After the Christmas holidays, the two committees began meeting behind closed doors to devise a plan for the peaceful settlement of the dispute. At first members of each party proposed plans obviously favorable to their candidate, plans which were promptly rejected by their opponents. By the middle of January, however, both sides were considering the idea of a commission composed of members of the House, the Senate, and the Supreme Court.
On January 13, a version of the plan was leaked to the public. It called for a commission composed of five House members, five Senate members, and five members from the Supreme Court. It was the choice of the justices which proved the greatest stumbling block. It was simply assumed that the congressional Republicans on the commission would vote for Hayes, and the congressional Democrats would vote for Tilden. It was therefore obvious that the final decision would be made by the votes of the members of the Court.
The original proposal called for five justices to be selected by placing in a hat the names of the six senior justices; one name would be drawn, and the remaining five would serve as members of the commission. Tilden was opposed to any sort of commission, but this proposal particularly incensed him. Not ordinarily a man to coin bons mots, he rose to this occasion, saying “I may lose the Presidency, but I will not raffle for it.”1
Tilden disliked the whole idea of the commission, because it represented a compromise which he thought unwise. He wished to adhere to a simple strategy that he felt would ensure him victory. Make no concessions now; let the votes be counted as they might be in accordance with the Constitution, even though Senator Ferry might claim the authority to count them himself, and resolve doubtful issues in favor of Hayes. The Democrats could maintain that the count was illegal, and that since no candidate had received a majority of the votes cast, the election should be thrown into the House of Representatives. Democrats controlled the House, and they would surely elect him.
This strategy had the merit of simplicity, but it ignored the increasing sentiment in the country for some sort of resolution. Democrats in Congress were well aware of the fact that Grant was not only President, but had been a remarkably successful commanding general. He had said he intended to see his successor inaugurated on March 4—whoever that might be—and if Ferry proceeded to do the counting himself, the President might use troops to ensure that Hayes was inaugurated on that day. A later vote by the House naming Tilden President might well be a recipe for national chaos. The country simply did not want a situation where each candidate grimly refused to budge from his announced position.
Hayes also opposed the commission proposal. He was adamant that the Constitution gave to the President of the Senate— Ferry—the authority to decide which set of returns to count. But seeing that the bill was apt to pass, he did not make his opposition public. Despite the strong desire of most members of each party in Congress to see their candidate elected, most had also come around to the need for some sort of resolution. Congress, thus, took the matter out of the candidates’ hands.
Tilden’s repudiation of the six-justice lottery bill had killed that version, and several other proposals were vetoed by either Democrats or Republicans. The House committee then recommended that the five senior justices of the Supreme Court— Nathan Clifford and Stephen Field, thought to be sympathetic to the Democrats, Samuel Miller and Noah Swayne, thought to be
Justice Joseph Bradley, painted in 1904 from earlier portraits.
sympathetic to the Republicans, and David Davis, who was regarded as an Independent—should be named to the commission. Milton Harlow Northrup, secretary of the Special Committee of the House of Representatives on this occasion, later wrote:
This precipitated a discussion of the political bias of Justice David Davis. The distinguished Illinois jurist whom Abraham Lincoln had placed on the Supreme bench was thence-forth, till the committees had come to a final agreement, the storm-center of earnest disputation. The Republicans tenaciously argued that Justice Davis was, to all intents and purposes, a Democrat, and that his selection should be charged up against the Democrats. Just as strenuously the Democratic committeemen insisted that he occupied a midway position between the parties, and therefore could with entire propriety serve as the fifth wheel of the commission coach. Senator Edmunds promptly took issue with Mr. Payne’s characterization of Justice Davis as an independent. “Judge Davis,” said the cynical Edmunds, “is one of those Independents who stand always ready to accept Democratic nominations. It is my observation that such men are generally the most extreme in their partisanship. I would rather intrust a decision to an out-and-out Democrat than to a so-called Independent.”
