Centennial Crisis- the Disputed Election of 1876

by William H Rehnquist

  Tilden had been looking forward to the presidential election of 1844 as an opportunity to elect his friend and mentor Van Buren to a second term. The Whigs were expected to nominate Clay again; Harrison had died after only a month in office, and his Vice President, John Tyler, who succeeded him, had mightily displeased the Whigs during his four years as chief executive.

  But now a new question appeared on the political horizon. Texas, originally a province of Mexico settled by southerners from the United States, had revolted against Mexico and obtained its independence in 1836. Now it wished to be annexed to the United States. In the spring of 1844, both Van Buren and Clay, acting independently of one another, issued statements opposing annexation. Tilden praised Van Buren for his position, though it was clear that it antagonized southern Democrats who favored annexation. He joined other Van Buren managers at the Baltimore convention of the Democratic Party in May 1844. He wrote to his brother that the Van Buren forces had a small majority among the delegates, but that there was “excitement and great uncertainty.”

  The uncertainty was generated by the prospect that the convention would continue to adhere to its “two-thirds” rule: to be nominated, a candidate must have not merely a simple majority of delegates, but an extraordinary majority of two-thirds. This rule, originally adopted at the 1832 convention to help the Jackson–Van Buren ticket, now threatened to defeat Van Buren’s candidacy. The convention did adopt the two-thirds rule, and indeed every Democratic convention until 1936 followed that practice. Van Buren had a majority, but not a two-thirds majority; through eight ballots it became clear that he could not attain that majority, and on the ninth James K. Polk of Tennessee was nominated—the first “dark horse” or outsider candidate in American history.

  Even though Polk had beaten out Van Buren for the nomination, Tilden worked hard for the Democratic ticket in New York. Polk favored annexation, but behind this question was a more troubling question of the expansion of slave states in the Union. The southerners who settled Texas had brought the institution of slavery with them, and it was clear that the admission of Texas would result in at least one (and, because of its size, perhaps more than one) new slave state.

  That summer Tilden joined with his longtime friend and fellow Democrat John L. O’Sullivan to establish a newspaper which could be the voice of the Democratic Party in New York City. They obtained financial backing from wealthy sympathizers and put out the first issue of their newspaper in August 1844. Tilden’s association with the paper guaranteed that it would speak with a certain amount of authority on political issues. The New York Morning Daily News, as it was called, vigorously espoused the election of the national and state Democratic tickets and was given credit for helping carry New York for Polk by the slim margin of 5,000 votes. Had Polk not won New York, Clay would have been elected President. After the Morning News had accomplished this purpose, Tilden lost interest in it and turned over his shares to O’Sullivan. Two years later, the Morning News was defunct for lack of advertising.

  Tilden would now take a steadily more important part in the political life of New York and of the nation. The leaders of the Albany Regency dispatched him to Washington to advise Polk of its wishes for the cabinet position which would almost certainly go to New York. It was the most populous state, and it had been crucial to Polk’s victory over Clay. But the Democrats in the Empire State were once again feuding, and the harassed Polk did not accede to their wishes.

  Tilden was a successful candidate for the State Assembly— the lower house of the New York legislature—in 1845. The following year he was elected a delegate to the New York State Constitutional Convention. He served there constructively and became acquainted with influential businessmen, many of whom would later become his clients. At the end of his term in the Assembly, he refused offers to stand for the State Senate and for Congress, wishing to return to the full-time practice of his profession. While his practice remained general for a time, he turned more and more to business clients. His fees were modest, even by the standards of his own day. His fee for merging a coal company with a small railroad, for example, was $175. Clients also sought his advice about investments in various enterprises with which he was familiar. By 1850 he was prosperous, if not wealthy.

  Though not holding public office during this period, he remained active in Democratic Party affairs. He was a leader of the Barnburner faction of the party, which was opposed by the Hunker faction. The Barnburners resisted the extension of slavery into the territories and supported the Wilmot Proviso, which would have prevented slavery in any of the territory acquired as a result of the Mexican War. The Hunker faction, on the other hand, preferred not to take such a position in deference to the southern wing of the Democratic Party.

