Table of Contents
Title Page
Acknowledgements
List of Illustrations
Praise
— PROLOGUE —
— CHAPTER 1 —
— CHAPTER 2 —
— CHAPTER 3 —
— CHAPTER 4 —
— CHAPTER 5 —
— CHAPTER 6 —
— CHAPTER 7 —
— CHAPTER 8 —
— CHAPTER 9 —
— CHAPTER 10 —
Notes
About the Author
ALSO BY WILLIAM H. REHNQUIST
— EPILOGUE —
Bibliography
Copyright Page
Acclaim for William H. Rehnquist’s
CENTENNIAL CRISIS
“As a historian Rehnquist is first-rate. The story of the Hayes-Tilden square off of 1876 is perhaps the most surreal political imbroglio America has ever produced. And this is the most literate, judicious, and wise retelling of that bizarre election ever written.” —Douglas Brinkley, director of the Eisenhower Center for American Studies at the University of New Orleans
“Speaks pointedly to recent and current events. . . . Rich with subplots and engaging characters.”
—Austin American-Statesman
“Rehnquist narrates [the events of the 1876 election] clearly . . . [and] offers colorful portraits of the two presidential candidates and members of the Court.” —The Nation
“Rehnquist hits his stride here, explaining how the commission worked and how the dispute was influenced by the concept of state sovereignty. . . and insightfully delving into the mystery of why one of the justices on the commission may have changed his mind at the last minute.” — Fort Worth Star-Telegram
“An earnest book . . . [about] an intensely interesting period in American history.” —Los Angeles Times
“Rehnquist takes readers behind the scenes of the controversy.”
—The Florida Times-Union
William H. Rehnquist
CENTENNIAL CRISIS
William H. Rehnquist was born in Milwaukee, Wisconsin, and served in the U.S. Army Air Corps during World War II. He earned his B.A. and M.A. in political science from Stanford University and a second M.A. from Harvard. He graduated first in his class at Stanford Law School in 1952. In 1969 Rehnquist became assistant attorney general for the Justice Department’s Office of Legal Council. He was confirmed by the Senate as an associate justice of the Supreme Court in December 1971 and took his place on the bench in January 1972. He became the sixteenth Chief Justice of the Supreme Court in 1986. He lives in Arlington, Virginia.
ALSO BY WILLIAM H. REHNQUIST
The Supreme Court: New Edition
All the Laws but One
Grand Inquests: The Historical Impeachments of Justice Samuel Chase and President Andrew Johnson
List of Illustrations
Justice Nathan Clifford, painted in 1967 from earlier portraits. (Portrait by Joan Trimble-Smith, Collection of the Supreme Court of the United States) 12
Rutherford B. Hayes (seated, left), Guy Bryan (standing), and Stanley Matthews (seated, right), taken in either 1842–43 or 1848. (Rutherford B. Hayes Presidential Center) 36
Samuel Tilden, not dated. (Library of Congress, LC-USZ62-29812 ) 60
Justice David Davis, painted before 1947 from earlier portraits. (Portrait attributed to Jessie M. Isaacs, Collection of the Supreme Court of the United States) 84
Justice Joseph Bradley, painted in 1904 from earlier portraits. (Portrait by Edmund Clarence Messer, Collection of the Supreme Court of the United States) 117
Justice Stephen Field, 1895. (Portrait by Albert Rosenthal, Collec tion of the Supreme Court of the United States) 134
Senator Roscoe Conkling, c. 1860s. (Photograph by Mathew Brady, Collection of the Supreme Court of the United States) 144
Ulysses S. Grant, c. 1872. (Engraving by H. B. Hall & Sons after Freeman Thorp, Collection of the Supreme Court of the United States) 153
“The Electoral Committee in session in the Supreme Court Chamber,” from the February 17, 1877, issue of Harper’s Weekly. (Engraved from a sketch by Theodore Davis for Harper’s Weekly, Collection of the Supreme Court of the United States) 181
Justice Samuel Miller, photographed “for Electoral Committee” in late 1876. (Photograph by Samuel Fassett, Collection of the Supreme Court of the United States) 192
Justice William Evarts, c. 1860s–1870s. (Collection of the Supreme Court of the United States) 202
Justice Stanley Matthews, c. 1870s. (Photograph by Mathew Brady, Collection of the Supreme Court of the United States) 215
Acknowledgments
I dedicate this book to Charles Fairman, who first introduced me to the Supreme Court in an undergraduate course in Constitutional Law at Stanford University. His published work in the era of the Court with which this book deals has been an important source for it.
