action 
 as to anything." 
 
 Yet the Republicans hesitated and Pasco prodded 
 them with their own rule, reading the clause which 
 requires "the secretary of State shall open the returns 
 from each county," upon which he observed: "Now, I 
 understand that there is another return here from 
 Baker county, which has not yet been submitted to the 
 board, and that this rule is violated. The point I make 
 is that this return should be opened and submitted 
 and that we should have an opportunity to see what 
 it is before we proceed. Now, if we are rightly in- 
 
The State Canvass 165 
 
 formed, there is another return which has not been 
 opened, and the board has not proposed to examine 
 the same, and determine from the face thereof whether 
 the legal formalities have been complied with. That 
 is the rule adopted, and it relates to this particular 
 instance, if my information is correct. My proposition 
 is simply that this rule be carried out, and that we 
 may have all these papers purporting to be returned 
 here before us before we go on." 
 
 Again Chandler and Martin attempted to avert the 
 blow, but General Cocke interposed, and before he 
 had concluded McLin surrendered, admitting that there 
 were "two other papers purporting to be returns from 
 Baker county." He then read one of these dated No 
 vember 10, 1876, and signed M. I. Coxe, clerk of the 
 circuit court of Baker county, and John Dorman, jus 
 tice of the peace, which gave the electoral vote as 
 238 for the Tilden electors and 143 for the Hayes 
 electors. He then read the other paper which was 
 dated November 13, 1876, signed by the same parties, 
 and recertifying to the same vote. 17 
 
 How farreaching the difference between the first re 
 turn as read by McLin, known as the Driggers return, 
 and the others more properly other, as the latter are 
 duplicates except as to dates known as the Coxe re 
 turns ! Which was the more regular on its face? On 
 what ground did McLin read the Driggers return rather 
 than the Coxe certificate until forced to do so by the 
 Democrats? The use of the Coxe return gave the 
 State unquestionably to Tilden upon the face of the 
 returns, as was conceded by General Wallace under 
 oath before the investigating committee which later 
 
 17 Ib. 423, 424. 
 
i66 The Hayes-Tilden Contest 
 
 made an inquiry at the instance of Congress. 18 The 
 truth of this fact cannot be successfully questioned. 
 Hence, so far as the face of the returns is concerned, 
 as to who was shown to be elected thereby, depends 
 entirely upon which return from Baker county is ac 
 cepted. 
 
 It is certain that McLin knew the contents of both 
 the Driggers and the Coxe papers 18 , for we may treat 
 them as but two returns, although there were, as we 
 have seen, two of the Coxe certificates, alike in all 
 respects except their dates. All of these documents 
 were on file in the office of the secretary of State, and 
 all were present when he selected and read the Driggers 
 return in preference to that by Coxe. The Coxe re 
 turns were entirely regular upon their face; and the 
 only point that the Republicans made against them 
 was that but two officers had signed : M. I. Coxe, clerk 
 of the circuit court of Baker county; and John Dor- 
 man, a justice of the peace of that county. 20 The same 
 was true of the returns from Duval, showing a county 
 majority for the Republicans. The Driggers return 
 was signed by E. W. Driggers, county judge of Baker 
 county; Andrew Allen, sheriff; and William Green, a 
 justice of the peace. The Republicans claimed that the 
 Driggers return was "more regular on its face," the 
 "most regular under the law," as General Wallace ex 
 pressed it in his evidence, and upon this one ground 
 they justified its use rather than the other. Was this 
 
 "Ho. Miscl. Doc. No. 31, pt. 2, pp. 103, 104, 514, 515: 45 
 Cong., 3rd sess. 
 
 "Ib. 105. 
 20 Ib. 104. 
 
The State Canvass 167 
 
 contention well founded? In fact, had this claim any 
 justification whatever? 
 
 The law creating the county canvassing board and 
 defining its duties is found in section 24 of the act 
 approved August 6, 1868. The amendment of the law 
 passed in 1872 did not change or attempt to change 
 this statute of 1868 in respect to the county canvassing 
 board. So the law under which the county boards 
 made the returns of the election of 1876 required that 
 "on the sixth day after any election or sooner if the 
 returns shall have been received," the county judge 
 and the clerk of the circuit court shall meet at the 
 office of the circuit clerk, take to their assistance a 
 justice of the peace, and "publicly canvass the votes" 
 "as shown by the returns on file in the office of such 
 clerk or judge." The preceding section of this act 
 requires the inspectors and clerk of the election at the 
 several polling places in each county, the polls having 
 been closed, to canvass the votes, and make and sign 
 duplicate certificates showing the result. One of these, 
 "without delay, securely sealed," must "be delivered to 
 the clerk of the circuit court, and the other to the 
 county judge of the county." Hence, the county board 
 was authorized to canvass "the returns on file in the 
 office of such clerk or judge," as they preferred. 21 
 
 Now the only question as between the D riggers and 
 the Coxe returns was as to which was the more regular 
 in its signatures. Driggers was the county judge; he 
 had in his possession one of the duplicate certificates, 
 and was one of the men authorized by the law to make 
 the county canvass. Coxe was clerk of the circuit; he 
 had in his possession the other certificate, and was also 
 
 Laws of 1868, p. 7. 
 
i68 The Hayes-Tilden Contest 
 
 one of the men authorized to make the canvass. Each 
 had associated with him in what he claimed to be a 
 correct and authentic canvass, a justice of the peace, 
 another officer also authorized to assist in the canvass. 
 Thus far the certificate of neither had any advantage. 
 