  In 1848 Tilden was one of the leaders in the affairs of the newly formed Free Soil Party, which nominated his old friend Van Buren as a third-party presidential candidate in that year. The party’s theme was opposition to the extension of slavery into territories which had not yet been admitted as states. Van Buren received 10 percent of the popular vote, and his candidacy was a harbinger of the formation of the Republican Party during the next decade. Tilden stayed with the Democrats after the election of 1848. His advice was sought by many, including Franklin Pierce after he was elected President in 1852.

  As Tilden became prosperous, his social life greatly expanded. He was by no means a gregarious backslapper but a witty conversationalist much in demand for society dinner parties. He became more at ease with women and at one point compiled a list of women whose company he enjoyed. His name was linked with at least one eligible lady, but he never took the plunge. His biographer describes him in these words:

  At this period Tilden was of medium height, slender rather than thin, with a quick nervous walk and gesture, erect and self-important and with a face that would arrest attention in a crowd. His round, well-formed countenance reflected intelligence, mental alertness and contentment. His brow was high and wide, indicating the student, his light blue eyes were large, wide apart, slow moving, and penetrating. His chin was square and showed stubbornness. His mouth was the least attractive part of his round face and its character was due to the early loss of teeth. . . . He was fond of appearing in a Prince Albert coat because it accentuated his height and weight, and a high stiff collar with a long black bow tie. His shoes were small and nicely polished. All in all his appearance was that of a man of importance, and yet for some reason his clothes never seemed to fit him quite right.7

  His legal work was now becoming much more of a corporate practice, and his earnings came not merely from fees but from participation in profitable corporate reorganizations. He represented William Ogden, a transplanted New Yorker and Chicago railroad magnate, in a series of railroad mergers and acquisitions which resulted in the formation of the Chicago & Northwestern Railroad in 1859. This line became one of the leading railroads in the upper Midwest; Tilden took his fee in securities, and thereby went from being merely prosperous to wealthy.

  He took his second fling at elective office when he ran unsuccessfully for state attorney general in 1855. The political winds in the nation were beginning to shift. For the preceding quarter-century the two major parties had been the Whigs and the Democrats. But in 1854 the Republican Party had arisen in the Midwest as a protest against the enactment of the Kansas– Nebraska Act by Congress. Now another party sprang up—the Native American Party—in protest against what it regarded as a flood of new immigrants from Europe. There were two rival Democratic tickets in the state election of 1855, together with a joint Whig-Republican ticket, a Native American ticket, and several minor parties as well. The Native American Party— referred to as “Know-Nothings” because when a member was asked about the party’s beliefs he would answer “I know nothing”—carried the state, sending Tilden back to his law practice in New York City.

  The following year, the Republican candidate for President, John C. Frémont, carried New York by 80,000 votes. He lost na
tionwide to James Buchanan, but the latter won only a minority of the popular vote. That vote was split three ways among Buchanan, Frémont, and the Native American candidate Millard Fillmore. Both Buchanan and his predecessor, Franklin Pierce, were known as “doughfaces”—northern men who sympathized with the southern proslavery wing of the Democratic Party. In 1860 the northern wing would rebel against this orientation, and as a result the party would split in two.

  Its convention in 1860 was held in Charleston, South Carolina, but because of the “two-thirds” rule the delegates could not agree upon a candidate. Stephen Douglas, the leading northern Democrat, had antagonized the southern wing by rejecting its more extreme demands. Members of this wing wanted Kansas admitted to the Union with a constitution which had been adopted under a set of rules slanted in favor of slaveholders; Douglas, the champion of “popular sovereignty,” balked. He likewise resisted their demand for congressional action which would affirmatively protect slavery in the territories.

  The Charleston convention adjourned without having made a nomination, to reconvene later in Baltimore where Douglas was chosen after most of the southern delegates had walked out. These delegates held their own convention and picked John C. Breckenridge, a southerner and Buchanan’s Vice President, as their candidate. Meanwhile, in Chicago, the Republicans had rejected William H. Seward, former Governor of New York and now senator from that state, in favor of the lesser-known Abraham Lincoln. A fourth party, the Constitutional Union Party, now formed, seeking to bridge the gap between North and South by saying nothing about the issues of the day, and nominating John Bell of Tennessee.

