Part 11

"If precedent is to be weighed in counting the votes, let the spirit of the first example be wholly and rigidly observed. There is doubt, in the first election of Gl. Washington, the president of the Senate did perform that ministerial duty. But the order of the Senate, prepared by a committee, and signed by John Langdon, the prest. 'elected for that purpose,' expressly says 'the underwritten, appointed president of the Senate for the sole purpose of receiving, opening, and counting the votes of electors, did, in the presence of the Senate and House of Representatives,' etc., leaving it to be inferred (and no other conclusion will hold water) that in doing this his functions ceased. Subsequently, as you know, there were some variations from this practice, but all going to the mere ministerial agency of that officer.

"The bald attempt of McDonald, present chief clerk of the Senate, to cite a different practice, in the case of Harrison, when James W. Watson was president of the Senate, by construing his action in his (McDonald's) own language, as to imply judicial authority, does great violence to the truth of history and the greatest injustice to that astute and cautious statesman, who struggled all his life against the exercise of doubtful powers and was never known to practise one. This little incident on the part of McDonald is only a part of the well-laid scheme to revolutionize the government by seizure in the count of either of the returning boards in the subjugated States, should be conscience-stricken and obey the mandates of the Decalogue, rather than the tyrant's order, and cast the electoral vote for you, to whom all justly belong.

"Going through the pageant of a public inauguration is by no means called for, as you are well aware; and I would suggest that instead of allowing Sunday to intervene, that Grant's term expires at 12 o'c. at night on the 3d of March, when his power as Commander-in-Chief will cease, and when Sherman will not dare use the army for their hellish purposes. I make this suggestion for the reason that there is a tradition in the family of Mr. Jefferson, to whom I am nearly allied by marriage, handed down by himself, that being informed commissions were to be made out by Mr. Adams for judges and other officers after midnight, he (Jefferson) entered the office of Secretary of State precisely at 12 o'c. on the 3d of Mar. and demanded it of the Secretary, John Marshall, I think, who, after some remonstrance, yielded and delivered the keys to Mr. Jefferson. Allusion is made to those midnight appointments in his correspondence, but no mention is made of those particular circumstances. I had them from Col. L. G. Randolph, his grandson, confidential friend, executor and sole custodian of his papers until sold to Congress.

"Some persons apprehend that if the election devolves upon the House (which I cannot conceive possible on any reasonable grounds) we shall lose the Vice-President, whose choice will have to be decided by the Senate; but this cannot be, as the contingency will not arise for such a resort. For the Constitution expressly provides that 'the person having the greatest number of electors shall be President, if such number be the whole number of electors _appointed_.' Now, how can they be appointed unless lawfully done, and who is to judge of such legality? Certainly the House, or it may be both Houses. So if the electoral vote of a State be rejected by either, because of fraud, it is a nullity--no vote at all--and therefore not _appointed_, and cannot be estimated in the count, leaving you with 84, an undisputed majority of the electors actually _appointed_. For, mark! The Constitution does not require a majority of the whole Electoral College, but of those _appointed_.

"If there should be any discussion about the authority of the 'great seal of a State,' you are aware that it has been nowhere so fully ventilated as in the famous New Jersey contest for Congressional seats, when, if my memory serves me, the Govr's. certificate was only respected when there was no suspicion of fraud.

"I am, with great respect & haste,

"Your humble servt., "CHARLES MASON."

CHARLES A. DANA TO TILDEN

"_Dec. 15, 1876._

"DEAR SIR,--Here is a note from my regular Washington correspondent, which I send to you for your information.

Yours sincerely, "C. A. DANA."

A. M. GIBSON TO DANA

"WASHINGTON, D. C., _Dec. 13, 1876_.

"MY DEAR SIR,--There is undoubtedly danger of defection among Southern Democrats. The friends of Hayes are certainly bidding high in that direction, and I _know_ that their propositions are being entertained--listened to, considered. The combination between Jay Gould, C. P. Huntington, and Tom Scott, spoke of ten days since in my despatches, is now openly admitted here. Central Pacific gets all west of Ft. Worth and one-half of T. P. east of Fort Worth. The subsidy for T. P. is part of programme, as well as counting in of Hayes. Packard and Chamberlain are to be abandoned, and a new departure in Republican party policy is to date from Hayes' inauguration. I know what I am talking about. Can't you give Tilden a hint? His managers here don't get below the surface of things.

"Very truly, "A. M. GIBSON."

GENERAL WINFIELD SCOTT HANCOCK TO GENERAL SHERMAN

"CARONDELET P. O.,

"ST. LOUIS CO., MO., _December 28th, 1876_.