My daughter, Nancy Spears, has been my editor of first resort in the preparation of the book and has made many useful suggestions. My editor at Alfred A. Knopf, Pat Hass, has again expertly sought out unnecessary verbiage in my draft, and the book is the better for it.
My secretaries, Janet Tramonte and Laverne Frayer, have typed the manuscript, and my aide, Joe Mullaney, has assisted me in a number of different ways. The Library of the Supreme Court of the United States, headed by Librarian Shelley Dowling, Patricia McCabe, Linda Maslow, Katherine Romano, and Sara Sonet of the Library staff. In gathering photographs for the book, Katherine Fitts, Curator of the Supreme Court, and Franz Jantzen have both helped greatly in obtaining hard-to-get photographs. My friend Peter McKay, because of his interest in the subject, has furnished helpful suggestions.
— PROLOGUE —
THE DISPUTED ELECTION of 2000, in which Florida’s electoral votes made Republican George W. Bush President instead of Democrat Al Gore, was the subject of intense media coverage: on network news, in daily newspapers, and in weekly news magazines. In this coverage, there was an occasional brief reference to another disputed presidential election: the 1876 contest between Republican Rutherford B. Hayes and Democrat Samuel Tilden. But to most Americans who have not majored in American history in college, the earlier race was at best a long-forgotten episode briefly mentioned in a high school civics text.
There were undoubted similarities between the two events. The very fact that the outcome of a presidential election would be uncertain for weeks after the polling day was one. The Constitution provides that the decision be made by electors chosen in the states in November, who don’t cast their votes until December. But in normal presidential elections, the voting of the electors is a formality, predetermined by the popular vote cast in each state on the first Tuesday of November. Only when the issue of which candidate won the popular vote in a state arises does the choice of electors become controversial.
Twice in our history the chosen electors did not give a majority of their votes to a single candidate: in 1800, when Thomas Jefferson and Aaron Burr each received the same number of votes, and in 1824, when the electors divided their votes among several candidates. In each of these instances, as the Constitution provided, the election of the President was thrown into the House of Representatives. The result was that Thomas Jefferson became President in 1801, and John Quincy Adams did so in 1825. But the only times that there was a dispute as to which slate of electors had been chosen in a particular state were 1876 and 2000.
There were other similarities. In each case, a two-term incumbent was stepping down from the office of President: Republican U. S. Grant in 1876, and Democra
t Bill Clinton in 2000. Each of the years was special for reasons other than the occurrence of the presidential election. The year 2000 was regarded by many as a millennial year, with appropriate worldwide celebration on January 1. Eighteen seventy-six was the centennial year of the United States as a nation—the Declaration of Independence had been adopted a century earlier. Excited crowds in Philadelphia on New Year’s Eve, 1875, vowed that even if Congress would not appropriate the funds, Pennsylvania would finance the forthcoming Centennial Exhibition in Philadelphia.
There were significant differences, too. In 1876 there was no NATO, no United Nations, no Balkan or Mideastern crisis that concerned the United States. This country was more than a week away from Europe by steamship—the fastest known means of ocean transportation—and more than twice that distance from Asian countries such as Japan and China.