Mr. Springer: Judge Davis is just about as much a Democrat as Horace Greeley was in 1871; he is not and never was a Democrat. His most intimate friends, among whom I may count myself, don’t know to-day whether he favored Tilden or Hayes. He didn’t vote at all. Our people in Illinois, when he was mentioned for the Presidency, were utterly hostile to his nomination because he was not a Democrat, and had no standing in that party. They only know that he is absolutely honest and fair.2
Finally a consensus emerged that two justices favored by the Republicans, and two favored by the Democrats, should be named to the commission, with those four to choose a fifth member. There was an unspoken understanding that this fifth justice would be Davis. The final version named to the commission Clifford of Maine and Field of California, both Democrats, and Miller of Iowa and William Strong of Pennsylvania, both Republicans.
IT WAS QUITE NATURAL for Congress to turn to the justices of the Supreme Court as members of the Electoral Commission. Unless it was to go totally outside of the government, it had little choice. There was no way that Congress itself could resolve the dispute; witness the majority and minority reports from the investigatory committees of the two houses described above. No Democrat in Congress would think for a moment of calling on President Grant as a tiebreaker. The third branch—the judiciary—was chosen by default. This was a dispute; disputes are traditionally resolved by courts. Congress would undoubtedly get credit for creating a body that was capable of resolving the electoral dispute without resort to arms, but what would be the consequences for the individual justices who would serve on the Commission, and for the Court as an institution? A look at the Court’s role in its first century will shed light on the part its justices would play in the election dispute.
Article III of the U.S. Constitution provides that the judicial power of the United States “shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The first Congress established a Supreme Court with a Chief Justice and five associate justices. Later the total membership would expand to nine, briefly to ten, and back to nine by 1876.
For the first decade of its existence, the Court was but a minor player in the system of federal government. During this period, it decided a total of about sixty cases. When the seat of the federal government moved from Philadelphia to Washington in 1801, space for the Supreme Court was completely forgotten until the last minute, when a room in the basement of the new Capitol building was found for it. In that same year John Marshall became Chief Justice and served in that capacity for thirty-four years. During his tenure, he raised the status of the Court from a very junior partner to a genuinely coequal branch of the tripartite federal government.
He was succeeded by Roger B. Taney, appointed by President Andrew Jackson. Taney would preside over the Court for twenty-eight years. From 1801 to 1864, during a period in which there were fifteen Presidents, there were only two Chief Justices. The Taney Court retained the basic outline of the Marshall Court’s jurisprudence, but revised it to give more latitude to the states to solve their own problems. By the time of the presidential election of 1856, the Court was a generally respected third branch of government, although much less in the public eye than either the executive or legislative branch. But in the spring of 1857, all of that changed.
On March
6, 1857, the Court handed down its opinion in the ill-starred Dred Scott case. The northern section of the country was growing in population more rapidly than the southern section, so that the northern states were gaining a numerical edge in the House of Representatives. But the Supreme Court, as constituted at that time, was the reverse. Chief Justice Taney was from Maryland; among the associate justices, James Wayne was from Georgia, Peter V. Daniel from Virginia, John Catron from Tennessee, Robert Grier from Pennsylvania, Samuel Nelson from New York, John Campbell from Alabama, Nathan Clifford from Maine, and Benjamin Curtis from Massachusetts. Thus five members of the Court came from states where slavery existed. Any decision, therefore, in a case involving slavery, would be suspect in the eyes of many northerners.
The Dred Scott case originated as a friendly lawsuit in the federal court in St. Louis, in which Scott, a slave, sued his master, a surgeon in the United States Army. He claimed that because his master had taken him away from Missouri and into Illinois, a free state, and then into Wisconsin Territory, a free territory, he had become emancipated even though later returned to Missouri. The lower court ruled against Scott, saying that the law of Missouri governed the effect of his journeys into free states and territories and the Missouri state law said that these journeys did not emancipate him.