"MY DEAR GENERAL,--Your favor of the 4th inst. reached me in New York on the 5th, the day before I left for the West. I intended to reply to it before leaving, but cares incident to departure interfered. Then, again, since my arrival here, I have been so occupied with personal affairs of a business nature that I have deferred writing from day to day until this moment, and now I find myself in debt to you for another letter in acknowledgment of your favor of the 17th, received a few days since.

"I have concluded to leave here on the 29th (to-morrow), p.m., so that I may be expected in New York on the 31st inst. It has been cold and dreary since my arrival here. I have worked 'like a Turk' (I presume that means hard work) in the country, in making fences, cutting down trees, repairing buildings, etc., etc., and am at least able to say that St. Louis is the coldest place in the winter, as it is the hottest in summer, of any that I have encountered in a temperate zone. I have known St. Louis in December to have genial weather throughout the month; this December has been frigid, and the river has been frozen more solid than I have even known it.

"When I heard the rumor that I was ordered to the Pacific coast I thought it probably true, considering the past discussion on that subject. The _possibilities_ seemed to me to point that way. Had it been true I should, of course, have presented no complaint, nor made resistance of any kind. I would have gone quietly if not prepared to go promptly. I certainly would have been relieved from the responsibilities and anxieties concerning Presidential matters which may fall to those near the throne or in authority within the next four months, as well as from other incidents or matters which I could not control, and the action concerning which I might not approve. I was not exactly prepared to go to the Pacific, however, and I therefore felt relieved when I received your note informing me that there was no truth in the rumors.

"Then, I did not wish to appear to be escaping from responsibilities and possible dangers which may cluster around military commanders in the East, especially in the critical period fast approaching. 'All's well that ends well.' The whole matter of the Presidency seems to me to be simple and to admit of a peaceful solution. The machinery for such a contingency as threatens to present itself has been all carefully prepared. It only requires lubrication, owing to disuse. The army should have nothing to do with the selection or inauguration of Presidents. The people elect the President. The Congress declares in a joint session who he is; we of the army have only to obey his mandates, and are protected in so doing only so far as they may be lawful. Our commissions express that! I like Jefferson's way of inauguration. It suits our system. He rode alone on horseback to the capitol (I fear it was the 'old capitol'), tied his horse to a rail-fence, entered, and was duly sworn; then rode to the Executive Mansion, and took possession. He inaugurated himself simply by taking the oath of office. There is no other legal inauguration in our system. The people or politicians may institute parades in honor of the event, and public officials may add to the pageant by assembling troops and banners; but all that only comes properly after the inauguration, not before, and it is not a part of it. Our system does not provide that one President should inaugurate another. There might be danger in that, and it was studiously left out of the Charter. But you are placed in an exceptionally important position in connection with coming events. The capitol is in my jurisdiction also, but I am a subordinate, and not on the spot, and if I were, so also would be my superior in authority, for there is the station of the General-in-Chief.

"On the principle that a regularly elected President's term of office expires with the 3rd of March (of which I have not the slightest doubt), and which the laws bearing on the subject uniformly recognize, and in consideration of the possibility that the lawfully elected President may not appear until the 5th of March, a great deal of responsibility may necessarily fall upon you. You hold over! You will have power and prestige to support you. The Secretary of War is the mouthpiece of a President; you are not. If neither candidate has a constitutional majority of the Electoral College, or the Senate and House, on the occasion of the count, do not unite in declaring some person legally elected by the people, there is a lawful machinery already provided to meet that contingency and decide the question peacefully. It has not been recently used, no occasion presenting itself, but our forefathers provided it.

"It has been exercised, and has been recognized and submitted to as lawful, on every hand. That machinery would probably elect Mr. Tilden President and Mr. Wheeler Vice-President. That would be right enough, for the law provides that in a failure to elect duly by the people, the House shall immediately elect the President, and the Senate the Vice-President. Some tribunal must decide whether the people have duly elected a President. I presume, of course, that it is in the joint affirmative action of the Senate and House, or why are they present to witness the count if not to see that it is fair and just? If a failure to agree arises between the two bodies there can be no lawful affirmative decision that the people have elected a President, and the House must then proceed to act, not the Senate. The Senate elects Vice-Presidents, not Presidents. Doubtless, in case of a failure by the House to elect a President by the 4th of March the President of the Senate (if there be one) would be the legitimate person to exercise Presidential authority for the time being, or until the appearance of a lawful President, or for the time laid down in the Constitution. Such course would be peaceful, and, I have a firm belief, lawful.