  Tilden had been active behind the scenes that spring, because he was concerned that Lincoln’s election would lead to the breaking up of the Union. Lincoln’s name was not even on the ballot in most southern states, and he had no chance of carrying any of them. He would, Tilden thought, be a completely sectional President, to whom the South would have no attachment.

  The Democratic Party in New York was once again split between the “Hards” (formerly Hunkers) and the “Softs” (formerly Barnburners). Frantic efforts were made to agree on a fusion ticket which both factions could support. Tilden was active in these negotiations and prepared an elaborate address on the issues facing the country. He concluded that the southerners, “determined to preserve the social superiority of their race,” would never accept the Republican doctrine on that subject— that their peculiar institution was permissible in the states where it existed but could not be extended into any of the territories such as Kansas and Nebraska. If Lincoln were elected, it would mean secession. But if Lincoln were defeated, Tilden reasoned, the North would be less disappointed by the defeat than the South would be by his election. The South, he thought, was absolutely determined to keep and extend slavery, even at the cost of secession; the northern opposition to slavery, he thought, was less deeply felt.

  Tilden was certainly correct about the South, but he was wrong in believing that northerners in general did not feel strongly about the issue of slavery. The abolitionist movement, begun by men such as William Lloyd Garrison in Boston a generation earlier, demanded that slavery be abolished now. It had first appealed only to a tiny fraction of the populace of that city. But the Kansas–Nebraska Act, the treatment of “Bleeding Kansas” by Presidents Pierce and Buchanan, and the Dred Scott decision by the Supreme Court in 1857 had profoundly stirred up slavery as an issue in the nation. If the growing, but still small, number of abolitionists were coupled with those who opposed the extension of slavery to the territories, they were a majority in the North—as the election of 1860 would prove. And they did feel deeply about the issue. They believed that during the 1850s the North had been bullied by the South in all three branches of the national government—the executive, the legislative, and the judicial—and they resented it.

  New York Democrats finally agreed on a state fusion ticket, which was indeed a strange hybrid. If this ticket received a majority of the votes, 18 of the state’s electoral votes would go to Douglas, 7 to Breckenridge, and 10 to Bell. Tilden worked hard but in vain for this ticket. On November 7, Lincoln carried the state by 35,000 votes. He received a majority of the electoral vote nationally, but only a minority of the popular vote. Of that, he received about 40 percent, with the remainder being spread among Douglas, Breckenridge, and Bell.

  After Lincoln’s election, Tilden urged a conciliatory policy on the new administration. He said that “he for one would resist, under any circumstances, the use of force to coerce the South into the Union.” 8 But after the Confederates fired on Fort Sumter in April 1861, he agreed that the Union cause must be supported.

  In the congressional elections of 1862, the Democrats made significant gains throughout the North because of dissatisfaction with the way the Lincoln administration was conducting the war. Tilden was instrumental in recruiting his old ally, Horatio Seymour, as the Democratic candidate for Governor in New York. After a bitter campaign, Seymour was elected by a margin of 10,000 votes. In 1863, the National Draft Act aroused strident opposition in New York City, and Seymour made an intemperate speech to a mass meeting on July 4. He compared Lincoln to King Charles I and denounced military conscription as unconstitutional. Only days afterward, the actual commencement of the draft was marked by riots in New York City which led to the loss of life and destruction of property. Tilden thought the validity of the Draft Act should be tested in the courts, but he played no part in the riots.

  After the Civil War ended in Union victory, Tilden supported Andrew Johnson, a War Democrat who had succeeded to the presidency when Lincoln was assassinated in April 1865. Johnson broke with the radical element of the dominant Republican Party over the manner in which the former Confederate states should be treated. When it came time for another presidential election in 1868, Tilden was chairman of the New York State Democratic Party. Johnson was a candidate for the nomination, even though he had been elected on the “Union” ticket with Lincoln in 1864. But he had just barely avoided removal from office as a result of his impeachment trial in 1868, and the Democrats were inclined to look elsewhere.