 The third signature on the Driggers return was that 
 of the sheriff. The law provided that the sheriff 
 should act on the board only in case of the "absence, 
 sickness, or other disability of the county judge or 
 clerk." Nothing on or about the Driggers return in 
 dicated the absence, sickness, or other disability of 
 the clerk; but right by the side of the Driggers paper 
 lay two other documents, one of which bore the same 
 date as that of the Driggers return, signed by the 
 clerk, prima facie evidence that the absence of the 
 clerk s signature from the Driggers paper was not 
 the result of disability on his part. No prima facie 
 ground was shown, and in fact no ground existed, which 
 either justified or excused the action of the sheriff in 
 the canvass, and which gave his signature any author 
 ity. The paper made no effort whatever to show why 
 the sheriff had acted, or to justify his signature along 
 with the others. 22 On the face of the paper the sheriff s 
 signature gave it no more weight or validity than 
 would have been given had any other person signed, 
 being a non-member of the board. As to the parties 
 authenticating the instruments there was nothing which 
 rendered the Driggers paper any more in conformity 
 with the law than was either of the others. 
 
 The Coxe report had, however, important prima facie 
 evidence in its favor. The county board of canvassers 
 was required by the law to make duplicates of their 
 
 88 Ho. Miscl. Doc. 31, pt. 2, 105, 106: 45 Cong., 3rd sess. 
 
The State Canvass 169 
 
 report, one of which must be "immediately transmitted 
 by mail to the secretary of State, and the other to the 
 governor of the State." 23 Both of the Coxe returns 
 reached the secretary of State, as he frankly admitted, 
 in due course of mail ; but the Driggers return did not 
 so reach him. Before a subsequent investigating com 
 mittee McLin stated on oath that this Driggers report 
 which he read and which he at first presented as the 
 true and only return from Baker county, was handed to 
 him by Governor Stearns in person. 24 Governor Stearns 
 had no authority whatever for such action he never 
 claimed any; when the act was done it was supposed 
 that the fact would never reach the public. But McLin 
 knew the truth at the time he presented the Driggers 
 report to the board; and both he and Stearns knew 
 the contents, knew that it omitted two of the four pre 
 cincts of the county. Upon the face of the papers the 
 board had notice that the one paper had reached the 
 secretary as required by law and that the other had 
 not. Being prima facie equal in other respects, nothing 
 short of a deliberate purpose to mislead the public as 
 to the true showing on the face of the returns, could 
 have induced sensible men to use a paper received 
 through an illegal channel as against two others, upon 
 their face regular and of equal dignity of authentica 
 tion, received in the legal way and which upon their 
 face showed the total vote of the county. 
 
 Therefore, the Coxe returns were the more regular 
 under the law, and undoubtedly should have been taken 
 rather than the Driggers report in finding the result 
 of all the returns upon their face. This done, the 
 
 28 Laws of 1868, p. 7. 
 
 *Ho. Miscl. Doc. 31, 122, 123. 
 
170 The Hayes-Tildcn Contest 
 
 Tilden electors have a larger majority than that claimed 
 for Hayes by the use of the Driggers figures. It is 
 entirely untrue, therefore, that, when "the secretary of 
 State of the State of Florida laid before the canvass 
 ing board the returns of the votes for electors from 
 all the counties of the State," a "count of the gross 
 vote, before any canvass was made by the board, be 
 fore any vote was rejected or any correction was made," 
 showed "that the Hayes electors had 43 majority over 
 the Tilden electors," as Commissioner Garfield claimed 
 for the returns upon their face. 25 He had the minutes 
 of the board before him, and he must have known that 
 this claim for Hayes was possible only by rejecting the 
 Coxe returns from Baker county; he must have known 
 that this conclusion was possible only by refusing to 
 consider all the returns that were actually before the 
 board, a result based upon a document which had no 
 prima facie support, and that had come to the board 
 through the illegal collusion of the governor and the 
 secretary of State. 
 
 The question which the Coxe and the Driggers re 
 turns, presented, was the single instance within the jur 
 isdiction of the board where evidence was necessary 
 or properly receivable to determine which was the 
 true return and should be counted. / Comparing the 
 two certificates with the precinct returns in order to 
 determine the vote that had actually been cast, the 
 board saw at once that the Coxe return corresponded 
 exactly with the returns on file in the clerk s officey 
 The Republicans themselves did not question in this 
 canvass the genuineness and authenticity of the Baker 
 county precinct returns;/ and no evidence could be 
 
 25 Proceedings, 959. 
 
The State Canvass 171 
 
 found to support the Driggers paper. It was shown 
 before the State board that when the Coxe canvass of 
 the I3th was made, Driggers had been summoned by 
 the clerk to appear at his office for the purpose of 
 canvassing the precinct returns. When the canvass 
 dated on the loth was made by Coxe and Dorman, 
 Driggers had merely been verbally requested to appear 
 at that time and participate in the canvass; but as he 
 did not appear Coxe feared that the verbal summons 
 might be held insufficient, and therefore he served a 
 written summons requesting Driggers to appear at the 
 clerk s office for the purpose of participating in the 
 canvass made on that day. But Driggers had entered 
 into collusion with leading Republicans of Florida to 
 falsify the Baker county vote that there might be made 
 a prima facie case upon the face of the returns for 
 Hayes. For that reason alone Driggers wilfully re 
 fused to participate in either canvass made by the clerk 
 and a justice. 
 
 Governor Stearns co-operated to bring about the Drig 
 gers fraud. On the loth, Dorman, who canvassed with 
 Coxe, was the only justice in the county. The con 
 spirators needed a new justice; Driggers went to 
 Stearns with the plan, told him why he wanted an 
 other justice, and forthwith one Green was commis 
 sioned. 28 Stearns having issued the commission, Drig 
 gers sent it to Green and summoned him to appear 
 at the county seat on the I3th. Instead of joining Coxe, 
 as he had been requested to do, 87 Driggers and Green 
 went to the clerk s office "at very nearly night, if not 
 quite," "about dark," Driggers himself on oath tells us ; 
 
 * House Miscl. Doc. 31, pt. 2, 33: 45 Cong., 3rd sess. 
 36; Ho. Kept. 611, 240. 
 
i;2 The Hayes-Tilden Contest 
 
 and the two were let into the clerk s office by a deputy 
 clerk. Without an effort to have Clerk Coxe present, 
 Driggers and the new justice and the sheriff looked 
 over the returns and then "went over to Mr. Canova s 
 and sifted them out." 28 
 