"I have no doubt Governor Hayes would make an excellent President. I have met him, know of him. For a brief period he served under my command, but as the matter stands I can't see any likelihood of his being duly declared elected by the people unless the Senate and House come to be in accord as to the fact; and the House would, of course, not _otherwise_ elect him. What the people want is a peaceful determination of this matter, as fair a determination as possible, and a lawful one. No other administration could stand the test. The country, if not plunged into revolution, would become poorer day by day, business would languish, and our bonds would come home to find a depreciated market.

"I was not in favor of the military action in South Carolina recently, and if Genl. Ruger had telegraphed to me or asked for advice, I would have advised him not under any circumstances to allow himself or his troops to determine who were the lawful members of a State Legislature. I could not have given him better advice than to refer him to the special message of the President in the case of Louisiana some time before.

"But in South Carolina he had had the question settled by a decision of the Supreme Court of the State--the highest tribunal which had acted on the question--so that his line of duty seemed even to be clearer than the action in the Louisiana case. If the Federal court had interfered and overruled the decision of the State court there might have been a doubt certainly, but the Federal court only interfered to complicate, not to decide or overrule.

"Anyhow, it is no business of the army to enter upon such questions, and even if it might be so in any other event, if the civil authority is supreme, as the Constitution declares it to be, the South Carolina case was one in which the army had a plain duty.

"Had General Ruger asked me for advice, and if I had given it, I should, of course, have notified you of my action immediately, so that it could have been promptly overruled if it should have been deemed advisable by you or other superior in authority. General Ruger did not ask for my advice, and I inferred from that and other facts that he did not desire it, or that, being in direct communication with my military superiors at the seat of government, who were nearer to him in time and distance than I was, he deemed it unnecessary. As Genl. Ruger had the ultimate responsibility of action, and had really the greater danger to confront in the final action in the matter, I did not venture to embarrass him by suggestions. He was a department commander and the lawful head of the military administration within the limits of the department; but, besides, I knew that he had been called to Washington for consultation before taking command, and was probably aware of the views of the administration as to civil affairs in his command. I knew that he was in direct communication with my superiors in authority in reference to the delicate subjects presented for his consideration, or had ideas of his own which he believed to be sufficiently in accord with the views of our common superiors to enable him to act intelligently according to his judgment and without suggestions from those not on the spot, and not as fully acquainted with the facts as himself. He desired, too, to be free to act, as he had the eventual greater responsibility, and so the matter was governed as between him and myself.

"As I have been writing thus freely to you, I may still further unbosom myself by stating that I have not thought it lawful or wise to use Federal troops in such matters as have transpired east of the Mississippi within the last few months, save so far as they may be brought into action under the article of the Constitution which contemplated meeting armed resistance or invasion of a State more powerful than the State authorities can subdue by the ordinary processes, and then only when requested by the Legislature, or, if it could not be convened in season, by the Governor; and when the President of the United States intervenes in that manner it is a state of _war_, not peace.

"The army is laboring under disadvantages, and has been used unlawfully at times, in the judgment of the people (in mine, certainly), and we have lost a great deal of the kindly feeling which the community at large once felt for us. 'It is time to stop and unload.'

"Officers in command of troops often find it difficult to act wisely and safely when superiors in authority have different views of the law from theirs, and when legislation has sanctioned action seemingly in conflict with the fundamental law, and thus generally defer to the known judgment of their superiors. Yet the superior officers of the army are so regarded in such great crises, and are held to such responsibility, especially those at or near the head of it, that it is necessary on such momentous occasions to dare to determine for themselves what is lawful and what is not lawful under our system if the military authorities should be invoked, as might possibly be the case, in such exceptional times when there existed such divergent views as to the correct result. The army will suffer from its past action if it has acted wrongfully. Our regular army has little hold upon the affections of the people of to-day, and the superior officers should certainly, as far as lies in their power, legally and with righteous intent, act to defend the right--to us--the _law_ and the institutions we represent. It is a well-meaning Constitution, and it would be well if it should have an opportunity to be recognized as a bulwark in support of the people and _the law_.

"I am, Truly Yours, (Signed) "WINFD. S. HANCOCK.

"_To General W. T. Sherman_, "_Com'd'g Army of the U. S., Washington, D. C._"

HON. GEORGE HOADLEY TO THE "EVENING POST," JULY, 1901

(MRS. SPRAGUE AND THE ELECTORAL COMMISSION OF 1876)

"To the Editor of the 'Evening Post.'