There were no serious current disputes with either of our continental neighbors, Mexico and Canada. During our Civil War, French Emperor Louis Napoléon had taken advantage of the United States’ preoccupation with fighting to impose upon Mexico as its ruler Maximilian, brother of Emperor Franz Josef of Austria. As soon as the Civil War was over, Secretary of State William Seward pressed France to withdraw its troops supporting this puppet. It did, Maximillian was overthrown, and Porfirio Díaz, a Mexican, came to power.
While there had once been support in the United States for the idea of annexing Canada—a sentiment not shared by many Canadians—that support had receded. In 1867, the British Parliament passed the British North America Act, which gave Canada a considerable measure of self-government and a parliament of its own. The United States came to realize that Canada was here to stay.
It was well that there were no current international crises concerning the United States, because the country did not know for certain until March 2, 1877—two days before the inauguration date at that time—that Hayes would be the new President. That was because of the complicated machinery that Congress devised after the dispute over the returns crystallized. The Democrats had a majority in the House of Representatives, and the Republicans in the Senate. The passage of any measure therefore required the support of both parties, and ultimately of the candidates themselves. Congress created an Electoral Commission, composed of five congressional Democrats, five congressional Republicans, and five members of the United States Supreme Court, to make what was in effect a final determination as to which returns from Florida, South Carolina, Louisiana, and Oregon would be counted.
This was quite different from the resolution process in the disputed election of 2000, in which the Supreme Court of the United States and the supreme court of Florida were the principal postelection actors. There was profound dissatisfaction with the process on the part of the losing parties in both 2000 and 1876. Perhaps when such a dispute erupts, there is no means of resolving it that will satisfy both sides. But for all of those whose interest in the process of electing a President was quickened by the disputed election of 2000, a review of what happened in 1876 should be interesting and perhaps instructive. To that review, this book is dedicated.
— CHAPTER 1 —
ON MAY 10, 1876, the Centennial Exhibition, commemorating one hundred years of American independence, opened in Philadelphia—the logical place to hold such an exhibition. It was there on July 4, 1776, that the Continental Congress adopted the Declaration of Independence, proclaiming in Thomas Jefferson’s stirring words that “these united colonies are, and of Right ought to be, Free and Independent States.”
Philadelphia in 1776 was not only the seat of the rudimentary national government, but also the largest city in the country. After the ratification of the Constitution in 1789, Philadelphia became the temporary capital of the infant nation, but in 1800 lost out to the new city of Washington as the site of the permanent seat of government. In time New York overtook Philadelphia as the most populous city, and both New York and Boston became more prominent centers of commerce on the East Coast. But Philadelphia rose to the occasion in 1876. Two hundred buildings were constructed in Fairmount Park, and on opening day more than 186,000 people visited the grounds. Many foreign nations took buildings to exhibit their cultures and accomplishments. Fukui Makota, the Japanese commissioner to the exposition, observed:
The first day crowds come like sheep, run here, run there, run everywhere. One man start, one thousand follow. Nobody can see anything, nobody can do anything. All rush, push, tear, shout, make plenty noise, say damn great many times, get very tired, and go home.1
When the exhibition closed six months later, it had been visited by more than 10 million people. It was truly the first man-made tourist mecca in the United States.
Much had changed in the first century of America’s existence. In the eighteenth century, travel by land was either on foot or horseback, or in a vehicle drawn by horse or oxen. Travel by water was accomplished by sailing vessels. But in 1806, Robert Fulton invented the steamboat, and by 1830 the first railroads were being built in the United States. Transportation was revolutionized. Samuel F. B. Morse invented the telegraph in 1843; Cyrus McCormick followed with the mechanical reaper, and Elias Howe with the sewing machine. In 1869 the transcontinental railroad was completed with the driving of the Golden Spike at Promontory Point, Utah. And in the very year of the centennial, Alexander Graham Bell would patent the telephone.