 Why "sift them out?" No one, not even a Repub 
 lican, has ever claimed authority or jurisdiction for 
 such work as thus done by these conspirators under 
 cover of night, yet their lame excuse is a matter of 
 some curiosity. They admitted that they found "the 
 precinct returns all right;" that all the formalities of 
 the law had been fully complied with as to all returns 
 from each precinct in the county. They had no evi 
 dence before them, not even so much as an affidavit ; 
 they had nothing from which to make a certificate 
 except the precinct returns. Of the four precincts in 
 the county, two were entirely left out: Darbyville and 
 Johnsville. At the latter place Tilden had been 
 given 84 votes and Hayes i./ Driggers stated on oath 
 that he left out this precinct on the ground of intimi 
 dation at the election. When. asked what intimidation, 
 he replied, "They refused a man his vote there." 
 Surprised, his interrogator quickly inquired, "They re 
 fused one man his vote there?" /"Yes, sir," the wit 
 ness meekly replied, and then frankly admitted that 
 the only evidence he had of what he claimed to be 
 intimidation was that the man himself had told him, 
 "a day or two after the election; probably the day of 
 the election. I cannot say when." " He said he had 
 discarded the entire vote given at Darbyville, where 
 the Democrats also had a heavy majority, because he 
 
 28 Doc. 31, pp. 34, 35. 
 ^Ib. 44. 
 
The State Canvass 173 
 
 had seen some illegal votes cast; at first he put the 
 number at five, then qualified it to "some three or 
 four, two or three, or something." No other reason 
 whatever was claimed for discarding either precinct. 30 
 In fact the sheriff on oath admitted that they "just heard 
 it rumored around" that there was intimidation at the 
 Johnsville precinct, adding, "we had no evidence before 
 us at the time" of the attempted certification. 31 
 
 Upon this farcical ground the certificate was built 
 to meet Republican needs, then someone furnished the 
 arch traitor a railroad ticket to carry the pseudo-re 
 turns to Governor Stearns, whereas the law required 
 returns from the county canvassers to go by mail to 
 the secretary of State. Martin, the chairman of the 
 Republican State committee, gave him at least $20.00; 
 and Canova, at whose house the returns were "sifted," 
 added not less than $15.00. Whether Driggers got 
 more for the foul deed, he was not able, when on oath, 
 to recall; though he qualified himself by saying, "I 
 suppose I might have got more than $35.00 !" 3 
 
 It is, therefore, not strange that on the canvass the 
 Republicans admitted the Coxe returns, counting the 
 votes as certified therein rather than as returned by 
 Driggers. However, when we recall the part taken by 
 the governor, that both Driggers and Sheriff Allen, 
 who acted in the fraudulent canvass with him, were 
 appointees of Stearns, 83 the funds furnished by the 
 chairman of the Republican State committee, and the 
 tenacity with which McLin clung to the fraudulent docu 
 ment, well knowing the source and contents as he did 
 
 80 Ib. 45. 
 
 si Ho. Miscl. Doc. No. 35, pt. 11, 284: 44 Cong., 2d sess. 
 
 82 Doc. 31, p. 48. 
 
 a 3 Ho. Miscl. Doc. No. 35, 294, 297: 44 Cong., 2nd sess. 
 
174 The Hayes-Tilden Contest 
 
 of both it and the Coxe returns; and the adroit dis 
 simulation with which Chandler endeavored to hide 
 from the board and the public the Coxe returns, we 
 realize something of the guilt of the Hayes party 
 leaders, both State and National. But in atoning for 
 this glaring sin against law, morals, party, State, and 
 Nation, the State had been given to Tilden as no one 
 disputed; 34 and so the State board sought an avenue 
 of escape down which they could cover their tracks 
 with better success at least so far as the immediate 
 public view was concerned. This the Republican mem 
 bers found by going not alone behind the returns before 
 them, but by passing also behind the precincts returns 
 as they lay accompanied by the ballots that actually 
 had been cast, in the several clerk s offices of the State ; 
 and upon ex parte affidavits, made in many instances 
 by negroes who could neither read nor write, by 
 rejecting votes cast for the Tilden men. Some shadow 
 of an excuse back of the precinct returns had to be 
 found, because when the returns made by the county 
 canvassers had been verified by comparing them with 
 the precinct returns, the board found that upon all the 
 returns from all sources, the Tilden electors were 
 shown to be elected. 
 
 The canvass over, General Francis C. Barlow, pro 
 nounced by Marble as "the foremost counsel and the 
 ablest disputant on the Republican side," returned home 
 and reported to President Grant that Tilden had a 
 majority of the popular votes of Florida, and that 
 the minutes of the canvassing board showed this 
 fact. 88 But Barlow was too honest for the partizanship 
 
 "Doc. 31, 515. 
 
 35 Sen. Rep. 611, 13. 
 
The State Canvass 175 
 
 that dominated the Republican cause. Carl Schurz, 
 Hayes Secretary of the Interior, testifies that, this 
 admission and manly stand being the occasion, the 
 general was "flouted and ostracised by his associates 
 for manifesting an open mind and a judicial spirit." 8 
 Barlow s fate, too, must have weighed heavily with 
 the Republicans of the Commission, no doubt greatly 
 influencing such of them as Judge BracFley, who 
 admits : "The question was one of grave importance, 
 and, to me, of much difficulty and embarrassment;" 
 and that up to the decision he was "sometimes inclined 
 to the one view and sometimes to the other." 3 
 
 As we saw in the review of the quo warrant o and 
 the mandamus proceedings, the elimination of votes 
 actually cast, and which was necessary to reach a pro- 
 Hayes result, was illegal and the result thus reached 
 a nullity, yet were it not, no impartial and judicial 
 mind can read the affidavits upon which this action pro 
 fessed to rest, and see other than that it lacked every 
 justification and excuse. That the succession to the 
 Presidency of the United States of America could be 
 controlled by ex parte affidavits, without opportunity 
 to cross-examine the witnesses, prepared by partizans, 
 no matter to which party belonging, without the re 
 straining influence of a court, considered without op 
 portunity to furnish proper counter evidence and with 
 no power to compel testimony, all of which was true 
 as to the Florida State canvassing board, furnishes a 
 proposition to which I believe no true patriot in his 
 sober moments will subscribe. 
 
