IT WAS MORE COMMON IN 1876 than now for newspapers to be openly aligned with one political party. The New York Times, for example, was identified with the Republican Party and, as noted in Chapter 5, reported the election result in such a way as to offer a scenario for a Hayes victory. Two other New York papers—the World and the Sun—were identified with the Democratic Party. The Sun conducted what might be called a vendetta against Bradley.
On February 11, after the Florida case had been decided by the Electoral Commission, the Sun opined that there was “no process or method by which fraud can be converted into honest reality . . . [but] Judge Bradley seems today to have the ability, as well as the intention, to attempt such a miracle.”4
The Sun returned to the fray during the summer, saying, “The two blackened Judges [Strong and Bradley] were members of the Electoral Commission, and they delivered over the Presidency, just as they had foresworn themselves in the legal tender case, being operated upon by the same corrupt influences in both instances. Bradley, especially, will be known in history as the infamous eighth man who, without scruple and without shame, cast his vote every time to uphold the frauds of the Returning Boards, and violently contradicted his own positions to maintain the corrupt conspiracy.”5
But then a month later, the Sun took a new tack, charging that Bradley had changed his vote on the Commission at the behest of midnight callers the previous evening.
AN INTERESTING HISTORICAL FACT:
After the argument on the Florida case . . . Justice Bradley wrote out his opinion and his decision in full. He completed it at about 6 o’clock in the evening on the day before the judgment of the Commission was to be announced, and read it to Judge Clifford and Judge Field. . . . It contained first, an argument, and secondly, a conclusion. The argument was precisely the same as that which appears in the published document, but Judge Bradley’s conclusion was that the votes of the Tilden electors in Florida were the only votes that ought to be counted as coming from that State.
This was the character of the paper when Judge Bradley finished it, and when he communicated it to his colleagues. During the whole of that night Judge Bradley’s house in Washington was surrounded by carriages of visitors who came to see him. . . .
When the Commission assembled the next morning and when the judgment was declared, Judge Bradley gave his vote in favor of counting the votes of the Hayes electors in Florida! The argument he did not deliver at the time, but when it came to be printed subsequently it was found to be precisely the same as the argument which he had originally drawn up and on which he had based his first conclusion in favor of the Tilden electors.6
As Professor Fairman points out, no authority was cited for any of these facts. The Commission itself was sitting at 6 p.m. on the day before its decision was released and did not adjourn until 7:45 p.m. This was the day on which nine of the ten congressional members of the Commission gave their opinions and votes. An argument that supported the Tilden position until it came to the sort of O. Henry ending envisioned by the Sun article is contradicted by Garfield’s contemporary entry:
It was ten minutes before it became evident that he was against the authority to hear extrinsic evidence. His opinion was clear and strong. Near the close he surprised us all by holding that we could hear testimony on the eligibility of Humphreys.7
The “surprise” referenced by Garfield was not Bradley’s conclusion that the Commission could not consider outside evidence. The surprise was Bradley’s agreement with the Democrats to hear evidence on the eligibility of Humphreys, one of the Florida Republican electors. This, however, was the very sort of issue that Bradley thought was proper for the Commission to consider and is entirely consistent with the conclusion that the Commission could not “go behind” the certificates and attempt a recanvass of the votes cast.
Justice Field, as might be expected, was bitterly disappointed that the Commission had decided the case against Tilden. On April 2, he wrote to Matthew Deady, the federal district judge in Oregon, whom he saw while sitting on circuit on the West Coast:
The decision of the Commission, not to enquire into the correctness of the action of the Canvassing Boards of Louisiana and Florida was a great shock to the country. It is the first time, I believe, that it has ever been held by any respectable body of jurists, that a fraud was protected from exposure by a certificate by its authors. I shall have much to say to you during the summer of the proceedings before that Tribunal and of its action. The President, who owes his seat to the success of a gigantic conspiracy and fraud, is not finding his place a bed of roses. It is right that it should be so. He is evidently a very weak man, and hardly knows what to do.... 8
When Field was questioned by reporters in California about the story in the Sun, reporting that Bradley had read an opinion to him and Clifford, the Newark Daily Advertiser reported:
The Daily Exchange to-day publishes an interview with Justice Field. According to the statement of the reporter he had first objected to giving any statement whatever, but finally said after some reflection, and speaking with great deliberation, “Well, sir, all that I care to say . . . is that Justice Bradley read (with peculiar emphasis on the word read) no opinion to me in advance of the formal submission of the opinions to the Commission.” 9
Finally, on September 3, the Newark Daily Advertiser published a letter from Bradley himself:
Stowe, Vt., Sept. 2, 1877
EDITOR OF THE Advertiser:
