THE HAYES-TILDEN ELECTORAL COUNT, 1877

The twenty disputed electoral votes of the Hayes-Tilden election of 1876 raised many questions regarding the powers and duties of election boards, and also regarding judicial decisions and Congressional authority. It was found that if all the disputed votes were counted for Mr. Hayes, he would be chosen by one vote. In addition to the great partisan activities of the supporters of both Mr. Hayes and Mr. Tilden, there was much done to determine the actual authority and source of authority which should control the decision in each particular case. Mr. Tilden had an examination made of the debates and other records of Congress from 1789 to 1872, in order to show the powers of Congress in such cases. John Bigelow, in his "Writings and Speeches of Samuel J. Tilden," published by Harper & Brothers, 1885, says, Vol. II., p. 385, that the conclusions of the inquiry instituted by Mr. Tilden were threefold, as follows:

1. That the exclusive jurisdiction of the two Houses to count the electoral votes by their own servants and under such instructions as they might deem proper to give, has been asserted from the beginning of the Government.

2. That the President of the Senate, although he has uniformly, in person or by some substitute designated by the Senate, performed the constitutional duty of opening the electoral votes, has never in a single in

stance attempted to go a step beyond that narrow and limited function; has in no instance attempted to determine what votes he should open; but has opened all and submitted them to the action of the two Houses, unless required to omit particular votes by their concurrent orders.

3. That the two Houses have not only always exercised exclusively the power to count the electoral vote in such manner and by such agents as they might choose to do it, but they have exercised the right to fix and establish the methods of procedure by standing rules.

The report of Mr. Tilden follows on pages 386 to 450, except that Mr. Bigelow omitted several pages of citations of speeches and votes of men then prominent at Washington. The following selections are from Mr. Bigelow's edition of Mr. Tilden's report. (See page 108.)

There have been twenty-one Presidential elections under our Federal Constitution; but until now the methods of canvassing the electoral votes at the seat of government have never presented questions of much practical importance, except so far as they establish precedents for the future.

The main result of the Federal canvass, whenever there has been an election by the people, has always been known in advance of the meeting of Congress; and though questions as to the authenticity or validity of votes have repeatedly arisen, their solution has in no instance hitherto made any practical difference with the result.

Now, for the first time, the disputed votes may decide the result of the election. There are one hundred and eighty-four uncontested votes on one side, one hundred and sixty-five on the other, and twenty in dispute. It will be necessary for the constituted authori

(From the painting by August Franzen. In the Hayes-Tilden contest Mr. Evarts was the leading counsel for the Republicans before the Electoral Commission, making the point that the court had no power to go behind the returns, but must consider only the regularity of the certificates. In 1877 he was appointed Secretary of State by President Hayes. In 1881 he went to Paris as delegate of the United States to the International Monetary Conference, and was United States Senator from 1885 to 1891)

ties, in some instances, to pass upon the authenticity or validity of duplicate electoral certificates from the same States. Where the authority lies that is to decide such an issue has thus become a question of the gravest import; for upon it may depend not merely the contro! of this Government during the next Presidential term, but the perpetuity of our political institutions and the confidence of our people and of all mankind in the elective system and in the principle of popular sovereignty.

The provisions of the Constitution furnish a pretext for some diversity of opinion upon this subject, especially when it is investigated under the glamour of fervid partisanship, and when the choice of candidates may depend upon the interpretation those provisions receive. The Constitution provides that the certificates of the votes given by the electors, which are transmitted to the seat of government, shall be delivered to the President of the Senate, and that the President of the Senate shall, in the presence of the two Houses of Congress, open all the certificates, and that "they shall then be counted."

By whom the votes shall be counted; how far the counting is a simple matter of enumeration; and how far it involves the additional duty of determining the authenticity and validity of the certificates presented,are questions in the solution of which the practice of the Government is our best guide. Attempts have been made at various times to secure supplementary legislation to meet the exigency which is now presented to the country; but none of these efforts were fortunate enough. to unite a majority of the Federal legislature in its favor. The difficulty now has to be met under aggravated disadvantages. The two Houses are divided in their preference for the respective candidates. Questions will be raised as to the authenticity or validity of some of the electoral certificates to be presented, upon the reception or rejection of which the result of the election may finally

depend. In view of the difficulties which our legislators will experience, with two great armies of more or less heated partisans behind them, in legislating upon this subject with suitable impartiality, it is the disposition and it will be the manifest duty of every patriotic mem

GEORGE F. EDMUNDS

ber of our Federal legislature to adhere as closely as possible to the precedents which have been sanctioned by time and continuous usage. A less auspicious moment for engaging in experiments and for introducing new methods of canvassing the electoral vote could scarcely be imagined. The wisest devices which have not the sanction of precedent would now fall a prey to merited suspicion and distrust.

It is in deference to this conviction that the following com

pilation is submitted to the public. It is intended to embrace a perfect and complete record of the canvass in the two Houses of Congress, with all the debates to which they have given rise, taken from the official reports. Scattered as the originals are, through some forty or fifty cumbrous and not readily accessible volumes, it would be a task which very few could or would undertake, to make themselves even tolerably familiar with the way in which this quadrennial duty