 88 Reminiscences, 372. 
 
 87 Miscellaneous Writings, 221. 
 
X. 
 
 After the Battle. 
 
 <( P ^HE Constitution, instead of being defended, 
 had been shot to death on the battlefield," 
 1 wrote J. S. Black, of counsel for the Tilden 
 
 supporters, discussing the action of the 
 majority of the Commission, in the North American 
 Review, July- August, 1877. So far as the majority 
 seem to have felt any force from the laws of Florida 
 as authorized by the Constitution, Blacks figure is 
 expressive of the fearful truth. The preservation of 
 the rights of the States and of popular liberty is as 
 essential to the preservation of the true American gov 
 ernment, as is a due reverence for Federal authority, 
 considered in its national sphere only, as Black pointed 
 out in his review of the decision. 1 The decision has 
 in it all the elements of practical injustice to . the 
 constitutional method of selecting the President; more, 
 it cannot be reconciled with the true spirit of gov 
 ernment as Americans understand and mean to preserve 
 it. If the blended voice of the letter and spirit of a 
 written constitution and laws with that of the people s 
 elective sovereigns, is not to prevail, where shall we 
 look for public peace and the security of private rights? 
 Judge Bradley answered Black s analysis of the de 
 cision, saying: "If a court of last resort decides a 
 controversy the decision stands. If an election is held 
 and decided according to law, there is an end of the 
 Electoral Conspiracy, Ib. 4. 
 I 7 6 
 
After the Battle 177 
 
 matter." 2 True, retorted the Democrats, but the de 
 cision of the election of the Hayes electors was not 
 "according to law ;" because, they reiterated, the Florida 
 court of last resort plainly decided in the mandamus 
 that the State canvassing board did not have the power 
 that it exercised in reaching the pro-Hayes report, and 
 that that report was not according to law. That con 
 struction should have been an end of the matter; that 
 decision should have stood ; it should have been fol 
 lowed implicitly by the Commission in determining the 
 powers conferred upon the State board by the law of 
 Florida. 
 
 However, while the lawyers re-argued the legal 
 questions, the Democrats in Congress sought to avert 
 the impending injustice. An opportunity for the effort 
 was furnished by the law which created the Com 
 mission. That law provided that when the decision 
 had been put into writing and signed by the members 
 agreeing therein, the two Houses should again meet, 
 "and such decision shall be read and entered in the 
 journal of each House, and the counting of the votes 
 shall proceed in conformity therewith, unless, upon 
 objection made thereto in writing by at least five 
 Senators and five members of the House of Representa 
 tives, the two Houses shall separately concur in order 
 ing otherwise, in which case such concurrent order 
 shall govern." So when, February 12, the decision of 
 the Commission had been read in the joint-meeting, 
 David Dudley Field of New York presented an ob 
 jection signed by five Senators and twelve Representa 
 tives. At some length the objection set out various 
 grounds why the decision should not be approved, 
 
 2 Miscl. Writings, 218. 
 
178 The Hayes-Tilden Contest 
 
 among them that the Commission erred in refusing to 
 receive competent evidence to show who had been 
 appointed and tending to show that the Stearns certifi 
 cate had been given in pursuance of a fraudulent and 
 corrupt conspiracy, and because the decision refused 
 to consider the evidence that had been gathered by 
 the committees sent out by Congress, and because of 
 the refusal to consider what is known as the subse 
 quent acts of the State, including the judicial pro 
 ceedings. Having been read, the two Houses pursuant 
 to the terms of the law separated to consider this 
 objection. By a vote of 44 to 25 the decision was 
 approved and made the judgment of the Senate. 3 The 
 House by a vote of 168 to 103 rejected the decision, 
 declaring that the votes cast by the Tilden electors 
 be counted as the votes of the State of Florida. The 
 two Houses not concurring in ordering otherwise, 
 the four electoral votes of Florida were counted for 
 Hayes and on Sunday, March 4, he took the oath of 
 office; or probably on Saturday night previous, Chief 
 Justice Waite administering the obligation in the presence 
 of Grant and Fish. 4 Of the whole votes of the American 
 people the vast majority supported Tilden; of the 
 people of Florida a majority supported Tilden; of the 
 340 members of Congress voting, a majority of 84 
 supported Tilden, declaring him to have been fairly 
 and legally elected. Yet Hayes was declared President; 
 Hayes was inducted into the office and publicly in 
 augurated, and Hayes accepted. 
 
 No true American heard the result with indifference. 
 
 8 Proceedings, 202, 203. 
 
 * See Rhodes, vol. 7, 279, citing the New York Tribune 
 and Boston Advertiser. 
 
After the Battle 179 
 
 Black, writing in the July- August North American 
 Reviezv, says the Democrats were "transformed with 
 passionate indignation," believing the successful 
 "manoeuvers" to have been "incompatible with hon 
 esty and law. * * * All that once ennobled the 
 Nation seemed to be buried in the deep grave dug 
 by the returning-board and filled up by the Electoral 
 Commission." While some allowance should perhaps 
 be made for Black, since as one of the attorneys for 
 the Democrats he must have felt the sting of defeat 
 very keenly, yet the picture is not overdrawn in its 
 essentials. Formerly Attorney-General of the United 
 States, having occupied other important positions, a 
 man of integrity, Judge Black stands unimpeachable 
 as a faithful chronicler. 
 