—I perceive that the New York Sun has reiterated its charge that after preparing a written opinion in favor of the Tilden electors in the Florida case, submitted to the Electoral Commission, I changed my views during the night preceding the vote, in consequence of pressure brought to bear upon me by Republican politicians and Pacific Railroad men, whose carriages, it is said, surrounded my house during the evening. This, I believe, is the important point of the charge. Whether I wrote one opinion, or twenty, in my private examination of the subject, is of little consequence, and of no concern to anybody, if the opinion which I finally gave was the fair result of my deliberations, without influence from outside parties. The above slander was published some time since, but I never saw it until recently, and deemed it too absurd to need refutation. But as it is categorically repeated, perhaps I ought to notice it. The same story about carriages of leading Republicans, and others, congregating at my house, was circulated at Washington at the same time, and came to the ears of my family, only to raise a smile of contempt. The whole thing is a falsehood. Not a single visitor called at my house that evening; and during the whole sitting of the Commission, I had no private discussion whatever on the subjects at issue with any person interested on the Republican side, and but very few words with any person. Indeed, I sedulously sought to avoid all discussion outside the Commission itself. The allegation that I read an opinion to Judges Clifford and Field is entirely untrue. I read no opinion to either of them, and have no recollection of expressing any. If I did, it could only have been suggestively, or in a hypothetical manner, and not intended as a committal of my final judgement or action. The question was one of grave importance, and, to me, of much difficulty and embarrassment. I earnestly endeavored to come to a right decision, free from all political or other extraneous considerations. In my private examination of the principal question (about going behind the returns), I wrote and re-wrote the arguments and considerations on both sides as they occurred to me, sometimes being inclined to one view of the subject, and sometimes to the other. But finally I threw aside these lucubrations, and, as you have rightly stated, wrote out the short opinion which I read in the Florida case during the sitting of the Commission. This opinion expresses the honest conclusion to which I had arrived, and which, after a full consideration of the whole matter, seemed to me the only satisfactory solution of the question. And I may add, that the more I have reflected on it since, the more satisfied have I become that it was right. At all events, it was the result of my own reflections and consideration, without
any suggestion from any quarter, except the arguments adduced by counsel in the public discussion, and by the members of the Commission in its private consultations.10
Thus matters stood for nearly three-quarters of a century, until historian Allan Nevins’ biography of Abram Hewitt was published in 1935. 11 Hewitt, it will be recalled, was the chairman of the Democratic National Committee during the election of 1876 and its aftermath.
In the early 1870s, Hewitt became active in the byzantine politics of New York City. He joined in the efforts to reform Tammany Hall and topple Boss Tweed. He lived in New York City, near Tilden. The two had known each other for some time, and became close friends. Tilden handpicked one of the congressional districts in Manhattan for which Hewitt would successfully run as a Democratic candidate in 1874.
Justice Samuel Miller, 1876.
Hewitt played no contemporary part in the attack on Bradley, but he had compiled what he called a “Secret History” of the disputed election, an account which lay dormant long after he died in 1903. But Nevins’ biography drew heavily on it, in particular in its account of Bradley’s decision as a member of the Electoral Commission. The only account of its origin given by Nevins is this:
Two years later he wrote out a secret history of the disputed election, which in 1895 he re-wrote and amplified. In this history, which he directed should never be published until all the men named therein were dead, he gave his own story of a contest in which, both as congressional leader and Democratic National Chairman, he played a vital role.12
Hewitt gives this account of Bradley’s vote on the Electoral Commission in the “Secret History”:
The history of this opinion forms an important feature in the final outcome of the electoral count. As stated above, Mr. John G. Stevens was the intimate friend of Judge Bradley. He passed the night previous to the rendition of the judgment in the Florida case at my house. About midnight he returned from a visit to Judge Bradley, and reported to General Richard Taylor, who was also staying with me, and to Senator Gibson, who was awaiting his return, that he had just left Judge Bradley after reading his opinion in favor of counting the vote of the Democratic electors of the State of Florida. Such a judgment insured the election of Tilden to the Presidency with three votes to spare above the necessary majority. We parted, therefore, with the assurance that all further doubt as to the Presidency was at rest. I attended the delivery of the judgment the next day without the slightest intimation from any quarter that Judge Bradley had changed his mind. In fact, the reading of the opinion until the few concluding paragraphs were reached was strictly in accordance with the report of Mr. Stevens.
The change was made between midnight and sunrise. Mr. Stevens afterwards informed me that it was due to a visit to Judge Bradley by Senator Frelinghuysen and Secretary Robeson, made after his departure. Their appeals to Judge Bradley were said to have been reinforced by the persuasion of Mrs. Bradley. Whatever the fact may have been, Judge Bradley himself in a subsequent letter addressed to the Newark Daily Advertiser admitted that he had written a favorable opinion which on subsequent reflection he saw fit to modify.
What to make of this? Even the sketchy description of the origin of the “Secret History” raises warning signals for anyone writing a history. There is no indication that the account was based on Hewitt’s contemporary notes; it appears that it was first written down from memory two years after the event—in 1879, that is—and then “revised and amplified” sixteen years later, in 1895. In 1879, two years after the events recounted, Hewitt was fifty-seven years old; in 1895, he was seventy-three years old. The portion of the account written in 1879 could be expected to have some mistakes in it, but that so much of it was “amplified” in 1895 made it dubious indeed.