This was not a controversial ruling, since it affected only slaves in Missouri. But when Scott appealed the ruling to the Supreme Court, the issues became much broader. On behalf of the master, it was now argued that even though the Missouri Compromise enacted by Congress in 1820 prohibited slavery in all federal territories north of the southern boundary of Missouri, the law was unconstitutional because it prohibited slave owners from bringing their “property”—i.e., their slaves—into territories newly opened for settlement in the same way that northerners could bring their property.
The issue of the expansion of slavery into the territories was already a source of major political division in the country and, as was shown in Chapter 1, resulted in the creation of the Republican Party. If the Court were to strike down the Missouri Compromise, all of Stephen Douglas’ championing of “popular sovereignty” in territories like Nebraska and Kansas would be for naught. Until they were admitted as states, slavery could not be kept out of the territories by law.
The Court ruled, first, that even a freed black could not be a citizen of the United States, and, second, that Congress had no power to exclude slavery from the territories. Justices Wayne, Grier, Daniel, and Campbell all filed opinions joining all or part of Taney’s majority opinion. Justice Nelson opined that, since the law of Missouri said that Scott had not been freed by his journey to free states and territories, that should be the end of the matter. Justice Catron also filed an opinion giving his own reasons for the result reached by the majority. Justice McLean and Justice Curtis each wrote lengthy dissenting opinions.
Antislavery opinion in the North was outraged. Horace Greeley’s New York Tribune said:
The long trumpeted decision . . . having been held over from last year in order not too flagrantly to alarm and exasperate the Free States on the evening of an important presidential election . . . is entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room.3
Charles Evans Hughes, himself to serve as Chief Justice from 1930 until 1941, described the Dred Scott decision as a “selfinflicted wound.” Mindful of the necessity of judging the actions of people by the mores of the times in which they lived, the Court cannot be faulted only because it came out against Dred Scott. But the opinion is a strained application of legal principles prevalent in its own day.
A noted political scientist, writing more than half a century after the Dred Scott opinion, commented as follows:
The Dred Scott decision cannot be, with accuracy, written down as a usurpation, but it can and must be written down as a gross abuse of trust by the body which rendered it. The results from that abuse of trust were, moreover, momentous. During neither the Civil War nor the period of Reconstruction did the Supreme Court play anything like its dual role of supervision, with the result that during the one period the military powers of the President underwent undue expansion, and during the other the legislative powers of Congress. The Court itself was conscious of its weakness, yet notwithstanding its prudent disposition to remain in the background, at no time since Jefferson’s first Administration has its independence been in greater jeopardy than in the decade between 1860 and 1870. So slow and laborious was its task of recuperating its shattered reputation. 4
Time made rapid inroads on the personnel of the Court which decided the Dred Scott case. Benjamin Curtis, one of the two dissenters, resigned six months after the decision was handed down. His departure was occasioned partly by disappointment with the Court’s treatment of the Dred Scott case, but also by the inadequacy of his salary as a justice. Three years later, Peter V. Daniel died; the following year John McLean died, and John Campbell resigned about the same time when his native state of Alabama seceded from the Union.
James Buchanan appointed Nathan Clifford of Maine to succeed Curtis; the result was ironic from Curtis’ point of view. Clifford had served with Buchanan in the cabinet of President James Knox Polk, in which Buchanan had been Secretary of State and Clifford, Attorney General. But the nominee was known to be a “doughface”—a northerner who sympathized with the institution of slavery—and he was confirmed by a margin of only three votes in the Senate in January 1858.
Soon after his inauguration in March 1861, Abraham Lincoln had three vacancies on the Supreme Court to fill. He chose Noah Swayne, a prominent Ohio lawyer; Samuel Miller, a well-known lawyer and politician from Iowa; and David Davis, the judge before whom he used to practice in the Illinois state courts. In 1863, Congress raised the membership of the Court to ten— where it remained for only a few years—and Lincoln appointed Stephen J. Field of California to the newly created seat.