 On the other hand, Black s picture of the elation 
 evinced by Republicans undoubtedly correctly portrays 
 the bulk of the party. He says : "Some misgivings 
 there may have been here and there; but nearly all 
 zealous Republicans saw it with unreserved approbation. 
 * * * The decision was hailed by Christian states 
 men with loud benedictions. On Sunday, the fourth 
 of March, pious Republicans assembled themselves to 
 gether in prayer-meetings, and simultaneously sent up 
 to Heaven the most fervent petitions that God would 
 bless the returning-boards and the Electoral Commis 
 sion, sanctify the work of their hands, and prosper 
 the pseudo President whom they placed in power. 
 Elsewhere the party demonstrated its pleasure by fir 
 ing off a large number of great guns. In some places 
 the admiring people gathered in gay and festive crowds, 
 and drank deep potations to the defeat of Tilden s 
 big majority, while Bradley and Kellogg, Chandler 
 
i8o The Hayes-Tilden Contest 
 
 and Packard, Wells, Anderson, and the two mulattoes, 
 were in their flowing cups freshly remembered. " 
 
 Yet, there is much truth, as said in The Atlantic 
 Monthly, that "a large part of the Republican party 
 accepted its success with profound disgust at the 
 methods by which it had been secured." 5 At the same 
 time it is just to no small number of that party to 
 say that, whatever they thought of the unblushing 
 frauds by their leaders in Florida and of the crimes 
 of the party in Louisiana, they were brought to believe 
 that the forms of law had been met, that whatever 
 wrongs had been done lay in a wrong use of dis 
 cretion, rested in an illogical or perhaps knowing mis 
 use of the right of determination, lay in an abuse of 
 power, rather than in the usurpation of power ; and 
 that the pro-Hayes result was not brought about by 
 acts ultra vires. In both parties many had to accept the 
 reasoning of somebody other than themselves. Un 
 skilled in the law ; imperfectly acquainted with the 
 real nature of the relation of the States to the Federal 
 government; particularly in the North Hamiltonian 
 largely in the light they did enjoy; the great war 
 between the States freshly remembered, its smoke of 
 battle yet slowly lifting, since they must follow, it 
 was but natural that partizan Republicans follow such 
 men as Stoughton and Bradley. So when the former, 
 flaunting Black with ill temper from the effects of 
 defeat, in his reply in the same journal in September, 
 1877, again declared, "a majority of the electors reg 
 ularly returned in pursuance of the laws of the sev 
 eral States were Republicans," 6 it was but natural sight 
 
 s Vol. 47, 392. 
 
 8 North American Review, September-October, 1877, 197. 
 
After the Battle 181 
 
 should be lost by the bulk of the party of the fact that 
 he meant in pursuance of the laws of the several States, 
 as Republicans and the Commission as opposed at least 
 to the disputed States themselves, had interpreted and 
 enforced the law; and quite as natural they should 
 not see that that assumption of the right of con 
 struction, especially when exercised so as to produce a 
 result at entire variance with the construction by 
 the lawful powers and proper tribunals of the State, was 
 the most radical subversion of both natural and po 
 litical rights, as the latter stand defined by our Con 
 stitution and the common law which it preserves to 
 the States, both defining the American government. 
 
 Nevertheless, history must hold the Republican party 
 to a strict account. The leaders of the party, to 
 gether with Mr. Hayes, accepted the high trust with 
 unblushing eagerness; and the President himself made 
 haste to divide the booty. With a devotion that would 
 have been commendable in a worthier cause, he re 
 warded those who had been most useful in obtaining the 
 office. McCrary, who fought with almost superhuman 
 energy both in the House and in committee until 
 the Electoral bill passed in triumph, was made Secre 
 tary of War; Evarts, the only attorney on either side 
 who clung to his master s cause to the close of the 
 fight before the Commission, was made Secretary of 
 State. General Lew Wallace, among the first and 
 of the rear guard upon the bitterly contested Florida 
 field, was sent abroad; there, thanks to the god of 
 good literature, he gathered material for that splended 
 classic, Ben-Hur. Carl Schurz became Secretary of 
 the Interior, and the control of the Treasury was con 
 signed to John Sherman of Ohio. Within a few months 
 
182 The Hayes-Tilden Contest 
 
 after his inauguration every one who had helped to 
 secure the needed electoral votes, was placed in a 
 Federal office. This fact is one reason why friends of 
 Tilden and other prominent Americans believe that the 
 Presidency was purchased for Hayes if not by his direct 
 consent, at least that he assented and paid the price. 7 
 He certainly kept faith in the contract made by his 
 personal friends and by party leaders to the effect that 
 the army should be withdrawn from the South. These 
 assurances were made to prominent Southern Con 
 gressmen after the decision of the Commission in the 
 Florida Case and before the conclusion of the work 
 of the Commission, with a view to secure peaceable 
 aquiescense in the result of the determination. 8 Ac 
 cordingly, shortly after the inauguration, Hayes with 
 drew the army from its guard over Republican in 
 terests in the Southern States. D. M. Key of Tennes 
 see, an ex-Confederate soldier and said to be a Demo 
 crat, 9 was appointed Postmaster General. With Charles 
 Devens of Massachusetts as Attorney-General, and 
 R. W. Thompson of Indiana as Secretary of the Navy, 
 the Grant ring that so sorely despoiled the country, 
 disappeared. Out of the evil some good portended, 
 softening the harshness of the bitter defeat. 
 
 The policy of the President in its bearing upon af 
 fairs especially concerning the South, was doubtless as 
 much to save his party as to pay campaign debts. 
 Military peonage and carpet-bag rule in the South had 
 
 7 Bigelow, Life of Tilden; Peck, Twenty Years of the Re 
 public, 119; 47 The Atlantic Monthly, 197; The North American 
 Review, July-August, 1877. See also Manton Marble, A Secret 
 Chapter of Pol. Hist. 
 
 s Ho. Miscl. Doc. No. 31, 42, 624: 45 Cong., 3rd sess. 
 9 44 The Atlantic Monthly, 192. 
 