The nation had also grown spectacularly in size. The Louisiana Purchase in 1803 added the territory between the Mississippi River and the Rocky Mountains, and the cession following the Mexican War added the Southwest. Colorado was admitted to the Union in 1876 as the thirty-eighth state; it would be known as the Centennial State.
On the exhibition’s opening day President and Mrs. U. S. Grant, accompanied by the Brazilian Emperor Dom Pedro and his wife, Theresa, were among the notables present. At the scheduled time the President and the Emperor opened the valves that started a huge steam engine in Machinery Hall. The steam engine in turn supplied power to hundreds of other machines at the fair. When the wheels began to turn, guns roared, church bells pealed, and whistles blew. The fair, and the Centennial, had officially begun.
Grant was in the last year of his second term as President. Elected in 1868 and reelected in 1872, he was the second Republican President; Lincoln, of course, was the first. In the two decades since its founding, the party had achieved a remarkable success. The event that precipitated its founding was the enactment by Congress of the Kansas–Nebraska Act in 1854.
In that year Stephen A. Douglas, an able and ambitious Democratic senator from Illinois introduced in the Senate a bill providing for what he called “popular sovereignty”—and what his opponents called “squatter sovereignty”—to determine whether or not the territories of Kansas and Nebraska should allow slavery within their borders. This bill aroused instant opposition among antislavery forces in the North, because it repealed a portion of the Missouri Compromise, which Congress had enacted in 1820.
The Missouri Compromise came about when both Maine and Missouri sought admission to the Union as states. Maine would be a free state with no slavery, and Missouri would be a slave state. The Missouri Compromise admitted both states, and went on to provide that thereafter slavery would be prohibited in all territories of the United States north of the southern border of Missouri. Since both Kansas and Nebraska were north of this line, Douglas’ Kansas–Nebraska Act would repeal that portion of the Missouri Compromise.
After fierce debate, the bill passed both houses of Congress and was signed by President Franklin Pierce. But the antagonism aroused in the North had a lasting effect on national politics. Douglas himself, after he toured the North following the adjournment of Congress, said he could have traveled from Boston to Chicago by the light of the fires kindled to burn him in effigy.
Early in 1854, a meeting was held in a schoolhouse in Ripon, Wisconsin, to oppose the extension of slavery. This led to a state convention in Madison in July which adopted the name “Republican” for the new party
. A week earlier a state convention in Jackson, Michigan, adopted the same name for the new party in that state.
The fledgling party held a national convention in Philadelphia in 1856 and nominated John C. Frémont as its candidate for President. His Democratic opponent was James Buchanan, a long-time officeholder who had been absent as minister to England during the furor over the Kansas–Nebraska Act. In the election that fall, Buchanan carried every slave state but Maryland, together with Indiana, Illinois, and his home state of Pennsylvania. All of the other northern states voted for Frémont. He polled 1.34 million popular votes, losing to Buchanan, who polled 1.8 million votes.
Two days after Buchanan was inaugurated in March 1857, the Supreme Court handed down its ill-starred decision in the Dred Scott case, holding that the limitation of slavery effected by the Missouri Compromise was unconstitutional. This decision further inflamed northern opinion. The following year Stephen Douglas came up for reelection as United States senator in Illinois. He was opposed by Abraham Lincoln on the Republican ticket. They debated at seven different towns in downstate Illinois, thrashing out the question, among others, of the expansion of slavery. At that time senators were elected by the state legislatures rather than by popular vote. The Democrats narrowly retained control of the Illinois legislature, and in January 1859, it duly reelected Douglas.
Two years later, Lincoln and Douglas again battled each other, but this time the prize was the presidency of the United States. Douglas was not sufficiently proslavery for the southern wing of the Democratic Party, and it nominated John Breckenridge on a ticket which ran only in the South. The northern Democrats nominated Douglas. A fourth party—the Constitutional Union party—sought to ignore the issue of slavery entirely and was on the ballot in only the border states. The Republican Party was almost entirely northern in its appeal, opposing as it did any further extension of slavery in the territories.
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