"SIR,--My attention has been called to an article which appeared in the _Evening Post_ of Saturday, June 30, giving an account of the various Democratic national conventions, in the course of which there is, I think, a cruel and untrue attack upon the memory of a lady who had hard luck enough in this world, without being followed into her grave, the late Mrs. Katherine Chase (Sprague). The statement is directly made that a bolt from the decision of the electoral tribunal which counted in Hayes in 1877 had been organized by Mr. Conkling, but that he was deterred from executing it by Mrs. Sprague's interference, based on revenge for Mr. Tilden's opposition to her father's nomination by the Democratic convention in 1868.

"I do not believe there is one word of truth in this story, so far as it relates to Mrs. Sprague. It is perfectly true that Mr. Conkling organized such a bolt, and that he secured the adhesion of Senators enough to have reversed the decision of the electoral tribunal in the matter of the Louisiana electoral vote, and would in this way have made Mr. Tilden President had circumstances not happened to break up the scheme, in consequence of which he went to Baltimore, and was not in the Senate and did not vote on the subject that day.

"I was in Washington at the time, and possessed the confidence of the Democratic leaders, and argued, as you know, the Florida and Oregon cases. My information was, in one sense, second hand. I possessed Mr. Conkling's confidence with regard to the general subject. I knew perfectly what his views were. He did not hesitate to express them fully, even going so far as to state them at length in conversation with myself and my wife and Senator John W. Stevenson, of Kentucky, on the street in front of the Arlington, a few days before the decision of the electoral tribunal. He put the case as it stood in his mind in the most vivid terms. He was a master of vituperative language, as you know, and he did not spare anybody; but more especially he put the matter as a question of law, and with more ability than I have ever heard it done by any one else, but I have not time within the confines of a letter to repeat what he said. Whether Mrs. Sprague was in Washington at this time I do not know.

"The only person on the Democratic side who communicated with Mr. Conkling was Senator William H. Barnum, of Connecticut, chairman of the Democratic National Executive Committee. Mr. Barnum talked to others, as he deemed it discreet, but we all thought it unwise that any one on our side should approach any one on the opposite side of politics, except Senator Barnum. During the afternoon of the day before the final vote was given in the Senate on the Louisiana case, Senator Stevenson, whose daughter was the wife of one of my partners, and who was until he died my very dear and honored friend, communicated to me, as having come to him from Senator Barnum, all the details of what I may call, for brevity's sake, 'this plot' to arrest the high-handed dealings of the Republicans, and I went to bed that night in full confidence that Mr. Tilden would be placed on a legal basis for inauguration to the Presidency in the morning. Eight (or nine) Senators had agreed with each other to cast their votes in the Senate so as to reverse the judgment of the electoral tribunal in the Louisiana case.

"When I came down to breakfast in the morning, William R. Pelton, Gov. Tilden's nephew, told me that 'the fat is all in the fire'; that at two o'clock in the morning _one of the Senators_, whose name, for reasons personal to myself and to him, I do not feel at liberty to use, had come to Senator Conkling and told him that he did not dare to go any further with the enterprise; that his political and perhaps his personal future would be ruined if he did not vote for Hayes. Conkling thereupon made up his mind that the game was lost, and took the earliest train to Baltimore, where he would, as Pelton said, spend the day, and where he did, as I afterwards learned, spend the day. Although I possessed Mr. Conkling's confidence and regard (I have a letter from him somewhere, couched in more earnest terms of gratitude than I ever received from any other human being), I never spoke with him on this subject. My information was derived entirely from Senator Stevenson and William T. Pelton, with the latter of whom I was, as I have already explained I was with the former, on terms of confidence.

"During this period I never heard Mrs. Sprague's name mentioned. I do not know whether she was in Washington or not. I was her father's friend, as you probably know, and I was her friend, and in the matter of the divorce from Gov. Sprague I was (with Winchester Britton, of Brooklyn) her counsel, and procured her divorce. I have had many consultations with both Pelton and his uncle upon various political and personal matters, but never heard this matter alluded to by either of them, or by Mrs. Sprague, and I do not believe that the story has any foundation in truth whatever. She knew perfectly well, for many years before she died, that I was a friend of Gov. Tilden's; that my wife and I both had enjoyed his personal hospitality, and knowing, as she did, my feelings towards her father, and having been her legal agent and representative, as I was, in association with the late Richard T. Merrick, in an attempt, which never came to daylight, to kill Judge Warden's grotesque biography of S. P. Chase, this is the first time I ever heard any interference of hers in the matter of the electoral tribunal even referred to. Mrs. Sprague has left children and friends who mourn over her sad fate and grieve at her death, and, among others,

"GEO. HOADLEY.

"[Judge Hoadley's means of information are certainly unsurpassed. We accept his statement as conclusive on the point at issue.--ED. _Evening Post_.]"