After the Battle 183 
 
 near proven the ruin of even the National Republican 
 party; and the revolution in public sentiment had set 
 toward a saner policy during the latter part of Grant s 
 administration. Hayes found the time for return to 
 government under the principles of the Constitution 
 so demanding that he dared not follow the footsteps 
 of Grant. Some of the links of usurped control, 
 smeared and daubed with innocent blood chargeable 
 to the atrocious carpet-bag rule, had rusted; and, 
 those of the North who had been forging the chain 
 having become nerveless of nausea, the shackles were 
 beginning to fall away of their own weight. 
 
 As time went on calumniations of Tilden and of 
 the Democratic party sought to divert attention from 
 the ugly record of the successful party. But the 
 Democrats in Congress proved fully equal to the 
 situation, and through their committees kept gather 
 ing a store of invaluable material bearing upon the 
 conduct of the contest with reference both to Florida 
 and other Southern States. To the evidence gathered 
 by the committees of the House pursuant to the au 
 thority of their appointment on December 4, 1876, 
 directing an investigation of the recent election and 
 the action of the State canvassing boards in the 
 disputed States and that the committee "report all facts 
 essential to an honest return of the votes received by 
 electors" and "to a fair understanding thereof by the 
 people;" 10 and to the evidence gathered by the Senate 
 committee of three Republicans and one Democrat, 11 
 appointed December 6, 1876, with latitudinous powers, 
 
 10 Report on Florida, January 31, 1877, House Report 143: 
 44 Cong., 2nd sess.; the evidence gathered by this committee 
 is in House Miscl. Doc. No. 35: 44 Cong., 2d sess. 
 
 "This is Senate Miscl. Report No. 611. 
 
184 The Hayes-Tilden Contest 
 
 all of which evidence was at the service of the Com 
 mission, the House added down to 1880 in an effort 
 to furnish the world the truth. 
 
 Among the most important facts that were fully 
 discovered by these later efforts of Congress are those 
 concerning attempts at bribery in the disputed Southern 
 States. Of no inconsiderable importance is the pres 
 ervation of the fact that Hayes (though some writers 
 forget to mention the fact) 12 "unfortunately had some 
 superserviceable friends who entered into negotiations, 
 looking to the bribery of one or more members of the 
 canvassing" board of at least Florida. While "dis 
 patches savouring of corruption were sent in cipher 
 to Colonel W. T. Pelton, Tilden s nephew," with which 
 it is now universally admitted Tilden had nothing to do 
 and concerning which his course "was really above re 
 proach," yet the complement of the story as correctly 
 preserved by the exhaustive researches of the Con 
 gressional committees, is that the Democratic party 
 was not behind Pelton or cognizant of his efforts either 
 as to Florida or any other State. He and Manton 
 Marble exchanged some telegrams while the latter was 
 in Florida during the canvass by the board, in which 
 Marble transmitted a proposition that had come to 
 him purporting to be an offer by the Republican mem 
 bers of the board to sell out. Under oath Marble after 
 wards stated that he sent the message as a matter of 
 information, without intent or purpose of attempting 
 either as an individual or as a representative of his 
 party the bribery of the board, that it might be known 
 that the venality of the board was a matter of common 
 
 "Rhodes, 7 History of the United States, 244. 
 
After the Battle 185 
 
 rumor; 18 and his statement that he had no plan or 
 arrangement with any one to bribe or attempt to bribe 
 or in any way improperly to influence any one whom 
 soever, and that he declined to buy the board, has 
 not been discredited. It is certain that neither of these 
 men had any official connection with the Democratic 
 party, except that Pelton was voluntarily acting in the 
 capacity of secretary of the National committee. 
 Neither had been commissioned by the party organiza 
 tion, or by any member of the party committee, or by 
 Tilden or any person or persons. Marble went to 
 Florida entirely at his own instance. No one con 
 nected with the party management, except Cooper, 
 treasurer of the National Democratic campaign com 
 mittee, and Tilden, knew until after the time had 
 passed and the matter had been made public, of Pel- 
 ton s dream or of Marble s information. Both Tilden 
 and Cooper promptly vetoed any effort to use cor 
 rupt means ; and the moment the matter came to Til- 
 den s ears he promptly stopped all further inquiries 
 which even sought to ascertain whether the officials of 
 the disputed States could be corrupted. The stand 
 taken by Tilden and Cooper was that of high-toned 
 gentlemen who acted upon moral grounds, testified Pel- 
 ton. 14 The whole matter, when the truth was known, 
 was but a straw of no party significance. 
 
 Out of about 30,000 "political" telegrams, of which 
 perhaps over 300 were in cipher, that had been trans 
 mitted by both parties through The Western Union 
 Telegraph Companies during the election period, a few, 
 including Marble s in cipher, were given to the New 
 
 13 Ho. Miscl. Doc. No. 31, 259: 45 Cong., 2nd sess. 
 "Ib. Cipher Evidence, 156, 158, 166, 201, 206, 221. 
 
i86 The Hayes-Tilden Contest 
 
 York Tribune. It employed an expert who attempted 
 to decipher the ciphers, and the translations as pub 
 lished did much to alienate allegiance to the Tilden 
 cause. Conscious of innocence so far as the party 
 or party leaders were concerned, the Democrats of 
 the House as late as January 21, 1879, appropriated 
 $10,000 of the House contingent fund, 15 and directed 
 that the Florida investigation committee go to the 
 bottom of all alleged efforts at corruption, especially 
 with reference to the State canvassing board in any 
 disputed State. The result, completely vindicating 
 Tilden and the Democratic party, has preserved for the 
 world the incriminating evidence against the Repub 
 licans. 
 
 Offers of reward and assurances of protection reached 
 the Florida State canvassing board from leaders of 
 the Republican party and from men who were com 
 missioned by the party s official organization, and from 
 men who were Hayes personal counsel or personal 
 friends, and whose promises he undoubtedly recog 
 nized. 
 
 Thomas J. Brady, Grant s Second Assistant Post 
 master General, at Grant s request conveyed by Zach 
 Chandler, the Secretary of the Interior and also chair 
 man of the National Republican campaign committee, 
 went to Florida to see the count by the State board, 
 and to assist the Republicans in their case. He spent 
 about a month s time there, during which he received 
 his pay as a Federal officer. On oath he stated that 
 the witnesses whose affidavits were used before the 
 board by the Republicans, were promised by him that 
 the Republican party of the United States and the 
 
 Ib. 3. 
 