From the part of the “history” quoted by Nevins, it is difficult to tell which is which. But even from the quoted sections, there is evidence that they themselves were the subject of the 1895 “amplification.” Hewitt first turns his attention to Bradley before the latter was chosen for the Commission. Speaking of the Democratic position after Davis had withdrawn his name from consideration for the Electoral Commission, he says:
Practically, therefore, the choice was limited to Justice Bradley, whom I had personally known for many years in New Jersey as a very able lawyer and a man of the highest integrity. The confidence which I felt in him was shared by Mr. Tilden, but in order to make assurance doubly sure I requested a mutual friend of Judge Bradley and myself, the late John G. Stevens of Trenton, New Jersey, to confer with Judge Bradley to ascertain whether he felt that he could decide the questions which would come before the Commission without prejudice or party feeling. The report of Mr. Stevens was entirely satisfactory.13
Two facts in connection with this one paragraph are worth noting. First, Bradley was regarded as a person of the highest integrity. Second, and perhaps more important, the paragraph refers to the late John G. Stevens. But Stevens did not die until 1886, when he committed suicide. (He had been subject to fits of depression.) Thus it is probable that the paragraph was at least amplified, if not composed, in 1895.
When we look at the full statement of Bradley’s supposed activities quoted on pages 193–194, it is at least in one important respect inconsistent with known facts. There is no way in which Hewitt could have “attended the delivery of the judgment the next day” and heard Bradley read his opinion. The opinions were read in a secret session of the Electoral Commission. The public was not informed of the Commission’s decision not to receive extrinsic evidence until late in the afternoon, after Miller’s motion had been carried in the closed session. The actual written opinions of the members were not made public until late February.
Garfield’s diary entry, as well as Bradley’s opinion itself, contradicts that part of the account which says that until the concluding paragraphs it appeared that Bradley would rule for Tilden. Bradley’s opinion is entirely consistent and quite organized; there was a surprise at the end, but that was with respect to taking extrinsic evidence on the claim against Humphreys as an elector.
In a court of law, one may testify to facts which he knows of his own knowledge, but not to those which he learns from others (the hearsay rule). Thus, for example, if Stevens came to Hewitt and told him that Bradley has said he will vote for Tilden, Hewitt may not testify to that fact although Stevens may. History would be undoubtedly the poorer and sparser if the hearsay rule were applied to the reconstruction of events such as the disputed election of 1876, but certainly firsthand knowledge is to be preferred over second- and thirdhand.
With respect to the opinion which Stevens says Bradley showed him, we must consider Stevens’ credibility as well as Hewitt’s. It seems odd that even a good friend would have called on Bradley so late in the evening and then be shown an opinion which would be read in a closed session the following day. It also seems odd that Bradley—a member of the Supreme Court for eight years, where absolute secrecy about opinions is customary until they are released to the public—would have shown his opinion to Stevens. These objections, of course, cannot prove that Stevens’ account was false, but they do raise questions about it.
Stevens was a wealthy New Jersey industrialist who committed suicide in 1886. The New York Times said in the final paragraph of his obituary:
. . . Mr. Stevens’s family has been one of great prominence, socially and financially. He, however, has of recent years been reported to be in embarrassed circumstances. Something over a year ago he was found nearly suffocated with gas in a room in Sixth-avenue, New York. Once before, it is said, he took an overdose of chloral and nearly died. Two of his brothers are said to have been inmates of insane asylums.
If Stevens himself had recorded the account of his visit to Bradley’s home, his credibility would have to be tested against Bradley’s, who flatly denied that anyone had visited him. But Stevens recorded nothing; what has survived is Hewitt’s account of what Stevens told him.
When we look at the next part of the account�
�the supposed change in the opinion “between midnight and sunrise” at the behest of Senator Frelinghuysen and Naval Secretary George Robeson—the credibility becomes much more strained. Hewitt says that Stevens “afterwards” informed him of this fact. When? A day later? Two years later? And how did Stevens know? The claimed visit of Frelinghuysen and Robeson by Stevens’ own account took place after he left Bradley’s house near midnight. So he could not have been present when the midnight visitors arrived. What is the basis for his knowledge of the visit? We are left to guess. And how likely is it that Frelinghuysen and Robeson—admittedly friends of Bradley’s—would have visited him after midnight to find out how he was going to vote? Frelinghuysen was a member of the Commission as well as a friend, and would have had ample opportunity at previous sessions of that body to make inquiry if he chose to do so.
Finally, why compile a “Secret History” of a very important event, with instructions that it be released only after the death of everyone who had participated? Members of the Supreme Court have had to confront a similar situation in dealing with their records of their deliberations in conference. Conferences are closed to the public, and records of these deliberations are regarded as absolutely privileged and confidential, in order to assure that each member of the conference will speak with complete candor on the issues of each case. But it is generally agreed that history also has its claims, and that eventually these records should be available to the public. An embargo of the sort which Hewitt put on his “Secret History” would make sense for the records of the Court’s conference. But there seems to be no reason to think that any similar concerns attended Hewitt’s memoir— there is no indication of any pledge of secrecy to the people who had given him information. Had Hewitt’s “Secret History” been made public when it was first composed in 1879, the various participants would have had an opportunity to comment on it, and Hewitt would not have had an opportunity to revise it sixteen years later.
Centennial Crisis- the Disputed Election of 1876 Page 17