  Chief Justice Salmon P. Chase eagerly sought the Democratic nomination, and Tilden seems to have favored him, though not openly. The Democratic convention was held in New York City, and after elaborate maneuvering and horse trading Horatio Seymour received the nomination on the twenty-first ballot. The party leaders were anything but elated with the ticket of Seymour and Frank Blair of Missouri for Vice President. S.L.M. Barlow, a party leader in New York, said, “Our ticket creates almost universal execration,” whereas Kate Chase Sprague, having managed the unsuccessful campaign of her father, Chief Justice Chase, said, “I fear that when the South seceded the brains of the party went with it.”9

  Tilden, as surprised as any by Seymour’s nomination, nonetheless managed the campaign. The Democrat lost badly to Grant in the Electoral College, but came within 300,000 of the Republican victor in the popular vote.

  If we compare Tilden’s career with that of Hayes in 1868, they bear little resemblance to each other. Hayes was in the midst of his first term as Governor of Ohio, after an impressive military career in the Civil War and a lackluster two terms in the House of Representatives. He was married with a growing family. Tilden, by contrast, was very much a mover and shaker in the national Democratic Party. He had made a fortune as a corporate lawyer, but sat out the Civil War and never married.

  Tilden now turned his attention to corruption in New York. There were targets aplenty. The infamous Tweed Ring began to operate in New York City even before the Civil War. William Marcy Tweed was elected to the City Common Council in 1851, which under his tutelage would come to be known as the “Forty Thieves.” He became a sachem of Tammany Hall, the political organization which was the mainstay of the Democratic Party in the city. He succeeded in having John T. Hoffman elected Governor, and his henchman Oakley Hall elected mayor.

  The Ring decided that all municipal contracts should be
let in an amount at least double the sums that would actually be paid for work done, with the balance to be divided among the politicians. By 1870, Harper’s Weekly and its cartoonist, Thomas Nast, began an exposé of the Ring. They were soon joined by the New York Times. They showed, for example, that the new county courthouse would cost $12 million, but that two-thirds of that amount was siphoned off as graft by the Ring and its allies. The amount which the Ring ultimately stole from the city was variously estimated at from $30 million to $200 million.

  As a fellow Democrat, Tilden was on friendly terms with the Ring. But he grew disenchanted with its political tactics, not so much on moral grounds as that its activities were contrary to the best interests of the Democratic Party. By the fall of 1871, he was openly demanding that the Ring be exposed and its members be removed from public office. In the municipal election of 1871, reformers overwhelmingly defeated the Ring candidates. Tweed was arrested and charged with forgery and grand larceny. He was tried in January 1873, represented by no less than eight lawyers, including the young Elihu Root and David Dudley Field. Tilden testified against him at the trial, which was long, bitter, and resulted in a hung jury. At a second trial Tweed was convicted, fined, and sentenced to twelve years’ imprisonment. Two years later, he escaped and fled first to Cuba and then to Spain. Tilden, by then Governor of New York, successfully sought his extradition; he was returned to New York City, where he died in prison in 1878.

  Tilden had been urged in 1874 by several groups to seek the Democratic nomination for Governor. He was nominated by the state convention in September and defeated his Republican opponent, incumbent John A. Dix, in November. He carried reform credentials with him to Albany, and now his attention turned to the Canal Ring. That organization was to political grafters in upstate New York what the Tweed Ring had been to their counterparts in New York City. The Erie Canal, completed in 1825, had played a significant part in drawing the commerce of the Midwest to the port of New York rather than to other East Coast ports. But the canal required constant repair and occasional enlargement, which activities were placed by law in the hands of a Canal Board. Through the use of rigged bids, officials of both political parties profited from kickbacks paid on exorbitantly high contracts for labor and materials. Tilden appointed a bipartisan commission to investigate the activities of the Ring; the commission’s conclusions were a devastating bill of particulars against the canal managers. Several members of the Ring were indicted and its power was finally broken.