After the Battle 187 
 
 authorities at Washington "would stand by them." 
 He advanced the money, not less than a thousand 
 dollars, and paid the hotel bills "of all the party who 
 went down there." He also carried $2,000 to W. E. 
 Chandler, an officer of the National party organization, 
 also watching the Florida board, who paid the witnesses 
 used by the Republicans; and again out of his own 
 funds Brady bought tickets for the return home of some 
 of the Republican "statesmen." 16 In so far as the 
 legitimate expenses of conducting the contest before 
 the board are concerned, the expenditure is no reflec 
 tion; that the time of high officials should be taken 
 at the expense of the government for purely partizan 
 purposes, and that the members of the board should be 
 influenced by these and other equally prominent men 
 through promises of reward, the latter were actually 
 fulfilled after the inauguration, constitute the venal 
 nature of the transaction. The Democrats also paid 
 their expenses of the local contest. Before the later 
 investigations of the Congressional committee, Cooper, 
 treasurer, filed an itemized statement of the expendi 
 tures by the National Democratic committee from 
 November 7, 1876, to February 5, 1879, showing that, 
 including all the Florida expenses, but $15,340.35 had 
 been spent." Pelton stated under oath that at no time 
 had He any money either actually or promised or within 
 reach for political or campaign purposes ; and the 
 Republicans were never able to contradict the sworn 
 statements of Pelton, Cooper and Marble that no money 
 was used for improper purposes in Florida. When 
 asked the nature of the work of the visiting Democrats 
 
 i Ib. 55, 56, 57, 59. 
 "Ib. 157. 
 
188 The Hayes-Tilden Contest 
 
 before the State board, Marble, on cross-examination, 
 replied: "We endeavored to establish the facts before 
 them and to establish the law. We did everything, in 
 short, except the one thing needful. They were for 
 sale ; we refrained from buying them." 1 
 
 Among the many evidences of the corrupting and 
 demoralizing nature of the work of the Republicans 
 in its influence upon the canvassing board, none is 
 more reliable or stronger than the evidence of Samuel 
 B. McLin. Custodian of the returns, no one did more 
 to make it possible for the Republicans to claim Florida 
 than did Secretary of State McLin. Neither he nor 
 Cowgill of the State canvassing board had been for 
 gotten by Hayes. April 15, 1877, McLin was ap 
 pointed associate justice of the supreme court of the 
 Territory of New Mexico. The Senate delayed to 
 confirm the appointment; McLin fell ill of fatal tuber 
 culosis. 19 Recognizing his serious condition and un 
 doubtedly in view of an early death, "impelled," he 
 declared, "by a sense of duty to myself and justice to 
 others," on March 23, 1878, he wrote and signed the 
 statement from which I have here and there quoted. 
 On June 8 he appeared before the sub-committee com 
 posed of Hunton, Springer and Hiscock, and volun 
 tarily filed his statement under oath. 
 
 "At no time," he proceeds to say concerning his work 
 in the Florida canvass, "did I feel that I occupied the 
 position of a judge charged with the duty of a strict 
 and nice weighing and balancing of all the evidence 
 presented. * * * I had been for many years and 
 was at the time of the canvass a very active partizan. 
 
 I,b. 206, 223. 
 
 "26 The Nation, May 2, 1878, 288. 
 
After the Battle 189 
 
 * * * I was shown numerous telegrams * * * from 
 those to whom I had been accustomed to defer. * * * 
 These telegrams also gave assurance of the forth 
 coming of money and troops if necessary in securing 
 the victory for Mr. Hayes. Following these tele 
 grams trusted Northern Republicans, party leaders and 
 personal friends of Mr. Hayes, arrived in Florida as 
 rapidly as the railroads could bring them. I was sur 
 rounded by these men, who were ardent Republicans, 
 and especially by friends of Governor Hayes. * * * 
 I cannot say how far my action may have been in 
 fluenced by the intense excitement that prevailed 
 around me, or how far my partizan zeal may have led 
 me into error neither can I say how far my course 
 was influenced by the promises made by Governor 
 Noyes, that if Mr. Hayes became President, I should 
 be rewarded. Certainly these influences must have had 
 strong control over my judgment and action." 
 
 Then, referring to subsequent confessions by elec 
 tion officers that an aggregate of 393 votes had been 
 fraudulently added to the Republican vote and counted 
 for Hayes, and that this count had been taken by the 
 State board, McLin adds: "The conclusion, therefore, 
 is irresistible that Mr. Tilden was entitled to the 
 electoral vote of Florida, and not Mr. Hayes." 20 
 
 In answer to questions propounded by the committee, 
 McLin said: "General Wallace told me on several oc 
 casions that if Mr. Hayes should be elected that the 
 members of the returning board should be taken care 
 of, and no doubt about that." 
 
 In view of the fact that General Wallace had gone 
 to Florida at the request of both Hayes and the chair- 
 
 20 Ho. Miscl. Doc. No. 31, pt. 2, 98, 99: 45 Cong., 3d sess. 
 
igo The Hayes-Tilden Contest 
 
 man of the National Republican committee, his reply 
 to this grave charge becomes doubly important. It 
 will be remembered that he visited Florida twice, and 
 was present at both counts and canvasses made by the 
 pro-Hayes board. Having appeared before the com 
 mittee, his attention was called to McLin s statements. 
 He said : 
 
 "When I arrived in Florida the second time I did 
 tell Mr. McLin, I am satisfied, that I was there by re 
 quest of Governor Hayes ;" then he denies that he had 
 made similar statements the first time, saying McLin 
 had confused the two visits. His attention called to 
 the statement that he had before the State canvass 
 told McLin that Hayes, if elected, would provide for 
 the Republicans of Florida, General Wallace replied: 
 
 "Well, I will tell you the circumstances and you may 
 draw what inference you please from it. I will tell 
 you what occurred, and I will use almost the identical 
 language that I used on that occasion, because I was 
 very much impressed at the time, and I remember 
 vividly the circumstances. 
 