Roger Taney died in the fall of 1864, in his eighty-eighth year. Ill for much of the last few years of his life, he clung to his post because he needed the salary to support himself; Congress at that time had yet to make any provision for pensions for federal judges.
Obituaries in strongly antislavery newspapers disparaged Taney for his authorship of the Dred Scott opinion. Obituaries in Democratic newspapers eulogized him as the equal of John Marshall. The New York Times gave a balanced assessment:
Had it not been for his unfortunate Dred Scott decision, all would admit that he had, through all these years, nobly sustained his high office. That decision itself, wrong as it was, did not spring from a corrupt or malignant heart. It came, we have charity to believe, from a sincere desire to compose, rather than exacerbate, sectional discord. Yet is was nonetheless an act of supreme folly, and its shadow will ever rest on his renown.5
Four months after Taney’s death, Senator Lyman Trumbull of Illinois introduced a bill which would have placed a marble bust of Taney in the quarters used by the Supreme Court to go with the busts of John Jay, Oliver Ellsworth, and John Marshall which were already there. Charles Sumner objected “that an emancipated country should make a bust of the author of the Dred Scott decision.” The debate grew heated, and the bill was eventually defeated. Nine years later, however, when Taney’s successor Salmon Chase had died, a bill authorizing busts of both Chase and Taney was passed without debate.
With Taney’s death, Abraham Lincoln now had the opportunity to appoint a Chief Justice. Chase, onetime Ohio Governor and senator, and until very recently Lincoln’s Secretary of the Treasury, was thought to be the likely nominee. But within that year, he had committed the politically unpardonable sin of seeking to wrest the 1864 Republican presidential nomination away from Lincoln. He had attempted to use the patronage of the Treasury Department as a political machine to that end, but failed. He resigned in June 1864 over a minor patronage dispute with Lincoln, which fairly typified his character. He was egotistical to a fault—his detractors said
that in his personal Trinity there were four persons rather than three—a man of marked ability but of overweening pride.
Lincoln, according to Congressman George Boutwell, said that Chase had the necessary prominence for the job, and that since he had drafted wartime legislation which was now being challenged in the courts, he would probably vote to sustain it. But, said Lincoln, there was a strong reason against the Chase appointment, and that was that he was determined to be President, and that if as Chief Justice he did not get that bee out of his bonnet, it would be bad for the Court and bad for the country. Finally, in a gesture which illustrates his magnanimity, he nominated Chase to be Chief Justice in December 1864.
Unfortunately for himself and for the Court, Chase never did give up his ambition to be President. When the Republican nominating convention showed no interest in his candidacy in 1868, he turned to the Democratic convention, where, as noted in Chapter 3, he made a good run until losing out to Horatio Seymour. In 1872, it was the same story, with Chase first having his name submitted to the Democratic convention and then to the Liberal Republican convention meeting in Cincinnati. There his colleague, David Davis, ran up a considerable vote, but not Chase.
In contrast, when Chase’s successor on the Court, Morrison R. Waite, was touted as a Republican presidential candidate in 1876, he promptly scotched the idea in a letter to his cousin, John T. Waite. In the course of the letter he observed:
Of course, I am always grateful to my friends for their efforts in my behalf. No one ever had those more faithful or indulgent and no one ever had more cause for gratitude than I. But do you think it quite right for one, who occupies the first judicial position in the land, to permit the use of his name for a mere political office. The Presidency although high is only political. In my judgment, my predecessor detracted from his fame by permitting himself to think he wanted the Presidency. Whether true or not it was said that he permitted his ambitions in that direction to influence his judicial opinions. . . . I am not one of those who believe that he did so consciously, but one who occupies his position should keep himself above suspicion....6
Centennial Crisis- the Disputed Election of 1876 Page 11