 "I was at Mr. McLin s house, and my recollection 
 is that I was there by his invitation. It was prob 
 ably an evening or two before the board were to 
 pronounce their judgment. In the parlor of his house, 
 after some general conversation, he made to me a remark 
 to this effect : That Mr. Manton Marble had been 
 at his house to see him but a very short time before 
 that and had had a conversation with him, and that 
 in that conversation Mr. Marble had told him that 
 there was no reason or necessity for him, McLin, liv 
 ing or dying a poor man ; that if Mr. Tilden were 
 counted in he should command anything he wanted. I 
 
After the Battle 191 
 
 immediately made reply to that. I said, Mr. Marble is 
 very bold in his proposition, Mr. McLin, and he cer 
 tainly forgets that if Mr. Hayes should be elected he 
 will have the same opportunity to take care of his 
 friends, and I immediately added, and I do not doubt 
 that he will do it. I did not understand at the time 
 that it was a proposal or a proposition on my part to 
 McLin. I did not understand that it was a corrupt 
 proposal from me or anything that looked that way." 
 
 After a vain attempt to explain the difference between 
 his proposition and what he represented Marble to have 
 made, the witness was asked by Mr. Hunton: "Mr. 
 McLin was asked: Did Mr. Wallace frequently refer 
 to the fact that those who were instrumental in bring 
 ing about this result would be rewarded by Governor 
 Hayes when he became President? and he answered: 
 Yes, when we would talk together we would refer to 
 the matter. " General Wallace replied : "I think that 
 is true if it applies to anything that I said after I re 
 turned to Florida the second time." 2 
 
 Undoubtedly, the impartial must admit, a startling 
 confession, and in the main a strong corroboration of 
 McLin ! These conversations, more than savouring 
 of attempted bribery or of an effort corruptly to in 
 fluence members of the Florida State board, un 
 doubtedly besmirched the Republican course before 
 it was supposed the matter of the Florida State can 
 vass had passed from the control of the State board, 
 and under their influence the second canvass of the 
 board was made, resulting in a reiteration of the 
 former pro-Hayes determination, notwithstanding this 
 last pretended canvass stultified itself by declaring 
 513, 514. 
 
192 The Hayes-Tilden Contest 
 
 that the vote for State officers, practically the same as 
 that for Presidential electors, showed the election of 
 the Democrats. This second count made during Wal 
 lace s second visit, was made by order of the supreme 
 court on the mandamus. The Republicans regarded it 
 as highly important again to obtain a pro-Hayes declara 
 tion, for Generals Wallace and Barlow, as counsel by 
 specific commission for Hayes and the Republican 
 party, argued the case ; and Sellers of New York and 
 possibly Biddle of Philadelphia represented the Demo 
 crats in the arguments. 22 Bribery either by the use 
 of money or by promises of valuable public offices, 
 that the assurance might be made doubly sure of ob 
 taining a favorable result upon the canvass pursuant 
 to the mandamus, can in no possibility be less criminal 
 or less derogatory than a similar course at any stage 
 of the great controversy. Not only was it not known 
 what weight at the Federal count might be attached 
 to the result should this same board on this second 
 canvass, apply to the count of electoral votes the 
 same law as it must pursuant to the mandamus apply 
 to the count of the votes cast for State officers, but 
 the moral influence upon the Republican cause was a 
 question of great consideration. Republicans in Con 
 gress, Republicans on investigating committees, and 
 Republican papers made immense use of this second 
 reiteration by the State board; and the fact that the 
 pro-Hayes claim had been repeated by the board be 
 came a factor of no little importance in holding to- 
 together Republican forces. 
 
 Therefore we do not wonder that such men as McCul- 
 loch, Secretary of the United States Treasury in the 
 
 22 Ib. 516. 
 
After the Battle 193 
 
 administrations of Lincoln, Johnson, and Arthur, whom 
 Rhodes regards as a calm observer, 23 when summing up 
 the history of the contests in Louisiana and Florida, 
 says : "My opinion at the time was, and still is, that 
 if the distinguished Northern men who visited those 
 States immediately after the election had stayed at 
 home, and there had been no outside pressure upon 
 the returning boards, their certificates would have 
 been in favor of the Democratic electors." This opin 
 ion, he adds, was confirmed by the voluntary and un 
 reserved admission, made within the hearing of third 
 parties, by the president of the Union Telegraph Com 
 pany at the annual meeting of the Union League Club in 
 New York City in 1878, that Hayes was not elected 
 and that the telegrams that passed through the offices 
 of his company established the fact. 24 
 
 The electoral votes of Florida and the other disputed 
 Southern States were necessary to the election of 
 Hayes. The others presented less ground for a pro- 
 Hayes result than did Florida. For instance, in Louisi 
 ana the Republicans, aided and abetted by prominent 
 party leaders, by the most glaring forgery, changed 
 the electoral certificate that was sent by messenger to 
 the president of the Senate, and which was used ; and 
 there is evidence that this crime and its dangerous 
 and far-reaching weight were known to the president 
 of the Senate and to some of the Republican members 
 of the Commission. 25 
 
 Therefore, since the pro-Hayes certificates, sustained 
 
 23 7 Hist. U. S., 238. 
 
 24 Men and Measures, 420. 
 
 25 Ho. Rep. No. 140, 56 to 63 and 89 to 91: 45 Cong., 3rd 
 
194 The Hayes-Tilden Contest 
 
 by the majority decision, rest upon the most disgraceful 
 frauds and acts ultra vires; and since this decision 
 of the Electoral Commission, the Florida Case being 
 representative, was without warrant in law or equity, 
 subversive of fundamental principles of our govern 
 ment, and unjustified as an act of revolution, the con 
 clusion of the impartial historian must be that Ruther 
 ford B. Hayes had neither legal nor moral title to the 
 high office of President of the United States. 
 
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